Georgia-Pacific Consumer Prods., LP v. Ratner

• Decision Date: 16 July 2013
• Docket Number: No. A13A0455.,A13A0455.
• Citation: Georgia-Pacific Consumer Prods., LP v. Ratner, 323 Ga.App. 203, 746 S.E.2d 829 (Ga. App. 2013)
• Parties: GEORGIA–PACIFIC CONSUMER PRODUCTS, LP v. RATNER, et al.
• Court: Georgia Court of Appeals

323 Ga.App. 203

746 S.E.2d 829

GEORGIA–PACIFIC CONSUMER PRODUCTS, LP

v.RATNER, et al.

No. A13A0455.

Court of Appeals of Georgia.

July 16, 2013.

Tracy Ann O'Connell, Bethany Lynn Schneider, Atlanta, for Georgia–Pacific Consumer Products, LP.

John C. Bell Jr., Augusta, Timothy David Roberts, Benjamin Mason Perkins, Savannah, for Ratner, et al.

ELLINGTON, Presiding Judge.

Four Effingham County property owners ¹ SUED GEORGIA–pacifIC consumer prodUcts, lp (“georGia–PACIFIC”) for nuisance, trespass, and negligence arising out of the intermittent but continuing release of hydrogen sulfide gas onto their properties from Georgia–Pacific's Savannah River Mill (“the mill”) in Rincon.² The plaintiffs moved the trial court to certify a class consisting of the owners of 65 additional properties neighboring the plant. After a hearing, the trial court certified the class pursuant to OCGA § 9–11–23(c)(1).³ Georgia–Pacific contends that the trial court abused its discretion when it certified the class. We disagree and, for the reasons set forth below, we affirm.

Under OCGA § 9–11–23, a class action is authorized if the members of the class share a common right and common questions of law or fact predominate over individual questions of law or fact. The character of the right sought to be enforced may be common although the facts may be different as to each member of the alleged class.

(Footnotes omitted.) Bd. of Regents of the Univ. Sys. of Ga. v. Rux, 260 Ga.App. 760, 764(3), 580 S.E.2d 559 (2003). In order to gain class certification, a plaintiff has the burden of establishing that the prerequisites of OCGA § 9–11–23(a) have been satisfied, those being (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy. See OCGA § 9–11–23(a); see also EarthLink, Inc. v. Eaves, 293 Ga.App. 75, 76(1), 666 S.E.2d 420 (2008) (“Under Georgia law, a case may proceed as a class action if all prerequisites of OCGA § 9–11–23(a) are satisfied: numerosity, commonality, typicality, and adequacy[.]”). Additionally, the class must satisfy at least one ground under OCGA § 9–11–23(b), which provides, in relevant part, that a case may proceed as a class action if

the prerequisites of OCGA § 9–11–23(a) are satisfied and[ ](1) the prosecution of separate actions would create a risk of inconsistent adjudications or would impair other parties' ability to protect their interests; (2) the defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or declaratory relief with respect to the whole class; or (3) questions of law or fact common to members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

(Footnote omitted.) EarthLink, Inc. v. Eaves, 293 Ga.App. at 76(1), 666 S.E.2d 420; see also OCGA § 9–11–23(b). “[W]e review the trial court's decision in certifying or refusing to certify a class action for an abuse of discretion.” (Citation omitted.) Rite Aid of Ga., Inc. v. Peacock, 315 Ga.App. 573, 726 S.E.2d 577 (2012). This Court “will not reverse the factual findings in a trial court's class certification order unless they are clearly erroneous[.]” Id. “Implicit in this deferential standard of review is a recognition of the fact-intensive basis of the certification inquiry and of the trial court's inherent power to manage and control pending litigation.” Resource Life Ins. Co. v. Buckner, 304 Ga.App. 719, 729(2), 698 S.E.2d 19 (2010).

The facts relevant to this dispute are as follows. The mill has been in operation since 1986. Since 1992, Georgia–Pacific has received complaints from neighboring property owners concerning noxious gasses emanating from the mill's grounds, and the mill took steps to rectify the problem with some success. However, in 2006, the mill began receiving complaints about noxious odors emanating from the plant from surrounding landowners, including homeowners in a new subdivision, Mallard Pointe, located directly across the street from the mill. The plaintiffs submitted evidence of 107 odor-related complaints from 2006 through 2012, 28 of which came from the Mallard Pointe landowners. The landowners complained that the noxious gases, among other things, interfered with their ability to enjoy their properties; irritated their eyes, skin, and lungs and made them feel ill; and damaged some exterior household fixtures, primarily air conditioning equipment. Further, the landowners were concerned that continued emissions from the mill would adversely affect the value and marketability of their properties.

