Randall Klingensmith v. Long County, Georgia

SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, 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

September 23, 2019

In the Court of Appeals of Georgia
A19A1295. KLINGENSMITH et al. v. LONG COUNTY,
GEORGIA.

MILLER, Presiding Judge.

This appeal stems from a negligence and nuisance action that various residents

who live in or around the Vickers Hill subdivision filed against Long County,

Georgia (“the County”), due to the repeated flooding of the subdivision. The trial

court granted summary judgment to the County on various grounds that included

sovereign immunity, failure to comply with the presentment requirement of OCGA

§ 36-11-1, and the merits. The plaintiffs now appeal from the trial court’s summary

judgment order, challenging each of the grounds on which the trial court relied in its

order. We conclude that (1) the plaintiffs’ negligence claims are barred by sovereign

immunity; (2) any claims of a permanent nuisance or trespass are barred by the one-
year presentment requirement of OCGA § 36-11-1; and (3) the plaintiffs failed to

produce evidence to create a genuine issue of material fact on a claim for continuing

nuisance. We therefore affirm.

“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. We review the grant or

denial of summary judgment de novo, construing the evidence in favor of the

nonmovant.” (Citation and punctuation omitted.) Summer v. Security Credit Svcs.,

LLC, 335 Ga. App. 197, 197-198 (779 SE2d 124) (2015).

So viewed, the record shows that, around 2006, Georgia Coastal Land

Company acquired land in Long County, Georgia, with the intent to develop and

build a residential subdivision called Vickers Hill. Georgia Coastal had P.C.

Simonton & Associates, Inc., a civil engineering firm, prepare a preliminary plat for

the subdivision to submit to the County for approval. The County approved the plat

in April 2007, and, at that time, Georgia Coastal began selling lots to private parties

for development and construction.

Soon after construction began in Vickers Hill, standing water became an issue

for many of the residents of the subdivision. In 2014, after receiving many complaints

of the flooding from the residents of Vickers Hill, the County studied the issue of

2
flooding at the subdivision and issued a report. The report concluded that the

development of the subdivision increased the total runoff from the area by

approximately 25 cubic-feet-per-second, which was significantly higher than the 1

cubic-foot-per-second increase that was set by the County’s ordinance. This large

increase of runoff resulted in a back-up at the culvert on the property of Carl Steen,

who lives adjacent to the subdivision at the point where the runoff from the

subdivision is released, which served as a major drainage point for the wetlands that

are adjacent to the subdivision. The report recommended that the pipes on Steen’s

property be widened, that various pipes within the subdivision be replaced or

widened, and that various ditches and pipes within the subdivision be cleaned and

restored to the proper grade.

On March 27, 2015, a notice to the County was sent by counsel on behalf of

“several families who reside in and around Vickers Hill Subdivision” who had claims

against the county. The notice specified that it was sent to comply with the

requirements of OCGA § 36-11-1, and it stated that the residents had claims for the

continuing nuisance and trespass caused by the insufficient drainage and resultant

standing water, which still had not been fixed and had also led to the deterioration of

3
the roadways within the subdivision. The notice did not identify any of the residents

by name.

Steen, Randall and Beth Klingensmith, Walter Pelton, William Karriker, James

Wine, and Chester Bradley filed the instant complaint on February 9, 2016, against

the County, two fictitious “John Doe” defendants that were alleged to be employees

or agents of the County, and P.C. Simonton.1 Except for Steen, the plaintiffs are all

residents of Vickers Hill. The plaintiffs raised the following claims against the

County: (1) negligence due to the County’s alleged failure to oversee and monitor the

development and construction within Vickers Hill, the County’s approval of a

development plan for the subdivision that violated the County’s own regulations, and

the County’s failure to maintain the roadways and signage within the subdivision; (2)

nuisance arising from the alleged failure to take sufficient action to address the

extensive flooding and standing water problems in the subdivision; and (3) trespass

for the water that intruded upon and remained on the plaintiffs’ properties due to the

inadequate drainage systems in the subdivision. Service was effected on the County

on February 20, 2016.

1
The plaintiffs later voluntarily dismissed their claims against P.C. Simonton
without prejudice.

4
 Following discovery, the County moved for summary judgment on all claims.

After a hearing, the trial court granted the County’s motion for summary judgment.

