Petree v. State

• Decision Date: 13 March 2017
• Docket Number: A16A1979
• Citation: 798 S.E.2d 482,340 Ga.App. 694
• Parties: PETREE v. STATE of Georgia DEPARTMENT OF TRANSPORTATION, et al.
• Court: Georgia Court of Appeals

340 Ga.App. 694

798 S.E.2d 482

PETREE

v.STATE of Georgia DEPARTMENT OF TRANSPORTATION, et al.

A16A1979

Court of Appeals of Georgia.

March 13, 2017

Thomas F. Jarriel, Macon, for Appellant.

Christopher Michael Carr, Samuel S. Olens, Loretta L. Pinkston-Pope, Atlanta, Melissa Angeleah Tracy, Virgil Louis Adams, Macon, Dawn Maynor Lewis, for Appellee.

Branch, Judge.

After her property suffered damage from the repeated flooding of a drainage ditch located at the back of her residential lot, Dixie Petree sued the Georgia Department of Transportation (the "DOT") and Macon-Bibb County (the "County") in Bibb County Superior Court. Petree's complaint asserted claims for negligence, trespass, and nuisance, and she alleged that the DOT and/or the County were responsible for the conditions that resulted in the flooding of her property. Petree now appeals from the trial court's order dismissing her complaint, asserting that the trial court acted improperly when, over Petree's objection, it considered evidence other than the pleadings to determine whether Petree's complaint stated a claim against the County. Petree further contends that the trial court erred in finding that her claims for ordinary negligence were subject to the expert affidavit requirement of OCGA § 9-11-9.1, and that the DOT was entitled to sovereign immunity from such a claim. Finally, Petree argues that the court erred when it found that her claims for nuisance and trespass were barred by the applicable statute of limitation and/or her failure to provide the DOT with a timely ante litem notice. For reasons explained more fully below, we affirm the trial court's dismissal of Petree's claims against the DOT, reverse the order of dismissal as to the County, and remand the case for further proceedings consistent with this opinion.

We review the grant of any motion to dismiss de novo, applying the rule that a motion to dismiss "should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof." Babalola v. HSBC Bank, USA, N.A. , 324 Ga.App. 750, 752 (2), 751 S.E.2d 545 (2013) (citation and punctuation omitted). See also Sadler v. Dept. of Transp. , 311 Ga.App. 601, 603, 716 S.E.2d 639 (2011). And when reviewing a trial court's determination that a pleading fails to state a claim upon which relief can be granted, this Court is cognizant of the fact that "the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act." Campbell v. Ailion , 338 Ga.App. 382, 384-385, 790 S.E.2d 68 (2016) (citation and punctuation omitted). Thus, "[we] treat[ ] all material allegations set forth in the complaint as true, treat[ ] all denials set forth in the answer as false, and resolv[e] any doubts in favor of the plaintiff." Id. at 383, 790 S.E.2d 68 (citations omitted).

Viewed in the light most favorable to Petree, the record shows that Petree filed suit in May 2014 and alleged that acting individually and jointly, the defendants had "caused, maintained, and allowed to exist a drainage ditch adjacent to, and which has been allowed to become a part of, [Petree's] property"; had negligently planned, designed, constructed, and maintained the ditch; and had "been negligent in allowing the drainage ditch to exist in its past and present state; "had caus[ed] construction in adjacent areas which worsened the condition of the drainage ditch"; and "[had] fail[ed] and refus [ed] to make necessary improvements to prevent damage caused by the drainage ditch." Petree further alleged that her property had been and continued to be damaged by the discharge of water from the drainage ditch, and that such damage had begun in 2000. Finally, Petree asserted that despite having taken measures in an effort to mitigate these damages, the discharge of water "continues to occur whenever any significant amount of rain falls in or about the vicinity." Attached to the complaint were copies of the ante litem notices that Petree had provided to the State and the County on July 30, 2013.

