Ponce de Leon Condominiums v. DiGirolamo

• Court: Georgia Supreme Court
• Writing for the Court: NICHOLS
• Citation: Ponce de Leon Condominiums v. DiGirolamo, 238 Ga. 188, 232 S.E.2d 62 (Ga. 1977)
• Decision Date: 06 January 1977
• Docket Number: No. 31715,31715
• Parties: PONCE de LEON CONDOMINIUMS et al. v. Mario DiGIROLAMO et al.

Page 62

232 S.E.2d 62

238 Ga. 188

PONCE de LEON CONDOMINIUMS et al. v. Mario DiGIROLAMO et al.

No. 31715.

Supreme Court of Georgia.

Jan. 6, 1977.

Bynum & Kell, Joe H. Bynum, Jr., Atlanta, for appellants.

Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, J. Kirk Quillian, David A. Handley, James C. Huckaby, Jr., M. Cook Barwick, Atlanta, for appellees.

NICHOLS, Chief Justice.

Dr. Mario DiGirolamo brought suit against appellants Ponce de Leon Condominiums and the Baier Corporation alleging that he was the owner of certain residential property which was receiving unnaturally large quantities of surface waters from adjacent property being developed by appellants. DiGirolamo sought actual and exemplary damages, injunctive relief and attorney fees for the alleged trespass and nuisance. Appellants in turn filed a third-party complaint against its architect's engineering consultant, D'Angelo and Lancaster Associates, Inc., alleging that they had relied upon the latter's recommendations and plans to insure that no such water discharge problems arose out of the development and that any damage to DiGirolamo was accordingly the fault of the third-party defendant. DiGirolamo recovered a jury verdict against appellants for $1,000 nominal damages, $9,000 exemplary damages, and $5,800 attorney fees. A directed verdict was entered in favor of the third-party defendant.

The record contains evidence that DiGirolamo had experienced no significant accumulation of surface waters on his property prior to the initiation of the appellants' condominium development project. Immediately following the initiation of the construction, appellee notified appellants of his concern about the water problem which, it appeared to him, would inevitably result from the grading and paving of the development property and the routing of a drainage system onto his land. He was assured by appellant that the development had been engineered in such a way as to prevent additional surface waters from being diverted to his property in excess of that which had occurred naturally. Over the following two years, however, a worsening run-off problem did in fact develop resulting in the pooling of water and silt on appellee's property. Appellee, first on his own and then through his attorneys, repeatedly brought the problem to the attention of the appellants and endeavored to get them to do something to remedy it. Although appellants did make some improvements in an effort to slow down and disperse the flow of water from their land, the source of the problem, which was the routing of the drainage system onto appellee's property, was never altered.

1. Appellants enumerate as error the entering of judgment against them for punitive damages. 'To authorize the imposition of punitive or exemplary damages, there must be evidence of willful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences.' Southern Railway Company v. O'Bryan, 119 Ga. 147(1), 45 S.E. 1000 (1903); Investment Securities Corp. v. Cole, 186 Ga. 809, 199 S.E. 126 (1938); Standard Oil Co. v. Mount Bethel Church, 230 Ga. 341, 343, 196 S.E.2d 869 (1973); Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975). 'The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.' Gilman Paper Co. v. James, supra at 351, 219 S.E.2d at 450.

The record supports the verdict for punitive or exemplary damages. Appellee complained to appellants at the inception of the project that the development would result in an increased discharge of surface waters onto his land and attempted to persuade them to design a sewer system which would route these waters in a different direction. Appellants responded that such a system would cost approximately $15,000 and would be unnecessary since their architects had assured them that no water run-off problem would result. When the problem did in fact result, appellants made some effort to alleviate it by installing sedimentation ponds, but at no time did they make any effort to lessen the quantity of water being discharged onto appellee's property. The jury was authorized to find that appellants had acted with 'conscious indifference' to consequences, if not in creating, then in failing to correct a drainage system which was causing damage to appellee.

2. Appellants also enumerate as error the award of attorney's fees to the appellee. 'Attorney's fees as expenses of litigation are not punitive or vindictive damages, but stand alone, are regulated by Code § 20-1404, and the jury may allow them if the defendant has acted in bad faith in the transaction out of which the cause of action arose.' Williams v. Harris, 207 Ga. 576(3), 63 S.E.2d 386 (1951); B-X Corp. v. Jeter, 210 Ga. 250, 255, 78 S.E.2d 790 (1953); Bowman v. Poole, 212 Ga. 261(3), 91 S.E.2d 770 (1956); Standard Oil Co. v. Mount Bethel Church, 230 Ga. 341, 343, 196 S.E.2d 869, supra. 'Every intentional tort invokes a species of bad faith that entitles a person wronged to recover the expenses of litigation including attorney fees.' DeKalb County v. McFarland, 231 Ga. 649, 651, 203 S.E.2d 495, 499 (1974). See City of Dublin v. Hobbs, 218 Ga. 108, 110, 126 S.E.2d 655 (1962). The same testimony as to the appellee's early, persistent, and unheeded complaints which authorizes the verdict for punitive damages in this case also provides authorization for the jury's finding that the appellants acted in bad faith in failing to correct the run-off problem.

3. Appellants enumerate as error the award of $1,000 nominal damages as being excessive. Actual damages are evidenced in this case by a showing that the appellee was deprived of the full use and enjoyment of his property by the increased flow and pooling of surface waters thereon. 'A recovery may be classified as coming under the definition of nominal damages where the violation of a right is shown, substantial damages claimed, and some actual loss proved, and yet the damages are not susceptible of reasonable certainty of proof as to their extent.' Western Union Telegraph Co. v. Glenn, 8 Ga.App. 168(1), 68 S.E. 881 (1910). In such a case the jury's prerogative of fixing the amount of recovery of damages termed nominal will not be disturbed on appeal, except in extreme cases. Atlantic Coast Line R. Co. v. Stephens, 14 Ga.App. 173, 174, 80 S.E. 516 (1914). See Sellers v....