WISE BUSINESS FORMS INCORPORATED v. FORSYTH COUNTY, GEORGIA

• Court: Court of Appeals of Georgia
• Decided: March 15, 2022
• Docket: A21A1459
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., REESE and BROWN, 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. https://www.gaappeals.us/rules

March 15, 2022

In the Court of Appeals of Georgia A21A1459. WISE BUSINESS FORMS INC. v. FORSYTH COUNTY et al.; A21A1460. FORSYTH COUNTY v. WISE BUSINESS FORMS, INC.

REESE, Judge.

Wise Business Forms Inc. (“Wise”) filed suit against Forsyth County and the

Georgia Department of Transportation (“GDOT”) (collectively, “the Appellees”)

alleging per se taking and inverse condemnation in that the expansion of McFarland

Road increased the surface and stormwater runoff flowing under Wise’s property,

which created a sinkhole in its parking lot. Forsyth County and the GDOT filed

motions to dismiss, which the trial court granted. Wise appeals the trial court’s ruling.

Additionally, although Forsyth County agrees with the trial court’s dismissal of

Wise’s complaint, it appeals the court’s ruling that the statute of limitation for Wise’s claim for inverse condemnation by permanent nuisance began when Wise observed

the sinkhole rather than when the Appellees’ construction project was completed. For

the reasons set forth infra, we affirm the trial court’s dismissal of the Appellees’

motions to dismiss, and dismiss as moot the cross-appeal.

We review a trial court’s ruling on a motion to dismiss de novo, “treating all

material allegations set forth in the complaint as true, treating all denials set forth in

the answer as false, and resolving any doubts in favor of the plaintiff.”1 So viewed,

the record shows the following. Wise is the nation’s fourth largest printer of business

forms, and is headquartered in Forsyth County. The property used for its headquarters

was purchased in three separate acquisitions beginning in 1984 and running through

1996.

A 36-inch metal pipe (“Subject Pipe”) runs underneath Wise’s property and has

been in place since 1985. Approximately twenty-five feet of the drainage pipe extends

into a two-acre tract of land west of Wise’s property (“Corner Tract”). The Corner

Tract is undeveloped and forms a natural detention basin into which a large vertical

concrete drainage structure with a large stormwater outlet pipe (“Feeder Structure”)

was constructed. Wise asserted in its complaint that water from the Feeder Structure

1 Campbell v. Ailion, 338 Ga. App. 382, 383 (790 SE2d 68) (2016).

2 on the Corner Tract was designed to flow through the Subject Pipe underneath Wise’s

property.

The McFarland Parkway Widening Project (“McFarland Parkway Project”)

extended McFarland Road from two lanes to four lanes and was completed in 2000.

Wise alleged in its complaint that this project resulted in a substantial increase of the

surface and stormwater runoff flowing underneath its property. Specifically, Wise

asserted that as part of the project the Appellees designed and installed a

sophisticated stormwater drainage system, while failing to provide detention facilities

to mitigate the increased runoff, and that the drainage system ultimately channeled

water to the Corner Tract and subsequently through the Subject Pipe running

underneath Wise’s property.

On June 27, 2016, Wise noticed the first signs of a sinkhole on its property.

Wise subsequently conducted a test to determine the origin of the majority of water

flowing through the Subject Pipe. Wise asserted that by tracking marked ping pong

balls through the drainage system, it was able to determine that the “bulk of the

stormwater” that flowed through the Subject Pipe derived from the catch basins and

storm sewers built as part of the McFarland Parkway Project. Wise also had the

3 Subject Pipe inspected using a robotic vehicle and discovered deterioration and

erosion within the pipe.

Wise sued Forsyth County and the GDOT asserting claims for per se taking and

damaging Wise’s property, inverse condemnation by abatable nuisance, inverse

condemnation by permanent nuisance, attorney fees, and violation of 42 USC § 1983.

Wise appeals from the trial court’s order granting the Appellees’ motions to dismiss,

and Forsyth County filed a cross-appeal.

“We apply a de novo standard of review to the trial court’s grant of a motion

to dismiss. A motion to dismiss may be granted only where a complaint shows with

certainty that the plaintiff would not be entitled to relief under any state of facts that

could be proven in support of his claim.”2 With these guiding principles in mind, we

now turn to the parties’ claims of error.

2 Ga. Interlocal Risk Mgmt. Agency v. City of Sandy Springs, 337 Ga. App. 340, 342 (788 SE2d 74) (2016) (citation and punctuation omitted).

4 Case No. A21A1459

1. Wise argues that the trial court erred by dismissing its claim for inverse

condemnation by permanent nuisance due to its failure to attach an expert affidavit

to its complaint. Although we agree with Wise that the trial court erred in finding that

Wise’s complaint required an expert affidavit pursuant to OCGA § 9-11-9.1, we

affirm the court’s ruling to dismiss Wise’s claim on other grounds.3

OCGA § 9-11-9.1 (a) (1) requires plaintiffs to file an expert affidavit in “any

action for damages alleging professional malpractice” against professionals licensed

by the State of Georgia, including professional engineers.4 The Supreme Court of

Georgia has also stated that “OCGA § 9–11–9.1, by its very language, is applicable

only to those professional malpractice actions alleging professional negligence. . . .

