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DeKalb County v. Heath

Court of Appeals of Georgia, Second Division

March 16, 2015

DeKALB COUNTY
v.
HEATH

Cert. applied for.

Inverse condemnation. DeKalb State Court. Before Judge Purdom.

Laura K. Johnson, Kendric E. Smith, for appellant.

Martin & Jones, Samuel L. Starks, G. Christopher Olson, Elizabeth Y. Rodger, for appellee.

PHIPPS, Chief Judge. Ellington, P. J., and McMillian, J., concur.

OPINION

Page 270

Phipps, Chief Judge.

In 2011, William Heath, Jr., filed this inverse condemnation action[1] against DeKalb County, alleging that the county was maintaining a continuing nuisance[2] by failing to

Page 271

make needed repairs to its storm water drainage system, which failure had caused flooding and erosion of his property. More specifically, Heath's allegations in this action included claims that the county had constructed a block retaining wall along a creek bed on his property, that the county was [331 Ga.App. 180] responsible for maintaining the wall, that the wall was " failing and continues to deteriorate during each rain event," and that the county's failure to maintain the wall was resulting in continuing damage to his property. After a bench trial, the court found in favor of Heath, awarding him $28,830 in damages, which amount represented the cost of repairing the failing retaining wall.

The county appeals, contending that the trial court erred by: (1) holding that the lawsuit was not barred by the doctrine of res judicata, when Heath could have put the issue of the failed retaining wall in a previous lawsuit he had filed against the county; and (2) allowing a double recovery. Finding no error, we affirm.

When an appeal is taken from a judgment entered following a bench trial, we owe no deference to the way in which the court below resolved questions of law, but we accept its factual findings unless clearly erroneous, and we view the evidence in the light most favorable to the judgment.[3]

In 2009, Heath and another plaintiff[4] filed a joint action against the county[5] for inverse condemnation, alleging that the county had created and maintained a continuing nuisance by failing to properly maintain its sewer and storm water drainage system, and that the failure had resulted in flooding and erosion of their properties. That 2009 case (" Heath I " ) was tried by a jury which, in October 2012, awarded Heath $7,000 for the diminished value of his property.[6] The court entered judgment on the verdict that same month.

In March 2011, while Heath I was pending, Heath filed the present action against the county. This time Heath alleged, for the first time, that the block retaining wall that the county had constructed on his property in 2007 for the purpose of preventing erosion to his property in connection with the storm water drainage system had been improperly built and maintained; that the retaining wall was failing and continuing to deteriorate each time it rained; and that the system was continuing to damage his property and was causing a hazardous ...


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