                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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


                                                                     March 16, 2018




In the Court of Appeals of Georgia
 A17A1946. CITY OF GAINESVILLE v. WALDRIP et al.

      BETHEL, Judge.

      Jack Waldrip and his company, Washington Corner, LLC, (together,

“Waldrip”) filed this action against the city of Gainesville for damages resulting from

the flooding of Waldrip’s property. The action asserted claims for nuisance, trespass,

and the taking of the property through per se and inverse condemnation. The city

sought summary judgment. The trial court granted the motion in part, awarding

summary judgment to the city on Waldrip’s claims for damages from flooding that

occurred in 2008 and for the diminution in the fair market value of the property. The

trial court otherwise denied the city’s summary judgment motion.

      The city appeals, arguing that the trial court should have granted summary

judgment on all of the claims against it. We agree with the city that it is entitled to
summary judgment on its claims and that the trial court should have denied Waldrip’s

request for bad faith attorney fees. We therefore reverse the judgment of the trial

court.

         “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. OCGA § 9-11-56 (c). We

review a grant or denial of summary judgment de novo and construe the evidence in

the light most favorable to the nonmovant.” Atkinson v. City of Atlanta, 325 Ga. App.

70, 70 (752 SE2d 130) (2013) (citation omitted). So viewed, the record shows that

Waldrip and another individual own Washington Corner, LLC, which, in turn, owns

a parcel of property in the city of Gainesville. The property is located within a 12-acre

drainage basin, and storm water that falls into the drainage basin flows downhill to

Waldrip’s property.

         Waldrip constructed a shopping center on the property. On March 15, 2008,

April 10, 2009, September 21, 2009, October 1, 2012, and July 22, 2013, the property

flooded, water entered the building, and the premises were damaged. After consulting

various people, Waldrip concluded that the flooding resulted from trash, debris, and

other material clogging his surface water drainage system. That material was washed



                                           2
downhill to Waldrip’s property by concentrated storm water that was discharged from

a storm water discharge pipe on the uphill property.

      Waldrip presented evidence that the city of Gainesville collects storm water in

a catch basin on Rainey Street, which is uphill and north of Waldrip’s property in the

drainage basin. The Rainey Street catch basin channels the collected storm water into

a storm water discharge pipe connected to the catch basin. The city installed at least

part of the storm water discharge pipe. The storm water discharge pipe begins in the

Rainey Street right of way and ends on private property uphill of Waldrip. The

concentrated, collected water is discharged from the end of the storm water discharge

pipe onto adjacent private property. The water traverses the property and flows down

to Waldrip’s property. The concentrated flows have sufficient hydrologic force to

move debris down the private property — which has been used as an illegal dump —

onto Waldrip’s property and into his storm water collection system. Diapers, tires,

bottles, construction debris, even concrete blocks have washed down the slope onto

Waldrip’s property. Dirt, sediment, and trash end up in Waldrip’s drainage system,

blocking it and causing flooding.

      Waldrip sought compensation from the city for the damage to his property.

After the city denied his claim, Waldrip filed suit, seeking damages for trespass,

                                          3
nuisance, and the taking of his property. The trial court granted summary judgment

to the city on Waldrip’s claim for damages from flooding that occurred in 2008 and

for the diminution in the fair market value of the property. The court denied summary

judgment in all other respects. After we granted the city’s application for

interlocutory appeal, this appeal followed.

      1. The city argues that the trial court erred by denying its motion for summary

judgment because it does not have a duty to abate the flooding on Waldrip’s property

and because the undisputed evidence shows that the city did not take any action that

altered or increased the natural flow of water onto Waldrip’s property or otherwise

caused the flooding. (Although the city does not specify, we presume that it makes

these arguments in the context of the denial of its motion for summary judgment on

Waldrip’s nuisance claim instead of his trespass and condemnation claims.) We find

that Waldrip has not presented sufficient evidence to create questions of fact on these

issues.

      “Where a municipality negligently constructs or undertakes to maintain a sewer

or drainage system which causes the repeated flooding of property, a continuing,

abatable nuisance is established, for which the municipality is liable.” City of

Gainesville v. Waters, 258 Ga. App. 555, 557 (1) (574 SE2d 638) (2002). See also

                                          4
Martin v. City of Fort Valley, 235 Ga. App. 20, 21 (1) (508 SE2d 244) (1998); Hibbs

v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996). Further,

      [t]o be held liable for maintenance of a nuisance, the municipality must
      be chargeable with performing a continuous or regularly repetitious act,
      or creating a continuous or regularly repetitious condition, which causes
      the hurt, inconvenience or injury; the municipality must have knowledge
      or be chargeable with notice of the dangerous condition; and, if the
      municipality did not perform an act creating the dangerous condition, .
      . . the failure of the municipality to rectify the dangerous condition must
      be in violation of a duty to act.


