                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, 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 20, 2015




In the Court of Appeals of Georgia
 A15A1512. BORD, et al. v. HILLMAN, et al.

      RAY, Judge.

      Anna Bord and Victor M. Bondar (“Bord and Bondar”) appeal from the trial

court’s order granting Amy L. Hillman and Daniel A. Hillman’s (“Hillmans”) motion

for partial summary judgment as to counterclaims related to harm allegedly caused

by a retaining wall separating Bord and Bondar’s property from the Hillmans’s

property. For the reasons that follow, we reverse.

      When ruling on a motion for summary judgment, the opposing party
      should be given the benefit of all reasonable doubt, and the court should
      construe the evidence and all inferences and conclusions therefrom most
      favorably to the party opposing the motion. Further, any doubts on the
      existence of a genuine issue of material fact are resolved against the
      movant for summary judgment. When this Court reviews the grant or
      denial of a motion for summary judgment, it conducts a de novo review
      of the law and the evidence.


(Citation omitted.) Clark v. City of Atlanta, 322 Ga. App. 151, 152 (744 SE2d 122)

(2013).

      The procedural history, in pertinent part, is that on September 6, 2013, the

Hillmans filed suit against their next-door neighbors, Bord and Bondar, for injunctive

relief, nuisance, trespass, negligence, negligence per se, intentional infliction of

emotional distress, punitive damages, and attorney fees. The Hillmans alleged that

certain actions of Bord and Bondar resulted in increased water runoff on the

Hillmans’s land, which caused damage to their property. On October 16, 2013, Bord

and Bondar answered and counterclaimed for injunctive relief, nuisance, trespass,

negligence, negligence per se, tortious interference with business relations, slander

and oral defamation,1 punitive damages, attorney fees and costs of litigation. Bord

and Bondar alleged that when the Hillmans constructed a retaining wall, it caused

water to back up onto Bord and Bondar’s property, which caused damage to the

property, including, but not limited to, flooding in their basement.


      1
         Bord and Bondar later withdrew the tortious interference with business
relations and slander and oral defamation claims.

                                          2
      The Hillmans filed a motion for partial summary judgment on all of Bord and

Bondar’s counterclaims, specifically as these claims relate to the retaining wall.

Following oral argument, the trial court granted that motion, finding, inter alia, that

the evidence demonstrated no material questions of fact as to whether the retaining

wall caused any of the harm alleged.

      The facts, viewed most favorably to Bord and Bondar as the non movants,

show that the wall built by the Hillmans separates the Hillmans’s property from Bord

and Bondar’s property. Around July 26, 2012, Bord noticed the carpet in her

basement was wet after a heavy rain. Upon discovery of the flooding, Bord and

Bondar filed an insurance claim. The insurance company sent Richard Grimshaw to

investigate the water damage. He determined that the basement flooding was caused

by the gathering of water on the outside of the house. In his report to the insurance

company, Grimshaw stated that, in his opinion, construction deficiencies caused the

water in the basement.

      Upon the start of litigation, Bord and Bondar hired an expert hydrologist,

George Henry Baltz, III, to determine, among other things, whether the wall caused

the flooding in Bord and Bondar’s basement. Baltz was told where Grimshaw

believed water had entered the basement, and Baltz used that point to calculate the

                                          3
elevation of water that would occur during storms on the property. Baltz’s analysis

was not meant to determine exactly where water would stop on the property. Instead,

Baltz’s calculations determined how much water would pool in a particular cross

section of the property.

        Baltz plotted the measurements from the property into a hydroflow program to

determine the depth of water that would occur on Bord and Bondar’s property in a 25-

year flood event and a 100-year flood event before and after the wall. Before the wall

was built, a 25-year event would cause 0.6 feet of water to pool on Bord and Bondar’s

land and a 100-year event would cause 0.64 feet of water to pool on Bord and

Bondar’s land. After the wall was built, a 25-year event would cause 0.74 feet of

water to pool and a 100-year event would cause 0.79 feet of water to pool in the same

area.

        The cross section, on which Baltz based his calculations, was at 937.80 feet

above sea level. Using Baltz’s results, a 25-year event would cause water in that cross

section to rise to 938.54 feet above sea level and a 100-year event would cause water

to rise to 938.59 feet above sea level.2 Since Bord and Bondar’s house sits at 939 feet

        2
            These measurements are based on simple calculations:

        A twenty five year event: 937.80 + 0.74 = 938.54

                                           4
above sea level , both of these events are still below the grade of Bord and Bondar’s

house. However, Baltz also testified that the construction of the wall would have

changed the way that water was running and pooling between the two houses.

