Georgia Court Upholds Substantial Verdict for Storm Water Damages

In the opinion in the case of Ingles Markets, Inc. v. Kempler, 730 S.E.2d 444 (2012), the Georgia Court of Appeals recently upheld a jury verdict awarded in a Hall County court to the owners of land next door to a commercial shopping center.  At the trial of the case, the jury awarded damages for diminution in the value of the land, damages for the injury to the peace and happiness of the plaintiffs, damages for the costs of remediation, and attorneys' fees and punitive damages.   The court held that the evidence at the trial showed the defendants had control over the cause of the harm and were responsible for the full range of damages awarded by the jury.

The court also addressed the Georgia statute regarding apportionment of liability to nonparties, O.C.G.A. Section 51-12-33(c), and held that the trial court's limitation of the apportionment to an identified nonparty was not error; the trial court was not required under the statute to require consideration of all possible sources of the storm water in assessing liability, and was only required to instruct the jury to consider the sources identified by the defendants pursuant to the notice provision of the statute. 

Whether Nuisance to Property Exists Is Jury Question

In Weller v. Blake, the Georgia Court of Appeals issued an opinion on March 27, 2012 that addressed the issue whether a neighbor's outdoor fireplace could amount to a nuisance.  315 Ga. App. 214 (2012).  In reversing the trial court's decision to dismiss the case, the court noted that the existence of a nuisance involves a determination of an objective standard by the jury.  The jury is to determine whether a reasonable person would suffer hurt, annoyance, inconvenience or damage due to the facts adduced by the plaintiff.  O.C.G.A.  Section 41-1-1.  Although the court noted that an alleged injury cannot be fanciful or the type that would affect only one of "fastidious taste," smoke from an outdoor fireplace could amount to a nuisance where the facts showed the smoke was affecting the plaintiffs inside their home.   The court also held that the claim supported a claim of negligence in addition to a claim of nuisance.

The court further held that a plaintiff may recover damages for the annoyance and inconvenience of the facts allegedly giving rise to the nuisance without proof of actual monetary loss.  The range of recovery for such general damages was intended to compensate the injured plaintiffs for the loss of enjoyment of the plaintiffs' property rights.  Damages for a nuisance also included punitive damages and attorneys' fees.  Even where it is clear that the defendant did not maliciously start the nuisance, the failure to abate it after receiving notice of the plaintiffs' claim could show conscious indifference to the circumstances.

The opinion in Weller v. Blake, supra, did not create any new law, but instead contained a thorough discussion of the current state of Georgia law with regard to nuisance claims.    

Appeal of Special Master Requires Transcript

In a case decided by the Supreme Court of Georgia on September 10, 2012, KARLEN v. RELIANCE EQUITIES, LLC., Case No. S12A1056, the court held that it could not review arguments that the special master had erred in its rejection of a quiet title claim. The court found that the plaintiff advancing the claim had failed to provide a transcript of the proceedings before the special master. Without a transcript, there was no way for the court to consider the claims that the special master report should have been overturned by the trial court.

Undue Influence in Making of Will

Wills made near the end of life can be subject to a challenge in probate where a person that would otherwise have been an heir under the law is excluded by the will.  One of the forms of such a challenge is based on allegations that persons who have been elevated to the status as beneficiaries under a will exercised undue influence over the testator.  Upon a showing of undue influence, a will can be invalidated.  The result is that the testator would then be deemed to have died without a will, or with a prior will in place.  If the testator dies without a will, then the laws of intestate succession would determine the heirs to estate and not the will.  Accordingly, the theory of undue influence is a means by which an heir at law, excluded from a will, can invalidate the will and assume his place as a beneficiary.

In the Georgia Supreme Court opinion in Davidson v. Hines, Appeal Case No. S12A0405 (July 2, 2012), the Court recently upheld a decision of a Georgia trial court that submitted the issue of undue influence to a jury to decide as the finder of fact.  The Court made various findings in the opinion indicating that the facts and circumstances surrounding execution of the will were sufficient to meet the criteria for a jury finding of undue influence.

Property Owner Entitled to Business License to Continue Nonconforming Use

In the opinion in Haralson County v. Taylor Junkyard of Bremen, Inc., Appeal No. S12A0200, the Georgia Supreme Court issued a ruling upholding a land owner's rights to continue a nonconforming use of a junkyard in a residential zoning district because the prior owner had started the junkyard before Harlason County adopted the zoning ordinance prohibiting it.  

The Court held that the property owner was entitled to the business license following an appeal of a denial of the license to the Board of Zoning Appeals, that the plaintiff had not abandoned the nonconforming use and possessed "grandfather rights," and that the proper procedure for taking the case to court was in the form of a writ of mandamus, and not an appeal or writ of certiorari. 