Mayor of Savannah v. Palmerio, 242 Ga. 419, 426-427 (3) (i) (249 SE2d 224) (1978).

      “All actions for trespass upon or damage to realty shall be brought within four

years after the right of action accrues.” OCGA § 9-3-30 (a). “[T]o the extent that

[Waldrip] asserts a claim for permanent nuisance based on the installation of the

drainage pipe [or catch basin], that claim is barred by the applicable four-year statute

of limitation.” City of Columbus v. Cielinski, 319 Ga. App. 289, 292 (1) (734 SE2d

922) (2012) (citation omitted). This means that Waldrip must come forward with

sufficient evidence to create a factual question as to (1) whether the private property

onto which the Rainey Street culvert discharges water is part of the drainage system




                                           5
that the city has undertaken to maintain, and (2) whether the city’s maintenance (or

lack thereof) of the drainage system caused the repeated flooding.

      The city presented evidence that it does not own or maintain the property onto

which the Rainey Street culvert discharges. Nor does the city have an easement on

this property. The city claims that because the problematic debris, trash, and sediment

originate from and are picked up on this private property, it is absolved of liability.

However, the fact that this occurs as the water crosses private property is not

sufficient, alone, to end our analysis. “[W]hile ownership of property generally may

give rise to a nuisance when property is used to cause harm to others, such ownership

is not an essential element of the cause of action for nuisance. Rather, the exercise of

dominion or control over the property causing the harm is sufficient to establish

nuisance liability.” City of Atlanta v. Hofrichter/Stiakakis, 291 Ga. App. 883, 886 (1)

(a) (663 SE2d 379) (2008) (citations and punctuation omitted).

      Here, Waldrip has presented no evidence that the city exercised any dominion

or control over the property causing the harm — that is, the uphill property which the

water traverses. Compare City of Atlanta, 291 Ga. App. at 886 (1) (a) (control

established where city returned to property multiple times and attempted to repair

problem with pipe over the course of several years). Evidence that the city cleared out

                                           6
concrete blocks and debris on Waldrip’s property on one occasion is not sufficient to

establish the city’s dominion and control over the neighboring, uphill property. See

Thompson v. City of Fitzgerald, 248 Ga. App. 725, 726-727 (1) (548 SE2d 368)

(2001). Therefore, summary judgment should have been granted to the city and

Waldrip’s request for attorney fees under OCGA § 13-6-11 related to that claim

should have been denied.1

      2. Because of our holding in Division 1, we need not address the city’s other

enumerations of error.

      Judgment reversed. Branch, J., concurs. McFadden, P.J., dissents*



*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF

APPEALS RULE 33.2 (a).




      1
        Because the trial court did not analyze whether Waldrip would be entitled to
attorney fees under OCGA § 13-6-11 for his remaining causes of action that are not
before this court, we do not reach the question of whether the city is entitled to
summary judgment on the entirety of Waldrip’s claim for attorney fees.

                                         7
 A17A1946. CITY OF GAINESVILLE v. WALDRIP et al.

      MCFADDEN, Presiding Judge, dissenting.

      I respectfully dissent. I agree with the city that it is entitled to summary

judgment on any claims seeking damages for incidents that occurred more than

four years before the filing of the lawsuit, because those claims are barred by the

statute of limitation. But as for the remaining claims, the plaintiffs (“Waldrip”)

presented sufficient evidence to create factual questions as to whether the city had

a duty to Waldrip, whether the city caused the flooding, whether Waldrip put the

city on notice of the condition that was causing the flooding, and whether Waldrip

was entitled to bad faith attorney fees. I would pretermit whether the trial court

erred by considering the affidavit of Waldrip’s expert witness. So I would affirm
in part and reverse in part the trial court’s denial of the city’s motion for summary

judgment.

      1. Summary judgment.

      “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. OCGA § 9-11-56

(c). We review a grant or denial of summary judgment de novo and construe the

evidence in the light most favorable to the nonmovant.” Atkinson v. City of

Atlanta, 325 Ga. App. 70, 70 (752 SE2d 130) (2013) (citation omitted).

