J.N. Legacy Grp., Inc. v. City of Dall.

• Decision Date: 27 June 2013
• Docket Number: No. A13A0729.,A13A0729.
• Citation: 745 S.E.2d 721,322 Ga.App. 475
• Parties: J.N. LEGACY GROUP, INC. v. CITY OF DALLAS, Georgia.
• Court: Georgia Court of Appeals

322 Ga.App. 475

745 S.E.2d 721

J.N. LEGACY GROUP, INC.

v.CITY OF DALLAS, Georgia.

No. A13A0729.

Court of Appeals of Georgia.

June 27, 2013.

Samuel Lydell Starks, Atlanta, for J.N. Legacy Group, Inc.

Debra K. Haan, Harvey S. Gray, Atlanta, for City of Dallas, Georgia.

McMILLIAN, Judge.

J.N. Legacy Group, Inc. (“J.N.”) appeals the trial court's grant of summary judgment in favor of the City of Dallas, Georgia (the “City”) on J.N.'s claims for nuisance and violation of ministerial duties in failing to maintain the public sanitary sewer system that serves J.N.'s property. For the reasons set forth below, we affirm the trial court's grant of summary judgment on J.N.'s claim of a violation of ministerial duties and reverse the grant of summary judgment as to its nuisance claim.¹ Additionally, we affirm in part and reverse in part the trial court's order granting partial summary judgment with regard to J.N.'s damage claim seeking the cost of mold remediation.

J.N. is an investment group founded by three siblings, David L. Butler, Jeff Butler and Patti Pruitt (sometimes referred to herein as the “Butler siblings”), which acquired the property at 2025 Marshall Huff Road in Dallas, Georgia (the “Property”) in 1999. The Property contains a 5,000–square–foot building with a metal roof, metal walls and a cement floor (the “Building”). The majority of the Building was used as a warehouse or work area, with a small portion used for an office. At the pertinent time, the walls and ceiling of the office space were finished with sheetrock, and the floor was carpeted.

Sometime during the summer of 2009, Michael Floy Brannan began leasing the Property from J.N. to operate his business. On or before Monday, September 21, 2009, following heavy rains,² the sewer line connecting J.N.'s property to the street backed up, allowing sewer water to enter the Building through the toilet (the “2009 incident”). Brannan discovered the problem and observed that the sewer water, which smelled like raw sewage, covered the floor of the entire office area, rising to a level of approximately one and one-half to two inches. It also seeped under the doors to extend ten to twelve feet or more into the warehouse area.

Brannan notified J.N., and J.N. notified the City, which sent its sewer foreman, Lee James, and another man out that day to inspect the problem. But per City policy, they did not enter the Building. James stated that they checked the manholes near the Building, however, and observed that the sewer water was flowing at a high level, but within the normal range. The water was in the trough below the manhole, and he observed no toilet paper or fecal matter. Nevertheless, because water had backed up into the Building, he recommended installation of a backflow prevention device on the sewer line leading to the Building.

The City retained ServPro of Douglasville/Carrollton (“ServPro”), which came out the next day to clean the Building. ServPro removed the carpet and set up fans and dehumidifiers for approximately three days to dry out the office. The ServPro workers also sprayed a chemical to try to remove the odor.

Later, at Brannan's request, Tina Clark, the City's acting public works manager, visited the Property, and Brannan accompanied her as she inspected the premises. During that inspection, Brannan observed that a manhole at the back of building had water gushing out of it, with toilet paper and fecal matter all over the ground.

Despite ServPro's treatment, the odor lingered until J.N. had the affected sheetrock removed and replaced several months later. J.N. reduced Brannan's rent during the period in which he did not have full use of the office due to the lingering odor. In addition to replacing a portion of the sheetrock, J.N. installed new tile flooring, replaced the bathroom vanity and a bookshelf, and repainted the walls, all for a total cost of just under $5,000.

