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Home » Thomas v. Henry Cnty. Water Auth

Thomas v. Henry Cnty. Water Auth

Thomas v. Henry Cnty. Water Auth., A23A0362, 2023 WL 2983097 (Ga. Ct. App. Apr. 18, 2023)

Ante Litem Notice

[The Water Authority] argues that because it has the same immunity as Henry County, it must be viewed as a “county” for ante litem purposes, entitling it to notice under OCGA § 36-11-1. To support this argument, HCWA cites our decision in City of Columbus v. Barngrover, 250 Ga. App. 589, 596-597 (4), 552 S.E.2d 536 (2001), which addressed whether the ante litem notice provision for a municipality (requiring notice within six months of the claim) or a county (requiring notice within twelve months of the claim) applied to the plaintiffs’ nuisance action.

According to its clear language, OCGA § 36-11-1 applies to counties. We find no basis for extending the statute’s reach to an independent, legislatively-created public water authority. See generally In re Whittle, 339 Ga. App. 83, 86 (1), 793 S.E.2d 123 (2016) (“[W]hen the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”) (citation and punctuation omitted).

Immunity from Suit

Reaching beyond the confines of sovereign immunity, HCWA also argues more generally that a county “is ‘immune from suit’ from claimants who fail to tender proper and timely ante litem notice.” Since it enjoys the same immunity as Henry County, HCWA asserts that the lack of ante litem notice similarly renders it “immune from suit.” We cannot conclude, however, that “immunity” results when a claimant fails to comply with OCGA § 36-11-1. On the contrary, “a cause of action against a county does not exist unless the claim has been presented within 12 months after its accrual.” Warnell, 328 Ga. App. at 904, 763 S.E.2d 284 (emphasis supplied). The county is not “immune from suit” in this situation; the suit is nonexistent. Immunity, which arises when a person is exempt from a service, obligation, or duty,3 is not at play here. The Thomases were not required to provide notice of suit to HCWA under OCGA § 36-11-1. The trial court, therefore, erred in dismissing the complaint on this basis.