      (a) Duty and causation.

      The city argues that the trial court erred by denying its motion for summary

judgment because it does not have a duty to abate the flooding on Waldrip’s

property, and the undisputed evidence shows that the city did not take any action

that altered or increased the natural flow of water onto Waldrip’s property or

otherwise caused the flooding. (Although the city does not specify, I presume that

it makes these arguments in the context of the denial of its motion for summary

judgment on Waldrip’s nuisance claim instead of his trespass and condemnation

claims.) I would find that Waldrip has presented sufficient evidence to create

questions of fact on these issues.

                                          2
       For Waldrip to state a claim of nuisance against the city, he “must establish

that (1) the city’s conduct was egregious enough to exceed mere negligence, (2)

the resulting continuous or repetitious dangerous condition was of some duration,

and (3) the city failed to correct the danger within a reasonable time after

acquiring knowledge of the defect or dangerous condition.” City of East Point v.

Young, 340 Ga. App. 223, 226 (3) (797 SE2d 156) (2017) (citation omitted). In

order for the city to be held liable for nuisance, its “ownership of land . . . 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.” Sumitomo Corp. of

America v. Deal, 256 Ga. App. 703, 707 (2) (569 SE2d 608) (2002) (citation and

punctuation omitted; emphasis added).

      Waldrip’s nuisance claim stems from the city’s alleged conduct leading to

the discharge of surface water onto his land. When it comes to surface water, a

“land proprietor has no right to concentrate and collect it, and thus cause it to be

discharged upon the land of a lower proprietor in greater quantities at a particular

locality, or in a manner different from that in which the water would be received

by the lower estate if it simply ran down upon it from the upper by the law of

                                            3
gravitation.” Gill v. First Christian Church, 216 Ga. 454, 454 (1) (117 SE2d 164)

(1960) (punctuation omitted). And even though a city may have “[a] general grant

of power to grade streets and to establish in connection therewith a system of

drainage[, that] does not carry with it any right on the part of the municipality to

create and maintain a nuisance by causing surface-water to be discharged upon the

premises of a private citizen. . . . “ Bass Canning Co. v. MacDougald Constr. Co.,

174 Ga. 222, 223 (162 SE 687) (1932) (citation and punctuation omitted).

      The city argues that it owes no duty to Waldrip because it is not responsible

for the private drainage infrastructure — referring to the storm water discharge

pipe on the parcels above Waldrip through which the water travels from the

Rainey Street catch basin — as it does not exercise dominion or control over it.

The city adds that it does not own the pipe, it does not have an easement to use

that pipe, and the flooding is the result of the natural flow of storm water. The city

presented the affidavit of its director of public works who testified that the city is

not responsible for the maintenance of any storm water structures located on

private property for which the city does not have a drainage easement. He testified

that the city does not have any drainage easements located on private property

within the drainage basin in which Waldrip’s property is located.

                                           4
      The city does not dispute, however, that the storm water discharge pipe

“carrie[s] water channeled from a [c]ity street, via the catch basins which [are]

admittedly owned and maintained by the [c]ity.” City of Atlanta v. Hofrichter, 291

Ga. App. 883, 888 (2) (a) (663 SE2d 379) (2008). Further, the record in the

application for interlocutory appeal previously filed in this case included the city’s

discovery response in which it admitted that “it installed the Rainey Street storm

water discharge pipe end culvert. . . .” See Hunter v. Roberts, 199 Ga. App. 318,

318 (1) (404 SE2d 645) (1991) (“[W]e can take judicial notice of the record filed

in the application for interlocutory appeal previously filed in this case in our

court.”) (citation omitted). And it is undisputed that the city’s Rainey Street catch

basin is connected to the pipe. This evidence would allow a jury to conclude that

the storm water is collected in a city-owned catch basin on Rainey Street; that the

water then is conveyed by a storm water discharge pipe that begins in the Rainey

Street right of way and is connected to the city’s catch basin; that the storm water

discharge pipe continues under private property north of Waldrip’s property; that

the pipe terminates on a private parcel above Waldrip’s property; that storm water,

channeled into the pipe from the city’s catch basin, is discharged from the pipe

onto the private parcel; that as the water is discharged from the pipe, its

                                          5
hydrologic force transports sediment, eroded soil, trash, and other debris onto

Waldrip’s property downhill; and that this sediment and debris clog Waldrip’s

pipe and reduce its flow capacity, which leads to flooding.