The trial court concluded that (1) the Plaintiffs’ ante litem notice was insufficient

under OCGA § 36-11-1 because the notice did not identify any of the claimants; (2)

the four-year statute of limitations (OCGA § 9-3-30 (a)) barred the claims for

negligence and trespass; (3) the negligence claim was barred by sovereign immunity;

(4) the nuisance claim for the alleged flooding and standing water failed as a matter

of law because the record showed that the County did not construct or maintain the

drainage system; and (5) the nuisance claim for the condition of the roads failed as

a matter of law because the County did not own the roads. This timely appeal

followed.

1. The plaintiffs first argue that the trial court erred in its conclusion that their

negligence claims were barred by sovereign immunity because individual government

officials may be held personally liable for ministerial acts negligently performed, and

they argue that they produced sufficient evidence to show that the County’s agents

were negligent in following the County’s own subdivision regulations in relation to

5
the Vickers Hill subdivision.2 They further argue that sovereign immunity does not

apply because the County was vicariously liable for the actions of its agents. We

disagree.

“[S]overeign immunity is the immunity provided to governmental entities and

to public employees sued in their official capacities.” (Citation omitted.) Ratliff v.

McDonald, 326 Ga. App. 306, 309 (1) (756 SE2d 569) (2014). On the other hand,

“[t]he doctrine of official immunity, also known as qualified immunity, offers public

officers and employees limited protection from suit in their personal capacity.”

(Citation omitted.) Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010).

It is true that official immunity afforded to individual public employees is waived in

cases where ministerial acts were negligently performed or where official acts were

performed with malice or an intent to injure. See id. at 619-620. However, “sovereign

immunity and official immunity are not synonymous, but are separate, related

doctrines. Sovereign immunity . . . refers to the immunity traditionally granted

governmental entites, such as the state or its counties. Official immunity, on the other

2
Because “[s]overeign immunity is not an affirmative defense, going to the
merits of the case, but raises the issue of the trial court’s subject matter jurisdiction
to try the case,” Ambati v. Bd. of Regents of Univ. Sys. of Ga., 313 Ga. App. 282, 282
n.3 (721 SE2d 148) (2011), we will address the trial court’s determinations as to the
County’s sovereign immunity first.

6
hand, is applicable to government officials and employees sued in their individual

capacities.” (Citations and punctuation omitted.) Norris v. Emanuel County, 254 Ga.

App. 114, 116 (1) (561 SE2d 240) (2002). Instead, our law is clear that “[a] county

may be liable for a county employee’s negligence in performing an official function

only to the extent the county has waived sovereign immunity.” (Citation omitted.)

Ratliff, supra, 326 Ga. App. at 309 (1).

Thus, to pursue claims against the County, the plaintiffs must point to a waiver

of the County’s sovereign immunity regardless of whether any individual county

official does or does not have official immunity from the plaintiffs’ claims.3 The only

waiver they point to is the waiver of sovereign immunity for claims alleging the

negligent performance of ministerial duties. That waiver, however, only applies to

cities and does not apply to counties. Rutherford v. DeKalb County, 287 Ga. App.

366, 367-369 (1) (a), (b) (651 SE2d 771) (2007). Compare OCGA § 36-33-1 (b) (“For

neglect to perform or improper or unskillful performance of their ministerial duties,

3
Any claims against the fictitious defendants are not relevant to this appeal
because the County’s summary judgment motion was made solely on behalf of the
County and not on behalf of any fictitious defendants. The trial court’s summary
judgment order also did not appear to address any claims against the fictitious “John
Doe” defendants, and any individual “John Doe” defendants are not parties to this
appeal.

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[municipal corporations] shall be liable.”) with OCGA § 36-1-4 (setting out the

sovereign immunity of counties and containing no such waiver for ministerial duties).

Because “[a] waiver of sovereign immunity must be established by the party seeking

to benefit from that waiver,” (Citation omitted.) Liberty County v. Eller, 327 Ga. App.

770, 771 (1) (761 SE2d 164) (2014), and the plaintiffs did not (and do not) point to

any other purported waiver of sovereign immunity by the County for their negligence

claims, they are barred by sovereign immunity.

As the parties correctly point out, however, “the Constitution provides for a

wavier of sovereign immunity where a county creates a nuisance which amounts to

an inverse condemnation.” (Citation omitted.) Eller, supra, 327 Ga. App. at 772 (1).

Therefore, the plaintiffs’ nuisance claims are not barred by sovereign immunity to the

extent they constitute an inverse condemnation.4

2. In two related claims of error, the plaintiffs also argue that the trial court

erred in its conclusion that their nuisance claims were barred by the requisite four-

year statute of limitations, OCGA § 9-3-30 (a), and that the trial court erred in

4
While the plaintiffs raised both a nuisance and a trespass claim in addition to
their negligence claims, in essence, these claims together are proceeding as an inverse
condemnation claim, “[r]egardless of how the various claims are denominated.”
Stanfield v. Glynn County, 280 Ga. 785, 786 (1) (631 SE2d 374) (2006). For ease of
reference, we will continue to collectively refer to these claims as nuisance claims.

