SECOND DIVISION MILLER, P. J., RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
September 23, 2019
In the Court of Appeals of Georgia A19A1295. KLINGENSMITH et al. v. LONG COUNTY, GEORGIA.
MILLER, Presiding Judge.
This appeal stems from a negligence and nuisance action that various residents
who live in or around the Vickers Hill subdivision filed against Long County,
Georgia (“the County”), due to the repeated flooding of the subdivision. The trial
court granted summary judgment to the County on various grounds that included
sovereign immunity, failure to comply with the presentment requirement of OCGA
§ 36-11-1, and the merits. The plaintiffs now appeal from the trial court’s summary
judgment order, challenging each of the grounds on which the trial court relied in its
order. We conclude that (1) the plaintiffs’ negligence claims are barred by sovereign
immunity; (2) any claims of a permanent nuisance or trespass are barred by the one- year presentment requirement of OCGA § 36-11-1; and (3) the plaintiffs failed to
produce evidence to create a genuine issue of material fact on a claim for continuing
nuisance. We therefore affirm.
“Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. We review the grant or
denial of summary judgment de novo, construing the evidence in favor of the
nonmovant.” (Citation and punctuation omitted.) Summer v. Security Credit Svcs.,
LLC, 335 Ga. App. 197, 197-198 (779 SE2d 124) (2015).
So viewed, the record shows that, around 2006, Georgia Coastal Land
Company acquired land in Long County, Georgia, with the intent to develop and
build a residential subdivision called Vickers Hill. Georgia Coastal had P.C.
Simonton & Associates, Inc., a civil engineering firm, prepare a preliminary plat for
the subdivision to submit to the County for approval. The County approved the plat
in April 2007, and, at that time, Georgia Coastal began selling lots to private parties
for development and construction.
Soon after construction began in Vickers Hill, standing water became an issue
for many of the residents of the subdivision. In 2014, after receiving many complaints
of the flooding from the residents of Vickers Hill, the County studied the issue of
2 flooding at the subdivision and issued a report. The report concluded that the
development of the subdivision increased the total runoff from the area by
approximately 25 cubic-feet-per-second, which was significantly higher than the 1
cubic-foot-per-second increase that was set by the County’s ordinance. This large
increase of runoff resulted in a back-up at the culvert on the property of Carl Steen,
who lives adjacent to the subdivision at the point where the runoff from the
subdivision is released, which served as a major drainage point for the wetlands that
are adjacent to the subdivision. The report recommended that the pipes on Steen’s
property be widened, that various pipes within the subdivision be replaced or
widened, and that various ditches and pipes within the subdivision be cleaned and
restored to the proper grade.
On March 27, 2015, a notice to the County was sent by counsel on behalf of
“several families who reside in and around Vickers Hill Subdivision” who had claims
against the county. The notice specified that it was sent to comply with the
requirements of OCGA § 36-11-1, and it stated that the residents had claims for the
continuing nuisance and trespass caused by the insufficient drainage and resultant
standing water, which still had not been fixed and had also led to the deterioration of
3 the roadways within the subdivision. The notice did not identify any of the residents
by name.
Steen, Randall and Beth Klingensmith, Walter Pelton, William Karriker, James
Wine, and Chester Bradley filed the instant complaint on February 9, 2016, against
the County, two fictitious “John Doe” defendants that were alleged to be employees
or agents of the County, and P.C. Simonton.1 Except for Steen, the plaintiffs are all
residents of Vickers Hill. The plaintiffs raised the following claims against the
County: (1) negligence due to the County’s alleged failure to oversee and monitor the
development and construction within Vickers Hill, the County’s approval of a
development plan for the subdivision that violated the County’s own regulations, and
the County’s failure to maintain the roadways and signage within the subdivision; (2)
nuisance arising from the alleged failure to take sufficient action to address the
extensive flooding and standing water problems in the subdivision; and (3) trespass
for the water that intruded upon and remained on the plaintiffs’ properties due to the
inadequate drainage systems in the subdivision. Service was effected on the County
on February 20, 2016.
1 The plaintiffs later voluntarily dismissed their claims against P.C. Simonton without prejudice.
4 Following discovery, the County moved for summary judgment on all claims.
After a hearing, the trial court granted the County’s motion for summary judgment.
The trial court concluded that (1) the Plaintiffs’ ante litem notice was insufficient
under OCGA § 36-11-1 because the notice did not identify any of the claimants; (2)
the four-year statute of limitations (OCGA § 9-3-30 (a)) barred the claims for
negligence and trespass; (3) the negligence claim was barred by sovereign immunity;
(4) the nuisance claim for the alleged flooding and standing water failed as a matter
of law because the record showed that the County did not construct or maintain the
drainage system; and (5) the nuisance claim for the condition of the roads failed as
a matter of law because the County did not own the roads. This timely appeal
followed.