In response to these complaints, Georgia–Pacific identified the noxious gas as hydrogen sulfide fumes “created by the biological breakdown of living organisms necessary to [the mill's] wastewater treatment process” and intermittently emanating from pits containing sludge produced by that process. The mill is deemed a “major source” of pollutants, including hydrogen sulfide, and must demonstrate compliance with both federal and state law in order to obtain permits to operate.⁴ To abate the problem, Georgia–Pacific admitted that it has considered closing three of the sludge pits thought to be the source of most of the hydrogen sulfide gas. Documents produced by Georgia–Pacific revealed that numerous property owners neighboring the mill have complained that the gases emanating from the plant have caused their air conditioning systems to fail. Georgia–Pacific has paid to replace or to repair air conditioning units on at least 20 homes in the area, most of which are located in the Mallard Pointe subdivision. The plaintiffs' expert witnesses opined that the homes in the area surrounding the mill are exposed to enough hydrogen sulfide to cause corrosive damage to air conditioning units and that, indeed, evidence of such damage was found in the units inspected. Documents produced by Georgia–Pacific also demonstrated that hydrogen sulfide gas emissions could cause substantial corrosion of metal components within a half-mile of the storage area.

The named plaintiffs filed suit on December 10, 2010, and they sought certification for a class consisting of certain Georgia citizens owning property within a half-mile of a geographic point near the mill. They amended the complaint on January 13, 2012, to propose a class consisting of property owners neighboring the mill within a discrete area circumscribed by roads, railroad rights-of-way, and specific geographic coordinates. The area includes 34 residential properties and 33 parcels zoned industrial, agricultural, or other. It is undisputed that each of the properties in the area have either been exposed to the hydrogen sulfide gas to some degree or is at risk of exposure given the proximity to the mill.⁵ The mill's environmental manager deposed that hydrogen sulfide gas can be detected up to four miles away from the plant. The property in the class area furthest from the mill's sludge field is less than a mile away. In an affidavit offered in support of class certification, a real estate appraiser averred that, based upon his examination of the area around the mill, “the reported toxic fumes would constitute a factor impairing the value and marketability” of the properties included in the proposed class.

After a hearing, the trial court issued an order certifying the class. Although Georgia–Pacific challenges each of the court's legal findings and contends the trial court abused its discretion in certifying the class, it did not enumerate as error any specific factual finding made by the superior court. Because the superior court's detailed order adequatelyaddresses the issues raised by the appellant, we adopt the court's order certifying the class as our opinion in this case. We note that the superior court prefaced its opinion with a lengthy acknowledgment that it was undertaking a “rigorous analysis” in light of recent United States Supreme Court precedent.⁶ The following is excerpted, with minor modifications, from the order of the trial court.

This action asserts claims in nuisance, trespass and negligence on behalf of a class of property owners defined as follows:

All citizens of the State of Georgia who, as of November 18, 2010, owned property lying, in whole or in part, within an area of land lying in Effingham County, Georgia, and bounded as follows: On the east by a line running along the west side of the right of way of Fort Howard Road between the intersection of Fort Howard Road and Seckinger Ford Road and the south side of the right of way of the railroad line that serves the Georgia–Pacific Plant; On the north by a line running along the south side of said railroad right of way between Ford Howard Road and Rincon Stillwell Road; On the west by a line running along the east side of the right of way of Rincon Stillwell Road: On the south by a line running along the north side of the right of way of Bunyan–Kessler Road beginning at Rincon–Stillwell Road and going in an easterly direction to a point at Latitude 32.30582649 and Longitude minus 81.21047668 and thence easterly along a straight line to the intersection of Fort Howard Road and Seckinger Ford Road. Expressly excluded from membership in the class are the above-named Defendant, its related corporations and all directors, officers and employees of the Defendant.

This class definition is unambiguous and the members of the class are readily identifiable from public records. The amended complaint asserts that the releases of hydrogen sulfide gas from the waste produced by the mill permeate the class area, have interfered with the use and enjoyment of property and have impaired the value of the properties owned by members of the proposed class.

1. OCGA § 9–11–23(a) Analysis.

a. Numerosity

Evidence in the record supports a finding that the owners of the properties within the proposed class who...