363 Ga. App. 325
Ga. Ct. App.2022Background
- Wise Business Forms purchased contiguous parcels (1984–1996) whose property contains a 36-inch metal drainage pipe (the Subject Pipe) installed circa 1985 that connects to a feeder structure on an adjacent undeveloped two-acre tract (Corner Tract).
- The McFarland Parkway widening project (completed 2000) installed a stormwater system that allegedly increased runoff routed through the feeder structure and the Subject Pipe under Wise’s property.
- In June 2016 Wise observed a sinkhole in its parking lot, conducted testing (ping-pong-ball tracing) and robotic inspection, and concluded the bulk of water in the Subject Pipe derived from storm drains installed by the McFarland project.
- Wise sued Forsyth County and GDOT asserting per se taking, inverse condemnation (permanent and abatable nuisance), attorney fees, and 42 U.S.C. § 1983 claims. Defendants moved to dismiss; the trial court granted dismissal.
- On appeal the Court of Appeals held the trial court erred in requiring an expert affidavit under OCGA § 9-11-9.1 for Wise’s permanent-nuisance claim (because the claim was premised on intentional acts), but affirmed dismissal on statute-of-limitations and pleading grounds; Forsyth County’s cross-appeal was dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9-11-9.1 required an expert affidavit for Wise’s inverse-condemnation (permanent nuisance) claim | Labelling the claim required expert proof of causation and thus an expert affidavit | § 9-11-9.1 applies only to professional-malpractice/negligence claims, not intentional-act nuisance claims | Court: § 9-11-9.1 did not apply, so requiring an expert affidavit was error, but dismissal affirmed on other grounds |
| Whether Wise’s permanent-nuisance inverse-condemnation claim was barred by the 4‑year statute of limitations and when it accrued | Accrual should run from discovery of sinkhole (2016) | Accrual ran from completion/operation of McFarland project (2000) when increased runoff became observable | Court: claim accrued in 2000; four‑year limitations barred the 2016 suit (no discrete new harm tolled limitations) |
| Whether Wise adequately pleaded an abatable nuisance (duty to maintain the Subject Pipe) | The county knew pipe location and the pipe functioned as part of the McFarland drainage system (de facto duty) | Wise failed to allege facts showing defendants accepted control or had a duty to maintain the Subject Pipe | Court: pleadings insufficient to show duty; moreover the alleged nuisance is permanent (enduring design choice), so limitations analysis applies and bars claim |
| Whether per se taking claim was timely | Accrual should be tolled until physical manifestation (sinkhole) | Taking accrued on installation/operation of public works (completion in 2000) and is subject to 4‑year limit | Court: per se taking accrued upon project completion (2000) and is time‑barred; Wise effectively abandoned the claim but dismissal was correct |
Key Cases Cited
- Labovitz v. Hopkinson, 271 Ga. 330 (1999) (OCGA § 9-11-9.1 applies to professional‑negligence claims; intentional acts not covered)
- Oglethorpe Power Corp. v. Forrister, 289 Ga. 331 (2011) (permanent nuisance accrual begins when some portion of harm becomes observable)
- Liberty County v. Eller, 327 Ga. App. 770 (2014) (inverse‑condemnation nuisance claims governed by 4‑year limitation; accrual on observable harm)
- Mitchell v. City of Atlanta, 217 Ga. 202 (1961) (cause of action for taking accrues upon installation/operation of public works)
- Stroud v. Hall County, 339 Ga. App. 37 (2016) (increase in degree of same type of flooding is not a new harm to toll limitations)
- Dept. of Transp. v. Mixon, 355 Ga. App. 463 (2020) (distinguishing negligence‑based expert affidavit requirements from intentional‑act claims)