1. The plaintiffs first argue that the trial court erred in its conclusion that their
negligence claims were barred by sovereign immunity because individual government
officials may be held personally liable for ministerial acts negligently performed, and
they argue that they produced sufficient evidence to show that the County’s agents
were negligent in following the County’s own subdivision regulations in relation to
5 the Vickers Hill subdivision.2 They further argue that sovereign immunity does not
apply because the County was vicariously liable for the actions of its agents. We
disagree.
“[S]overeign immunity is the immunity provided to governmental entities and
to public employees sued in their official capacities.” (Citation omitted.) Ratliff v.
McDonald, 326 Ga. App. 306, 309 (1) (756 SE2d 569) (2014). On the other hand,
“[t]he doctrine of official immunity, also known as qualified immunity, offers public
officers and employees limited protection from suit in their personal capacity.”
(Citation omitted.) Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010).
It is true that official immunity afforded to individual public employees is waived in
cases where ministerial acts were negligently performed or where official acts were
performed with malice or an intent to injure. See id. at 619-620. However, “sovereign
immunity and official immunity are not synonymous, but are separate, related
doctrines. Sovereign immunity . . . refers to the immunity traditionally granted
governmental entites, such as the state or its counties. Official immunity, on the other
2 Because “[s]overeign immunity is not an affirmative defense, going to the merits of the case, but raises the issue of the trial court’s subject matter jurisdiction to try the case,” Ambati v. Bd. of Regents of Univ. Sys. of Ga., 313 Ga. App. 282, 282 n.3 (721 SE2d 148) (2011), we will address the trial court’s determinations as to the County’s sovereign immunity first.
6 hand, is applicable to government officials and employees sued in their individual
capacities.” (Citations and punctuation omitted.) Norris v. Emanuel County, 254 Ga.
App. 114, 116 (1) (561 SE2d 240) (2002). Instead, our law is clear that “[a] county
may be liable for a county employee’s negligence in performing an official function
only to the extent the county has waived sovereign immunity.” (Citation omitted.)
Ratliff, supra, 326 Ga. App. at 309 (1).
Thus, to pursue claims against the County, the plaintiffs must point to a waiver
of the County’s sovereign immunity regardless of whether any individual county
official does or does not have official immunity from the plaintiffs’ claims.3 The only
waiver they point to is the waiver of sovereign immunity for claims alleging the
negligent performance of ministerial duties. That waiver, however, only applies to
cities and does not apply to counties. Rutherford v. DeKalb County, 287 Ga. App.
366, 367-369 (1) (a), (b) (651 SE2d 771) (2007). Compare OCGA § 36-33-1 (b) (“For
neglect to perform or improper or unskillful performance of their ministerial duties,
3 Any claims against the fictitious defendants are not relevant to this appeal because the County’s summary judgment motion was made solely on behalf of the County and not on behalf of any fictitious defendants. The trial court’s summary judgment order also did not appear to address any claims against the fictitious “John Doe” defendants, and any individual “John Doe” defendants are not parties to this appeal.
7 [municipal corporations] shall be liable.”) with OCGA § 36-1-4 (setting out the
sovereign immunity of counties and containing no such waiver for ministerial duties).
Because “[a] waiver of sovereign immunity must be established by the party seeking
to benefit from that waiver,” (Citation omitted.) Liberty County v. Eller, 327 Ga. App.
770, 771 (1) (761 SE2d 164) (2014), and the plaintiffs did not (and do not) point to
any other purported waiver of sovereign immunity by the County for their negligence
claims, they are barred by sovereign immunity.
As the parties correctly point out, however, “the Constitution provides for a
wavier of sovereign immunity where a county creates a nuisance which amounts to
an inverse condemnation.” (Citation omitted.) Eller, supra, 327 Ga. App. at 772 (1).
Therefore, the plaintiffs’ nuisance claims are not barred by sovereign immunity to the
extent they constitute an inverse condemnation.4
2. In two related claims of error, the plaintiffs also argue that the trial court
erred in its conclusion that their nuisance claims were barred by the requisite four-
year statute of limitations, OCGA § 9-3-30 (a), and that the trial court erred in
4 While the plaintiffs raised both a nuisance and a trespass claim in addition to their negligence claims, in essence, these claims together are proceeding as an inverse condemnation claim, “[r]egardless of how the various claims are denominated.” Stanfield v. Glynn County, 280 Ga. 785, 786 (1) (631 SE2d 374) (2006). For ease of reference, we will continue to collectively refer to these claims as nuisance claims.
