WISE BUSINESS FORMS INCORPORATED v. FORSYTH COUNTY, GEORGIA

• Court: Court of Appeals of Georgia
• Decided: December 22, 2023
• Docket: A21A1459
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., BROWN and WATKINS, 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

December 22, 2023

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

WATKINS, Judge.

This case is before us on remand from the Supreme Court of Georgia. In the

original case, Wise Bus. Forms, Inc. v. Forsyth County (“Wise I”),1 we affirmed the trial

court’s grant of a motion to dismiss filed by Forsyth County and the Georgia

Department of Transportation (“the Appellees”) for Wise’s claims of inverse

condemnation by permanent nuisance, inverse condemnation by abatable nuisance,

per se taking, attorney fees under OCGA § 13-6-11, and violation of 42 USC § 1983.

1 363 Ga. App. 325 (870 SE2d 894) (2022). In Wise Bus. Forms, Inc. v. Forsyth County (“Wise II”),2 the Supreme Court of

Georgia granted certiorari to consider whether this Court “correctly affirmed the

dismissal of Wise’s inverse-condemnation-by-permanent-nuisance claim because it

was barred by the statute of limitation set by OCGA § 9-3-30 (a).”3 The Supreme

Court held that we “erred in failing to accept as true — as [we were] required to do

— Wise’s allegations that the alleged harms were hidden from Wise’s view (i.e., not

observable) until Wise discovered the sinkhole on its property in 2016.”4 The

Supreme Court thus concluded that we “erred in affirming the trial court’s dismissal

of Wise’s inverse-condemnation-by-permanent-nuisance claim on the basis that this

claim was barred by the statute of limitation under OCGA § 9-3-30 (a).”5

Now that the case is before us on remand, we vacate our holding in Division 1

to the extent it is inconsistent with Supreme Court’s opinion and adopt the Supreme

2 __ Ga. __ (893 SE2d 32) (S22G0874 decided Sept. 19, 2023). 3 Id. at __ (S22G0874 at *9-10). The Court noted that it “did not grant certiorari on [this Court’s] ruling that Wise’s claim for inverse condemnation by permanent nuisance did not require an expert affidavit under OCGA § 9-11-9.1 or on its ruling that Wise’s inverse-condemnation-by-abatable-nuisance claim was properly dismissed by the trial court.” Id. at __ (S22G0874 at *10). 4 Id. at __ (S22G0874 at *20-21). 5 Id. at __ (S22G0874 at *21). 2 Court’s opinion as our own. Because the Supreme Court did not address our other

dispositive holdings — that Wise’s claim for inverse condemnation by permanent

nuisance did not require an expert affidavit, that Wise did not allege sufficient facts

to assert a claim of inverse condemnation by abatable nuisance, and that Wise

abandoned his claim for per se taking on appeal — and because those holdings are

consistent with the Supreme Court’s opinion, those holdings become binding upon

the return of the remittitur.6

Accordingly, we reverse the trial court’s dismissal of Wise’s

inverse-condemnation-by-permanent-nuisance claim and associated claim for attorney

fees under OCGA § 13-6-11, affirm the court’s dismissal of Wise’s inverse-

condemnation-by-abatable-nuisance claim, per se taking, and 42 USC § 1983 claims,7

and remand for further proceedings consistent with the Supreme Court’s opinion.

Judgment affirmed in part and reversed in part, and case remanded. Doyle, P. J.,

and Brown, J., concur.

6 See Shadix v. Carroll County, 274 Ga. 560, 563 (1) (554 SE2d 465) (2001). 7 Wise’s claim under 42 USC § 1983 was premised on his per se taking claim. 3