MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
McDonald filed a complaint against Silver Hill Homes, LLC,
based on a boundary line dispute between the parties'
adjacent pieces of property in DeKalb County. The complaint
included claims for trespass, nuisance, punitive damages, and
attorney fees. Silver Hill moved for summary judgment on all
of McDonald's claims. The trial court granted the motion
in part and denied it in part. In pertinent part, the trial
court denied summary judgment as to both the trespass and
nuisance claims, but granted summary judgment as to the
punitive damages and attorney fees claims. McDonald appeals,
challenging the grant of summary judgment on his punitive
damages and attorney fees claims. Because there exist genuine
issues of material fact as to those claims, we reverse.
§ 51-12-5.1 (b) provides that "[p]unitive damages
may be awarded only in such tort actions in which it is
proven by clear and convincing evidence that the
defendant's actions showed willful misconduct, malice,
fraud, wantonness, oppression, or that entire want of care
which would raise the presumption of conscious indifference
to consequences." As our Supreme Court has explained in
considering punitive damages in a similar case involving
claims of trespass and nuisance:
A conscious indifference to consequences relates to an
intentional disregard of the rights of another. Wilful and
intentional misconduct is not essential. But a trespass is an
intentional act. Thus, a wilful repetition of a trespass will
authorize a claim for punitive damages. So too, will a claim
of continuing nuisance. And specifically, the failure to
adequately ameliorate the runoff of water and silt onto
another's property has been held to justify a punitive
Tyler v. Lincoln, 272 Ga. 118, 120 (1) (527 S.E.2d
180) (2000) (citations, punctuation, and emphasis omitted).
Thus, the Supreme Court reversed the grant of summary
judgment on a claim for punitive damages where there were
circumstances raising material issues of fact about the
plaintiffs' claims of trespass and nuisance. Id.
at 120-121 (1).
in the instant case, the trial court erred in granting
summary judgment to Silver Hill on McDonald's claim of
punitive damages where there were genuine issues of material
facts as to his claims of trespass and nuisance. See OCGA
§ 9-11-56 (c) (summary judgment appropriate where
evidence shows that "there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law"). As the trial court
correctly noted in its order, McDonald's trespass claim
alleged that Silver Hill had "failed to contain
construction materials and debris on [its property],
resulting in the discharge of soil, nails, and other
construction debris" onto McDonald's property.
Similarly, his nuisance claim alleged that Silver Hill's
excavation of a ravine and discharge of "construction
materials, debris, storm-water and runoff onto" his
property had interfered with and continues to interfere with
his use and enjoyment of his property.
denying summary judgment as to those claims, the trial court
properly found that a jury question remained as to the
boundary line and pointed to evidence showing that there was
water runoff onto McDonald's property and that
construction materials and debris had repeatedly been
discharged onto his property causing damages. "Whether
the tort was sufficiently aggravating to authorize punitive
damages is generally a jury question, and a jury may award
punitive damages even where the clear and convincing evidence
only creates an inference of the defendant('s) conscious
indifference to the consequences of (its) acts."
Weller v. Blake, 315 Ga.App. 214, 219-220 (3) (a)
(726 S.E.2d 698) (2012) (citation omitted). Consequently,
just as "there are material questions of fact regarding
[McDonald's] allegations of [repeated] trespass and
[continuing] nuisance, [the] evidence of [such] acts by
[Silver Hill] could allow a jury to consider a claim for
punitive damages." Tyler, supra at 121 (1).
Accord Camp Cherokee v. Marina Lane, LLC, 316
Ga.App. 366, 373-374 (4) (b) (729 S.E.2d 510) (2012)
(reversing grant of summary judgment on punitive damages
claim where evidence presented genuine issues of material
fact as to plaintiff's trespass and nuisance claims);
may award litigation expenses to a plaintiff "where the
defendant has acted in bad faith, has been stubbornly
litigious, or has caused the plaintiff unnecessary trouble
and expense." OCGA § 13-6-11. "As noted by our
Supreme Court [in Tyler, supra], every intentional
tort invokes a species of bad faith that entitles a person
wronged to recover the expenses of litigation including
attorney fees. And generally, questions of bad faith must be
resolved by the jury." Schinazi v. Eden, 338
Ga.App. 793, 801 (4) (a) (792 S.E.2d 94) (2016) (citations
and punctuation omitted). Accordingly, "[i]nasmuch as
the [trial court] determined that the question of [Silver
Hill's] commission of an intentional tort remained for
the jury to consider, the claim for attorney fees rooted in
bad faith concerning those actions should have also been left
for the jury." Tyler, supra at 122 (2)
(citation and punctuation omitted). Accord Schinazi,
supra; Haarhoff v. Jefferson at Perimeter, 315
Ga.App. 271, 273-274 (2) (727 S.E.2d 140) (2012).