text:
    A16A1808.
    THE AVRETT PLUMBING COMPANY et al. v. CASTILLO.
    (798 SE2d 268)
   MILLER, Presiding Judge.

Marlon Castillo was injured while running a personal errand on a Sunday afternoon when he was not at work for his employer, The Avrett Plumbing Company (“Avrett”). Castillo sought workers’ compensation indemnity benefits under the theory that he was a continuous employee at the time of his injury. Following a hearing, an administrative law judge (“ALJ”) granted Castillo’s request for benefits. Avrett appealed the ALJ’s decision to the Appellate Division of the State Board of Workers’ Compensation (the “Appellate Division”), which vacated the ALJ’s award and denied Castillo’s request for benefits based on its finding that Castillo was not a continuous employee because he was not away from his residence for a work-related purpose at the time he was injured.

Castillo appealed the Appellate Division’s decision to the Superior Court of Richmond County, which reinstated the ALJ’s award of benefits to Castillo. This Court granted Avrett’s application for discretionary review, and Avrett appeals contending that the Superior Court did not give proper deference to the Appellate Division’s factual findings. After a thorough review of the record, we agree and reverse.

In the absence of legal error, the factual findings of the Appellate Division must be affirmed by the superior court and by this Court when supported by any evidence in the administrative record. MARTA v. Thompson, 326 Ga. App. 631 (757 SE2d 228) (2014). With this standard of review in mind, we turn to the facts of the present appeal.

Viewed in the light most favorable to Avrett and its insurer, Technology Insurance Company (collectively “Appellants”), as the parties prevailing before the Appellate Division, the evidence shows that in 2012, Castillo was hired as an hourly employee of Avrett, a plumbing company based in Augusta. Castillo’s work hours were Monday through Friday from 8:00 a.m. to 5:00 p.m., as well as occasional overtime hours on weekdays only. Castillo was only paid for the hours in which he actually performed his job duties.

Avrett provided Castillo with a hotel room in Augusta during the work week because he did not have an Augusta residence. Although Castillo did not work weekends, Avrett gratuitously permitted Castillo to use the Augusta hotel room over the weekend because the seven-day weekly rental arrangement would have left the room otherwise unused. This allowance permitted Castillo to remain in Augusta over the weekends, which he chose to do because his financial situation and car troubles made it difficult for him to travel home each weekend at his own expense.

On the afternoon of Sunday, March 9, 2014, while in Augusta, Castillo tripped and broke his ankle while running a personal errand to buy himself groceries. There is no dispute that Castillo was off work and was not “on-call” at the time of his injury.

“The Workers’ Compensation Act is a humanitarian measure which should be liberally construed to effectuate its purpose.” (Citation omitted.) City of Waycross v. Holmes, 272 Ga. 488, 489 (532 SE2d 90) (2000). Nevertheless, the Workers’ Compensation Act does not cover an employee’s injuries in all circumstances. Rather, an injury is generally compensable “only if it arises out of and in the course of the employment. [This] test presents two independent and distinct criteria, and an injury is not compensable unless it satisfies both.” (Citations omitted.) Mayor and Aldermen of the City of Savannah v. Stevens, 278 Ga. 166 (1) (598 SE2d 456) (2004); see also OCGA § 34-9-1.

With regard to the first requirement, this Court has explained that, “[t]he words ‘in the course of the employment’relate to the time, place, and circumstances under which the accident takes place.” New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 688-689 (118 SE 786) (1923). To satisfy this requirement, the accident must have arisen “within the period of employment at a place where the employee may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto.” (Citation omitted.) Id. at 689.

Although the general rule is that an injury sustained while an employee is going to and from his place of employment does not arise from the course and scope of his employment, there is an exception to this general rule known as the “continuous employment doctrine.” Stevens, supra, 278 Ga. at 166-167 (1).

Under Georgia’s doctrine of continuous employment, more commonly known nationally as “the traveling employee” doctrine, there is broader workers’ compensation coverage afforded [to] an employee who is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site. Such an employee is, in effect, in continuous employment, day and night, for the purposes of the Workers’ Compensation Act, and activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities, arise out of and are in the course of the employment.

(Citations and punctuation omitted.) Ray Bell Constr. Co. v. King, 281 Ga. 853, 855 (642 SE2d 841) (2007).

