                               THIRD DIVISION
                                BARNES, P. J.,
                            BOGGS and BRANCH, 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/


                                                                   November 6, 2014




In the Court of Appeals of Georgia
 A14A1088. KOHLER et al. v. VAN PETEGHEM et al.

      BARNES, Presiding Judge.

      This case involves a dispute between next-door neighbors that began with a

drainage dispute but escalated to allegations of assault and battery and other

intentional torts, including an allegation that the plaintiff husband intentionally spat

on the face of the defendant wife during an argument. During the ensuing jury trial,

the trial court directed a verdict in favor of the defendants on the plaintiffs’ claim

brought under the Metropolitan River Protection Act, OCGA § 12-5-440 et seq. (the

“MRPA”) and in favor of the defendant wife on her battery counterclaim based on the

spitting incident. The jury subsequently returned a verdict in favor of the defendants

on all of the remaining claims and counterclaims, and the trial court entered judgment

accordingly.
      On appeal from the denial of their motion for a new trial, the plaintiffs argue

that the trial court erred by directing a verdict in favor of the defendant wife on her

battery counterclaim and in its charge to the jury on that counterclaim because the

evidence was in dispute as to whether the spitting incident was intentional. The

plaintiffs further argue that the trial court erred by excluding their expert from

testifying at trial and by directing a verdict in favor of the defendants on the

plaintiffs’ MRPA claim.

      Because the evidence did not demand a finding that the spitting incident was

intentional, we conclude that the trial court erred by directing a verdict to the

defendant wife on her battery counterclaim. Consequently, we reverse the trial court’s

grant of the defendant wife’s motion for a directed verdict on her battery counterclaim

and remand for a new trial solely on that counterclaim. We affirm the judgment in all

other respects.

      The record reflects that Steven and Elizabeth Kohler live next door to Dirk and

Mia Francesca Van Peteghem in the Grand Cascades Subdivision in Forsyth County.

Both properties extend all the way to the Chattahoochee River, although the finished

backyards do not extend that far. When it rains, culverts along the street carry water

from several homes in the subdivision into a large drainage pipe that runs

                                          2
underground along the property line between the Kohlers’ and Van Peteghems’

properties. The drainage pipe ends in the woods behind the two properties and

empties water there whenever it rains. The Van Peteghems’ property is at a higher

elevation than the Kohlers’ property; indeed, the Kohlers’ property is at the lowest

point in that area of the neighborhood. It is undisputed that there is a serious drainage

problem in the back portion of the Kohlers’ property; the dispute between the parties

concerns the cause of that problem.

      On August 9, 2010, the Kohlers filed their complaint in the present action

against the Van Peteghems, alleging that the Van Peteghems had performed backyard

landscaping work that redirected the flow of water from their property onto the

Kohlers’ property whenever it rained. According to the Kohlers, the redirected flow

of water had caused extensive erosion and siltation problems. The Kohlers sought

damages for public and private nuisance and for breach of a legal duty based on

alleged violations of the MRPA, OCGA § 12-5-440 et seq.1

      On September 13, 2010, the Van Peteghems filed their answer, denying that

their backyard landscaping work caused any redirection in the flow of water onto the


      1
        Initially, the Kohlers also sought attorney fees and costs, punitive damages,
and injunctive relief, but they dropped those claims from their amended complaint.

                                           3
Kohlers’ property. According to the Van Peteghems, the erosion and siltation

problems on the Kohlers’ property preexisted the landscaping work and were the

result of runoff from the drainage pipe and from the fact that the Kohlers’ property

is downhill from the other properties in that area of the neighborhood. The Van

Peteghems also asserted multiple intentional tort counterclaims, including trespass,

nuisance, defamation, intentional infliction of emotional distress, invasion of privacy,

assault, and battery, based on their allegation that the Kohlers had subjected them and

their children to a long sequence of harassment as part of their dispute over the

landscaping work.