Both the DOT and the County filed answers in which they asserted that the complaint failed to state a claim for relief and that Petree's claims against them were barred by the applicable statute of limitation and the doctrine of sovereign immunity. The DOT also asserted that Petree's claims against it were barred by Petree's failure to provide a timely ante litem notice. Additionally, the DOT argued that to the extent Petree's negligence claim was premised on an assertion that the defendants had been negligent in the planning, design, or construction of the ditch, that claim was barred by Petree's failure to attach an expert affidavit, as required by OCGA § 9-11-9.1. Contemporaneously with the filing of its answer, the DOT also filed a motion to dismiss based on the affirmative defenses asserted in its answer. The County thereafter filed a motion to dismiss based on its asserted defenses.

In support of its motion to dismiss, the DOT filed a brief to which it attached 58 pages of exhibits showing that Petree first became aware of an increased water flow in the ditch by no later than 2001, that she began corresponding with the County regarding the increased flow at that time, and that flooding from the ditch began causing erosion to her property by 2002. These exhibits also showed that Petree had originally provided the State with an ante litem notice in June 2011, and that this notice was virtually identical to the second ante litem notice she provided in July 2013. The County filed a brief in support of its motion to dismiss, to which it attached 20 pages of exhibits. These exhibits included two plats showing Petree's residential lot, with one of those plats denoting the drainage ditch at the back of Petree's property as a "natural ditch."¹ The second of these plats showed a retention pond located directly behind Petree's property. It appears from the exhibits submitted by both the DOT and the County that this retention pond was filled in by the County sometime between 2006 and 2009. The exhibits also indicated that in November 2005 the DOT had informed Petree that it was not responsible for maintaining the ditch, and indicated that the County had refused to repair, maintain, or otherwise alter the ditch no later than March 2009.

At the time it filed its motion to dismiss, the DOT also filed a motion for a preliminary hearing on the issue of sovereign immunity and requested that it be allowed to present oral testimony on that issue at such a hearing. The trial court granted that motion, and on December 17, 2014, issued a rule nisi directing the parties to appear for a January 7, 2015 hearing and advising them that "Defendant [DOT] will present oral testimony at said hearing."

At the outset of the hearing on the motions to dismiss, Petree's lawyer stated on the record that he was aware the DOT would be presenting testimony that was relevant to the threshold issue of sovereign immunity. Counsel further stated that just prior to the hearing, the County's attorney had "handed" him the affidavit of the County engineer and that he believed the County intended to offer the same as evidence at the hearing. Petree's attorney then expressed his concern regarding the presentation of this additional evidence, stating, "we're stretching the boundary between a motion to dismiss and a motion for summary judgment because evidence is being presented but not a whole lot of it." The lawyer continued that if the court intended to consider evidence that addressed issues other than sovereign immunity, he would ask that Petree be allowed additional time to present affidavits. The court responded that it assumed the only testimony being offered would relate "specifically to [the defendants'] motions to dismiss," but that if "something comes out in the hearing that you think you may need some additional time from the court to present, I'll hear from you, and then if it's appropriate ... I'll allow you that time to present [additional evidence] as well."

The DOT presented the testimony of one of their employees that the only road projects for which it was responsible and that might have affected Petree's property were completed no later than 1998; that the drainage ditch at issue was not constructed as part of any DOT project; and that the employee had no idea how the ditch came to be in existence. When the court questioned the employee regarding the origins of the ditch, it was the County's attorney who responded. The attorney referenced the plat of Petree's property which was attached to the brief the County filed in support of its motion to dismiss and which referred to the ditch as a "natural ditch." The DOT also called Petree to testify and introduced her handwritten notes which detailed her efforts, beginning in 2000, to have the County address the ongoing damage to her property. When the DOT tendered this document into evidence, the court stated to Petree's attorney, "I assume there is no objection as it is something your client wrote." The lawyer responded that he had no objection but "again, if we need to file any additional affidavits or [evidence] subsequent to [the hearing]...." The court responded that it would decide at the end of the hearing whether any such additional evidence was needed.

During his argument to the court, the County's attorney contended that the ditch was a permanent rather than an ongoing nuisance. At that time, the County's attorney offered as additional evidence the restrictive covenants from Petree's subdivision. The attorney used these covenants to support his argument that the County had no legal duty to maintain the ditch, asserting that the covenants "appear[ ] to put the onus on the property owner" to remedy any problems caused by the...