Here, following a hearing, the ALJ found that Castillo was a continuous employee, even though he was not on-call, because he was “required by his employment to live away from home while working.” The Appellate Division disagreed, finding that

[Castillo] was not paid to work as an “on-call” employee on the weekend, or for otherwise being in the proximity of his employment while he was off-work. Rather, the preponderance of the competent and credible evidence reveals that, over the course of his employment, [Castillo] primarily remained in Augusta over the weekend, not for any employment-related reasons, but due to personal transportation and financial constraints.

(Emphasis supplied.) The Appellate Division further stated, “[Castillo] was not serving any requirement of employment or under the control of [Appellants].” Accordingly, the Appellate Division concluded that the continuous employment doctrine did not apply, and thus it reversed the ALJ’s award of workers’ compensation benefits.

Castillo timely appealed to the Superior Court of Richmond County, raising only the argument that his injuries fell within the protections of the continuous employment doctrine. The Superior Court reversed the decision of the Appellate Division and reinstated the ALJ’s award of benefits, holding that the facts leading up to Castillo’s injury supported the finding that he was a continuous employee and thus he was entitled to compensation benefits under the broad protections offered by the Workers’ Compensation Act. Specifically, the Superior Court found “[Castillo] must be in the general locale of [Avrett] to begin the week just as [Castillo] must be in the general locale of [Avrett] to work Tuesday, Wednesday, Thursday, and Friday [Castillo] in this case decided to lie present in Augusta on Sunday afternoon to prepare for work on Monday”

In two related enumerations of error, Appellants contend that the Superior Court did not give proper deference to the Appellate Division’s factual findings concerning the purpose of Castillo’s presence in Augusta on the day he was injured. We agree.

On appeal from the decision of an ALJ in a workers’ compensation case, the ALJ’s findings of fact “shall be accepted by the [Appellate Division] where such findings are supported by a preponderance of competent and credible evidence contained within the records.” (Punctuation omitted.) Bonus Stores v. Hensley, 309 Ga. App. 129, 131 (1) (710 SE2d 201) (2011); OCGA § 34-9-103 (a). Nevertheless, the Appellate Division is authorized to “weigh the evidence and assess the credibility of witnesses.” Syntec Indus. v. Godfrey, 269 Ga. 170, 171 (1) (496 SE2d 905) (1998); see also OCGA § 34-9-103 (a). Moreover,

if after assessing the evidence of record, the [A]ppellate [Division concludes that the award does not meet the statute’s evidentiary standards, the [A]ppellate [Division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly

(Citation and punctuation omitted.) Godfrey, supra, 269 Ga. at 171 (1).

In reviewing a workers’ compensation award, both the Superior Court and this Court must affirm the factual findings of the Appellate Division that are supported by “any evidence in the administrative record.” (Citation and punctuation omitted.) Strickland v. Crossmark, Inc., 298 Ga. App. 568, 569 (680 SE2d 606) (2009); OCGA § 34-9-105 (c). This “any evidence rule” prohibits both the Superior Court and this Court from “substituting] itself as a factfinding body in lieu of the [Appellate Division].” (Citation and punctuation omitted.) Med. Center v. Hernandez, 319 Ga. App. 335 (1) (734 SE2d 557) (2012).

Here, the ALJ made a factual finding that Castillo “was required by his employment to live away from home while working,” and therefore found his injuries to be compensable pursuant to the continuous employment doctrine. The Appellate Division, however, found that the preponderance of competent and credible evidence did not support the ALJ’s factual findings, and it properly exercised its authority to substitute its own factual findings in determining that Castillo was not present in Augusta for an employment-related reason. See Godfrey, supra, 269 Ga. at 171 (1).

Although the Superior Court was entitled to review de novo the legal findings of the Appellate Division, as well as the legal implications of its factual findings, it was required to accept the Appellate Division’s factual findings if there was any evidence in the record to support them. Hernandez, supra, 319 Ga. App. at 335 (1). Here, the Superior Court recognized the necessary deference to the Appellate Division, but nonetheless made a contradictory factual finding when it determined that Castillo was present in Augusta on the day he was injured to prepare for work on Monday. The record, however, includes some evidence supporting the Appellate Division’s conclusion. Therefore, the Superior Court lacked authority to substitute its own factual findings for that of the Appellate Division, and the Superior Court exceeded its limited standard of review in doing so. Id.