      Bord and Bondar supplemented their expert’s findings with personal

observations. They testified that water has been in their basement two times since the

construction of the wall. Further, in Bondar’s deposition, he testified that the problem

with his property was “that retaining wall that’s keeping water on my property and

flooding my basement.”3

      The Hillmans hired their own expert hydrologist, Glynn Forrest Groszmann,

P.E., to determine how the wall affected water pooling on the two properties. During

Groszmann’s deposition, he reviewed Baltz’s calculations and found that those

concerning the 25-year event were “appropriate.” However, because 100-year events

are normally used in life or death situations, not basement flooding, he felt the

measurement was inappropriate in this case. In an affidavit attached to the Hillmans’s

brief in support of summary judgment, Groszmann stated that in his opinion, the wall


      A one hundred year event: 937.80 + 0.79 = 938.59
      3
        In their appellate brief, Bord and Bondar contend that they have also
experienced additional erosion, sediment discharges, and flooding issues in their yard.
We could not find those facts in the record.

                                           5
constructed by the Hillmans may have caused a “negligible and insignificant”

increase in water concentration in the area.

      1. Bord and Bondar contend the trial court erred in concluding as a matter of

law that the retaining wall between the two properties was not the cause in fact of any

damage to Bord and Bondar’s property.4 We agree.5

      To recover under a nuisance claim, “[t]he plaintiff must show the existence of

the nuisance complained of, that he or she has suffered injury, and that the injury

complained of was caused by the alleged nuisance.” (Citation and punctuation

omitted.) Rice v. Six Flags Over Georgia, LLC, 257 Ga. App. 864, 868 (572 SE2d

322) (2002).

      Causation is an essential element of nuisance, trespass, and negligence
      claims. To establish proximate cause, a plaintiff must show a legally


      4
        In their first enumeration of error, Bord and Bondar, citing Ginn v. Morgan,
225 Ga. 192 (167 SE2d 393) (1969), contend that the trial court erred in basing its
grant of partial summary judgment solely on the opinion testimony of expert
witnesses. However, we need not reach this issue as there is some evidence of
causation, however slight, necessitating a reversal of this grant of partial summary
judgment.
      5
       We acknowledge that this analysis considers damages not merely related to
the house, but the claims as a whole. We do not mean to imply that a grant of partial
summary judgment with respect to the damage that the wall allegedly caused to the
house would not have been appropriate.

                                          6
      attributable causal connection between the defendant’s conduct and the
      alleged injury. The plaintiff must introduce evidence which affords a
      reasonable basis for the conclusion that it is more likely than not that the
      conduct of the defendant was a cause in fact of the result.


(Footnote omitted.) Alexander v. Hulsey Environmental Svcs., Inc., 306 Ga. App. 459,

462 (3) (702 SE2d 435) (2010). “The existence of proximate cause is a question of

fact for the jury except in palpable, clear, and indisputable cases.” (Citation omitted.)

Sprayberry Crossing Partnership v. Phenix Supply Co., 274 Ga. App. 364, 365 (1)

(617 SE2d 622) (2005).

      In a nuisance action, recovery is authorized for damage to both person
      and property. Unlawful interference with the right of the owner to enjoy
      possession of his property may be an element of damages. The measure
      of damages for discomfort, disrupted peace of mind, unhappiness and
      annoyance caused by a nuisance is for the enlightened conscience of the
      jury.


(Citations and punctuation omitted; emphasis supplied.) Woodmen of the World, Unit

No. 3 v. Jordan, 231 Ga. App. 517, 519 (2) (499 SE2d 900) (1998).

      For causation, Bord and Bondar submit Baltz’s testimony that the wall would

have changed the way water flowed and pooled between the two properties. They also

present personal observations that the wall is causing an increased amount of water


                                           7
to sit on their property and flood their basement. For damages, in their nuisance

claim, Bord and Bondar assert that the wall has interfered with the full use and

enjoyment of their property. In addition, they assert that the wall has resulted in

“diversion of storm water runoff, eroding soils, and flooding in [their] residence.”

      The trial court granted summary judgment for all claims related to the retaining

wall and found that Bord and Bondar “failed to come forth with evidence creating a

question of material fact as to causation.” (Emphasis supplied.) The court relied

heavily on the finding that Bord and Bondar’s personal observations alone are

“insufficient evidence to raise a question of material fact on the issue of causation.”

In addition, the trial court found Baltz’s calculations, concerning the increase in water

pooling on the property after the wall, indicated a lack of causation because the water

increase Baltz found was still below the grade of Bord and Bondar’s house. Thus, it

concluded that Bord and Bondar’s counterclaims for nuisance, negligence, and

negligence per se as they relate to the retaining wall failed for lack of causation. The

trial court further found that Bord and Bondar’s claims for punitive damages and

attorney fees relating to the retaining wall also failed.

      Contrary to the trial court’s conclusion, we believe that some evidence exists

for causation in Bord and Bondar’s counterclaims. “[O]pinion evidence in opposition

                                           8
to a motion for summary judgment can be sufficient to preclude a grant of summary

judgment.” (Citations omitted.) Hammond v. City of Warner Robins, 224 Ga. App.