8
concluding that they failed to comply with the presentment requirement of OCGA

§ 36-11-1. We conclude that summary judgment was properly granted on these

claims.

(a) We first address whether the plaintiffs complied with the statutory

presentment requirement. Under Georgia law, “[a]ll claims against counties must be

presented within 12 months after they accrue or become payable or the same are

barred.” OCGA § 36-11-1. “Substantial compliance is all that is required to meet the

statutory notice requirements” of OCGA § 36-11-1. (Citation omitted.) City of

Columbus v. Barngrover, 250 Ga. App. 589, 596 (4) (552 SE2d 536) (2001).

The trial court correctly ruled that the purported presentment notice that the

plaintiffs sent to the county on March 27, 2015, was insufficient to meet this statutory

requirement because it did not specifically identify any of the claimants. We find

Campbell v. City of Atlanta, 117 Ga. App. 824 (162 SE2d 213) (1968) to be

controlling in this case. In Campbell, we concluded that an ante-litem notice that

identified a husband as a tort claimant, but did not identify his wife as a claimant for

loss of consortium, was insufficient to meet substantial compliance with the

presentment requirement for the wife’s claim, even though there was evidence on the

notice from which the city defendant could have deduced that the wife had a valid

9
claim as well. Id. at 825. We concluded that “[t]he city is only required to make

adjustments with parties who make known their claim and their identity as

claimants.” (Emphasis added.) Id.

Although Campbell involved the ante-litem statute for claims against

municipalities, and not the statute at issue for claims against counties, we find no

reason to deviate from its holding in cases involving claims against counties.5 The

purpose of the presentment statute is to “allow governments the opportunity to

investigate potential claims, ascertain the evidence, and avoid unnecessary litigation,”

Barngrover, supra, 250 Ga. App. at 596 (4), purposes that would all be frustrated if

claimants did not identify themselves to counties against which they have claims.

Finally, there is no indication in the record that the plaintiffs’ identities were

unknown to the attorney who drafted the notice at the time it was sent. Thus, we

5
Both the county statute and the city statute require only substantial
compliance, Barngrover, supra, 250 Ga. App. at 596 (4), and neither statute
affirmatively requires prospective plaintiffs to identify themselves, see OCGA §§ 36-
11-1; 36-33-5, and so the material requirements of the statutes for the purposes of this
appeal are identical.

10
conclude that the March 27, 2015 notice failed to satisfy the statutory presentment

requirement.6

Nevertheless, although the notice was deficient, we agree with the plaintiffs

that their complaint was sufficient to meet the statutory presentment requirements of

OCGA § 36-11-1, as the complaint clearly identified each of the plaintiffs as

claimants and set out the particulars of each of the claims against the County. See

Burton v. DeKalb County, 202 Ga. App. 676, 677 (415 SE2d 647) (1992) (“[I]f a

complaint is filed and properly served within the 12-month time limit, the

requirements of [OCGA § 36-11-1] are met.”). Accordingly, any of the plaintiffs’

claims that accrued within one year of the service of the complaint on the County on

February 20, 2016 (the date when the plaintiffs “presented” their claims to the

County) would not be barred and would be allowed to proceed.7

6
The plaintiffs suggest that, if the County required their identities to
investigate the claims, it would have been a trivial matter for the County to use the
contact information on the notice to contact the listed attorney. This contention
ignores the fact that it is the plaintiffs’ burden to provide the County with the
substantial information necessary to give notice of the claim. “It was not incumbent
upon [the County] to seek out the [unnamed party] to make adjustment of a claim of
which it had no notice.” Campbell, supra, 117 Ga. App. at 825.
7
The four-year statute of limitations for nuisance and trespass claims would
also clearly not apply to bar any of these claims since they would have accrued within
one year of the filing of the complaint. See OCGA § 9-3-30 (a).

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 (b) We therefore turn to the question of whether any of the plaintiffs’ claims

regarding the standing water problems and allegedly inadequate drainage actually did

accrue during that time period. We conclude that the plaintiffs’ claims for a

permanent nuisance are time-barred and that they have not, as a matter of law,

presented a claim for a continuing nuisance.