      On March 18, 2011, the Van Peteghems filed a motion to dismiss the Kohlers’

complaint as a sanction for their allegedly repeated failure to comply with discovery.

On July 27, 2011, the trial court, after conducting a hearing,2 entered an order

declining to dismiss the Kohlers’ complaint but setting certain parameters for the

parties’ conduct and instituting specific discovery deadlines (the “Discovery Order”).

Among other things, the Discovery Order provided that except in emergency

situations, the parties, other than through their attorneys, were henceforth prohibited

from contacting third parties “for the purpose of making or investigating any

      2
          A transcript of the hearing was not included as part of the appellate record.

                                            4
complaint or alleged issue or condition on either of the properties at issue in this case

or any party to this case.” The Discovery Order also required the Kohlers to identify

any experts to be used at trial by July 30, 2011, and make them available for

deposition by October 15, 2011.

      The trial was specially set for the week of December 10, 2012. However, the

Kohlers first identified Adam Hazell as a plaintiffs’ expert to be used at trial in their

portion of the pretrial order served on the Van Peteghems on November 16, 2012, and

the Kohlers did not provide any information about Mr. Hazell’s expected testimony

to the Van Peteghems until December 8, 2012, two days before the first day

scheduled for trial.

      The Van Peteghems filed a motion in limine to exclude Mr. Hazell as an expert

witness at trial. When the trial court heard the motion, the Kohlers informed the court

that Mr. Hazell was a representative of the Georgia Mountains Regional Commission

and would be offering testimony related to their MRPA claim, and that their counsel

had not interviewed him until two weeks before trial, resulting in his belated

identification as an expert. The trial court granted the Van Peteghems’ motion and

excluded Mr. Hazell from testifying based on the Kohlers’ failure to comply with the

expert deadlines in the Discovery Order.

                                           5
      On December 10, 2012, the parties proceeded with the trial, which lasted

several days.3 Mrs. Kohler was the sole witness to testify on behalf of the Kohlers

during their case-in-chief. She testified that the landscaping work in the Van

Peteghems’ backyard had caused a major increase in water runoff onto the Kohlers’

property, resulting in soil erosion, the growth of a large “chasm” in the wooded area

of their property near the Chattahoochee River, and a substantial drop in the resale

value of their property. The Kohlers also introduced photographs and video

recordings that they had made in an effort to show the drainage problems caused by

the Van Peteghems’ landscaping work.

      After the Kohlers rested their case, the Van Peteghems moved for a directed

verdict on the Kohlers’ MRPA claim. The Van Peteghams contended that the Kohlers

had failed to present any evidence showing that their landscaping work violated the

MRPA and that, in any event, the MRPA did not create a private right of action for




      3
         Because the trial occurred in December 2012, the new Georgia Evidence
Code does not apply to any of the evidentiary issues addressed in this case. See Ga.
Laws 2011, Act 52, § 101 (“This Act shall become effective on January 1, 2013, and
shall apply to any motion made or hearing or trial commenced on or after such
date.”).


                                         6
damages. The trial court granted the Van Peteghams’ motion and dismissed the

Kohlers’ MRPA claim.

        The Van Peteghems then presented their case-in-chief. They called several

witnesses, including an expert in civil engineering who opined that the conditions on

the Kohlers’ property were naturally occurring as a result of runoff from the drainage

pipe and from the topography of the land and were not the result of the Van

Peteghems’ landscaping work. Additionally, the Van Peteghems both testified

regarding acts of harassment they allegedly had suffered at the hands of the Kohlers.

Among other things, Mrs. Van Peteghem testified regarding an incident in her front

yard in which Mr. Kohler stood in her face screaming at her and his spit landed on her

face.

        After the Van Peteghems presented their case-in-chief, they moved for a

directed verdict on Mrs. Van Peteghem’s battery counterclaim against Mr. Kohler.