As stated above, an employee is only entitled to workers’ compensation benefits if the accident which caused his injuries arose “within the period of employment at a place where the employee may reasonably be in the performance of his duties and while he is fulfilling those duties or engaged in doing something incidental thereto.” (Citation omitted.) Sumrell, supra, 30 Ga. App. at 689. Here, the Appellate Division found that Castillo was not mandated to be in Augusta on Sunday for any employment-related reason. Castillo was present there merely as a personal convenience so that he could utilize the housing gratuitously provided by Avrett and be present at work on Monday. For this reason, Castillo was not a continuous employee on the weekend in question, and his injury did not arise out of the course and scope of his employment. Hernandez, supra, 319 Ga. App. at 338 (2). Accordingly, Castillo is not entitled to workers’ compensation benefits. Although we are sympathetic to Castillo’s circumstance, we must reverse the Superior Court’s judgment.

Judgment reversed.

Branch, McMillian, Mercier, Reese and Bethel, JJ., concur. Ellington, P. J., and Dillard, P. J., concur in judgment only. McFadden, P. J., dissents.

McFADDEN, Presiding Judge,

dissenting.

I respectfully dissent. The Appellate Division’s conclusion that Castillo was not a continuous employee is legally erroneous, and the superior court should have entered a judgment reversing that decision and remanding the case for a proper analysis. See United States Fidelity & Guaranty Co. v. Navarre, 147 Ga. App. 302, 304-305 (248 SE2d 562) (1978) (affirming superior court’s judgment reversing and remanding award on ground that board had decided award on erroneous legal theory); see also Chandler Telecom v. Burdette, 300 Ga. 626, 631 (2) (797 SE2d 93) (2017) (where analysis of State Board of Workers’ Compensation was incomplete, appellate court should have vacated Board’s decision and remanded for further findings). Accordingly, I would vacate the superior court’s judgment with direction.

Whether an employee’s injuries arise “out of and in the course of [the] employment” is a mixed question of law and fact. Coleman v. Columns Properties, 266 Ga. 310, 311 (467 SE2d 328) (1996); Lavine v. American Ins. Co., 179 Ga. App. 898, 900 (348 SE2d 114) (1986). And although the Appellate Division’s factual findings are conclusive and binding when supported by any evidence, Ray Bell Constr. Co. v. King, 281 Ga. 853, 854 (642 SE2d 841) (2007), “[e]rroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law,... are subject to the de novo standard of review.” MARTA v. Thompson, 326 Ga. App. 631 (757 SE2d 228) (2014) (citation and punctuation omitted).

The Appellate Division’s conclusion that Castillo was not a continuous employee at the time of his injury arises from its finding that he was not required by his employment to be in the proximity of his workplace at the time of his injury That finding rests in turn on an overly-narrow view of what Georgia law views to be “required by his employment.”

The Appellate Division cited evidence that Castillo’s regular work hours were 8:00 a.m. to 5:00 p.m., Monday through Friday, and he was off work and not “on-call” on the weekend in question; that the employer did not pay Castillo for his travel or living expenses, although the employer did provide a hotel room for him near the job site in Augusta; that he had no job condition requiring him to be Augusta on a work-free weekend; that he was not paid to remain in Augusta on a work-free weekend; that although the employer allowed him to stay in the hotel over a work-free weekend, that was not part of his compensation; and that Castillo chose to stay in Augusta due to his personal transportation and financial constraints.

From its order, the Appellate Division appeared to believe that these facts compelled the conclusion that Castillo was not a continuous employee on that Sunday afternoon. They do not. The fact that a traveling worker stays in employer-provided lodging on days on which he does not work does not preclude him from being a continuous employee on those days. See Ray Bell Constr. Co., 281 Ga. at 856-857 (claimant was continuous employee on weekend during period in which employee was staying at employer-provided hotel but did not perform any work). Compare Med. Center v. Hernandez, 319 Ga. App. 335, 337 (2) (734 SE2d 557) (2012) (traveling workers were not continuous employees during the weekend when they returned to their homes). Likewise, the fact that the employee, at his discretion, arrived at his employer-provided lodging earlier than his employer required does not preclude him from being a continuous employee once he arrived there. See Boyd Bros. Transp. Co. v. Fonville, 237 Ga. App. 721, 722-723 (516 SE2d 573) (1999) (claimant who was injured after arriving early at lodging near job site was continuous employee, although employer did not require claimant to arrive at lodging until later). Finally, the fact that the traveling worker’s employer does not pay for some or all of his travel or living expenses is not conclusive. See United States Fidelity & Guaranty Co., 147 Ga. App. at 304-305.

