Ln West Paces Ferry Associates v. Mcdonald.

• Decision Date: 07 March 2011
• Docket Number: No. A10A1138.,A10A1138.
• Citation: 703 S.E.2d 85,306 Ga. App. 641
• Parties: LN WEST PACES FERRY ASSOCIATES, LLC et al.v.McDONALD.
• Court: Georgia Court of Appeals

306 Ga.App. 641

703 S.E.2d 85

10 FCDR 3526

LN WEST PACES FERRY ASSOCIATES, LLC et al.

v.McDONALD.

No. A10A1138.

Court of Appeals of Georgia.

Oct. 28, 2010.Certiorari Denied March 7, 2011.

Jeremy U. Littlefield, Richard L. Robbins, Atlanta, for appellants.Davis, Matthews & Quigley, Ron L. Quigley, Matthew R. Thiry, Atlanta, Mina A. Elmankabady, for appellee.POPE, Senior Appellate Judge.

This case is the culmination of a rather contentious property dispute between two adjacent property owners.John R. McDonald sued his neighbor Lee Najjar and Najjar's company, LN West Paces Ferry Associates, LLC¹(collectively, “Najjar”), after Najjar trespassed on McDonald's property and tied into his sewer line without permission.A jury trial resulted in a verdict of $475,000 in favor of McDonald, which consisted of compensatory and punitive damages as well as attorney fees.The trial court entered judgment on the jury's verdict.Najjar contends that the trial court erred by denying his motion for directed verdict and/or motion for judgment notwithstanding the verdict; by denying his motion to exclude certain evidence offered by McDonald as a sanction for an alleged discovery violation; and by denying his motion for a mistrial and/or continuance based upon several alleged errors.We affirm.

If a jury has returned a verdict, which has been approved by the trial judge, then the same must be affirmed on appeal if there is any evidence to support it [,] as the jurors are the sole and exclusive judges of the weight and credit given the evidence.The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict.As long as there is some evidence to support the verdict, the verdict will be upheld on appeal.(Citations and punctuation omitted.)City of Atlanta v. WH Smith Airport Svcs.,290 Ga.App. 206, 659 S.E.2d 426(2008).

Bearing in mind these principles, we turn to the record in this case.McDonald and Najjar own adjacent property lots in an affluent Atlanta neighborhood.After purchasing the property in 2004, Najjar embarked upon a major renovation project that ultimately resulted in the development of a 30,000 square foot residence.Toward the end of the construction, Najjar's plumbing contractor discovered that the residence was not connected to a sewer line.Nor was Najjar's architect able to find any evidence of a septic system on his property.Najjar's plumbing contractor suggested the installation of a pump station in the back of Najjar's property, but Najjar rejected that option as too costly and disruptive to his existing landscaping.

At some point it was discovered that McDonald's adjacent property lot contained private access to the sewer via a manhole that had been funded by the previous owner of McDonald's property in conjunction with two other neighbors.The manhole was located approximately 220 feet from the boundary of Najjar's property.Najjar called the previous owner and expressed an interest in running a sewer lateral onto the property in order to tie into the manhole, but was informed that she had sold the property to McDonald.Najjar then left a voicemail message for McDonald regarding a potential easement.McDonald, who was fighting cancer at the time, instructed his real estate attorney to return Najjar's telephone call.The attorney spoke to Najjar and requested that Najjar submit to him plans showing the location of the desired easement; Najjar did not do so.

Instead, without first obtaining permission by McDonald, Najjar instructed his architect to direct the plumbing contractor to tie into the manhole on McDonald's property.The plumbing contractor refused.He informed both Najjar and Najjar's architect that he would not subject his company to the potential liability associated with trespassing onto the neighboring property without first securing a sewer easement.He was told to “[d]o it anyway.”

The plumbing contractor instead ran the underground sewer line to the property boundary and then stopped.When he returned to Najjar's property two or three days later, he noticed evidence that a trench had been bulldozed from Najjar's property line to the manhole located on McDonald's property, and that the trench line had then been covered in tree limbs and other foliage.Najjar admitted that he told one of his laborers to lay the sewer lateral across McDonald's property.

