Daniel E. McBrayer, Sr. v. Governors Ridge Office Park Association, Inc., A21A0262

Background:

McBrayer operated Alpha OBGYN (including abortion services) from a unit in Governors Ridge office park, a commercially zoned development that houses other medical practices.
Protestors regularly gathered outside the park, sometimes harassing invitees and displaying graphic signs; one suspicious fire occurred at McBrayer’s building in 2012.
Governors Ridge owners complained in the late 1990s and 2000s about loitering, littering, and bodily "voiding" in common areas they attributed to McBrayer’s patients; the association invoked Declaration Section 9.09 and assessed daily sanctions beginning in 2010.
Governors Ridge sued in 2013 alleging nuisance and breach of the Declaration; a jury awarded over $1.17 million plus attorney fees; the trial court denied McBrayer’s motion for new trial.
On appeal the Court of Appeals reversed the denial of the motion for new trial, holding key theories of liability lacked evidentiary support and remanded for further proceedings.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether lawful operation of an abortion clinic can be a common-law nuisance because it offends neighbors and attracts protests	Governors Ridge: The clinic’s nature is offensive, disrupted commerce, and is "out of character" for the park, constituting a nuisance	McBrayer: Clinic is lawfully operating in properly zoned office park and did not unlawfully conduct services	Held: Reversed — lawful, properly zoned conduct that merely offends or attracts protestors is not a nuisance absent unlawful or intrusive operations
Whether fear of violence (single fire; violence at other clinics) supports nuisance liability	Governors Ridge: Fire and awareness of violence at other clinics made owners fear for safety, creating nuisance	McBrayer: Single incident and remote events elsewhere do not create a continuing nuisance linked to his property	Held: Reversed — a single incident and crimes elsewhere do not establish a continuous nuisance or legal basis for liability
Whether loitering, littering, and bodily voiding by clinic invitees constituted nuisance	Governors Ridge: Invitees loitered, littered, and committed bodily voiding in common areas, harming use and value	McBrayer: Evidence did not show unlawful loitering or connect invitees to littering/voiding with sufficient frequency or proof	Held: Mixed — "loitering" (waiting in cars) not shown to meet loitering statute; littering/voiding lacked evidentiary connection but could be proven on retrial
Whether Declaration Section 9.09 supports liability for the claimed conduct	Governors Ridge: Covenant prohibits nuisances/embarrassment/annoyance and permits sanctions; McBrayer breached it	McBrayer: Covenants must be clear; restrictions construed narrowly and cannot ban lawful uses simply because offensive	Held: Reversed as to broad enforcement — covenant is enforceable only to the extent the conduct fits common-law nuisance; vague provisions cannot be used to recover absent nuisance-level conduct (but littering/voiding (if proven) could breach the Declaration)

Key Cases Cited

Cook v. Huff, 274 Ga. 186 (appellate standard for reviewing denial of new trial on general grounds)
Terry v. Catherall, 337 Ga. App. 902 (definition of nuisance and requirement of control over cause)
City of Douglasville v. Queen, 270 Ga. 770 (lawful conduct cannot be a nuisance unless conducted illegally or in a nuisance manner)
Wilson v. Evans Hotel Co., 188 Ga. 498 (offensiveness alone insufficient to constitute nuisance)
Effingham County Bd. of Comm’rs v. Shuler Bros., 265 Ga. App. 754 (lawfully authorized business not a nuisance)
Anderson v. Atlanta Comm. for Olympic Games, Inc., 261 Ga. App. 895 (legally operated facility not a nuisance simply because it attracts crime)
Poultryland, Inc. v. Anderson, 200 Ga. 549 (lawful act in wrong place can be nuisance; context limited to neighborhood/residential conflicts)
Douglas v. Wages, 271 Ga. 616 (restrictive covenants must be clear and are strictly construed)
Barnes v. St. Stephen’s Missionary Baptist Church, 260 Ga. App. 765 (single isolated occurrence does not establish nuisance)
City of Atlanta v. Murphy, 194 Ga. App. 652 (nuisance established where operation violated regulations and attracted vermin/odors)