Dep't of Transp. v. Mixon

355 Ga.App. 463

844 S.E.2d 524

DEPARTMENT OF TRANSPORTATION

v.MIXON.

A20A0690

Court of Appeals of Georgia.

June 10, 2020

Christopher M. Carr, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Senior Assistant Attorney General, Kathleen S. Turnipseed, A. Ellen Cusimano, Assistant Attorneys General, for appellant.

Gibson & Associates, Douglas L. Gibson, for appellee.

Hodges, Judge.

Cathy Mixon sued the Georgia Department of Transportation ("GDOT"), alleging continuing nuisance, inverse condemnation, and seeking attorney fees as a result of flooding on her property following a road-widening project. Mixon sought both financial compensation and an injunction. GDOT moved to dismiss on several grounds, which the trial court granted in part and denied in part. GDOT obtained a certificate of immediate review, and this Court granted its application for interlocutory appeal. GDOT now appeals, alleging that the trial court erred in (1) ruling that sovereign immunity is waived for Mixon's claim for injunctive relief; (2) ruling that sovereign immunity is waived for Mixon's nuisance claim; (3) ruling that Mixon was not required to file an expert affidavit with her complaint pursuant to OCGA § 9-11-9.1 ; and (4) declining to determine whether Mixon's inverse condemnation claim is barred by the statute of limitation. For the following reasons, we affirm.

We review de novo both a trial court's ruling on a motion to dismiss on sovereign immunity grounds and for failure to state a claim pursuant to OCGA § 9-11-12 (b) (6). Northway v. Allen , 291 Ga. 227, 229, 728 S.E.2d 624 (2012) ; James v. Georgia Dept. of Pub. Safety , 337 Ga. App. 864, 865 (1), 789 S.E.2d 236 (2016). "In considering a motion for lack of subject matter jurisdiction based on sovereign immunity, a trial court is not confined to the allegations of the complaint, as the court would be if considering a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6)." James , 337 Ga. App. at 867 (2), 789 S.E.2d 236. When reviewing a motion to dismiss for failure to state a claim, "the pleading being challenged ... is construed in favor of the party who filed it." Northway , 291 Ga. at 229, 728 S.E.2d 624.

So viewed, the record shows that Mixon owns over 18 acres of land adjacent to Victory Drive in Ware County. GDOT widened that road by two lanes to become a four-lane road. Mixon contends that, prior to the project, water runoff went to the east side of the road but, following the construction and redesign of the road, water runoff now flows to the west side of the road. The runoff now drains into a canal. Mixon states that, due to the slight drop of this canal, it is frequently blocked by beaver dams. As a result, Mixon contends that her property suffers from intermittent, but serious, flooding.

Mixon sued GDOT, alleging continuing nuisance and inverse condemnation, while also seeking attorney fees. In her prayer for relief, Mixon sought just and adequate compensation for the taking, other monetary damages, attorney fees, and a permanent injunction "to prevent future nuisance and continual trespass." GDOT moved to dismiss Mixon's claims due to sovereign immunity, the statute of limitation, and her failure to attach an expert affidavit to her complaint. The trial court granted GDOT's motion as to any professional negligence claims and for any claims arising more than four years prior to the filing of the complaint, but otherwise denied the motion.

1. GDOT contends that the trial court erred in failing to find that sovereign immunity barred Mixon's nuisance claim.¹ This enumeration provides nothing for review.

Mixon pled her complaint in three counts: Count 1 - Continuing Nuisance, Count 2 - Inverse Condemnation, and Count 3 - Attorney Fees and Bad Faith. In reviewing the nature of Mixon's claims, however, the trial court interpreted her complaint as bringing a claim for inverse condemnation arising from GDOT's creation of a continuing nuisance, as opposed to bringing two distinct claims. Specifically, the trial court order stated "[r]eally, [Mixon's] Complaint alleges an unconstitutional taking (inverse condemnation) because of an alleged continuing nuisance."