Those claims grounded on a professional’s intentional acts . . . are not required to be

accompanied by an expert affidavit.”5 As Wise’s inverse condemnation claim is

3 See Estate of Nixon v. Barber, 340 Ga. App. 103, 105 (1) (796 SE2d 489) (2017) (affirming grant of motion to dismiss under “right for any reason” doctrine). 4 See OCGA § 9-11-9.1 (g) (21) (listing professional engineers as a category to which the code section applies). 5 Labovitz v. Hopkinson, 271 Ga. 330, 335-337 (3) (519 SE2d 672) (1999).

5 premised on the Appellees’ intentional acts giving rise to an alleged nuisance, and

does not assert claims of negligence, “the requirement of OCGA § 9-11-9.1 to file an

expert affidavit when a claim alleges damages for professional negligence is

inapposite here.”6

However, Wise’s claim was nonetheless properly dismissed as it was barred by

the four-year statute of limitation. “Inverse condemnation claims based on . . .

nuisance are subject to a four-year statute of limitation.”7 In claims for permanent

nuisances, “a plaintiff is allowed only one cause of action to recover damages for past

and future harm. The statute of limitation begins to run against such a claim upon the

creation of the nuisance once some portion of the harm becomes observable[,]”8

“unless some new harm that was not previously observable occurred within the four

years preceding the filing of [the plaintiff’s] cause of action[.]”9

6 Dept. of Transp. v. Mixon, 355 Ga. App. 463, 468 (4) (844 SE2d 524) (2020). 7 Liberty County v. Eller, 327 Ga. App. 770, 772 (2) (761 SE2d 164) (2014). 8 Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333 (2) (711 SE2d 641) (2011). 9 Floyd County v. Scott, 320 Ga. App. 549, 552 (1) (740 SE2d 277) (2013) (punctuation and footnote omitted).

6 Here, Wise asserted in its complaint that the Appellees “dramatically increased

the amount of runoff water” leaving McFarland Parkway, and this runoff was then

directed into the Feeder Structure. Therefore, the nuisance itself stemmed from the

completion of the McFarland Parkway Project.10 Moreover, the construction of the

storm water drainage system by the Appellees to divert this increased storm water

runoff through the Subject Pipe, and the alleged dramatic increase in stormwater

runoff being driven into the Feeder Structure, would have been observable.11 Thus,

as a permanent nuisance which had some portion of the harm immediately observable,

the statute of limitation began in 2000 when the McFarland Parkway Project was

complete.12

Further, the fact that the sinkhole appeared approximately 20 years after the

initial harm of increased runoff flowing under Wise’s property did not constitute new

harm sufficient to toll the statute of limitation.13 As noted above, the harm in the

10 See Oglethorpe Power Corp., 289 Ga. at 333 (2). 11 See id.; see also Eller, 327 Ga. App. at 773-774 (2). 12 See Oglethorpe Power Corp., 289 Ga. at 333 (2). 13 See Floyd County v. Scott, 320 Ga. App. 549, 552 (1) (740 SE2d 277) (2013) (holding that the landowners’ claim accrued after the county’s work became operational and discharged water onto their property, and not once trees fell due to

7 present case was an increase in runoff resulting from the completion of the McFarland

Parkway Project.14 “If a plaintiff could sue a public utility each time the harm

resulting from a permanent nuisance changed by degree, the rule requiring a plaintiff

to bring one lawsuit for past and future damages within the applicable statute of

limitation would be meaningless.”15 Likewise, the fact that Wise claims it did not

know about the increased stormwater runoff is insufficient to toll the statute of

limitation as “the issue is whether some new harm that was not previously observable

occurred in the four years prior to . . . when the complaint was filed.”16 As Wise does

not assert that this harm increased or changed subsequent to the completion of the

McFarland Parkway Project, the statute of limitation was not tolled by a new harm.17

damage sustained due to this discharge of water). 14 Id. 15 Id. (punctuation and footnote omitted). 16 Eller, 327 Ga. App. at 774 (2). 17 See Eller, 327 Ga. App. at 774 (2); see also Stroud v. Hall County, 339 Ga. App. 37, 43 n. 4 (3) (793 SE2d 104) (2016) (stating that increase of flooding was not a new harm as the nature of the alleged harm experienced, i.e., flooding, remained the same over time).

8 Thus, although we reach this conclusion through different reasoning than that

relied upon by the trial court, we affirm the court’s dismissal of Wise’s claim.18

2. Wise argues that the trial court erred in dismissing Wise’s claim for inverse

condemnation based on a continuing or abatable nuisance.

