STROUD et al. v. HALL COUNTY
A16A1062
Court of Appeals of Georgia
OCTOBER 20, 2016
793 SE2d 104
PETERSON, Judge.
Similarly, in Robison v. State, 277 Ga. App. 133 (625 SE2d 533) (2006), a victim was entitled to use force against the defendant, who was initially in the house as a guest, because the defendant left the house when asked to, retrieved a meat cleaver from his car, and returned to chase the victim into his bedroom. Id. at 133-134. The defendant‘s re-entry into the habitation was violent and tumultuous, and the victim reasonably believed he was returning to assault him. Id. at 134. In contrast, the victim in this case was invited into the house and never left. Because the uncontroverted evidence adduced at trial would not have authorized a charge of defense of habitation, the trial court committed no abuse of discretion in finding that trial counsel‘s withdrawal of that charge was not deficient performance. Absent a finding of deficient performance, we need not consider whether withdrawing the defense of habitation charge prejudiced Harris‘s defense.
Judgment affirmed. Boggs and Rickman, JJ., concur.
DECIDED OCTOBER 20, 2016
Brock Law, Chaunda F. Brock, for appellant.
Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
So viewed, Don Stroud purchased and began living on the property in question (“the Property“) in 1969. The County owns and maintains Walter Stover Road (“the Road“), which runs along one side of the Property. The County officially accepted the Road as a county road in 1984, but Don Stroud testified that he has seen County trucks performing maintenance on the road ever since he purchased the Property.
Don Stroud testified that, at the time he purchased the Property, it was six to seven inches higher than the Road, and storm water naturally flowed off the Property and over the Road. In the early 1980s, Don
The Strouds attribute this ponding to an increased elevation of the Road as a result of the County‘s maintenance of the Road. As part of its maintenance of the Road, the County periodically scrapes the road and installs additional gravel on it. The Strouds claim the Road has become higher due to inadequate scraping when new gravel is added. Don Stroud testified that the County has been “using my yard for [a] detention pond” for 30 years. He testified that he did not know the elevation difference today, although at one point he opined that the Road may be about six inches higher than the Property. In 2013, in an effort to stop the flow of water into the yard, Don Stroud had a wall erected about ten feet from the Road‘s right-of-way. He says the wall was significantly higher than the Road when installed, but the Road‘s elevation has since risen to a height almost equal to that of the wall.
In addition to the flooding, the Strouds have complained about the County‘s removal of vegetation from their property while maintaining the Road. In his deposition, Don Stroud testified that the County once used a “bush hog” that destroyed an area of ground cover on the Property. In a subsequent affidavit, Don Stroud testified that the “bush hogging incident” occurred in July 2012.
The Strouds say that the flow of water onto the Property causes erosion and deposits of mud, kills vegetation, results in downed trees, and prohibits the use of that part of the Property. They contend that the County‘s action diminished the value of the Property. In their depositions, the Strouds both said that they did not know the current fair market value of the Property. In his subsequent affidavit, Don Stroud offered two alternative measures of damages. First, he attached a $26,050 estimate from a landscape architect for raising the level of the Property such that water no longer would flow from the Road onto the Property. Second, Don Stroud gave his opinion, “based on [his] review of other asking prices for building lots in Hall County,” that the value of the portion of the Property that the County has “totally taken” is worth not less than $10,000 as a building lot. Additionally, he opined that he has lost the value of at least $2,500 worth of vegetation and three trees worth about $10,500.
Don Stroud testified that he gave verbal notice to the County about the flooding problem shortly after he first observed it in the early 1980s. He complained periodically thereafter. In 2013, County engineering personnel gave County commissioners four options for addressing Don Stroud‘s complaints. Three of the options involved installation of piping to assist with drainage; the other involved lowering and paving a short section of the Road. The commission did not implement any of those options.
