                              SECOND DIVISION
                                BARNES, P. J.,
                            BOGGS and RICKMAN, 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


                                                                       July 12, 2016




In the Court of Appeals of Georgia
 A16A0353. TERRY et al. v. CATHERALL et al.

      BOGGS, Judge.

      This appeal involves a controversy over surface water runoff between adjoining

property owners. John Terry and Karen Correnty (“plaintiffs”) appeal from the trial

court’s order granting summary judgment in favor of Leigh Catherall and Edie and

Gillespie Smith (collectively “defendants”). The plaintiffs contend that the trial court

erred in concluding that they had failed to create a genuine issue of material fact as

to whether the defendants artificially increased water runoff from their property onto

the plaintiffs’ adjoining property. They also assert that the defendants were not

entitled to summary judgment on their claims for punitive damages, attorney’s fees

and a permanent injunction. For the reasons explained below, we reverse the trial

court’s grant of summary judgment to the defendants on the plaintiffs’ nuisance claim
and remand this case with the instruction that the trial court rule on the issues of

punitive damages, attorney’s fees, and permanent injunction.

      “[I]n reviewing this summary judgment case, we must construe all evidence in

favor of the nonmovant and need only determine whether some competent evidence

supported plaintiff’s claim, not whether all evidence supported that claim.”

(Emphasis in original.) Rodrigues v. Ga-Pacific Corp., 290 Ga. App. 442, 447 (661

SE2d 141) (2008) (on motion for reconsideration). The following facts are

undisputed: the plaintiffs moved into their home in October 2011; Catherall’s home

is partially behind and uphill from the plaintiffs’ home; the Smiths’ home is adjacent

to Catherall’s home and also partially behind and uphill from the plaintiffs’ home;

wood fences separate the plaintiffs’ property from the defendants’ property; the

Smiths built an addition to their home in 1970 and they added a parking pad for a

recreational vehicle in 2006; Catherall added a garage, additional driveway, and

parking area in 1996 and a flagstone patio in 2007.

      After purchasing the home in 2011, Mr. Terry noticed water coming from the

defendants’ lots onto his property. In particular, he observed water coming from a

pipe embedded in the Smiths’ parking pad onto his property during a rainstorm. He

described the water as “[c]oming out of a pipe that’s attached to the parking pad about

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three feet before it hit the ground” with “the trajectory of the water coming out of the

pipe . . . about three feet away from the wall for the parking pad.” Terry testified that

the water from this pipe goes “straight to [his] property. On one occasion, Terry

observed water coming from the pipe onto his property while Mr. Smith was washing

his motor home. Terry also testified that a great volume of water runs from the

southwest corner of the Smiths’ patio roof.

      With regard to Catherall’s property, Mr. Terry observed collected rainwater

coming from two pipes near a parking pad on the northwest side of the Catherall

house onto his property. He described the water coming out of the pipes “like a fire

hose” during a heavy rain. He also testified that water from Catherall’s patio and

three-car garage is directed onto a different neighbor’s property and then flows

through to his property based on his observations after the Catherall’s driveway was

pressure-washed.

      The owner of a landscaping company with expertise in drainage and

landscaping testified that he observed water coming under a fence from the Catherall

property “like a fire hose.” He could tell water came from the Catherall property onto

another neighbor’s property before taking a turn onto the plaintiffs’ property because

“[t]here was a defined ditch through the yard where the vegetation had died and . . .

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you could see the water. I mean it was active like a river literally running straight

under the fence.” He also observed water coming from the Smiths property into the

plaintiffs yard. He testified that the Smiths and Catherall could help mitigate water

runoff to the plaintiffs’ property by planting monkey grass along the fence to reduce

the speed of the water. In his opinion, the improvements made to the defendants’

properties significantly increased the water runoff, but he did not do any water

volume or velocity calculations. He testified that “adding impervious . . . areas

increases velocity and water flow.” He admitted that he did not have any knowledge

of the drainage pattern on the defendants’ properties before they added

improvements.

      The plaintiffs retained an expert witness, Dr. James Spotts, who has a master’s

degree in agronomy and a Ph.D. in soil physics. Dr. Spotts inspected the properties

at issue and identified several specific locations where water from the defendants’

properties flowed under the wood fences onto the plaintiffs’ property. The water

leaving the Smiths’ property did not pass “under the fence uniformly over its entire

length.” He saw a drainage channel from the Smith’s drain pipe and parking pad that

“directed the water . . . toward the Terry property.” He also observed that the Smiths

did not have pads under the gutter downspouts “to absorb the impact energy of the

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water as it came down.” Additionally, he noticed where the water exited the Catherall

property onto the adjoining neighbor’s land and then turned to the right onto the

plaintiffs’ property.