Construction on a Property Without Owning It

In an opinion issued on July 2, 2012, the Georgia Supreme Court addressed an instance in which a would be property owner built a house on the wrong lot.  The Court also addressed the issues that arose when a holder of a tax deed and quitclaim deed to the lot sought to quiet title the lot. 

The opinion indicated that even where a person has not established adverse possession to a property for the statutorily required period of 20 years, that person may still have a claim to title if the value of the improvements he made exceeds the value of the property and other due rents, and if the legal title holder does not elect to pay for the improvements.  The case in which this opinion was addressed was Small v. Irving, Slip Op., Appeal No. S12A0182 (Ga. Sup. Ct., July 2, 2012).

Association Required to Follow County Maintenance Code

Teague & Chambless, LLLP is representing homeowners against an association in a lawsuit and companion case.  The main case is styled and known as John Rymer, et al. v. Polo Golf & Country Club Homeowners Association, Case No. 10CV-0415 (Superior Court, Forsyth County, Georgia).   The case involves the Rymer's claims for damages due to flooding of their home.  The Rymers contend their damages are connected to failures of under ground pipes and a detention area in the Polo Subdivision.  The corrugated metal pipes in the subdivision were installed twenty five years ago, and are failing due to rust and age.

On July 3, 2012, the Superior Court of Forsyth County entered an order enforcing Section 4.2.2 of a Post Development Storm Water Code, which is a part of the county's development codes.  (Order of July 3, 2012.)  The relevant code section provides that in Forsyth County subdivisions that have homeowner associations, associations are responsible for maintenance and repairs to components of the storm water system that service the subdivision's residents.

Georgia Law Permits Damages for Stigma to Property

In Royal Capital Development, LLC v. Maryland Casualty Company, Case No. S12Q0209 (Ga., May 29, 2012), the Georgia Supreme Court ruled that a property owner suffering damages to its land may recover damages for the decrease in value in addition to the costs of repair.  In the decision, the court directed the law of recovery away from the course suggested by the opinion in the nuisance case of City of Atlanta v. Broadnax, 285 Ga. App. 430, 646 S.E.2d 279 (2007), which indicated that a property owner would be limited to either the diminution in value, or the cost of repairing damage.  The court of appeals had held a land owner could not recover damages for stigma to property remaining after a repair.  In Broadnax, the court of appeals had reasoned that a repair would restore the value to a property damaged from a flooding nuisance and that homeowners could not recover the lost value from the stigma of living in a flood prone area due to the city's inaction.  The supreme court's opinion in Royal Capital Development, LLC disapproved of this holding and held that a property owner can recover both types of damages.

The facts underlying the opinion in Royal Capital Development, LLC involved a claim on an insurance policy brought by an Atlanta property owner who suffered damages to a building due to shaking.     This decision will have a significant impact on the valuation of nuisance cases and other property owner cases in Georgia.  Property owners, such as landowners damages by flooding or blasting from a rock quarry, will be able to recover both the costs to restore their property to its predamaged condition in addition to the decrease in value that stems from owning "damaged goods."

Partners Owe Fiduciary Duties

Partners in a business owe a fiduciary duty of utmost good faith to one another. This duty is stated in a Georgia statute and is not discretionary to the partners. O.C.G.A. Section 23-2-58.
One partner cannot dissolve a partnership in order to take the business and partnership investments. He is required to act in a manner for the good of his partner as well as for the good of the partnership itself. Jordan v. Moses, Case No. S11G1772 (May 7, 2012, Ga. Supreme Court).

Settlement of Property Disputes Requires Consent to Terms

In a recent case involving a dispute over a property line, the Georgia Supreme Court vacated a consent judgment entered by the court. The supreme court found that getting permits from the Georgia Department of Natural Resources was a condition of the agreement. Allen v. Sea Gardens Seafood, Inc., Case No. S111912 (March 19, 2012). The trial court's decision to delete this condition as part of the settlement negated the settlement agreement because the supreme court found the parties had agreed on the allegedly unfulfilled condition.

Adoption of Zoning Ordinance Requires Formalities

In East Georgia Land Development Co. v. Newton County, Georgia, Case No. S12A0114 (March 19, 2012, Ga. Supreme Ct.), the Georgia Supreme Court reiterated that formalities are required for the adoption of zoning ordinances under the Zoning Procedures Law, O.C.G.A. Section 36-66-1, et seq. The case held that there was an issue regarding whether the county had a valid zoning ordinance due to an alleged failure to attach a copy of the zoning ordinance to the minutes of the meeting of the board of commissioners. The case also found that there was an issue regarding whether the county had valid zoning maps.

Width of a Street Created by Plat May Depend on the Needed Width

The width of an easement shown on a subdivision plat may be limited to the width needed for the actual use.  In Goodson v. Ford, the Georgia Supreme Court issued an opinion authored by Justice Nahmias on March 5, 2012 in which it reviewed facts presented by a special master report in a quiet title action.  Goodson v. Ford, Case No. S11A1740 (Ga., March 5, 2012).  

