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Kohler v. Van Peteghem

Court of Appeals of Georgia

November 6, 2014

KOHLER et al.

Reconsideration denied December 5, 2014 -- Cert. applied for.

Metropolitan River Protection Act. Forsyth Superior Court. Before Judge Dickinson.

Michael J. Jacobs, for appellants.

Hawkins Parnell Thackston & Young, William H. Major III, Martin A. Levinson, Graham & Jensen, Jason W. Graham, T. Brandon Welch, for appellees.

BARNES, Presiding Judge. Boggs and Branch, JJ., concur.


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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 (the " MRPA" ), OCGA § 12-5-440 et seq. and in favor of the defendant wife on her battery counterclaim

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based on the spitting incident. The jury subsequently returned a verdict in favor of the defendants on all of [330 Ga.App. 231] 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 bye 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 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]

[330 Ga.App. 232] 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 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

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henceforth prohibited 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." 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 [330 Ga.App. 233] Peteghems' motion and excluded Mr. Hazell from testifying based on the Kohlers' failure to comply with the expert deadlines in the Discovery Order.

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 ...

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