DeKalb County v. Heath
331 Ga. App. 179
Ga. Ct. App.2015Background
- Heath sued DeKalb County in 2009 (Heath I) for inverse condemnation, alleging poor maintenance of county sewer/storm drainage caused flooding and erosion; a jury awarded $7,000 for diminution in property value.
- In March 2011, while Heath I was pending, Heath filed a separate action alleging the county-built block retaining wall on his property (installed 2007) began failing after Heath I was filed and continued to deteriorate with each rain event.
- Heath II sought the cost to repair the failing retaining wall to prevent further damage; the bench trial awarded $28,830 for repair costs.
- County appealed, arguing (1) res judicata barred Heath II because Heath could have added the claim in Heath I, and (2) Heath obtained an impermissible double recovery (diminution plus repair costs).
- The trial court rejected both arguments and the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars Heath II | Heath: the wall failure occurred after Heath I; new continuing nuisance gives rise to a new cause of action | County: Heath could have amended or supplemented Heath I to include the retaining-wall damages, so the claim is barred | Court: Res judicata does not apply; the wall’s post-filing failure created a fresh, continuing nuisance and a new cause of action |
| Whether award permits double recovery | Heath: award is for repair costs to stop continuing damage, not for diminution already recovered | County: Heath already recovered diminution in Heath I, which included the wall, so repair award duplicates recovery | Court: No double recovery; different types of damages (diminution vs. cost to repair) are permissible where they address different harms |
Key Cases Cited
- Fedina v. Larichev, 322 Ga. App. 76 (2013) (inverse condemnation and nuisance principles)
- Ga. Dept. of Transp. v. Jackson, 322 Ga. App. 212 (2013) (defines inverse condemnation claim)
- Waldroup v. Greene County Hosp. Auth., 265 Ga. 864 (1995) (res judicata prerequisites and identity of cause of action)
- Shaheen v. G & G Corp., 230 Ga. 646 (1973) (transient nuisance vs. permanent nuisance; fresh action for continuing nuisance)
- Dunn v. Payne, 205 Ga. App. 440 (1992) (continuance of injurious acts can support new action)
- Lawson v. Watkins, 261 Ga. 147 (1991) (distinguishing recoveries for diminution and repair under nuisance/trespass)
- City of Gainesville v. Waters, 258 Ga. App. 555 (2002) (damages for continuing nuisance)
- Ga. Northeastern R. v. Lusk, 277 Ga. 245 (2003) (plaintiff cannot recover both diminution and repair costs for the same injury, but may recover both where appropriate to prevent further damage)