On June 24, 2014, the Strouds brought a verified complaint against the County, asserting claims of trespass, nuisance, and inverse condemnation. The trial court granted the Strouds’ motion for a temporary injunction, prohibiting the parties from disturbing the status quo as to the flow of water between the Property and the Road, absent mutual agreement. Shortly thereafter, the County filed a motion for summary judgment, which the trial court granted. The trial court found that there was no evidence in the record that the County caused any elevation of the Road relative to the Property. The trial court found there was no competent evidence of damages because the landscaper‘s estimate was hearsay and Don Stroud‘s testimony about the value of his property as a building lot did not state a proper basis for his opinion. The trial court also found that the action was barred by the four-year statute of limitations because the claimed nuisance was a permanent one and any increased ponding was a change in degree, not a new harm that would restart the limitations period. The Strouds challenge each of these three alternative bases for summary judgment on appeal.
1. First, the Strouds argue that the trial court erred in concluding that there was no evidence that the County caused any elevation of the Road relative to the Property. We agree that the trial court erred.
Here, the trial court found that the record lacked evidence of causation because Don Stroud‘s testimony that the Property used to be six to seven inches above the Road and now is below the Road (1) was “a conclusion ‘unsupported’ by anything” and (2) did not amount to evidence that the County did anything to cause any change to the relative elevations of the property and the Road. However, “[a] witness knowledgeable of the facts, even though not an expert, may give his opinion as to whether or not there has been an increase in the flow of water onto property.” Tyler v. Lincoln, 236 Ga. App. 850, 852 (1), n.4 (513 SE2d 6) (1999) (citation omitted) (reversed on other grounds by 272 Ga. 118 (527 SE2d 180) (2000)). And Don Stroud testified not only that the elevation changed, but also that the elevation of the Road was caused by the County‘s repeated grading of the Road by adding gravel. His son gave similar testimony to that effect.
We repeatedly have held that a lay witness’ personal observations about water flow are probative of causation issues in a nuisance case. See Newton‘s Crest Homeowners’ Ass‘n v. Camp, 306 Ga. App. 207, 211-12 (1) (702 SE2d 41) (2010) (homeowners’ testimony that defendant‘s work on nearby subdivision and road increased amount and velocity of stormwater, silt, and mud running onto their property and that excessive runoff caused damage “was not mere speculation or conjecture, but was competent and admissible evidence“); Green v. Eastland Homes, Inc., 284 Ga. App. 643, 645-47 (1) (644 SE2d 479) (2007) (lay testimony as to excessive runoff after development of adjoining property, along with expert testimony that the runoff was caused by the defendants’ development and construction activities, was sufficient causation evidence for plaintiff to avoid summary judgment); Tyler, 236 Ga. App. at 852 (1) (testimony of plaintiff and his expert, photographs, and letter from railroad company that controlled adjacent track would authorize jury to find that development of subdivision had increased flow of surface water and sediment onto plaintiffs’ property); DeKalb Cty. v. McFarland, 231 Ga. 649, 653 (2) (g) (203 SE2d 495) (1974) (no error to allow plaintiff to give his opinion as to whether the flow of water to his property has increased during the time he had owned the property); but see Bord, 335 Ga. App. at 23 (1) n.6 (citing Newton‘s Crest but declining to consider, given sufficiency of expert testimony, whether plaintiffs’ personal observations standing alone are sufficient to raise issue of causation).1 The trial court erred in finding that the Strouds had pointed to insufficient evidence of causation to withstand the County‘s motion for summary judgment.
2. The Strouds also argue that the trial court erred in ruling that their failure to prove damages meant the County was entitled to summary judgment. We agree with the Strouds on this point, as well.
The trial court faulted the Strouds’ evidence of damages as reliant on hearsay and Don Stroud‘s unsupported opinion. However, a plaintiff‘s failure to produce probative evidence of a specific amount of damages is not a viable basis for summary judgment. See Tyler, 236 Ga. App. at 852-53 (1). Rather, “[t]he law infers some damage from the invasion of a property right; and if no evidence is given of any particular amount
Here, any deficiencies in the evidence offered by the Strouds as to the measure of their damages is not a basis for summary judgment. Although of course some sort of injury is an element of a nuisance claim, the law will infer such an injury to the extent that the Strouds prove their property rights have been invaded. Moreover, the Strouds testified to specific injuries: erosion and deposits of mud, compromised trees and vegetation, and inability to use a portion of the Property. The trial court therefore erred by granting summary judgment on this alternative ground.