      Whether or not the city owns the pipe, the city’s instrumentality – the catch

basin – funnels water into that pipe. And that water is discharged onto private

property in which the city admits it has no easement. Waldrip has presented some

evidence that would allow a jury to conclude that the city has at least partial

control over the cause of the harm, that the city has claimed the right to discharge

water onto private property without an easement, and that it is at least a concurrent

cause of the creation, continuance, or maintenance of the nuisance. See City of

Columbus v. Barngrover, 250 Ga. App. 589, 593 (1) (b) (552 SE2d 536) (2001).

See also City of Atlanta v. Williams, 218 Ga. 379, 380-381 (1) (128 SE2d 41)

(1962) (“If the city claims a right to use the drainage ditch then it is under a duty

to maintain it so that the content and flow of surface waters would not overflow to

the damage of the adjacent property owners.”) (citation omitted). Compare City of

Atlanta v. Demita, 329 Ga. App. 33, 38 (1) (762 SE2d 436) (2014) (physical

precedent only) (finding no municipal liability where “[t]his [was] not a case



                                           6
where the [c]ity’s conduct in maintaining a street diverted or changed the flow of

water so that it flooded adjacent property”) (emphasis supplied).

      The city also argues that it is not liable because it did nothing to alter or

increase the natural flow of storm water that entered Waldrip’s property. Waldrip

presented evidence, however, that would allow a jury to conclude that the storm

water discharges are not the natural flow of storm water but instead are

concentrated from the collection of water from roads by the city curbs, gutters, and

drains. He presented evidence that the catch basin channels the water into the

storm water drainage pipe and that the system of catch basin and drainage pipe

concentrates the water so that when it is discharged from the pipe, it has sufficient

hydrologic force to wash trash down the hill into Waldrip’s drainage system. This

evidence would allow a jury to find that the city concentrates and collects surface

water, uses the allegedly private pipe to convey the water from the catch basin,

and “cause[s] it to be discharged upon the land of a lower proprietor . . . in a

manner different from that in which the water would be received by the lower

estate if it simply ran down upon it from the upper by the law of gravitation.

[Cits.].” Gill, 216 Ga. at 454 (1).



                                           7
      The majority holds that the city is entitled to summary judgment because

there is no evidence of improper maintenance of anything the city owns or controls

and no evidence that the city owns or controls the uphill property that the water

traverses. The majority reads the case law too narrowly.

      If the flooding were being caused by improper maintenance for which the

city were responsible or if the city controlled the uphill property such evidence

would certainly be sufficient to establish a nuisance. But such evidence is not

necessary to establish nuisance. The applicable law is not so narrow and fact-

specific. As detailed above, the “essential element” of liability for nuisance “is

control over the cause of the harm.” Sumitomo, 256 Ga. App. at 707 (2). And

concurrent causation is sufficient. Id.

      Waldrip’s evidence shows that the cause of harm is a combination of

concurrent factors: the city’s discharge, without permission, through a pipe it

constructed and may still own, of water it collects through its infrastructure onto

the uphill property as well as the presence of trash and debris on that property.

That evidence would authorize a jury to find that the city has at least partial

control over one of the factors that causes the harm and so to find that the city’s

action or inaction is at least a concurrent cause of the creation, continuance, or

                                          8
maintenance of the nuisance. A jury that so found would be authorized to hold the

city liable. See Sumitomo, 256 Ga. App. at 707 (2).

      (b) Notice.

      The city argues that it is entitled to summary judgment because, although

Waldrip notified it of the flooding, he did not notify the city that something within

its control was causing the flooding. I disagree.

      One of the factors required to show a nuisance is the “[f]ailure of the

municipality to act within a reasonable time after knowledge of the defect or

dangerous condition. [This] factor requires either knowledge or notice of the

dangerous condition.” Earnheart v. Scott, 213 Ga. App. 188, 189 (1) (444 SE2d

128) (1994) (citations and punctuation omitted). Waldrip has pointed to evidence

that the city was on notice that it needed to act within a reasonable time. For

example, in October 2009, Waldrip submitted a claim form to the city following

the April 2009 flood stating that rain water entered his drainage system but was

unable to discharge into the city system due to the amount of rain, resulting in

flooding. Waldrip testified that he filed a second claim form in October 2012. He

testified, since the first flood, that he had many conversations over the years with

city representatives, including the mayor, the city manager, the city attorney, the

                                          9
city engineer, and the assistant city engineer, complaining about the concentrated

storm water being discharged from the pipe above his shopping center and the

trash, debris, and other pollution that was repeatedly clogging his drainage system.