      He obtained measurements for the original footprint of the defendants’ homes

and the amount of increased impervious surfaces they added. The Smith house was

originally approximately 2,668 square feet and they added an additional 3,728 square

feet of impervious surface, an increase of “about 140%.” The Catherall house was

originally 2,681 square feet and they added an additional 6,612 square feet of

impervious surface, an increase “by 250%.” According to Dr. Spotts, the addition of

impervious surfaces on both properties increased the volume and velocity of water

flowing onto the plaintiffs’ property because it prevented water from infiltrating into

the soil. Dr. Spots admitted that he did not know the drainage patterns on the

defendants’ property before they added additional impervious surfaces, that he did not

quantify the volume or velocity of water flowing from the defendants’ property onto

the plaintiffs’ property, and that he did not measure the slope of the defendants’

properties.

      Following discovery, the defendants moved for summary judgment in their

favor, asserting, in part, that no genuine issue of material fact existed as to whether

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they caused an increase in the volume and velocity of water flowing onto the

plaintiffs’ property. The trial court agreed, concluding in nearly identical orders

pertaining to each property:

      While Mr. Spotts provided calculations that Defendants increased [] the
      impervious surfaces of their Property . . . , Mr. Spotts did not conduct
      any tests to measure the velocity of water runoff from Defendants’
      Property, the volume of water flowing onto the Plaintiffs’ Property, not
      the slope of Defendants’ Property. Rather, Mr. Spotts appears to be
      relying solely on his calculations of impervious surface additions to
      speculate that Defendants artificially increased water runoff onto
      Plaintiffs’ Property. Mr. Spotts’ knowledge and expertise simply cannot
      overcome the lack of quantifiable data for his opinion on causation to
      amount to more than mere conjecture and speculation.


The trial court did not address any other grounds asserted in the defendants’ summary

judgment motions.

      In surface water run-off disputes where two lots adjoin, the lower lot
      owes a servitude to the higher, so far as to receive the water which
      naturally runs from it, provided the owner of the latter has done no act
      to increase such flow by artificial means. Thus, 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.



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(Citations, punctuation and footnotes omitted.) Green v. Eastland Homes, 284 Ga.

App. 643, 645 (1) (644 SE2d 479) (2007). The law can also properly be stated:

      One landed proprietor has no right to concentrate and collect water 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 property if it
      simply ran down upon it from the upper property by the law of
      gravitation.


(Punctuation omitted.) Sumitomo Corp. of America v. Deal, 256 Ga. App. 703, 705

(1) (569 SE2d 608) (2002).

      “Under Georgia law, in order to be held liable for nuisance, ownership of land

by the tortfeasor 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.”

(Citation and punctuation omitted.) Greenwald v. Kersh, 265 Ga. App. 196, 198 (1)

(593 SE2d 381) (2004). “Causation is an essential element of nuisance, trespass, and

negligence claims. To establish proximate cause, a plaintiff must show a legally

attributable causal connection between the defendant’s conduct and the alleged

injury.” (Citations and punctuation omitted.) Toyo Tire North America Man. v. Davis,


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Ga. (Case No. S15G1804, decided June 6, 2016). “The existence of proximate cause

is a question of fact for the jury, except in palpable, clear, and indisputable cases.”

(Citations, punctuation and footnote omitted.) Sprayberry Crossing Partnership v.

Phenix Supply Co., 274 Ga. App. 364, 365 (1) (617 SE2d 622) (2005).

      In this case, as in Toyo Tire, supra, the defendants did not challenge the

admissibility of the plaintiffs’ expert testimony; instead, they asserted that the expert

testimony was insufficient to create a genuine issue of material fact as to causation.

We disagree. Dr. Spotts’ testimony that the increased impervious surfaces on the

defendants’ property increased the volume and velocity of water flowing onto the

plaintiffs’ property was sufficient to create a genuine issue of material fact on the

issue of causation. See Toyo Tire, supra, slip op. at 14-15 (2). “[T]he limited scope

of the information used by the expert [does not] play a role in determining whether

his testimony is competent.” Green, supra, 284 Ga. App. at 647 (1). Instead, it

“presents a jury question as to the weight which should be assigned the opinion.”

(Citations and punctuation omitted.) Id.

      2. In their remaining enumerations of error, the plaintiffs contend that the trial

court also erred by granting summary judgment in favor of the defendants on their

claims for punitive damages, attorney’s fees and a permanent injunction. The trial

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court’s order, however, does not address the viability of any of these claims,

presumably because they became moot based on the trial court’s conclusion that no

genuine issue of material fact existed as to causation. “Thus, if we were to conclude

that the trial court erred, it would be on account of an issue never ruled on below.

[Cit.]” Nebo Ventures v. Novapro Risk Solutions, 324 Ga. App. 836, 848 (4) (752

SE2d 18) (2013). As “we do not think an appellate court properly ought to consider

whether the trial court was wrong for any reason[,] . . . we conclude that it is

appropriate for the trial court to address in the first instance whether triable issues of

fact remain on the question” of punitive damages, attorney’s fees, and a permanent

injunction. (Citations and punctuation omitted.) Id.

      Judgment reversed and case remanded with direction. Barnes, P. J., and

Rickman, J., concur.




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