8 concluding that they failed to comply with the presentment requirement of OCGA
§ 36-11-1. We conclude that summary judgment was properly granted on these
claims.
(a) We first address whether the plaintiffs complied with the statutory
presentment requirement. Under Georgia law, “[a]ll claims against counties must be
presented within 12 months after they accrue or become payable or the same are
barred.” OCGA § 36-11-1. “Substantial compliance is all that is required to meet the
statutory notice requirements” of OCGA § 36-11-1. (Citation omitted.) City of
Columbus v. Barngrover, 250 Ga. App. 589, 596 (4) (552 SE2d 536) (2001).
The trial court correctly ruled that the purported presentment notice that the
plaintiffs sent to the county on March 27, 2015, was insufficient to meet this statutory
requirement because it did not specifically identify any of the claimants. We find
Campbell v. City of Atlanta, 117 Ga. App. 824 (162 SE2d 213) (1968) to be
controlling in this case. In Campbell, we concluded that an ante-litem notice that
identified a husband as a tort claimant, but did not identify his wife as a claimant for
loss of consortium, was insufficient to meet substantial compliance with the
presentment requirement for the wife’s claim, even though there was evidence on the
notice from which the city defendant could have deduced that the wife had a valid
9 claim as well. Id. at 825. We concluded that “[t]he city is only required to make
adjustments with parties who make known their claim and their identity as
claimants.” (Emphasis added.) Id.
Although Campbell involved the ante-litem statute for claims against
municipalities, and not the statute at issue for claims against counties, we find no
reason to deviate from its holding in cases involving claims against counties.5 The
purpose of the presentment statute is to “allow governments the opportunity to
investigate potential claims, ascertain the evidence, and avoid unnecessary litigation,”
Barngrover, supra, 250 Ga. App. at 596 (4), purposes that would all be frustrated if
claimants did not identify themselves to counties against which they have claims.
Finally, there is no indication in the record that the plaintiffs’ identities were
unknown to the attorney who drafted the notice at the time it was sent. Thus, we
5 Both the county statute and the city statute require only substantial compliance, Barngrover, supra, 250 Ga. App. at 596 (4), and neither statute affirmatively requires prospective plaintiffs to identify themselves, see OCGA §§ 36- 11-1; 36-33-5, and so the material requirements of the statutes for the purposes of this appeal are identical.
10 conclude that the March 27, 2015 notice failed to satisfy the statutory presentment
requirement.6
Nevertheless, although the notice was deficient, we agree with the plaintiffs
that their complaint was sufficient to meet the statutory presentment requirements of
OCGA § 36-11-1, as the complaint clearly identified each of the plaintiffs as
claimants and set out the particulars of each of the claims against the County. See
Burton v. DeKalb County, 202 Ga. App. 676, 677 (415 SE2d 647) (1992) (“[I]f a
complaint is filed and properly served within the 12-month time limit, the
requirements of [OCGA § 36-11-1] are met.”). Accordingly, any of the plaintiffs’
claims that accrued within one year of the service of the complaint on the County on
February 20, 2016 (the date when the plaintiffs “presented” their claims to the
County) would not be barred and would be allowed to proceed.7
6 The plaintiffs suggest that, if the County required their identities to investigate the claims, it would have been a trivial matter for the County to use the contact information on the notice to contact the listed attorney. This contention ignores the fact that it is the plaintiffs’ burden to provide the County with the substantial information necessary to give notice of the claim. “It was not incumbent upon [the County] to seek out the [unnamed party] to make adjustment of a claim of which it had no notice.” Campbell, supra, 117 Ga. App. at 825. 7 The four-year statute of limitations for nuisance and trespass claims would also clearly not apply to bar any of these claims since they would have accrued within one year of the filing of the complaint. See OCGA § 9-3-30 (a).
11 (b) We therefore turn to the question of whether any of the plaintiffs’ claims
regarding the standing water problems and allegedly inadequate drainage actually did
accrue during that time period. We conclude that the plaintiffs’ claims for a
permanent nuisance are time-barred and that they have not, as a matter of law,
presented a claim for a continuing nuisance.
A county may be liable for a nuisance if that nuisance “rose to the level of an
inverse condemnation. Mere negligence is not enough.” (Citations omitted.) Morris
v. Douglas County Bd. of Health, 274 Ga. 898 (1) (561 SE2d 393) (2002). Also, “[a]
county is not liable for a nuisance merely because it approved a construction project.”