The trial court granted the Van Peteghems’ motion for a directed verdict and later

instructed the jury that Mr. “Kohler’s action of spitting on Mrs. . . . Van Peteghem

constituted a battery under the laws of Georgia,” but that it was up to the jury to

determine any harm she had suffered and the amount of damages that should be

awarded to her, if any.

                                          7
      Following its deliberations on the remaining claims and counterclaims, the jury

returned a verdict in favor of the Van Peteghems on the Kohlers’ nuisance claim and

in favor of the Van Peteghems on all of their counterclaims. The jury awarded

$250,500 in damages to the Van Peteghems, with the damages broken down by claim

in a special verdict form. The trial court thereafter entered final judgment and denied

the Kohlers’ motion for a new trial, resulting in this appeal.

      1. The Kohlers contend that the trial court erred by directing a verdict in favor

of the Van Peteghems on the battery counterclaim. According to the Kohlers, the jury

would have been authorized to find from the testimony that errant spittle landed on

Mrs. Van Peteghem when Mr. Kohler was screaming at her and that he did not

actually intend to spit on her. The Kohlers thus contend that the evidence did not

demand a finding that Mr. Kohler committed the intentional tort of battery when his

spit landed on Mrs. Van Peteghem. We agree.

      Our review of a trial court’s grant of a motion for directed verdict is de novo.

Sun Nurseries v. Lake Erma, LLC, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).

      The trial court should grant a directed verdict only if there is no conflict
      in the evidence as to any material issue and the evidence introduced,
      with all reasonable deductions therefrom, shall demand a particular
      verdict. The court construes the evidence in favor of the party opposing

                                           8
      the motion for a directed verdict. We thus affirm the grant of a directed
      verdict only if all the evidence demands it.


(Punctuation and footnotes omitted.) Continental Maritime Svcs. v. Maritime Bureau,

275 Ga. App. 533, 534 (621 SE2d 775) (2005).

      The touching of another without her consent, even if minimal, constitutes a

battery. See Lawson v. Bloodsworth, 313 Ga. App. 616, 618 (722 SE2d 358) (2012);

King v. Dodge County Hosp. Auth., 274 Ga. App. 44, 45 (616 SE2d 835) (2005).

Moreover, the “unlawful touching of a person’s body is actionable even if the

unlawful touching is indirect, as by throwing an object or substance at the person.”

(Citation omitted.) Lawson, 313 Ga. App. at 618. Nevertheless, unauthorized

touching alone is not enough; battery is an intentional tort, and “[i]t is the intent to

make either harmful or insulting or provoking contact with another which renders one

civilly liable for a battery.” (Emphasis omitted.) Hendricks v. Southern Bell Tel. &

Tel. Co., 193 Ga. App. 264, 265 (1) (387 SE2d 593) (1989). If the tortfeasor acts with

the belief that such unauthorized contact is substantially certain to result from his

actions, that too can constitute the requisite intent to prove battery. See generally

Reeves v. Bridges, 248 Ga. 600, 603 (284 SE2d 416) (1981) (discussing intent

necessary to prove an intentional tort); Charles R. Adams III, Ga. Law of Torts § 2:1

                                           9
(2013-2014 ed.) (same). “Intent is a question of fact for jury resolution and may be

proven by circumstantial evidence, by conduct, demeanor, motive, and all other

circumstances.” (Citation and punctuation omitted.) Stack-Thorpe v. State, 270 Ga.

App. 796, 805 (7) (608 SE2d 289) (2004). See Regents of Univ. Sys. of Ga. v.

Blanton, 49 Ga. App. 602 (1) (a) (176 SE 673) (1934) (noting that “the question of

intent is peculiarly within the province of the jury”).

