Macko v. City of Lawrenceville

• Decision Date: 11 March 1998
• Docket Number: No. A97A2037.,A97A2037.
• Citation: 499 S.E.2d 707,231 Ga. App. 671
• Parties: MACKO et al. v. CITY OF LAWRENCEVILLE et al.
• Court: Georgia Court of Appeals

499 S.E.2d 707

231 Ga. App. 671

MACKO et al. v. CITY OF LAWRENCEVILLE et al.

No. A97A2037.

Court of Appeals of Georgia.

March 11, 1998.

Reconsideration Denied March 27, 1998.

Mottern & Van Gelderen, Leon A. Van Gelderen, Atlanta, Mottern, Fisher & Rosenthal, Sheri M. Rosenthal, Tucker, for appellants.

Webb, Tanner & Powell, Anthony O. L. Powell, Robert J. Wilson, Lawrenceville, Carter & Ansley, Tommy T. Holland, Burke B. Johnson, Chambers, Mabry, McClelland & Brooks, Ian R. Rapaport, Atlanta, for appellees. SMITH, Judge.

William and Patricia Macko brought this complaint for declaratory judgment, abatement of a nuisance, and damages. They appeal from the Gwinnett County Superior Court's grant of summary judgment to the City of Lawrenceville, Appalachee Enterprises, Inc., and five adjacent property owners.

In 1986, Appalachee Enterprises, Inc. ("Appalachee"), a property developer, filed a subdivision plat in the real property records of Gwinnett County. Builder Gaines Brown constructed a home on Lot 90 of the subdivision property and sold it to the Mackos in December 1987. Unfortunately, the property flooded during heavy rains, allegedly causing significant property damage.

In August 1991, the Mackos sued Brown and the City of Lawrenceville, Georgia ("City"). The Mackos asserted that the City negligently allowed Brown to build their home in a defective manner, thereby creating a continuing nuisance, i.e., recurrent flooding. The City brought a third party claim against Appalachee. Following a jury trial, judgment was entered in favor of the Mackos for $60,000 against Brown and $90,000 against the City; the City was awarded $18,750 against Appalachee. The City appealed, and this Court reversed the judgment against the City. See City of Lawrenceville v. Macko, 211 Ga.App. 312, 439 S.E.2d 95 (1993) ("Macko I").

Subsequently, in September 1995, the Mackos filed this suit and named the City, Appalachee, and five adjacent property owners¹ as defendants. The complaint, as amended, alleged that the Mackos' property suffered recurrent flooding as a result of inadequate drainage from the neighboring properties and that such flooding constituted a continuing nuisance. The Mackos sought a declaratory judgment as to the liabilities of each defendant, abatement of the nuisance, and damages.

With one exception, all of the defendants moved separately for summary judgment. The Mackos also moved for summary judgment and declaratory relief. The trial court conducted a motions hearing on September 9, 1996, and thereafter granted the defendants' motions. The claim against the remaining defendant, James Pritchett, subsequently was dismissed by the trial court. The Mackos appeal.

1. In three enumerations of error, the Mackos assert the trial court erred in granting summary judgment to the City on the basis of res judicata or collateral estoppel. "OCGA § 9-12-40 provides that `A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.' OCGA § 9-12-42 provides that `For a former judgment to be a bar to a subsequent action, the merits of the case must have been adjudicated.' These code sections together set out the basic principles of res judicata in Georgia. For res judicata to act as a bar of a subsequent action, the original and subsequent action must bear certain identical characteristics. The two actions must be between identical parties or their privies, and the cause of action in each suit must be identical. Collateral estoppel, like res judicata, requires identity of parties or privity. However, unlike res judicata, collateral estoppel does not require identity of the claim but only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action. Further, the doctrine of res judicata will bar an action even if some new factual allegations have been made." (Citations and punctuation omitted; emphasis supplied.) City of Macon v. Pasco Bldg. Systems, 191 Ga.App. 48, 50, 380 S.E.2d 718 (1989); Bradley v. Georgia Institute of Technology, 228 Ga.App. 216(1)(a), 491 S.E.2d 453 (1997); Matherly v. Kinney, 227 Ga.App. 302, 304(2), 489 S.E.2d 89 (1997); see also Stone Man, Inc. v. Green, 265 Ga. 877, 878, 463 S.E.2d 1 (1995).

In Macko I, supra, the City was a named defendant and made a third party claim against Appalachee; Appalachee answered and participated in the trial of the case. In reversing the trial court's verdict against the City, this Court specifically found that the City's approval of the subdivision plat did not constitute an acceptance of responsibility for the drainage system. Macko I, supra at 317, 439 S.E.2d 95. Further, there was "no evidence that the City exercised any control over this drainage system" so as to establish a duty to maintain it. Id.; see also Hibbs v. City of Riverdale, 267 Ga. 337, 338,478 S.E.2d 121 (1996).

