Baumann v. Snider
| Decision Date | 24 March 2000 |
| Docket Number | No. A99A2124.,A99A2124. |
| Citation | 532 S.E.2d 468,243 Ga. App. 526 |
| Parties | BAUMANN et al. v. SNIDER et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Smith, Schroeder & O'Connell, John J. O'Connell, Jr., Atlanta, for appellants.
Savell & Williams, John C. Parker, Lisa J. Bucko, Atlanta, for appellees. RUFFIN, Judge.
Christopher and Karen Baumann sued their neighbors, Michael Snider and Julie Abston, for trespass and nuisance, claiming that improvements Snider and Abston had made to their property caused increased rainwater runoff onto the Baumanns' property. After a jury found in favor of the Baumanns, Snider and Abston filed a motion for judgment notwithstanding the verdict, which the trial court granted. The Baumanns appeal, and for reasons that follow, we reverse and remand with direction.
The evidence, viewed most favorably to support the jury verdict, shows the following. The Baumanns' home lies downhill from the neighboring Snider/Abston residence. There is a natural runoff of rainwater from the Snider/Abston property to the Baumann property. After Snider and Abston purchased their residence in 1992, they gradually stripped the existing vegetation on their lot, which had previously included a dense ivy cover, and graded the property until it was mostly dirt. They hired a landscape firm to design and construct a Japanese garden, including a dry streambed built of rocks. The construction included four underground gutters that fed into the streambed, which terminated at the Baumanns' property line.
The Baumanns' expert witness, a hydraulic engineer, reported that the alterations to the Snider/Abston property resulted in a 40 to 80 percent increase in surface water discharge onto the Baumann property during storms. The Baumann property suffered ongoing damage from the increased water flow, including erosion causing the exposure of tree roots and the build-up of soil against a boundary fence, reducing it from a four-foot fence to a two-foot fence.
Christopher and Karen Baumann both testified that there was increased rainwater runoff from the Snider/Abston property. Christopher Baumann also recounted his mitigation efforts, including construction of a sidewalk to funnel water to the front of the Baumann property and onto the street. He reversed the gutters on his carport to funnel water to the front of his property. He added bushes and plants. These remedial efforts resulted in total out-of-pocket costs to the Baumanns of approximately $400 and required eight days of labor.
After presentation of the case, the trial court found that the evidence would not support an award of punitive damages and granted a motion for directed verdict on that issue. The jury returned a verdict in favor of the Baumanns for $12,500 in damages and $15,000 in attorney fees. After judgment was entered against them, Snider and Abston filed a motion for judgment n.o.v. or in the alternative for a new trial. The Baumanns filed an application for a permanent injunction against the rainwater runoff. The trial court denied the Baumanns' application, granted Snider and Abston's motion for judgment n.o.v., and entered judgment in favor of Snider and Abston for all claims in the case.
1. In granting Snider and Abston's motion for judgment n.o.v., the trial court ruled that the Baumanns failed to prove damages. In their first enumeration of error, the Baumanns claim that the trial court erred in so ruling. In order to prevail on a motion for judgment n.o.v., the evidence must demand a verdict for the moving party.1 Where there is conflicting evidence, judgment n.o.v. should not be awarded.2 As there is some evidence of damages for nuisance, the trial court erred in granting judgment n.o.v.
The Baumanns sought to recover damages3 under the theories of trespass and nuisance.4 In actions for either trespass or nuisance, there may be a recovery for damage to real property. Generally, the measure of damages to the property is the cost of repair as well as the difference in the fair market value before the trespass and the fair market value after the trespass.5 If the cause of the trespass is an abatable nuisance, and therefore not necessarily permanent in nature, the measure of damages is the loss in fair market rental value plus actual damages.6 In a nuisance action, there may also be a recovery for damages to the person.7 The determination of damages for "discomfort, loss of peace of mind, unhappiness and annoyance" caused by the nuisance is for the enlightened mind of the jury.8 In the case of a nuisance involving runoff of surface water, "actual damages as such, i.e., injuries, are evidenced by a showing that the property owners are deprived of the full use and enjoyment of their property by the increased flow of surface waters or sediments on it."9
The trial court held that "the question of whether Plaintiffs presented sufficient evidence in this case turns upon whether Plaintiffs proceeded under the claim of trespass or nuisance in this action." The trial court noted that, in the pretrial order, the Baumanns made no "claim for damages for `discomfort, loss of peace of mind, unhappiness and annoyance' or other damages that would be recoverable under a claim of nuisance" and that "`"[i]f a claim or issue is omitted from the [pretrial] order, it is waived."'"10 Therefore, the trial court reasoned, the Baumanns could not recover damages for nuisance, but could recover damages only for trespass. At trial, no evidence was presented that demonstrated a diminution in the fair market value of the Baumann property. Absent such evidence, the trial court ruled that there was no basis for the jury verdict.11 Putting aside the question of property damages, the evidence supports a verdict based on damages to the person under a nuisance theory. Therefore, we must decide whether the Baumanns waived their nuisance claim by failing to include damages for nuisance in the pretrial order.