(Citations omitted.) Id. “To the contrary, in order to become responsible, a
municipality must actively take control over the property in question or accept a
dedication of that property.” City of Atlanta v. Kleber, 285 Ga. 413, 419 (3) (677
SE2d 134) (2009). To be held liable for nuisance, “[o]wnership of land by the
tortfeasor is not an element, but control is; the essential element of nuisance is control
over the cause of the harm. The tortfeasor must be either the cause or a concurrent
cause of the creation, continuance, or maintenance of the nuisance.” (Citation
omitted.) Sumitomo Corp. of Am. v. Deal, 256 Ga. App. 703, 707 (2) (569 SE2d 608)
(2002).
12 Our law distinguishes between two types of nuisances: permanent or
continuing. “The classification of a nuisance as continuing or permanent directly
controls the manner in which the statute of limitations will be applied to the
underlying claim.” (Citations and punctuation omitted.) Eller, supra, 327 Ga. App.
at 772 (2).
A nuisance, permanent and continuing in its character, the destruction or damage being at once complete upon the completion of the act by which the nuisance is created, gives but one right of action, which accrues immediately upon the creation of the nuisance, and against which the statute of limitations begins, from that time, to run. Where a nuisance is not permanent in its character, but is one which can and should be abated by the person erecting or maintaining it, every continuance of the nuisance is a fresh nuisance for which a fresh action will lie. This action accrues at the time of such continuance, and against it the statute of limitations runs only from the time of such accrual.
(Citation omitted.) Id. at 773 (2).
In the context of drainage systems, a complaint about “the mere presence” of
an improperly installed system, pipe, or culvert constitutes a claim for a permanent
nuisance. Kleber, supra, 285 Ga. at 416 (1). A claim for a permanent nuisance accrues
“upon the creation of the nuisance once some portion of the harm becomes
observable.” (Citation omitted.) Oglethorpe Power Corp. v. Forrister, 289 Ga. 331,
13 333 (2) (711 SE2d 641) (2011). A claim of permanent nuisance will also accrue if a
new harm that was not previously observable occurred within the limitations period,
but “a change in degree of harm does not restart the limitation period.” (Citations
omitted.) Floyd County v. Scott, 320 Ga. App. 549, 552 (1) (740 SE2d 277) (2013).
On the other hand, landowners may show a continuing nuisance from improper
drainage through evidence that an existing condition, such as a culvert or drainpipe,
was improperly maintained. See Kleber, supra, 285 Ga. at 417 (1). A plaintiff can
proceed on such a claim if he or she can establish that the County maintains the
system or that “the [County]’s actions in regard to the storm drainage system
constituted such exercise of control or acceptance so as to establish a duty on the part
of the City to adequately maintain it.” Hibbs v. City of Riverdale, 267 Ga. 337, 338
(478 SE2d 121) (1996).
Here, the County’s report from its investigation into the subdivision’s flooding
concluded that the development of the subdivision increased the total runoff from the
area by around 25 cubic-feet-per-second, which caused a large increase of water that
backs-up at the culvert on Steen’s property. The plaintiffs did produce evidence that
the pipes under Steen’s property (which the County maintains) are a main
contribution to the problem because they are undersized for the amount of water that
14 now drains from the subdivision. However, it is undisputed that the pipes under
Steen’s property were installed before the development of Vickers Hill and that the
pipes were entirely adequate to handle any runoff before the subdivision’s
development. These complaints, therefore, all stem from a defective implementation
or installation of a permanent nuisance, not of a continuing nuisance, and, thus, these
claims accrued when the plaintiffs began observing the standing water problem. See
Oglethorpe Power Corp., supra, 289 Ga. at 333 (2); Kleber, supra, 285 Ga. at 417 (1).
The record is clear that each of the plaintiffs observed problems with standing water
on their property before February 2015, which was more than one year before they
served the complaint on the County. Thus, all of these claims stemming from a
permanent nuisance are barred by OCGA § 36-11-1.8
Additionally, the plaintiffs have not presented sufficient evidence to support
a claim for a continuing nuisance. First, there is no evidence that the standing water
is caused by the County’s failure to maintain or upkeep its own water system or that
8 While the plaintiffs produced evidence to show that the drainage problems are getting worse with further development of Vickers Hill, this is “a change in degree of harm” from the standing water problems that already existed, and so these facts would not restart the limitation period or create a new claim of permanent nuisance. See Floyd County, supra, 320 Ga. App. at 552 (1).