      In the present case, Mr. Kohler did not testify regarding the spitting incident.4

In contrast, Mrs. Peteghem testified that on the day in question, she was standing

outside with a county inspector and the president of the neighborhood homeowners’

      4
        The Van Peteghems argue that because Mr. Kohler failed to testify, they were
entitled to a rebuttable presumption that the battery counterclaim against him was
well-founded pursuant to former OCGA § 24-4-22 (2012), which provided:
       If a party has evidence in his power and within his reach by which he
       may repel a claim or charge against him but omits to produce it, or if he
       has more certain and satisfactory evidence in his power but relies on that
       which is of a weaker and inferior nature, a presumption arises that the
       charge or claim against him is well founded; but this presumption may
       be rebutted.
 But Mr. Kohler was a party defendant to the battery counterclaim, and “no
presumption is created against the defendant for failure to testify” under OCGA § 24-
4-22. Gurin v. Harris, 129 Ga. App. 561, 563 (3) (200 SE2d 368) (1973). See
Hendley v. Evans, 319 Ga. App. 310, 318 (2) (b) (ii) (734 SE2d 548) (2012); Maloy
v. Dixon, 127 Ga. App. 151, 154-155 (2) (a) (193 SE2d 19) (1972); Ramirez v.
Mansour, 104 Ga. App. 651, 652 (1) (122 SE2d 594) (1961). The presumption does
not apply in this context because a defendant “is under no duty to aid the plaintiff in
making out his case.” Maloy, 127 Ga. App. at 154 (2) (a).

                                          10
association when Mr. Kohler approached and began yelling at all of them about the

landscaping work and how it was damaging his property. Mrs. Peteghem testified that

Mr. Kohler “just kept going on and on and on in my face.” She then testified as

follows:

      Counsel: Did he spit on you in the process?


      Mrs. Van Peteghem: Not the first time he was doing it. And I asked him
      to step back at least three times. And I kept saying – literally my belly
      was touching his belly. And I said, please, step back. I’m pregnant,
      please step back. I don’t know where any of this is coming from. I really
      want to try to work – I don’t know what you are talking about. . . .


      Counsel: Did spit land on you in this process?


      Mrs. Van Peteghem: The third time . . . when he didn’t step back. And
      then he spit on me.


      Counsel: Where did it land?


      Mrs. Van Peteghem: On my face. . . .


      Counsel: Okay. Had you asked him more than once to backup?


      Mrs. Van Peteghem: I asked him three separate times, please, back up.



                                         11
      Counsel: Did he on any of those occasions backup when you asked him?


      Mrs. Van Peteghem: The first time he step[ped] once, but then as soon
      as he started talking it was right back in my face.


      Counsel: Were you scared?


      Mrs. Van Peteghem: I – yes, I was scared. . . .


      Counsel: Was he raising his voice when he did it? . . .


      Mrs. Van Peteghem: He was shouting, veins bulging, red in the face. I
      could feel his breath on my face. And just enraged . . . . And he’s a big
      guy and in my face just frothing at the mouth and spitting on me. His hot
      breath on my face. Shouting that I destroyed the forest. . . .


      The individual who was the president of the neighborhood homeowners’

association at the time the landscaping work was performed in the Van Peteghems’

backyard, and who was present at the time and location of the alleged spitting

incident, also testified at trial. He testified that on that day, Mr. Kohler “was very

agitated” over the landscaping work and walked into a circle of people standing

outside that included himself, the county inspector, and Mrs. Van Peteghem. The

former president further testified that while standing in the circle of people, Mr.



                                         12
Kohler was “expressing his point of view” and pointed his finger at Mrs. Van

Peteghem. However, the former president testified that “there [were] a number of

people there during this discussion” and “[i]t wasn’t like Mr. Kohler was one-on-one

against [Mrs.] Van Peteghem.”

      Based on this record, the trial court erred in granting a directed verdict to the

Van Peteghems on the battery counterclaim. To “spit” on someone simply means to

eject saliva from the mouth, see http://www.merriam-webster.com/dictionary/spit, and

it can be intentional or unintentional. See Sutton v. Tacoma Sch. Dist. No. 10, 324

P.3d 763, 767 (Wash. Ct. App. 2014) (noting that “saliva may accidentally escape the

mouth when someone is yelling in the face of another person”); Engle v. Bosco, No.