A pretrial order, "when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice."12 The purpose of a pretrial order is to promote efficiency and to conserve judicial resources.13 A pretrial order is to be construed liberally "to allow the consideration of all questions fairly within the ambit of contested issues."14 Failure of a party to raise an issue in the pretrial order is not controlling where evidence is introduced on the issue without objection, the opposing party is not surprised, and the issue is litigated.15 Rather, the pretrial order is deemed modified to conform to the evidence that is admitted.16
Here, the nuisance claim was made in the initial complaint. Moreover, the trial court charged the jury on the theory of nuisance and on damages, instructing jurors that:
[t]o constitute a nuisance, the use must be such as to produce either actual, tangible, and substantial injury to neighboring property or such as to interfere sensibly with its use and enjoyment by persons of ordinary sensibilities. The plaintiffs here seek to recover monetary damages from the defendants. Damages are given as pay or compensation for injury done.... If you believe from the preponderance of the evidence that the plaintiffs are entitled to recover, you should award to the plaintiffs such sums as you believe are reasonable and just in this case.17
The defense was not prejudiced by the failure to specify a recovery for damages under the theory of nuisance because nuisance was a central theory of recovery from the outset of the case. Indeed, the jury was charged on nuisance without objection. We find that, under the circumstances, the pretrial order was modified to include the issue of recovery of damages for nuisance. Therefore, the trial court erred in finding the Baumanns had waived the issue.
Because there is evidence that the increased discharge of surface water interfered with the Baumanns' use and enjoyment of their property, the jury was authorized to render its verdict for damages in the amount of $12,500. The trial court's grant of Snider and Abston's motion for judgment n.o.v. must be reversed, and the judgment of the jury reinstated.
2. The trial court vacated the $15,000 jury award for litigation expenses because such expenses are "ancillary and recoverable only in cases where other elements of damages are recoverable."18 Because damages have been reinstated, this reasoning no longer applies. The award of litigation expenses is a question for the jury and will be affirmed if there is any evidence to support it.19 There is evidence that in April 1996 the Baumanns complained to Snider and Abston about the increased runoff caused by the removal of their gutters. Snider and Abston, with knowledge of the existing drainage problem, proceeded to construct the dry streambed in May 1996, running four new gutters into it and more steeply grading their property from the house slanting down into the streambed. This is evidence upon which a jury could base a finding of bad faith. Accordingly, the trial court's grant of judgment n.o.v. respecting the jury verdict for litigation expenses must be reversed.
3. The Baumanns contend that the trial court erred by granting Snider and Abston's motion for a directed verdict on the question of punitive damages. We agree. OCGA § 51-12-5.1(b) provides that:
[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.
20 Ordinarily, the imposition of punitive damages is a question for the jury.21
There is no evidence...
To continue reading
Request your trial
-
Andrews v. Antero Res. Corp.
...is inherently unlawful, a private nuisance may flow from the consequences of an otherwise lawful act. See e.g. , Baumann v. Snider, 243 Ga.App. 526, 532 S.E.2d 468, 472 (2000) ("The distinction between trespass and nuisance consists in the former being a direct infringement of one’s right o......
-
Weller v. Blake
...Lowry v. Cochran, 305 Ga.App. 240, 246(2)(c), 699 S.E.2d 325 (2010). 16. See Tyler v. Lincoln, 272 Ga. 118, 120(1), 527 S.E.2d 180 (2000). 17.Baumann v. Snider, 243 Ga.App. 526, 530(3), 532 S.E.2d 468 (2000). 18.Tookes v. Murray, 297 Ga.App. 765, 768(2), 678 S.E.2d 209 (2009). 19.Tyler, 272......
-
Whitaker Farms, LLC v. Fitzgerald Fruit Farms, LLC
..., 272 Ga. at 120 (1), 527 S.E.2d 180. "Ordinarily, the imposition of punitive damages is a question for the jury." Baumann v. Snider , 243 Ga.App. 526, 530 (3), 532 S.E.2d 468 (2000).The actions taken by Whitaker Farms and its owner, as laid out in Division 1, supra, are sufficient evidence......
-
Flyboy Aviation Props., LLC v. Franck (In re Flyboy Aviation Props., LLC)
...the difference in the fair market value before the trespass and the fair market value after the trespass.” Baumann v. Snider, 243 Ga.App. 526, 527, 532 S.E.2d 468, 472 (Ga.App.2000). However, a trespass may also give rise to nominal damages and to damages for discomfort or annoyance. Wright......
-
Tort Law - Leighton Moore
...Ga. App. 199, 206, 558 S.E.2d 432, 440 (2001); Paul v. Destito, 250 Ga. App. 631, 639-40, 550 S.E.2d 739, 748 (2001); Baumann v. Snider, 243 Ga. App. 526, 530, 532 S.E.2d 468, 474 (2000)). 101. Id. at 796, 575 S.E.2d at 666. 102. 259 Ga. App. 299, 577 S.E.2d 15 (2003). 103. Id. at 301, 577 ......