As a result, the Appellate Division’s analysis was incomplete. The undisputed evidence shows that Castillo was injured while staying in employer-provided lodging on a Sunday afternoon with that employer’s permission. In deciding that he was not a continuous employee at that time, the Appellate Division emphasized the fact that Castillo’s employer did not require him to be at work until the following morning. But as stated above, we have held that a traveling employee who arrives to his employer-provided lodgings early, and with his employer’s permission, may be considered a continuous employee even though the job did not require him to arrive early. Boyd Bros. Transp. Co., 237 Ga. App. at 722-723. In such circumstance, it is appropriate for the factfinder to consider whether the early accommodation “was intended to be mutually beneficial[.]” Id. at 723. It appears from the order that the Appellate Division did not consider this point.

“The Workers’ Compensation Act in Georgia is intended to have broad application so as to cover a wide variety of injuries and the pain and suffering incident to such injuries. It is a humanitarian measure which should be liberally construed to effectuate its purpose.” Ray Bell Constr. Co., 281 Ga. at 854 (citations and punctuation omitted). The Appellate Division did not liberally construe the statute when it concluded, after an incomplete analysis, that Castillo was not a continuous employee based on facts that did not demand that conclusion. While the superior court should not have substituted its factfinding for that of the Appellate Division, see Chandler Telecom, 300 Ga. at 631 (2), it should have vacated the decision and remanded the case to the Appellate Division for a complete, legally correct analysis.

Decided March 10, 2017.

Bovis, Kyle, Burch & Medlin, Benjamin A. Leonard, Joshua L. Saunders, for appellants.

W. Calvin Smith II, Eman uel D. Dressie, Kenneth P. Raley III, for appellee.

        Ray Bell Constr. Co. v. King, 281 Ga. 853, 854 (642 SE2d 841) (2007).

       At the outset of the case, there was a dispute as to whether Castillo was “on-call” over that weekend. The ALJ found, and the Appellate Division agreed, that a preponderance of the evidence showed that Castillo was not on-call on the weekend he was injured. Castillo does not appeal this finding.

       “Erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, however, are subject to the de novo standard of review.” (Citation and punctuation omitted.) Thompson, supra, 326 Ga. App. at 631.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A2073.
    THE STATE v. WATSON.
    (798 SE2d 295)
   McMlLLIAN, Judge.

In 1996, J. W. reported that she had been raped by a stranger. Nearly sixteen years later, the State obtained a match from the DNA evidence and arrested Kelvin Watson, but he was not indicted for the rape until 2015. After the trial court granted Watson’s plea in bar, the State appealed, asserting that (1) the indictment was filed within the applicable statute of limitation and (2) the trial court abused its discretion in finding that the applicable tolling provision did not apply. For the reasons that follow, we find no error and affirm.

The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the issues of law. As this ruling involves a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

(Citation and punctuation omitted.) State v. Boykin, 320 Ga. App. 9, 9 (739 SE2d 16) (2013).

The only witness to testify at the plea in bar hearing was the victim. On the night of October 28,1996, J. W, who was then 18 years old, was driving to her grandmother’s home in East Point after she had been kicked out of her mother’s house in Woodstock. J. W. was crying and driving erratically after the fight with her mother. While stopped at a red light, a man in the next lane knocked on his window and honked his horn to get her attention. He asked J. W. if she was okay and if he could help her. The man told her his name, but she subsequently testified that, if the man had given her his name, she did not know what he said because she was so upset at the time. She turned at the next light to get to her grandmother’s house, and the man followed behind her. He flashed his lights at her, so she pulled over to a gas station to try to call her father. The man pulled in next to her and said that he had a phone she could use to call her father. J. W. testified that, against her better judgment, she followed him to an apartment complex. She thought that it looked safe and eventually agreed to follow him inside.

While inside his apartment, they talked for a while about her fight with her mother, but when she attempted to leave the apartment, he ran to the door and slammed it shut. At that time, J. W. became fearful and ran to the kitchen to grab a knife. He came up behind her and forcibly carried her to a bedroom. She tried to bite him and use her legs to stop him from getting through the door, but he overpowered her. He locked her in the closet for a period of time before coming back with a gun that he put to her head. J. W. tried to fight him off, but the man restricted her hands in some way and forced his penis into her vagina. Afterwards, J. W. thought he appeared confused, but he freed her hands and allowed her to get dressed and leave. The man attempted to give her money, but she refused. She asked for his help in finding her way home because she did not know where she was.