In Hibbs, the Supreme Court of Georgia held that "the sole act of approving a construction project which leads to an increase in surface water runoff cannot impose liability for creating or maintaining a nuisance," in the absence of evidence that the City assumed the responsibility of maintaining the drainage system. Hibbs, supra at 338, 478 S.E.2d 121. Accordingly, the issue of whether the City could be held liable for failure to maintain the drainage system was decided adversely to the Mackos in Macko I. In the present case, the Mackos' claim for a declaratory judgment against the City regarding its responsibility for maintaining the system therefore is barred by the doctrine of res judicata.

The Mackos' claims for abatement and damages were pled and adjudicated in Macko I as well and are also barred by res judicata. Further, any claims for damages allegedly occurring after Macko I are barred by collateral estoppel to the extent that such claims are premised upon the Mackos' assertions that the City is responsible for maintaining the subdivision's drainage system.

Because the Mackos' other claims of negligence by the City should have been raised in Macko I, they are also barred by res judicata. Miller v. Steelmaster Material Handling Corp., 223 Ga.App. 532, 536-537, 478 S.E.2d 601 (1996). Although the Mackos assert that certain material facts of this case are different than those considered in Macko I, their citation to almost 200 pages of exhibits in the record and their generalized references to disparate treatment by the City are inadequate to support this contention. See Court of Appeals Rule 27(c)(3)(i).

Even so, the Mackos insist that Macko I cannot be construed to bar the present action against the City because the "identity between the cause of action or issues raised in the present suit and those adjudicated in the prior action cannot be uncertain, indefinite, or based upon inferences." Glen Oak v. Henderson, 258 Ga. 455, 458, 369 S.E.2d 736 (1988). The complaining party, however, has the burden to perfect the record on appeal. Petkas v. Grizzard, 252 Ga. 104, 108, 312 S.E.2d 107 (1984). In this case, the Mackos have not filed the record from the prior proceedings. Accordingly, they have not carried their burden of demonstrating error with regard to the application of the res judicata and collateral estoppel doctrines. Petkas, supra at 108, 312 S.E.2d 107; Lee v. State Constr., etc., Bd., 205 Ga. App. 497, 498(2), 423 S.E.2d 26 (1992); Dashiell v. Standard Mgmt. Co., 174 Ga.App. 442(1), 330 S.E.2d 179 (1985). We find no error in the trial court's grant of summary judgment to the City.

2. The Mackos are correct in their assertion that their claims against the remaining defendants are not barred by res judicata. The Mackos are not asserting that these defendants are joint tortfeasors with the City, nor are their claims against the City necessarily contradictory to or mutually exclusive of their claims against the other defendants. See Maxey v. Hosp. Auth. of Gwinnett County, 245 Ga. 480, 481, 265 S.E.2d 779 (1980), overruled on other grounds, Williams v. Physicians, etc., Hosp., 249 Ga. 588, 292 S.E.2d 705 (1982); see also Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga.App. 879, 883, 209 S.E.2d 676 (1974). As such, the remaining defendants were not entitled to summary judgment on the ground of res judicata.

3. The Mackos assert that the subdivision developer, Appalachee, is responsible for creating a nuisance by negligently installing inadequate drainage pipes and curbs.

The Mackos' cause of action against Appalachee for any nuisance created by Appalachee is barred by the applicable four-year statute of limitation unless it is a continuing nuisance. OCGA § 9-3-30. Id. The evidence showed that Appalachee's installation of the drainage system was completed prior to 1989, when the Mackos' property first flooded. As such, any nuisance created by the allegedly inadequate system was complete and apparent in 1989, more than four years prior to the filing of this suit. See Southfund Partners v. City of Atlanta, 221 Ga. App. 666, 669(3), 472 S.E.2d 499 (1996); see also Rowe v. Steve Allen & Assoc., 197 Ga. App. 452, 453, 398 S.E.2d 717 (1990). No evidence was presented that Appalachee took any action subsequent to 1989 that increased the flooding problem. Any nuisance created by Appalachee is therefore not a continuing nuisance, and the Mackos' cause of action against Appalachee is barred by the applicable four-year statute of limitation, OCGA § 9-3-30.

4. The Mackos assert that prior to purchasing his property in 1989, defendant Johnson contracted with Appalachee to fill in a detention pond and negligently extended drainage pipes, thereby contributing to the Mackos' flooding problems. But even if the Mackos' assertions are supported by the evidence, such actions were...