Mixon does not challenge that characterization on appeal. Indeed, her brief demonstrates that the trial court's interpretation of the nature of her claims is accurate. In her brief, Mixon specifies that her "claims of Nuisance and Inverse Condemnation arise out of an unconstitutional taking of private property for public use ...." She argues that sovereign immunity does not preclude her from obtaining an injunction because her request for relief "rests in the Takings Clause of the Georgia Constitution." In explaining the nature of her claim, she states that she

has alleged that the drainage problem GDOT created [sic] a continuing nuisance on [her] property [that] resulted in the property being delineated as wetlands and thus constitutes a taking. As such, there is no question that sovereign immunity is not only waived as to Mixon's continuing nuisance claim, the Constitution requires that she be given just and adequate compensation for the taking that resulted from the continuing nuisance GDOT caused.

In sum, the trial court treated Mixon's complaint as being a claim for inverse condemnation resulting from GDOT's creation of a continuing nuisance. Mixon not only failed to challenge this treatment, she advocates that such is the accurate nature of her claim in her brief. Accordingly, Mixon has not brought a separate continuing nuisance claim that should be analyzed for purposes of sovereign immunity; rather, she has brought an inverse condemnation claim arising out of an alleged nuisance to which sovereign immunity is inapplicable. See Georgia Dept. of Nat. Res. v. Center for a Sustainable Coast , 294 Ga. 593, 600 (2), 755 S.E.2d 184 (2014) (recognizing that "the ‘nuisance exception’ [to sovereign immunity] ... was not an exception at all, but instead, a proper recognition that the Constitution itself requires just compensation for takings and cannot, therefore, be understood to afford immunity in such cases"); Bray v. Dept. of Transp. , 324 Ga. App. 315, 317 (2), 750 S.E.2d 391 (2013) ("[N]o sovereign immunity exists where a cause of action for inverse condemnation lies, because the Constitution itself affords the right.") (citation and punctuation omitted). Accordingly, this enumeration provides nothing for us to review.

2. GDOT contends that the trial court erred in declining to determine whether Mixon's claim for inverse condemnation is barred by the four-year statute of limitation. We find no error.

As stated above, a claim for inverse condemnation does not implicate sovereign immunity, and thus GDOT's motion to dismiss the inverse condemnation claim was necessarily made pursuant to OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief can be granted. See Petree v. Ga. Dept. of Transp. , 340 Ga. App. 694, 704 (3) (a), 798 S.E.2d 482 (2017) ("A statute of limitation defense goes to the merits of the claim, and is therefore subject to a motion to dismiss under OCGA § 9-11-12 (b) (6)."). "Accordingly, in deciding [this portion of GDOT's] motion, the trial court could not consider anything other than the pleadings themselves. Specifically, the trial court could consider only the answer, the complaint, and documents attached to either the answer or the complaint and explicitly incorporated therein by reference." (Citation omitted.) Id. at 699 (1), 798 S.E.2d 482.

[A] motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of [her] claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

(Citation and punctuation omitted.) Hughes v. Cornerstone Inspection Group , 336 Ga. App. 283, 284 (2), 784 S.E.2d 116 (2016).

GDOT is correct that "[i]nverse condemnation claims based on ... nuisance are subject to a four[-]year statute of limitation." (Citation and punctuation omitted.) Petree , 340 Ga. App. at 703 (3) (a), 798 S.E.2d 482.

The classification of a nuisance as continuing or permanent directly controls the manner in which the statute of limitation[ ] will be applied to the underlying claim. 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 limitation[ ] 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 limitation[ ] runs only from the time of such accrual.

(Citations and punctuation omitted.) Liberty County v. Eller , 327 Ga. App. 770, 772-773 (2), 761 S.E.2d 164 (2014).²

Given that this portion of GDOT's motion was brought pursuant to OCGA § 9-11-12 (b) (6), the trial court was correct not to look at anything outside the pleadings in determining whether the statute of limitation bars Mixon's claim. GDOT accurately points out that attached to Mixon's complaint is a letter indicating that she was aware of flooding issues by at least 2013, which is more than four years before she filed her complaint in 2018. Accordingly, to the extent the nuisance complained of is permanent in nature, Mixon's claims may be barred by the statute of limitation. See City of Atlanta v. Kleber , 285 Ga. 413, 416-417 (1), 677 S.E.2d 134 (2009) ("To the extent that the homeowners complain that the...