At some point after the 2009 incident, the City hired a plumbing company to install a backflow preventer to stop the water from backing up into the Building on future occasions. The Property has experienced no further problems with sewage overflow since the installation of the device. According to Kendall Smith, the City's former public works manager,³ the City had previously attempted to install a backflow preventer after an earlier sewer backup on the Property. Smith could not remember the date of the earlier incident,⁴only that it occurred before the 2009 incident when he was still the public works manager (the “first incident”). On that occasion, the sewage flowed into buildings located at both 2025 and 2029 Marshall Huff Road. The City paid to clean the properties, and it hired a company to install backflow preventers on the lines going into each location. Smith believed that the backflow devices had been installed on both lines, but after the 2009 incident, the City discovered that a backflow preventer had not been installed on the line leading to the Building at 2025 Marshall Huff Road, so the City installed one at that time. Additionally, after the first incident, the City inspected the lines with a camera and found nothing other than a small stick blocking the line. The lines were again “camera'd” at some point after the 2009 incident, and no blockage or other problems were detected.

At a meeting of the City Council in November 2009, Clark presented J.N.'s request for reimbursement of $2,709.66, its cost for replacing the office carpet with tile, but the council took no action on the request, which had the effect of denying the request.

J.N. subsequently filed this lawsuit, and the City filed two motions for summary judgment on J.N.'s claims. In the first motion, the City asserted that a municipality has no liability for the negligent maintenance of its sewer-drainage system, although it may be liable for the maintenance of a nuisance. The City asserted, however, that J.N. had failed to establish the existence of a nuisance in this case because David Butler testified in his deposition that the 2009 incident was the only sewer overflow that had occurred at the Property since J.N. acquired it. In the second motion, the City sought partial summary judgment on J.N.'s claim to recover the cost of mold remediation on the ground that J.N. failed to establish that the 2009 incident caused any mold or bacteria problem in the Building. Following a hearing on the motions, the trial court granted the City summary judgment on all of J.N.'s claims, without stating the basis for its ruling.

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. A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact.

(Citation omitted.) Lore v. Suwanee Creek Homeowners Assn., 305 Ga.App. 165, 699 S.E.2d 332 (2010).

1. J.N. asserts that the trial court erred in dismissing its claim for a violation of the City's ministerial duties because the City did not specifically argue the issue before the trial court in its motion for summary judgment.⁵ To the contrary, however, the City properly addressed the issue in both its brief and at the hearing as part of its argument regarding J.N.'s nuisance claim when it asserted that it had no negligence liability for maintaining the sewer line.⁶

“Traditionally, municipalities have been subject to suit for negligent performance or nonperformance of their ministerial functions while enjoying immunity from suit for the negligent performance or nonperformance of their governmental or discretionary functions. See OCGA §§ 36–33–1; 36–33–2; Tamas v. Columbus, 244 Ga. 200, 202, 259 S.E.2d 457 (1979).” Early County v. Fincher, 184 Ga.App. 47, 49, 360 S.E.2d 602 (1987). And it is well-settled that “the duty of a city to maintain its sewerage and drainage system in a good working and sanitary condition is a governmental function,” for which no liability against the municipality exists in an action for negligence. (Citation omitted.) Foster v. Mayor, etc., of Savannah, 77 Ga.App. 346, 349, 48 S.E.2d 686 (1948). See also City of Rome v. Turk, 235 Ga. 223, 224(1), 219 S.E.2d 97 (1975).

Although J.N. frames his claim for violation of a ministerial duty as a breach of a duty to maintain the easement through which the sewer line ran, we have located no authority indicating that the language of an easement somehow alters the nature of the City's governmental function in maintaining its sewer lines. To the contrary, a municipality may not alter the extent of its liability by contract,⁷ because “only the legislature has the authority to enact a law that specifically waives a municipality's sovereign immunity.” (Citations omitted.) CSX Transp., Inc. v. City of Garden City, 277 Ga. 248, 249(1), 588 S.E.2d 688 (2003) (city cannot alter its liability by entering into a contract to indemnify a third party in connection with the installation of sewer and water lines on the property). “Thus, pretermitting whether [J.N.] might have a viable negligence claim against a private defendant [for a breach of duty in connection with the easement, its] negligence action could not survive against the City based on sovereign immunity.” Goode v. City of Atlanta, 274 Ga.App. 233, 235(1), 617 S.E.2d 210 (2005) (no action for negligence existed against city for damages incurred when water main ruptured, causing water and mud to flood plaintiff's basement).

Accordingly, J.N. can state no claim for the violation of a ministerial duty against the City in connection with its maintenance of the sewer system, and the trial court properly granted the City's motion for summary...