Forsyth County v. Martin, No. S04A2031

• Decision Date: 07 March 2005
• Docket Number: No. S04A2031, No. S04X2032.
• Citation: 279 Ga. 215,610 S.E.2d 512
• Parties: FORSYTH COUNTY, et al. v. MARTIN, et al. Martin, et al. v. Forsyth County, et al.
• Court: Georgia Supreme Court

610 S.E.2d 512

279 Ga. 215

FORSYTH COUNTY, et al. v. MARTIN, et al.

Martin, et al. v. Forsyth County, et al.

Nos. S04A2031, S04X2032.

Supreme Court of Georgia.

March 7, 2005.

Reconsideration Denied April 14, 2005.

Terry E. Williams, & Associates, Terry E. Williams, Jason C. Waymire, Lawrenceville, Banks, Stubbs, Neville & Cunat, John R. Neville, Cumming, for appellants.

Miles, McGoff & Moore, Dana B. Miles, Larry A. Pankey, Kevin J. McDonough, Lynwood D. Jordan, Jr., Cumming, for appellees.

BENHAM, Justice.

This case revolves around the legal effect of the property interests of lakefront property owners on the decision whether to breach or to repair the earthen dam that impounds the lake, as ordered by the Environmental Protection Division of the Georgia Department of Natural Resources, acting pursuant to the Georgia Safe Dams Act, OCGA § 12-5-370 et seq. Forsyth County appeals the judgment entered against it in a lawsuit brought by the lakefront homeowners in which the trial court directed a verdict that Forsyth County owned the earthen dam, and the jury, given the choice of requiring the County to repair the dam or to breach the dam, returned a verdict requiring the County to repair the dam.

The earthen dam was built several decades ago by a private entity in order to create a 21-acre lake which the developer bordered with residential homesites that were sold pursuant to a subdivision plat showing the lake area. After the earthen dam was built, Forsyth County paved a road across the top of it in the mid-1970s. In 1998, the Environmental Protection Division (EPD) sent notice of the dam's reclassification to "high-hazard" status to the county as a "partial owner of the dam."¹ In 2002, the EPD director, concerned the dam was in danger of sudden and complete failure, directed the dam's owners to lower the lake level by 10 feet, decide whether to breach or repair the dam, and submit plans to EPD pursuant to the owners' decision to breach or to repair the dam to EPD. The County took immediate emergency action to alleviate the danger by digging a trench perpendicular to the dam across the county's road, which allowed the level of the lake to be reduced, and closed the county road. Those designated as owners of the dam appealed the EPD order to an administrative law judge who concluded the EPD had established that the County was an owner of the dam.² The County appealed the ALJ's decision to superior court which affirmed the decision in an order filed January 16, 2003.

In February 2002, a month after the trench across the dam was dug and the road closed, the lakefront homeowners filed the instant action in which they sought, among other things, a declaratory judgment that the County owned the dam and a writ of mandamus ordering the County to assume ownership, repair, and maintenance of the dam. After the superior court affirmed the ALJ's decision finding the County to be an "owner" of the dam under the Safe Dams Act, the County filed in the instant action a counterclaim and cross-claim for declaratory judgment to determine the County's rights and obligations with respect to the homeowners should the County breach the dam pursuant to the EPD order.³ At the close of the evidence, the trial court directed a verdict against the County with regard to ownership of the dam and submitted to the jury the question of whether the County should be required to repair the dam or be permitted to breach the dam. Following the jury's verdict that the dam should be repaired, the superior court issued a judgment in which it ordered the County to "rebuild and repair Pine Lake Dam in accordance with current EPD requirements so that the Dam will impound a lake with an elevation, at normal pool, of 1140 MSL and will impound a lake of approximately 21 ± acres." The County was also ordered to pay nearly $79,000 to the lakefront homeowners for the expenses of litigation, including attorney fees. The County appeals, contending the trial court erred in directing a verdict on the question of the ownership of the dam, in making several evidentiary rulings, and in ordering the County to pay appellees' expenses of litigation. The homeowners have filed a cross-appeal in which they contend the judgment of the trial court requiring an impounded pool with an elevation of 1140 feet MSL ("mean sea level") does not conform to the jury verdict which they allege requires the dam to impound a pool with an elevation of 1141 feet MSL.

1. The County unsuccessfully sought a directed verdict on plaintiffs' claims for declaratory judgment, mandamus, and injunctive relief. Asserting the County is not the fee simple owner of the dam, it has no legal duty to repair the dam, and it is the lakefront homeowners who have the duty to repair their claimed easement, the County contends on appeal the trial court erred when it denied the County's motion for directed verdict and directed a verdict against the County on its counterclaim and cross-claim for declaratory judgment.