15 the pipes under Steen’s property were inadequately maintained. There was also no
evidence presented or that the County took any action beyond approving new
development that increased the flooding problem. See Kleber, supra, 285 Ga. at 417
(1); City of Macon v. Macrive Constr., 241 Ga. App. 396, 397 (525 SE2d 418) (1999)
(no continuing nuisance shown where allegedly inadequate drainage system was
complete more than four years prior to the filing of the nuisance suit, and no evidence
showed that the city took any action after installation that increased the flooding
problem).
Second, the plaintiffs have not presented sufficient evidence from which a
factfinder could conclude that the County has exercised control or accepted the duty
to maintain the drainage system within the subdivision. The facts that the County
approved the subdivision, continues to issue construction permits in the subdivision,
and conducted an investigation into the flooding, are insufficient to show control. See
Hibbs v. City of Riverdale, 227 Ga. App. 889, 890-891 (490 SE2d 436) (1997)
(plaintiffs failed to show that city exercised “dominion or control” over drainage
system when the city merely approved the development plan, investigated the
drainage and issued a report, and used its regulatory authority to require the developer
to correct the problems with the subdivision’s drainage systems). In addition,
16 although there is evidence that some new ditches were cut through the subdivision
in 2012 or 2013, the evidence in the record shows that Georgia Coastal created those
ditches at the County’s behest, and the County did not create the ditches itself.
Finally, the evidence that the County conducted work on Steen’s property and
allegedly agreed to build a retention pond on Steen’s property is not evidence that the
County attempted to exercise control over the drainage system within the subdivision
itself because it is undisputed that Steen’s property is not part of the subdivision and
that the County does indeed control the drainage system on Steen’s property. While
these facts all demonstrate that the County may have started to use its authority to
address the flooding issues, we have previously concluded that the fact that a
governmental entity uses its regulatory authority to order a developer to take action
to address inadequate drainage does not constitute evidence that the governmental
entity sought to control the drainage system itself. See id. at 890-891. Thus, the
plaintiffs have not presented sufficient evidence of a continuing nuisance such that
their claims would have accrued upon each flooding of their property.
Accordingly, summary judgment was properly granted on the plaintiffs’ claims
of nuisance stemming from the inadequate drainage.
17 (c) Finally, we address whether any of the plaintiffs’ claims regarding the
conditions of the subdivision’s roads accrued during the one-year period before the
plaintiffs presented their claims to the County. We similarly conclude that they
accrued more than a year prior to service of the complaint and are thus time-barred.
First, any claims regarding the deficient installation of the roads themselves
(including the plaintiffs’allegations that the wrong material was used to pave them)
are claims that a permanent nuisance was imposed, and such claims are barred by the
one-year presentment requirement since they would have accrued before February
2015. See OCGA § 36-11-1; Kleber, supra, 285 Ga. at 417 (1).
Second, the plaintiffs presented insufficient evidence that the County exerted
control over the roads so as to establish a claim against the County for any deficient
maintenance of the roads. In 2012, Georgia Coastal signed a road maintenance
agreement wherein it agreed that it “shall maintain the roads in Vickers Hill
Subdivision until all the houses in the subdivision have been built and sold, at which
time the Long County Board of Commissioners will officially accept and maintain all
roadways in said subdivision.” The County has not yet accepted any of the roads in
the subdivision, and it has not performed any maintenance on the roads in the
subdivision. While the County did attempt to get the developer to repair the roads in
18 Vickers Hill, as noted above, this fact alone is insufficient to establish that it was the
County’s responsibility to maintain the roads in the subdivision. See Hibbs, supra,
227 Ga. App. at 890-891. Thus, the trial court properly granted summary judgment
on any claims based on the conditions of the roads.
3. Finally, the plaintiffs argue that summary judgment was inappropriate
because they produced enough record evidence to show that they had a valid claim
of continuing nuisance for the inadequate drainage and the conditions of the
subdivision’s roads. As set out in Section 2, supra, any claims based on a permanent
nuisance are barred as untimely by OCGA § 36-11-1, and the plaintiffs did not
produce sufficient evidence to support a claim of a continuing nuisance.
We greatly empathize with the plaintiffs’ situation, as, from the record, it
appears that there is no end in sight to their water troubles. We are nevertheless
compelled to affirm the grant of summary judgment to the County because (1) the
plaintiffs’ negligence claims are barred by sovereign immunity; (2) any claims of a
permanent nuisance or trespass are barred by the one-year presentment requirement
of OCGA § 36-11-1; and (3) the plaintiffs failed to produce evidence to create a
genuine issue of material fact on a claim for continuing nuisance.
Judgment affirmed. Rickman and Reese, JJ., concur.