A claim based on an abatable nuisance requires one to “establish that the

[Appellees] maintain[ed] the system or that the [Appellees’] 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 [Appellees] to adequately maintain it.”19 In the

present case, Wise only alleged in its complaint that the Appellees knew of the

location of the Subject Pipe based on the County’s Stormwater Pipe and Basin Map,

and did not assert that they accepted a duty to maintain it. Further, although Wise

asserted that the Subject Pipe was a de facto critical part of the McFarland Parkway

Project, we are “not required to accept or adopt a party’s legal conclusions, no matter

how ‘well-pled’ the facts.”20 Thus, Wise failed to allege facts demonstrating that the

18 See Estate of Nixon, 340 Ga. App. at 105 (1). 19 Klingensmith v. Long County, 352 Ga. App. 21, 27 (2) (b) (833 SE2d 608) (2019) (punctuation omitted). 20 NKN Enterprises v. Branch Banking & Trust Co., 335 Ga. App. 70, 72 (780 SE2d 777) (2015) (citation and punctuation omitted).

9 Appellees had a duty to maintain the Subject Pipe, as required for a claim of abatable

nuisance.

However, even assuming arguendo that Wise adequately asserted that the

Appellees had a duty to maintain the Subject Pipe, his claim actually centered on a

permanent, rather than an abatable nuisance, and as discussed in Division 1, supra,

it is barred by the statute of limitation. “[T]he 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.”21 “If a nuisance is created by

some substantial and relatively enduring feature of the plan of construction or from

an essential method of operation of some infrastructure employed in necessary public

service, then it will usually not be abatable by injunction.”22 Likewise, “[i]f a nuisance

is not abatable, it is considered permanent[.]”23

Here, Wise alleged that the nuisance stemmed from the expansion of

McFarland Road, which included the design and installation of a storm water

drainage system and the decision not to build detention facilities to address the

21 City of Atlanta v. Carisle, 359 Ga. App. 444 (858 SE2d 543) (2021). 22 Stroud, 339 Ga. App. at 42 (3) (citations and punctuation omitted). 23 Id. at 42 (3).

10 alleged increased runoff. As these constitute enduring features of the construction

project, Wise’s claim is based on a permanent, rather than an abatable, nuisance, and

as discussed above, is barred by the four-year statute of limitation.24

3. Although Wise initially argued that the trial court erred in ruling that its per

se taking claim was barred by the four-year statute of limitation, it subsequently

stated that “for purposes of its Consolidated Reply Brief [Wise was] abandoning its

‘per se’ taking claim . . . while pointing out . . . that its previous ‘accrual’ analysis

[was] directly relevant to the legal issues underlying [Wise’s claims for permanent

and abatable nuisance].” Even assuming that Wise’s claim was not abandoned, we

conclude that the trial court did not err in dismissing its per se taking claim.

A “cause of action upon [taking] accrue[s] immediately upon the installation

of the public works involved[,]” and is subject to a four-year statute of limitation.25

Because the McFarland Parkway Project was completed in 2000, the statute of

limitation for Wise’s taking claim, as with its permanent nuisance claim, accrued

24 See Stroud, 339 Ga. App. at 42 (3). 25 Mitchell v. City of Atlanta, 217 Ga. 202, 203 (1) (121 SE2d 764) (1961) (punctuation omitted); accord Robinson v. Dept. of Transp., 195 Ga. App. 594 (394 SE2d 590) (1990).

11 upon completion of the public parkway, and thus, Wise’s claim was untimely.26

Additionally, although Wise’s claim was for per se taking, its arguments regarding

why the trial court erred in ruling that the statute of limitation was not tolled until its

discovery of the sinkhole centered on the same permanent nuisance analysis discussed

in Division 1, supra. Therefore, as we stated above, the fact that Wise alleges that it

did not know about the increased stormwater runoff is not sufficient to toll the statute

of limitation.27 Wise did not claim that the alleged harm itself, i.e., the runoff,

changed since the completion of the McFarland Parkway Project, thus, there was no

“new harm” that would have tolled the statute of limitation.28

4. In light of our rulings in Divisions 1 through 3, supra, we need not consider

the remainder of Wise’s claims of error.

26 See Mitchell, 217 Ga. at 203 (1); see also Oglethorpe Power Corp., 289 Ga. at 333 (2) (“The statute of limitation begins to run against [a permanent nuisance claim] upon the creation of the nuisance once some portion of the harm becomes observable.”). 27 See Eller, 327 Ga. App. at 774 (2); see also Mitchell, 217 Ga. at 204 (2) (“Mere ignorance of facts constituting a cause of action does not prevent the running of the statute of limitations.”). 28 See Eller, 327 Ga. App. at 774 (2); see also Stroud, 339 Ga. App. at 43 n. 4 (3) (793 SE2d 104) (2016).

12 Case No. A21A1460

5. In light of our ruling in Division 1, supra, Forsyth County’s cross-appeal is

moot, and therefore is dismissed.29

Judgment affirmed in Case No. A21A1459. Appeal dismissed in Case No.

A21A1460. Doyle, P. J., and Brown, J., concur.

29 See Baker Mtg. Corp. v. Hugenberg, 145 Ga. App. 528, 529 (2) (244 SE2d 56) (1978).