In February 2011, he wrote the city complaining about the city’s collected,

concentrated water flowing into the pipe above his property and emptying there.

His ante litem notice sent in September 2013 described the problem in detail. The

trial court did not err by denying summary judgment on the ground that genuine

issues of material fact exist as to notice.

      (c) Statute of limitation.

      The city argues that it is entitled to summary judgment because the statute

of limitation bars Waldrip’s claims since the nuisance is permanent. I agree that to

the extent Waldrip seeks damages stemming from a permanent nuisance, the

statute of limitation bars the claims, given that the drainage infrastructure was

constructed some time in the 1940s. But I would find that there is evidence that

would allow the factfinder to conclude that the nuisance is, at least in part,

abatable. And the statute of limitation bars only those claims stemming from an

abatable nuisance that occurred more than four years prior to the filing of the



                                              10
lawsuit. Thus I would affirm in part and reverse in part the trial court’s denial of

the city’s summary judgment motion on statute of limitation grounds.

      “All actions for trespass upon or damage to realty shall be brought within

four years after the right of action accrues.” OCGA § 9-3-30 (a). “[T]o the extent

that [Waldrip] asserts a claim for permanent nuisance based on the installation of

the drainage pipe [or catch basin], that claim is barred by the applicable four-year

statute of limitation.” City of Columbus v. Cielinski, 319 Ga. App. 289, 292 (1)

(734 SE2d 922) (2012) (citation omitted). However,”[w]here 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.” Bailey v. Annistown Road Baptist

Church, 301 Ga. App. 677, 688 (7) (689 SE2d 62) (2009) (citations omitted).

Repeated incidents of flooding can be sufficient to establish an abatable nuisance.

See City of Gainesville v. Waters, 258 Ga. App. 555, 557 (1) (574 SE2d 638)

(2002) (holding that plaintiffs “presented evidence of repeated incidents of

flooding to [their] property sufficient to establish an abatable nuisance”). Waldrip

presented expert testimony that the city can abate the nuisance easily and cheaply.

He also presented evidence of repeated incidents of flooding. Thus there is

                                          11
evidence from which a factfinder could conclude that Waldrip’s claims stem, at

least in part, from an abatable nuisance.

      “[I]n a continuing, abatable nuisance case, OCGA § 9-3-30 does not

preclude recovery for any damages save those which were suffered more than

[four] years prior to the filing of the suit.” City of Gainesville, 258 Ga. App. at 558

(3) (citation and punctuation omitted). Waldrip filed this action on March 18,

2014, so his claims for damages suffered more than four years before that date are

barred. (The trial court granted summary judgment to the city on Waldrip’s claims

stemming from the 2008 flooding on different grounds, but the court did not grant

summary judgment to the city on Waldrip’s claims stemming from the April and

September, 2009 flooding. ) But to the extent the factfinder determined some of

the claims are for a continuing, abatable nuisance, Waldrip’s claims for damages

suffered less than four years before that date would not be barred. Accordingly I

would reverse in part the trial court’s denial of the city’s motion for summary

judgment on statute of limitation grounds.

      2. Affidavit of expert witness.

      The city argues that the trial court erred by considering one of Waldrip’s

expert affidavits because Waldrip did not disclose this expert in a timely manner

                                            12
and because the expert failed to attach to his affidavit materials upon which he

relied in reaching his conclusions.

Pretermitting whether the trial court erred in considering the affidavit, any error

was harmless. Waldrip presented other evidence — even without the affidavit —

sufficient to create questions of material fact.

      3. Bad faith attorney fees.

      The city argues that the trial court erred by denying its motion for summary

judgment on Waldrip’s claim for OCGA § 13-6-11 attorney fees because the trial

court did not point to any evidence from which a jury could determine that the city

had acted in bad faith. The trial court simply ruled that this is not one of those rare

cases authorizing summary adjudication of the issue. I agree with the trial court.

Waldrip has presented “some evidence that, despite [his] numerous complaints and

its knowledge that [Waldrip’s] property flooded as a result of its failure to act, the

[c]ity refused to alleviate the drainage problems.” City of Gainesville, 258 Ga.

App. at 559 (4). This would allow a jury to find bad faith sufficient to support an

award of attorney fees under OCGA § 13-6-11. Id.




                                          13