3. The Strouds also argue that the trial court erred in granting summary judgment on the ground that their claim is barred by the statute of limitations. To the extent that the Strouds’ claim is based on the County‘s maintenance of the Road causing flooding on the Property, we agree.
Under
In cases involving flooding, Georgia courts have characterized claims based on the mere presence or installation of some fixed object, such as a pipe or culvert, as claims of a permanent nuisance. See Kleber, 285 Ga. at 416-17 (1); City of Columbus v. Cielinski, 319 Ga. App. 289, 292 (1) (734 SE2d 922) (2012). However, they have characterized allegations that improper maintenance of such a drainage system causes flooding as claims of a continuing nuisance. See Kleber, 285 Ga. at 417 (1); City of Columbus, 319 Ga. App. at 292 (1). Similarly, when a plaintiff alleged that a developer‘s grading of an adjacent property caused water and dirt to flow onto the plaintiff‘s property during rainstorms, our Supreme Court held that the allegation was one of a continuing nuisance. See Shaheen v. G & G Corp., 230 Ga. 646, 648 (2) (198 SE2d 853) (1973).
claim is based on harm experienced prior to that period, or harm caused by the existence of the Road itself, we affirm the grant of summary judgment to the County.
4. The Strouds also argue that the trial court erred by neglecting to address its inverse condemnation claim to the extent that it was based on a trespass theory, as opposed to nuisance. The Strouds say that their trespass claim is premised on both flooding caused by the County‘s maintenance of the Road, as well as the County‘s removal of shrubbery and ground cover as part of that maintenance. Indeed, the trial court did not address the Strouds’ trespass theory separately in its order.
With respect to the Strouds’ trespass claims based on flooding, the County clearly argued in its motion for summary judgment that the statute of limitations had run on any claim based on the theory that the County had created ponding on the Strouds’ property. As noted above, a four-year statute of limitations governs trespass claims. See
The Strouds also press a trespass claim based on the County‘s removal of ground cover from the Property during its maintenance of the Road. In his deposition, Don Stroud testified that on one occasion the County used a “bush hog” that destroyed an area of ground cover on the Property. After the County moved for summary judgment, Don Stroud submitted his affidavit, based on which the Strouds claim that the County destroyed ground cover on the Property on multiple occasions. The County argues that there is no evidence of any destruction of ground cover other than one alleged bush hogging incident.
The County argued before the trial court, and argues now on appeal, that a claim based on this single incident fails because (1) it does not rise to the level of the kind of repetitive or continuous act that is necessary to press a claim against the County and (2) it is barred by the applicable ante litem notice statute. But reading Don Stroud‘s affidavit in the light most favorable to the Strouds, as we must, there is evidence of multiple incidents of ground cover removal by the County.6 Don Stroud testified in his affidavit that “[a]s part of its maintenance, the County has scraped and bush hogged portions of [the] Property, which has resulted in the damaging, taking and killing of certain vegetation[.]” Although Don Stroud in his affidavit goes on to say that a certain bush hogging incident occurred in July 2012, he does not say that this was the only time the County‘s maintenance activities destroyed his vegetation. Given that the Strouds have presented evidence that the County‘s maintenance activities destroyed vegetation on the Property on multiple occasions, the County‘s arguments premised on the notion that there is evidence of only one such occasion are unavailing. By granting summary judgment based on the Strouds’ claims over these alleged incidents, the trial court erred.
Judgment affirmed in part and reversed in part. Phipps, P. J., and Dillard, J., concur.
DECIDED OCTOBER 20, 2016.
Hulsey, Oliver & Mahar, Julius M. Hulsey, T. Wesley Robinson, for appellants.
Freeman Mathis & Gary, Dana K. Maine, Coleen D. Hosack; Stewart, Melvin & Frost, William H. Blalock, Jr., for appellee.