CV054006996S, 2006 Conn. Super. LEXIS 2792, at *10 (Conn. Super. Ct. Sept. 14,

2006) (no action for battery where “errant spittle landed on plaintiff” as the defendant

was yelling at the plaintiff). Based on the entirety of Mrs. Van Petegham’s testimony

about her encounter with Mr. Kohler, it is somewhat ambiguous whether Mr. Kohler

intended to spit in her face during the heated encounter, or whether errant spit

accidentally landed on her face as he yelled at her. Either inference could have been

drawn by the jury. Furthermore, the testimony of the former president of the

homeowners’ association, construed in the light most favorable to the Kohlers, could

                                          13
have led the jury to find that Mr. Kohler was not “one-on-one against” Mrs. Van

Peteghem but instead was heatedly “expressing his point of view” among a circle of

people standing in the street, which would call into question whether the spitting was

intentional. Accordingly, because the evidence and all reasonable inferences drawn

from it did not demand a finding that Mr. Kohler intentionally spat on Mrs. Van

Peteghem and thus committed a battery, the trial court erred in granting the motion.

See Continental Maritime Svcs., 275 Ga. App. at 534.

      The Van Peteghems argue, however, that the trial court’s grant of the motion

for directed verdict on the battery counterclaim should be affirmed under the “right

for any reason” rule because there was other uncontroverted evidence to support the

court’s determination that a battery had occurred. See generally Sims v. G. T.

Architecture Contractors Corp., 292 Ga. App. 94, 96 (1), n. 6 (663 SE2d 797) (2008)

(“If a judgment entered pursuant to the granting of a directed verdict is right for any

reason, it will be affirmed.”) (citation and punctuation omitted). Specifically, the Van

Peteghems contend that the evidence undisputedly showed that Mr. Kohler physically

touched Mrs. Van Peteghem with his body during the spitting incident. It is certainly

true that Mrs. Van Peteghem’s testimony would support such a conclusion. But, as

previously noted, the former president of the homeowners’ association testified that

                                          14
“there [were] a number of people there during this discussion” and “[i]t wasn’t like

Mr. Kohler was one-on-one against [Mrs.] Van Peteghem,” which, when construed

in favor of the Kohlers, could have been construed by the jury as a denial that any

one-on-one physical contact occurred between Mr. Kohler and Mrs. Van Peteghem

during the incident.

      For these reasons, we conclude that there was at least some evidence in the

record from which the jury could have found that Mr. Kohler accidentally spat on

Mrs. Van Peteghem and never physically touched her during the encounter. A trial

court should grant a motion for directed verdict “only where the evidence is truly

clear, palpable and undisputed.” Service Merchandise v. Jackson, 221 Ga. App. 897,

898-899 (1) (473 SE2d 209) (1996). Hence, “if there is any evidence to support the

case of the nonmoving party, a directed verdict must be reversed.” (Footnote

omitted.) Franklin v. Augusta Dodge, 287 Ga. App. 818 (652 SE2d 862) (2007). We

therefore must reverse the trial court’s grant of the Van Peteghems’ motion for a

directed verdict on the battery counterclaim against Mr. Kohler and remand for a new

trial on that specific claim.

      2. The Kohlers also argue that the trial court erred in charging the jury that Mr.

“Kohler’s action of spitting on Mrs. . . . Van Peteghem constituted a battery under the

                                          15
laws of Georgia.” The Kohlers further argue that the charge on the spitting incident

was so “incendiary” that it poisoned the jury’s deliberations, necessitating the grant

of a new trial on all of the claims and counterclaims raised in the case.