When McDonald discovered the sewer line, he filed the instant action in which he asserted claims for trespass and ejectment and sought compensatory and punitive damages as well as attorney fees.He later learned that a retaining wall built by Najjar also encroached onto his property, and amended the complaint to include a claim for trespass and ejectment as to the encroaching retaining wall.Najjar in turn filed a verified answer and counterclaim in which he asserted the existence of and his entitlement to a sewer easement extending from his property to McDonald's manhole that “ha[d] been located there for decades”; sought a declaratory judgment for breach of quiet title to the easement; asserted a claim for damages associated with McDonald's tortious interference with the easement; sought a preliminary and permanent injunction prohibiting McDonald from extinguishing the easement; and claimed an entitlement to attorney fees.²A jury ruled in favor of McDonald and this appeal followed.

1.Najjar first argues that the trial court erred in denying his motion for directed verdict and/or motion for judgment notwithstanding the verdict because he contends that the evidence did not support a finding of intentional trespass sufficient to support an award of compensatory and punitive damages, or a finding of bad faith sufficient to support an award of attorney fees and expenses.“The standard of review on appeal requires [Najjar] to show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.”(Citations and punctuation omitted.)Harrouk v. Fierman,291 Ga.App. 818, 820(1), 662 S.E.2d 892(2008).

(a)Trespass.An owner of real property “has the right to possess, use, enjoy, and dispose of it, and the corresponding right to exclude others from [its] use.”(Punctuation omitted.)Navajo Constr. v. Brigham,271 Ga.App. 128, 129, 608 S.E.2d 732(2004).In an action for trespass, the landowner may recover compensatory damages upon a showing of “any wrongful, continuing interference with a right to the exclusive use and benefit of a property right.”(Punctuation and footnote omitted.)Tingle v. Jones,249 Ga.App. 654, 656, 549 S.E.2d 477(2001).SeeOCGA § 51–9–1(“The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.”);Dowdell v. Cherry,209 Ga. 849, 76 S.E.2d 499(1953);Wright v. Wilcox,262 Ga.App. 659, 662(1), 586 S.E.2d 364(2003).Moreover, punitive damages may be awarded for a trespass that reflects “an intentional disregard of the rights of another.”Tyler v. Lincoln,272 Ga. 118, 120(1), 527 S.E.2d 180(2000).SeeOCGA § 51–12–5.1(b).

Here, Najjar's interference with McDonald's property right has been well established.He nonetheless argues that he was entitled to judgment as a matter of law because he was an innocent, as opposed to wilful, trespasser.In support of this argument, Najjar asserts, just as he did at trial, that a sewer plat allegedly provided to him by the City of Atlanta had been mislabeled, leading him to believe that the manhole located on McDonald's property was actually on his own.

The innocent trespasser doctrine “protects individuals who enter the land of another under the mistaken belief that it is permissible to do so,” and provides under those circumstances that the “unintentional and nonnegligent entry ... does not automatically subject an individual to liability even though the entry causes harm to the possessor.”(Citations, punctuation and footnotes omitted.)Bullard v. Bouler,272 Ga.App. 397, 399(2), 612 S.E.2d 513(2005)(affirming jury verdict in which the jury held liable a property owner who instructed a contractor to prune trees located on his neighbor's property, but declined to extend liability to the contractor himself).See alsoBrand v. Montega Corp.,233 Ga. 32, 33–34(2), 209 S.E.2d 581(1974)(affirming jury verdict declining to award damages to plaintiff for surface-water invasion unintentionally caused by defendant).See alsoC.W. Matthews Contracting Co. v. Wells,147 Ga.App. 457, 458–459(2), 249 S.E.2d 281(1978).The burden rested with Najjar to establish that he was an innocent trespasser, and the question as to whether he met that burden was for the jury to determine.Norton v. Holcomb,285 Ga.App. 78, 84–85(3), 646 S.E.2d 94(2007).

Here, the jury was charged on the innocent trespasser doctrine and chose to reject it.There is plenty of record evidence supporting the jury's decision to do so.First, Najjar's architect admitted that it was him—not a representative from the City of Atlanta—who altered the sewer plat upon which Najjar allegedly relied so as to mislabel McDonald's property as that of Najjar's.Regardless, the record is devoid of any evidence that either Najjar or anyone working for him was operating under the misconception that McDonald's manhole was located on Najjar's property when the sewer lateral was being laid.Najjar's architect further admitted that he was informed by a representative from the City of Atlanta that there was no public sewer easement serving Najjar's property and that, if an easement did exist, it was a private easement over which the City had no authority.The evidence shows that both Najjar and his architect were...