A county may be liable for a nuisance if that nuisance “rose to the level of an

inverse condemnation. Mere negligence is not enough.” (Citations omitted.) Morris

v. Douglas County Bd. of Health, 274 Ga. 898 (1) (561 SE2d 393) (2002). Also, “[a]

county is not liable for a nuisance merely because it approved a construction project.”

(Citations omitted.) Id. “To the contrary, in order to become responsible, a

municipality must actively take control over the property in question or accept a

dedication of that property.” City of Atlanta v. Kleber, 285 Ga. 413, 419 (3) (677

SE2d 134) (2009). To be held liable for nuisance, “[o]wnership 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

omitted.) Sumitomo Corp. of Am. v. Deal, 256 Ga. App. 703, 707 (2) (569 SE2d 608)

(2002).

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 Our law distinguishes between two types of nuisances: permanent or

continuing. “The classification of a nuisance as continuing or permanent directly

controls the manner in which the statute of limitations will be applied to the

underlying claim.” (Citations and punctuation omitted.) Eller, supra, 327 Ga. App.

at 772 (2).

A nuisance, permanent and continuing in its character, the destruction
or damage being at once complete upon the completion of the act by
which the nuisance is created, gives but one right of action, which
accrues immediately upon the creation of the nuisance, and against
which the statute of limitations begins, from that time, to run. Where 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. This action accrues at the time of such continuance, and against
it the statute of limitations runs only from the time of such accrual.

(Citation omitted.) Id. at 773 (2).

In the context of drainage systems, a complaint about “the mere presence” of

an improperly installed system, pipe, or culvert constitutes a claim for a permanent

nuisance. Kleber, supra, 285 Ga. at 416 (1). A claim for a permanent nuisance accrues

“upon the creation of the nuisance once some portion of the harm becomes

observable.” (Citation omitted.) Oglethorpe Power Corp. v. Forrister, 289 Ga. 331,

13
333 (2) (711 SE2d 641) (2011). A claim of permanent nuisance will also accrue if a

new harm that was not previously observable occurred within the limitations period,

but “a change in degree of harm does not restart the limitation period.” (Citations

omitted.) Floyd County v. Scott, 320 Ga. App. 549, 552 (1) (740 SE2d 277) (2013).

On the other hand, landowners may show a continuing nuisance from improper

drainage through evidence that an existing condition, such as a culvert or drainpipe,

was improperly maintained. See Kleber, supra, 285 Ga. at 417 (1). A plaintiff can

proceed on such a claim if he or she can establish that the County maintains the

system or that “the [County]’s actions in regard to the storm drainage system

constituted such exercise of control or acceptance so as to establish a duty on the part

of the City to adequately maintain it.” Hibbs v. City of Riverdale, 267 Ga. 337, 338

(478 SE2d 121) (1996).

Here, the County’s report from its investigation into the subdivision’s flooding

concluded that the development of the subdivision increased the total runoff from the

area by around 25 cubic-feet-per-second, which caused a large increase of water that

backs-up at the culvert on Steen’s property. The plaintiffs did produce evidence that

the pipes under Steen’s property (which the County maintains) are a main

contribution to the problem because they are undersized for the amount of water that

14
now drains from the subdivision. However, it is undisputed that the pipes under

Steen’s property were installed before the development of Vickers Hill and that the

pipes were entirely adequate to handle any runoff before the subdivision’s

development. These complaints, therefore, all stem from a defective implementation

or installation of a permanent nuisance, not of a continuing nuisance, and, thus, these

claims accrued when the plaintiffs began observing the standing water problem. See

Oglethorpe Power Corp., supra, 289 Ga. at 333 (2); Kleber, supra, 285 Ga. at 417 (1).

The record is clear that each of the plaintiffs observed problems with standing water

on their property before February 2015, which was more than one year before they

served the complaint on the County. Thus, all of these claims stemming from a

permanent nuisance are barred by OCGA § 36-11-1.8

Additionally, the plaintiffs have not presented sufficient evidence to support

a claim for a continuing nuisance. First, there is no evidence that the standing water

is caused by the County’s failure to maintain or upkeep its own water system or that

8
While the plaintiffs produced evidence to show that the drainage problems are
getting worse with further development of Vickers Hill, this is “a change in degree
of harm” from the standing water problems that already existed, and so these facts
would not restart the limitation period or create a new claim of permanent nuisance.
See Floyd County, supra, 320 Ga. App. at 552 (1).