In Goodson, supra, the plaintiffs, the Fords, bought 39 acres of property in Lee County, Georgia with a grass strip through it that led to the Goodsons' driveway, which terminated in the strip.  The Goodson operated a daylily business.  Both the Goodsons and their neighbors the Ellers used the strip for access.  The Goodsons apparently enjoyed a main easement access to the business from another location as the facts in the case indicated the grass strip was used to service dumpsters and for occasional use by customers.  The access was originally shown as "Carol Street" on an old subdivision plat in the chain of title for the Goodsons.  The subdivision plat showed the width of the access at 60 feet.

Slander of Title Requires Proof of Falsity, Malice and Special Damages

 In Giles v. Swimmer, Case No. S11A1371, (Ga., March 5, 2012), the Georgia Supreme Court issued an opinion in a quiet title and slander of title case listing the elements of a slander of title claim.  The facts of the case would require a flow chart to describe, but the legal holding was simple.  The claimants in the case failed to show the elements of a claim for slander of title by BB&T Bank.

The court held that slander of title requires a malicious act, which BB&T had not committed.  The elements of a slander of title claim require a plaintiff to present evidence that a defendant recorded a document in the public deed records, or made a statement, that was false and malicious causing special damages to the plaintiff's estate in land.  Giles v. Swimmer, supra. The last element requires proof that the plaintiff indeed owns an estate in the land.   Evidence of special damages must be specific; a plaintiff cannot rest on a general claim that he has suffered special damages.  Id.

The case appears to show the difficulty in establishing slander of title against a bank or corporate entity acting without a motive to harm a plaintiff when the actor is simply taking action to protect its collateral under a chain of deed instruments and notes.

Incorporation by Plat Does Not Establish Ownership Contrary to Deed Description

Sometimes a legal description to land in a deed does not match up with what is shown on a recorded plat.  When this happens, the deed description prevails.  In Washington v. Brown, the Georgia Supreme Court issued an opinion rejecting a claim of title to land based on a referenced plat on the grounds the land in the plat did not match the legal description in the deed.  Washington v. Brown, Case No. S11A1551 (Fe. 6, 2012).  The court cited the 1956 case in Johnson v. Willingham, 212 Ga. 310, 311 (1), in reaching this conclusion. The court held the legal description trumped the plat reference.

The Washington case also rejected a claim of adverse possession under the shortened period for color of title.  The court held the plat reference was not sufficient to invoke color of title thereby requiring a showing of adverse possession for the longer, 20 year period.   The squatter had failed to show continuity of possession for 20 years and had to rely on the 7 year argument requiring color of title.

The most interesting part of the Washington decision was the result of the case.  The suit was between two landowners in a quiet title action.  The party losing the plat argument in the supreme court had prevailed before the special master and before the superior court -- on the appeal from the special master.  Because the special master in the proceedings below had previously ruled against the appellant's claim of title, the result of the court's opinion appears to be that both parties to the land dispute lost their claim to the disputed land! 

Written Power Line Easements Are Contracts

An easement in Georgia is a right that a person or company enjoys in relation to another person's property.  Easements for storm water pipes, drainage courses, power lines, gas lines, driveways, and roads or access often exist on or across a property owner's property.  Many times, these easements are recorded in the deed records maintained by a county.  Where easements are recorded, the courts treat the easements as written contracts between the holder of the easement and the property owner across which the easement runs.   Georgia courts have explained this principle as follows in a case involving a Georgia Power Company easement:

That written easement constitutes a contract, and express easements are construed by applying the rules of contract construction. Municipal Elec. Auth. of Ga. v. Gold–Arrow Farms, 276 Ga.App. 862, 866(1), 625 S.E.2d 57 (2005). “Generally, this [easement] presents a question of law for the court, unless the language presents an ambiguity that cannot be resolved by the rules of construction.” Id. In construing a contract, if the terms are clear and unambiguous, the court looks to the contract alone—the easement itself—to determine the parties' intent. Parris Properties v. Nichols, 305 Ga.App. 734, 738(1)(a), 700 S.E.2d 848 (2010).

Richardson v. Georgia Power Co., 308 Ga. App. 341, 343, 708 S.E.2d 10, 12 (2011), reconsideration denied (Mar. 10, 2011).

Contractual Right of First Refusal Not Compensable Under Taking Clause

In an opinion on February 6, 2012, the Georgia Supreme Court held that a condemning authority is not required to compensate a landowner for a right of first refusal of a tract of land adjacent to the tract subject to condemnation under the Taking Clause of the Georgia Constitution of 1983, Art. 1., Section 3, Paragraph 1.  Robinson v. Gwinnett County, Case No. S11A1533 (Feb. 6, 2012).   The right of first refusal of the adjacent tract had value and was part of the bundle of rights held, but the Court decided that the county was not required to compensate the landowners for the value of the option upon condemning the land to which the option was attached. 

