Terry v. Catherall

The plaintiffs' expert testimony was sufficient to create a genuine issue of material fact on the issue of causation in their nuisance suit related to surface water runoff from the defendants' adjoining property.

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This appeal involves a controversy over surface water runoff between adjoining property owners. John Terry and Karen Correnty plaintiffs appeal from the trial court’s order granting summary judgment in favor of Leigh Catherall and Edie and Gillespie Smith collectively defendants. The plaintiffs contend that the trial court erred in concluding that they had failed to create a genuine issue of material fact as to whether the defendants artificially increased water runoff from their property onto the plaintiffs’ adjoining property. They also assert that the defendants were not entitled to summary judgment on their claims for punitive damages, attorney’s fees and a permanent injunction. For the reasons explained below, we reverse the trial court’s grant of summary judgment to the defendants on the plaintiffs’ nuisance claim and remand this case with the instruction that the trial court rule on the issues of punitive damages, attorney’s fees, and permanent injunction.

In reviewing this summary judgment case, we must construe all evidence in favor of the nonmovant and need only determine whether some competent evidence supported plaintiff’s claim, not whether all evidence supported that claim. Emphasis in original. Rodrigues v. Ga Pacific Corp., 290 Ga. App. 442, 447 661 SE2d 141 2008 on motion for reconsideration. The following facts are undisputed: the plaintiffs moved into their home in October 2011; Catherall’s home is partially behind and uphill from the plaintiffs’ home; the Smiths’ home is adjacent to Catherall’s home and also partially behind and uphill from the plaintiffs’ home; wood fences separate the plaintiffs’ property from the defendants’ property; the Smiths built an addition to their home in 1970 and they added a parking pad for a recreational vehicle in 2006; Catherall added a garage, additional driveway, and parking area in 1996 and a flagstone patio in 2007.

Terry v. Catherall

The plaintiffs' expert testimony was sufficient to create a genuine issue of material fact on the issue of causation in their nuisance suit related to surface water runoff from the defendants' adjoining property.

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