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McDonald v. Silver Hill Homes, LLC

The trial court erred in granting summary judgment to defendant on plaintiff's claims for punitive damages and attorney fees in a boundary line dispute because genuine issues of material fact remained.

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McFadden, Presiding Judge.Edison 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.   1. Punitive damages. OCGA § 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 damage award.

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