15
the pipes under Steen’s property were inadequately maintained. There was also no

evidence presented or that the County took any action beyond approving new

development that increased the flooding problem. See Kleber, supra, 285 Ga. at 417

(1); City of Macon v. Macrive Constr., 241 Ga. App. 396, 397 (525 SE2d 418) (1999)

(no continuing nuisance shown where allegedly inadequate drainage system was

complete more than four years prior to the filing of the nuisance suit, and no evidence

showed that the city took any action after installation that increased the flooding

problem).

Second, the plaintiffs have not presented sufficient evidence from which a

factfinder could conclude that the County has exercised control or accepted the duty

to maintain the drainage system within the subdivision. The facts that the County

approved the subdivision, continues to issue construction permits in the subdivision,

and conducted an investigation into the flooding, are insufficient to show control. See

Hibbs v. City of Riverdale, 227 Ga. App. 889, 890-891 (490 SE2d 436) (1997)

(plaintiffs failed to show that city exercised “dominion or control” over drainage

system when the city merely approved the development plan, investigated the

drainage and issued a report, and used its regulatory authority to require the developer

to correct the problems with the subdivision’s drainage systems). In addition,

16
although there is evidence that some new ditches were cut through the subdivision

in 2012 or 2013, the evidence in the record shows that Georgia Coastal created those

ditches at the County’s behest, and the County did not create the ditches itself.

Finally, the evidence that the County conducted work on Steen’s property and

allegedly agreed to build a retention pond on Steen’s property is not evidence that the

County attempted to exercise control over the drainage system within the subdivision

itself because it is undisputed that Steen’s property is not part of the subdivision and

that the County does indeed control the drainage system on Steen’s property. While

these facts all demonstrate that the County may have started to use its authority to

address the flooding issues, we have previously concluded that the fact that a

governmental entity uses its regulatory authority to order a developer to take action

to address inadequate drainage does not constitute evidence that the governmental

entity sought to control the drainage system itself. See id. at 890-891. Thus, the

plaintiffs have not presented sufficient evidence of a continuing nuisance such that

their claims would have accrued upon each flooding of their property.

Accordingly, summary judgment was properly granted on the plaintiffs’ claims

of nuisance stemming from the inadequate drainage.

17
 (c) Finally, we address whether any of the plaintiffs’ claims regarding the

conditions of the subdivision’s roads accrued during the one-year period before the

plaintiffs presented their claims to the County. We similarly conclude that they

accrued more than a year prior to service of the complaint and are thus time-barred.

First, any claims regarding the deficient installation of the roads themselves

(including the plaintiffs’allegations that the wrong material was used to pave them)

are claims that a permanent nuisance was imposed, and such claims are barred by the

one-year presentment requirement since they would have accrued before February

2015. See OCGA § 36-11-1; Kleber, supra, 285 Ga. at 417 (1).

Second, the plaintiffs presented insufficient evidence that the County exerted

control over the roads so as to establish a claim against the County for any deficient

maintenance of the roads. In 2012, Georgia Coastal signed a road maintenance

agreement wherein it agreed that it “shall maintain the roads in Vickers Hill

Subdivision until all the houses in the subdivision have been built and sold, at which

time the Long County Board of Commissioners will officially accept and maintain all

roadways in said subdivision.” The County has not yet accepted any of the roads in

the subdivision, and it has not performed any maintenance on the roads in the

subdivision. While the County did attempt to get the developer to repair the roads in

18
Vickers Hill, as noted above, this fact alone is insufficient to establish that it was the

County’s responsibility to maintain the roads in the subdivision. See Hibbs, supra,

227 Ga. App. at 890-891. Thus, the trial court properly granted summary judgment

on any claims based on the conditions of the roads.

3. Finally, the plaintiffs argue that summary judgment was inappropriate

because they produced enough record evidence to show that they had a valid claim

of continuing nuisance for the inadequate drainage and the conditions of the

subdivision’s roads. As set out in Section 2, supra, any claims based on a permanent

nuisance are barred as untimely by OCGA § 36-11-1, and the plaintiffs did not

produce sufficient evidence to support a claim of a continuing nuisance.

We greatly empathize with the plaintiffs’ situation, as, from the record, it

appears that there is no end in sight to their water troubles. We are nevertheless

compelled to affirm the grant of summary judgment to the County because (1) the

plaintiffs’ negligence claims are barred by sovereign immunity; (2) any claims of a

permanent nuisance or trespass are barred by the one-year presentment requirement

of OCGA § 36-11-1; and (3) the plaintiffs failed to produce evidence to create a

genuine issue of material fact on a claim for continuing nuisance.

Judgment affirmed. Rickman and Reese, JJ., concur.

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