Open Meetings Act Requires Record of Votes

In the opinion in Cardinale v. City of Atlanta issued February 6, 2012, the Georgia Supreme Court addressed a set of facts raising the issue whether the Open Meetings Act required a municipality to make a record of the names of members voting for and against a proposal in a poll at a retreat.  The Court's opinion stated that when members of a city council get together and float a proposal informally among the group to ascertain support for a resolution, the names of the members voting for and against the proposal must be made a public record.  Cardinale v. City of Atlanta, Case No. S11G1047 (Ga., Feb. 6, 2012). 

Adverse Possession of Family Land

In Georgia a person may show adverse possession to land, also sometimes called "Squatters Rights," if he can show that he satisfied various elements for proving it.  The showing is fairly complicated, and one has to consult an attorney to get an idea if his circumstances might warrant title via adverse possession.  Stories that lead to a claim adverse possession often involve families living on farm land.

In Defoor v. Defoor, Case No. S11A1977 (Ga., January 23, 2012), the Georgia Supreme Court considered a classic case of adverse possession of property in the mountains in North Georgia.  A grandmother, Millie, had record title.  Although she had nine children, she continued to live on the farm with one of her son's families after her husband died.  Eventually she died, and one of her grandsons ended up in control of the property after his own parents died.  All of this occurred without a change of title on the Gilmer County real estate records.  Finally, a timber company wanted an easement on the land from the grandson.

The easement sale required the grandson to show that he had title before he could give the timber company good title to an easement.  The timber company offered to pay his attorneys' fees and other compensation for the easement, and the grandson filed a petition to quiet title against all of the descendants of his grandmother Millie based on a claim of adverse possession.  The other descendants to his grandmother Millie were co-tenants and had a claim to the property not shown on the Gilmer County deed records.  Their claims had to be extinguished before the grandson could profit from the sale to the timber company.

In Defoor, supra, the grandson was able to meet the requirements for showing that he owned the land via adverse possession.  The grandson was able to show that he and his parents had possessed and maintained the property for more than the twenty years.   He also met the other elements for adverse possession by proving, among other things, that he had possessed and maintained the land in the way Georgia law requires.   The claims of the many descendants of the nine children of Millie were extinguished.

How Wills Are Proven Valid

In the opinion in Mason v. Phillips, decided January 23, 2012, the Georgia Supreme Court addressed an issue in a dispute between parties regarding the validity of a will discovered sixteen years after the death of the will's author.  Mason v. Phillips, Case No. S11A1951 (Slip Op., Ga., Jan. 23, 2012).   The will was even older.  The testator had made the will in 1974.   Given the age of the will and the delay in advancing it for probate, the witnesses to the will were no longer available.  Ultimately, the testator failed to prove the will was valid.  The dispute regarding the will at issue in  Mason v. Phillips, supra., was determined by old versions of the Georgia Probate Code.

In modern practice, estate attorneys will use an instrument called a self proving affidavit in which the witnesses to the will swear they saw the execution of the will at the same time that they signed as witnesses to the will itself.  Where a self proving affidavit does not exist, then the witnesses to the will may have to appear in court to prove that the will is valid.  The person offering a will for probate must prove the genuine nature of the testator's signature by a preponderance of the evidence using other means if the subscribing witnesses cannot be located and a self proving affidavit does not exist.  Mason v. Phillips, supra.  Because wills are often executed years before they are offered for probate, it is very important to make sure that a will is properly executed with a self proving affidavit.

Georgia Standard for Invalidating Wills is High

A person will sometimes change his will when he enters a hospital and delete a child included in a past will from the new will.  The excluded child may then seek to challenge the change in the will claiming it was the result of undue influence, coercion, or an unsound mind.   Such changes, which can be made at a time of extreme physical duress of the testator affecting his thinking, can have devastating effects.  However, the cases in Georgia regarding the burden of proof that a challenger must meet make it difficult for the newly excluded child to invalidate the new will.  The Georgia Supreme Court started out 2012 with two cases regarding this issue.  First, the recent case of the Georgia Supreme Court in Prine v. Blanton, Appeal Case No. SA11A1315 (Jan. 9, 2012), reiterated the rules that create this high burden on persons seeking to challenge the will.

Contempt Is the Remedy to Enforce Injunctions regarding Easements

Parties to court proceedings involving private rights of way or trespass sometimes question the power of a judge to tell them to do something.  Sometimes people do not take the orders of a court seriously and act in a recalcitrant manner to test whether a judge will enforce his order.  However, a Georgia Superior Court Judge is one of the most powerful officials in Georgia and has the power to fine and incarcerate parties who do not violate his orders.