684, 692 (1) (482 SE2d 422) (1997) (reversing the grant of summary judgment based

on expert testimony on the elements of a nuisance claim).

      The record includes expert testimony from both sides and personal

observations which all indicate the wall caused an increase in water backing up or

pooling on Bord and Bondar’s property. “Although property must accept the natural

runoff of water from neighboring lands, an artificial increase or concentration of

water discharge may give rise to a cause of action.” Greenwald v. Kersh, 265 Ga.

App. 196, 197 (1) (593 SE2d 381) (2004). See also Mallard v. Pye, 215 Ga. 645, 646

(2) (112 SE2d 620) (1960). Bord and Bondar’s expert, Baltz, has calculations

demonstrating that the wall caused an increase in the amount of water pooling on the

property. Baltz also testified that the wall would have changed the way water runs

between the two houses. This testimony is bolstered by Bord and Bondar’s personal

observations that the wall is causing increased water pooling on their land.6 Further,

      6
         Since the expert testimony suggesting causation is sufficient to reverse the
trail court’s grant of summary judgment, this Court does not consider whether Bord
and Bondar’s personal observations, standing alone, would be enough to raise an
issue of causation. See Newton’s Crest Homeowners’ Ass’n v. Camp, 306 Ga. App.
207, 211-212 (1) (702 SE2d 41) (2010).

                                          9
the Hillmans’s expert, Groszmann, testified that the wall caused an increase in water

concentration on the property, although he deemed it “negligible and insignificant.”

However, “[w]hen a surface-water invasion has taken place, whether it amounts to a

compensable tort is a question of fact for the jury.” (Citation omitted.) Payne v.

Carson, 215 Ga. App. 253, 254 (1) (450 SE2d 273) (1994).

      The trial court’s order confused causation with damages. While the water

increase caused by the wall was below the grade of Bord and Bondar’s house, this

fact does not relate to causation. It relates to damages. Since Bord and Bondar are

claiming damages beyond the flooding in their basement, such as loss of enjoyment

of their land, showing an increase in water on the property at all is sufficient to create

evidence of causation.

      We conclude that the evidence, when viewed in favor of Bord and Bondar as

the non movants, was sufficient to create a jury question as to causation regarding

their counterclaims for nuisance, negligence, negligence per se, injunctive relief,

punitive damages, and attorney fees. Accordingly, the trial court’s grant of partial

summary judgment must be reversed.7

      7
         The Hillmans moved for partial summary judgment on all of Bord and
Bondar’s counterclaims. We note that Bord and Bondar had amended their trespass
claim to include the allegation that the Hillmans unlawfully diverted water onto their

                                           10
      2. Bord and Bondar contend that the trial court erred by considering portions

of Glynn Groszmann’s affidavit that they argue contradicts his deposition testimony.

We disagree.

      Bord and Bondar argue that contradictory portions of Groszmann’s testimony

should not be considered by the trial court under Prophecy Corp. v. Charles

Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) and its progeny. In accord with

Prophecy, we have held that

      [a]lthough we construe the evidence most favorably to appellant as the
      party opposing the motion for summary judgment, where there is a direct
      contradiction in the testimony of the respondent as to a material issue of
      fact, that party’s unfavorable testimony will be taken against him.


(Citation omitted; emphasis in original.) Travick v. Lee, 278 Ga. App. 823, 826 (630

SE2d 99) (2006). As the emphasized language makes clear, “[t]he Prophecy rule

applies only to self-contradictions in a party’s sworn testimony. It does not apply

to. . . non-party witness testimony[.]” (Footnote omitted.) CSX Transp., Inc. v.

Belcher, 276 Ga. 522, 523 (579 SE2d 737) (2003). Groszmann is a non-party witness.

Thus, Prophecy does not apply.


property. However, the trial court did not address Bord and Bondar’s trespass claim
in its ruling on the motion for partial summary judgment.

                                         11
      Further, upon review of the record, we find no contradictory portions of

Groszmann’s testimony. Bord and Bondar’s brief cites to Groszmann’s deposition

testimony where he found Baltz’s numbers for the 25-year event after the wall was

built to be “appropriate.” Then, Bord and Bondar assert that Groszmann contradicted

this testimony later when he stated that “even if [Baltz’s] calculations were correct,

they do not demonstrate that the construction of the Wall has caused any actual

hydrological damage to the Bondar/Bord Property.” But, this mischaracterizes

Groszmann’s statements. Groszmann goes on to say, apparently accepting the

calculations as true, that they “verify” that the depth of pooled water would not be

sufficient to infiltrate Bord and Bondar’s basement. Groszmann never stated that he

believed Baltz’s calculations were incorrect; thus, there is no conflict on this point.

      Judgment reversed. Barnes, P. J., and McMillian, J., concur.




                                          12