The issue in this case is not the ownership of the earthen dam in the usual sense of fee simple title ownership of real property. In the administrative action, the EPD determined that the condition of the dam was such that it "may cause the sudden and complete failure of the Dam" and ordered those found to be the dam "owners" under the Safe Dams Act to repair or to breach the dam. The issue of the County's ownership of the dam under the Safe Dams Act was litigated in the appeal of the administrative order, and the County was determined to be an "owner" of the dam for purposes of complying with the EPD order to repair or to breach the dam. In the case at bar, the issue presented was what effect the plaintiffs' ownership of property adjacent to the lake formed by the dam had on whether to repair or to breach the dam, as required by the EPD order. The trial court correctly directed a verdict against the County on the issue of ownership because the issue of the County's ownership interest requiring compliance with the EPD order was resolved against the County in the earlier administrative action and judicial appeals thereof.

As for the issue of the effect of the plaintiffs' ownership of lakefront property on the decision whether to breach or repair the dam, the plaintiffs established they purchased their lots according to a subdivision plat which had a lake area designated on it and paid more for their lakefront lots than the purchase price for non-lakefront lots, thereby acquiring an irrevocable easement in the lake. Walker v. Duncan, 236 Ga. 331, 223 S.E.2d 675 (1976). See also Higgins v. Odom, 246 Ga. 309, 271 S.E.2d 211 (1980); Patterson v. Powell, 257 Ga.App. 336, 571 S.E.2d 400 (2002). The homeowners' interest in the lake limited the legal ability of the County, as owner of the dam under the Safe Dams Act, to breach the dam. See Dillard v. Bishop Eddie Long Ministries, 258 Ga.App. 507(3), 574 S.E.2d 544 (2002). The County's contention that the homeowners' irrevocable interest in the lake necessarily extends to the dam and with that extension comes a duty on the part of the homeowners to repair the dam, suggests the homeowners have an ownership interest in the dam under the Safe Dams Act. However, even if the homeowners' irrevocable easement in the lake extends to the dam, the issue in the case at bar was not whether there are additional entities with an ownership in the dam under the Safe Dams Act,⁴ but whether the homeowners' interest in the lake limited the options presented by the EPD to the parties the EPD had designated as having ownership interests in the dam that required them to take the action mandated by the EPD administrative order issued pursuant to the Safe Dams Act. Accordingly, the trial court did not err when it directed a verdict against the County on the plaintiffs' claims for mandamus, injunctive, and declaratory relief.

Lastly, the trial court did not commit reversible error when it denied a directed verdict to the County on its counterclaim and cross-claim for declaratory judgment. Since the jury was not asked to decide issues of inverse condemnation, nuisance, or other claims of County liability for damages purportedly caused when the County dug a trench across the dam in response to the EPD's demand for immediate action due to the danger the dam posed, the County was not harmed by the denial of a directed verdict.

2. The jury awarded plaintiffs $78,899.28 as expenses of litigation and attorney fees after finding the County had caused the plaintiffs unnecessary trouble and expense, but had not been stubbornly litigious or acted in bad faith.⁵ See OCGA § 13-6-11. On appeal, the County contends public policy should prevent counties from being subject to damages under OCGA § 13-6-11, the trial court erroneously denied the County's motion for directed verdict on the issue since there was a bona fide controversy, and the evidence did not support the monetary award.

(a) Citing this Court's decision in MARTA v. Boswell, 261 Ga. 427, 405 S.E.2d 869 (1991), involving an award of punitive damages, the County maintains that counties should not be subject to an award of litigation expenses made pursuant to OCGA § 13-6-11 since governmental entities are not subject to awards designed to penalize or punish. The County misapprehends the purpose of an award of litigation expenses and attorney fees — it is not intended to penalize or punish, but to compensate an injured party for the costs incurred as a result of having to seek legal redress for the injured party's legitimate grievance. City of Warner Robins v. Holt, 220 Ga.App. 794(1b), 470 S.E.2d 238 (1996). We decline to adopt the County's position that a governmental entity cannot be subject to an award of litigation expenses and attorney fees under OCGA § 13-6-11. See Eastern Air Lines v. Fulton County, 183 Ga.App. 891(4), 360 S.E.2d 425 (1987).

(b) Expenses of litigation and attorney fees...