      We agree with the Kohlers that the trial court’s jury charge was erroneous and

that they are entitled to a new trial on the Van Peteghems’ battery counterclaim for

the reasons we articulated supra in Division 1. However, we do not believe that the

charge was so “incendiary” as to require a new trial on the remaining claims and

counterclaims. With the consent of the parties, the trial court submitted a special

verdict form to the jury which required it to consider and allocate damages separately

for each of the claims and counterclaims. Under these circumstances, we cannot say

that the jury’s verdict on any other claim or counterclaim was tainted by the trial

court’s charge on the battery counterclaim. See Grant v. Hart, 197 Ga. 662, 673 (3)

(30 SE2d 271) (1944) (when the trial court givens an erroneous jury charge and the

jury returns a special verdict answering specific questions, a new trial may be granted

only as to the specific questions that were connected with and affected by the charge).

      3. The Kohlers also contend that the trial court abused its discretion in granting

the Van Peteghems’ motion in limine to excluded Adam Hazell from testifying as an



                                          16
expert based on the Kohlers’ failure to comply with the expert deadlines imposed by

the Discovery Order. We are unpersuaded.

      The imposition of scheduling deadlines for the identification of experts, and

questions regarding the admission or exclusion of expert testimony, are left to the

broad discretion of the trial court. See Caswell v. Caswell, 285 Ga. 277, 280 (3) (675

SE2d 19) (2009); Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175)

(2008); Vaughn v. Wellstar Health Sys., 304 Ga. App. 596, 601-602 (3) (696 SE2d

506) (2010). And we have held that a trial court may exercise its discretion and

exclude testimony from an expert not properly identified by a party, when done in

violation of an express court order. See Collins v. Dickman, 295 Ga. App. 601, 603-

604 (1) (672 SE2d 433) (2008). See also Kroger Co. v. Walters, 319 Ga. App. 52, 60

(2) (b) (735 SE2d 99) (2012) (noting that “[i]n a civil suit it is an abuse of discretion

to exclude a relevant witness solely on the ground that the witness was not identified

during discovery or in a timely manner,” unless the failure to properly identify the

witness was in “violation of an express court order”).

      Here, the Discovery Order expressly required the Kohlers to identify any

experts to be used at trial by July 30, 2011, and make them available for deposition

by October 15, 2011. Yet, the Kohlers did not identify Mr. Hazell as an expert until

                                           17
November 16, 2012, more than 16 months after the expert deadline and three weeks

before the specially set trial. Moreover, the Kohlers failed to provide any information

about Mr. Hazell’s expected testimony until Saturday, December 8, 2012, two days

before trial. Given these circumstances, the trial court did not abuse its discretion in

excluding Mr. Hazell’s testimony for violations of the express deadlines contained

in the Discovery Order. See Collins, 295 Ga. App. at 603-604 (1).

      The Kohlers, however, emphasize that the Discovery Order was entered on July

27, 2011, and thus gave them “a scant two business days” to identify any experts

since July 30, 2011 fell on a Saturday. According to the Kohlers, such a short time

frame for identifying experts was unreasonable and constituted an abuse of discretion

by the trial court. Their claim in this regard is without merit. The discovery period

began with the timely filing of the Van Peteghems’ answer on September 13, 2010,

see Uniform Superior Court Rule 5.1, and thus the parties had many months to name

experts before the Discovery Order was issued on July 27, 2011. Indeed, the Kohlers

named a different engineer as a potential expert on November 8, 2010, nearly nine

months before the trial court issued the Discovery Order. Hence, the Kohlers’




                                          18
suggestion that they had too little time to identify an expert is unpersuasive, and we

discern no abuse of discretion by the trial court in excluding Mr. Hazell’s testimony.5

       4. Lastly, the Kohlers contend that the trial court erred in granting the Van

Peteghems’ motion for a directed verdict on the Kohlers’ MRPA claim. According

to the Kohlers, the trial court erred in concluding that the MRPA does not create a

private right of action for damages. We discern no basis for reversal.

