Hayman v. Paulding Cnty.
| Decision Date | 04 March 2019 |
| Docket Number | A18A1983 |
| Citation | 349 Ga.App. 77,825 S.E.2d 482 |
| Parties | HAYMAN et al. v. PAULDING COUNTY. |
| Court | Georgia Court of Appeals |
Larry Eugene Stewart, Lawrenceville, for Appellants.
Williams Morris & Waymire, Gary Kevin Morris, for Appellee.
Bill Hayman, Wendy Hayman, and Elana1 Mor sued Paulding County for inverse condemnation following flooding of their property and water intrusion into their home. In the second appearance of this case before this Court, the plaintiffs appeal the trial court's grant of summary judgment to the County, arguing that the trial court erred (1) by failing to consider their supplemental brief filed following remand; (2) by finding that there was no evidence that the County maintained a nuisance; (3) by finding that flooding in September 2009 was the result of a 500-year flood event caused by an act of God; (4) by finding that the 2009 flooding was a one-time event and not a repetitious condition; and (5) by granting summary judgment on their claim for attorney fees. For the reasons that follow, we reverse.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.2
So viewed, the record shows that in 1987, Mor built a home in Paulding County ("the Property"). Poplar Springs Road bounds the Property to the south. Mor's residence, which is "L" shaped, sits on the eastern half of the Property. Rakestraw Creek ("the creek") runs under the western portion of the Property. Where it intersects with Poplar Springs Road, the creek flows through four adjacent ten-by-ten foot concrete box culverts that run under the road.3 There is also a small drainage ditch that runs along Poplar Springs Road on Mor's side of the street and empties drainage water into the creek.
At some point in or around 2005 or 2006, in response to a state bridge report identifying debris in the culverts, the County cleared debris from the culverts, which were impacted with sand; the process required the use of a skid-steer loader, shovels, rakes, and dump trucks to clear and haul off the sediment.4 There is no evidence that the County cleaned out the culverts at any other time.
In 2003, the Haymans (Mor's daughter and son-in-law) moved into Mor's home,5 and within six months, they noticed water intrusion into their son's bedroom and into the kitchen on multiple occasions.6 During heavy rains, water flowed over the drainage ditch and onto their property; according to Bill, the "significant amount of rain [was] more than [the] culvert[s] can handle, and it flows over our driveway." According to Wendy, although water flowed through the drainage ditch "years ago," the ditch is filled with debris and dirt and water no longer runs through it. During rain events, the water from the drainage ditch combines with other storm water, and then "hits the house." The flooding in the son's room was "from the water that was coming from the front of the house, from the roadside," and additional water that pooled in their back yard would also enter the house. The plaintiffs called the County more than a dozen times complaining of the storm water runoff and flooding, but the problem was never resolved. The Haymans took multiple measures in an attempt to prevent the water from entering the house, including cleaning out the culverts and sealing the walls, but the flooding into the house continued.
In September 2009, a major rain event caused substantial flooding at the plaintiffs’ home, at least a portion of it coming from the creek. Water marks inside the house show that the flooding exceeded two feet in the living room and bedroom. Thereafter, Bill performed extensive work on the property to alleviate the flooding, including excavation, installing French drains, installing 40 to 50 truckloads of dirt to raise the ground level of the yard, cleaning out the ditch, and connecting the driveway ditch to a gravel ditch. As of the time of Bill and Wendy's November 2013 depositions, there had been no additional water intrusions since the 2009 flooding, but the back yard still flooded.
On December 11, 2012, the plaintiffs filed suit against the County for inverse condemnation and attorney fees under OCGA § 13-6-11, alleging that the County created a continuing nuisance, trespass, and inverse condemnation by failing to maintain and repair its storm water drainage systems. The County moved for summary judgment, and the trial court granted the motion on May 3, 2016. The plaintiffs appealed, and this Court vacated the grant of summary judgment and remanded the case for reconsideration of the County's motion after "giving consideration to the deposition of the [plaintiffs’] experts."7
This appeal followed.
1. The plaintiffs contend that the trial court erred by granting summary judgment to the County on their claim for inverse condemnation. We agree.
"A nuisance is anything that causes hurt, inconvenience, or damage to another[,] and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance."11 The Supreme Court of Georgia has described the following actions by a county as an actionable nuisance: "performing a continuous or regularly repetitious act, or creating a continuous or regularly repetitious condition, which causes the [plaintiff] hurt, inconvenience, or injury."12
This Court has held that "a single malfunction in the operation of the public works project," "a single isolated occurrence," is not an actionable nuisance.13 In DeKalb County v. Orwig ,14 the plaintiff, who sustained damages from two instances of sewage backing up into her home caused by an obstruction placed in the sewer line by Georgia Power, sued DeKalb County for inverse condemnation arising from its actions in maintaining the sewer line with an obstruction.15 This Court affirmed the trial court's denial of a directed verdict to the county on that claim, holding:
The condition involved here, maintaining a sewer line with an obstruction, was continuous from the time Georgia Power first damaged the sewer line until it was repaired by [the c]ounty. [Because] there was some evidence in the record to support a finding that [the c]ounty knew or should have known after the first overflow that the obstruction was in its line, there is a question of fact whether the county was responsible for the second overflow and, thereby, for maintaining a nuisance amounting to a taking of [the plaintiff's] property.16
In the instant case, the trial court found that "there is no evidence that the County ... caused, created[,] or maintained any nuisance that caused the occasional seepage of rainwater into laintiffs’ basement," concluding that the September 2009 rain event was an act of God resulting in a 500-year flood and that the plaintiffs failed to "attribute any specific source other than the rain" for the periodic seepage of water into the basement that occurred when it rained. This conclusion overlooks the testimony of the plaintiffs and the plaintiffs’ experts.
The trial court accepted the County's expert opinion and concluded that the September 2009 rain event resulted in a 500-year flood. In doing so, the court ignored the testimony of the plaintiffs’ experts.
Pam Knox, a certified consultant meteorologist, used radar calibrations to conclude that approximately 7 inches of rainfall occurred at the plaintiffs’ home during the 24-hour period between September 21, 2009, and September 22, 2009, which amount is equivalent to a 50-year flood. Elvin Aycock, a professional engineer, hydrologist, and land surveyor who investigated the property and surrounding area, concluded that the four box culverts were designed to handle a 100-year flood event, provided that they were completely clear of debris and sediment, and they should have been able to handle the 50-year storm event of September 2009 had they been maintained properly. Aycock further opined that the County's failure to clean out the culverts in the years prior to September 2009 resulted in large...
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