       As previously noted, the grant of a motion for directed verdict will be affirmed

if right for any reason. See Sims, 292 Ga. App. at 96 (1), n. 6. Pretermitting whether

the trial court correctly concluded that the MRPA does not create a private right of

action for damages, we affirm the trial court’s directed verdict on the MRPA claim

because the Kohlers failed to present evidence sufficient to show that the Van

Peteghems’ landscaping work violated the MRPA.


       5
        The Kohlers also argue that the trial court abused its discretion by including
the provision in the Discovery Order that, except in emergency situations, prohibited
the parties, other than through their attorneys, from contacting third parties “for the
purpose of making or investigating any complaint or alleged issue or condition on
either of the properties at issue in this case or any party to this case.” Even if the trial
court’s inclusion of this prohibition in the Discovery Order was improper (a question
we need not resolve), the Kohlers have failed to show that they suffered any harm by
virtue of the prohibition and thus cannot demonstrate any basis for reversal. See
Gropper v. STO Corp., 276 Ga. App. 272, 277 (2) (623 SE2d 175) (2005) (“Reversal
requires a showing of harm as well as error[.]”).

                                            19
      In enacting the MRPA, OCGA § 12-5-440 et seq., the General Assembly

intended to create a statutory and regulatory framework that would protect “major

streams in certain metropolitan areas” from pollution, erosion, and over-intensive

development, among other problems. OCGA § 12-5-442 (a).6 To that end, regional

commissions that have been established for the aforementioned metropolitan areas

are charged with the preparation and adoption of “comprehensive, coordinated land

and water use plans” for “stream corridor[s].” OCGA § 12-5-443 (1); Pope v. City of

Atlanta, 242 Ga. 331 (249 SE2d 16) (1978). A “stream corridor” includes “all land

in the area in the watercourse, within 2,000 feet of the watercourse, or within the

flood plain, whichever is greater.” OCGA § 12-5-441 (17).

      The MRPA imposes different restrictions on development in an area that is part

of a stream corridor depending on whether a land and water use plan has been

adopted by the regional commission. See OCGA § 12-5-444 (a), (b). Once a regional

commission has adopted a plan, it is unlawful to engage in any “land-disturbing



      6
        The MRPA defines a metropolitan “area” as an area “having a population of
more than 1,000,000,” OCGA § 12-5-441 (2), and it defines a “major stream” as “any
stream or river, whether navigable or nonnavigable, which flows through any area
and which is the source of at least 40 percent of the public water supply of any such
area.” OCGA § 12-5-441 (11).

                                         20
activity” incompatible or inconsistent with the plan,7 and anyone who intends to

conduct such activity must first obtain a certificate for the proposed use from the

appropriate local governing authority. See OCGA § 12-5-444 (b) (1).

      Here, the Kohlers presented no evidence regarding whether a land and water

use plan had been adopted by a regional commission covering the area of the

Chattahoochee River in question or the requirements under such a plan. Nor did the

Kohlers present any evidence regarding whether the Van Peteghems had failed to

comply with any specific plan requirements or with the appropriate certification

process in carrying out their landscaping work. Indeed, counsel for the Kohlers

conceded at the hearing on their motion for new trial that the excluded expert

testimony of Mr. Hazell, a representative of the Georgia Mountains Regional

Commission, would have been necessary for establishing that the Van Peteghems

violated the MRPA. As counsel noted, “Ms. Kohler couldn’t do it,” and she was the

only witness who testified in the Kohlers’ case-in-chief. Consequently, we conclude

that the Kohlers failed to present evidence sufficient to show a violation of the



      7
        “‘Land-disturbing activity’ means scraping, plowing, clearing, dredging,
grading, excavating, transporting, or filling of land or placement of any structure or
impervious surface, dam, obstruction, or deposit.” OCGA § 12-5-441 (10).

                                         21
MRPA, and that the trial court’s grant of a directed verdict to the Van Peteghems on

that claim was appropriate.

      Judgment affirmed in part, reversed in part, and case remanded with

instruction. Boggs and Branch, JJ., concur.




                                        22