J. W. started to follow the man out of the apartment complex, but he led her to an empty, wooded cul-de-sac. She became frightened that he would shoot her, so she backed up as fast as she could and ended up driving the wrong way down a one-way street until she came upon a gas station that was just closing. When the store clerk saw her, he unlocked the doors, and she asked to use the phone to call her father. After the store clerk heard J. W. tell her father that she had been raped, he called the police. However, when the police responded that night, J. W. did not tell them that she had been raped inside the man’s apartment because she was embarrassed to admit in front of her father that she had followed a strange man home. Instead, she told police that she had stopped by the side of the road and had been raped there. It was not until 2013 after police interviewed her again, that J. W. revealed the details that she recounted at the plea in bar hearing.

Although she testified that she had looked at the sign outside the apartment complex, she stated that she could not remember the name of the complex and rode around with the sex crimes detective for a long time to try to find it, but was “too traumatized.” She was “numb” and her “mind was blank.” She initially thought the apartment complex was somewhere in East Point, but later believed it had to have been somewhere past East Point. All she could recall for the police was that it may have been near Campbellton Road. When asked, J. W. explained that this incident happened before cell phones were common and that she did not have the man’s phone number. After giving her report to the police, she went to Grady Hospital where they performed a sexual assault examination on her. She returned after a few days to have pictures taken of the bruising around her neck and between her legs and was later admitted to Kennestone Hospital for shock.

On or about March 29, 2013, the State obtained a match of the DNA evidence, and Watson was thereafter indicted on one count of rape, OCGA § 16-6-1, and one count of false imprisonment, OCGA § 16-5-41. Watson filed a plea in bar motion to dismiss based upon a violation of the statute of limitation. Following a hearing, the trial court orally granted Watson’s motion to dismiss, announcing “the State has not carried by a preponderance of the evidence that she did not know the identity of this person or have any evidence about him when she did, and what she said today was just a lot of it was contradictory, and it has to be held against her.” In its subsequent written order, the trial court included its finding that “the testimony of [J. W] lacked credibility, and that she did know the identity of her alleged assailant in 1996 — specifically, that she knew his name, phone number, and the location of his neighborhood.” This appeal followed.

1. In its first enumeration of error, the State asserts that the trial court erred in granting Watson’s plea in bar because the indictment was filed within the applicable statute of limitation for rape. “The State [bears] the burden of proving that the case is not barred by the statute of limitation.” (Citation and punctuation omitted.) State v. Mullins, 321 Ga. App. 671, 671 (742 SE2d 490) (2013) (affirming trial court’s grant of plea in bar where State failed to plead and prove indictment not barred by applicable statute of limitation). And “any exception to the limitation period must be construed narrowly and in a light most favorable to the accused.” (Citation and punctuation omitted.) State v. Crowder, 338 Ga. App. 642, 645 (791 SE2d 423) (2016).

We turn first to the applicable statutes. In 1996, the statute of limitation for the crime of rape, codified at OCGA § 17-3-1 (b), was extendedfrom seven to fifteen years. Ga. L. 1996, p. 1115, § 4 (effective April 15, 1996). In 2002, the General Assembly amended this statute to provide that prosecution for rape, among other enumerated crimes, “may be commenced at any time when deoxyribonucleic acid (DNA) evidence is used to establish the identity of the accused” provided that “a sufficient portion of the physical evidence tested for DNA is preserved and available for testing by the accused.” Ga. L. 2002, pp. 650, 651, § 1. See former OCGA § 17-3-1 (c.1). If the DNA evidence does not establish the identity of the accused, the general statute of limitation for rape applies. See OCGA § 17-3-1 (d). Georgia law also provides that “[t]he period within which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute does not include any period in which: ... (2) The person committing the crime is unknown or the crime is unknown[.]” OCGA § 17-3-2 (2).

Thus, the State maintains that, because it is using DNA to establish Watson’s identity, it is permitted to commence the prosecution at any time without regard to the tolling separately provided for in OCGA § 17-3-2. Watson argues, on the other hand, that if the identity of the defendant is known due to evidence other than DNA, then the limitation period of 15 years begins to run in accordance with OCGA § 17-3-1 (b).

We find it unnecessary to decide this issue at this time because the State clearly failed to meet its burden to invoke OCGA § 17-3-1 (d), as the State presented no evidence whatsoever at the plea in bar hearing concerning the DNA evidence and what it may have established. See Crowder, 338 Ga. App. at 644-45 (at plea in bar hearing, “burden is on the state to prove that the crime occurred either within the statute of limitation, or, if an exception to the statute is alleged, to prove that the case falls within the exception”) (citation omitted); State v. Outen, 324 Ga. App. 457, 459 (751 SE2d 109) (2013) (same).

2. In its second enumeration of error, the State asserts that the trial court also erred in finding the applicable tolling provision does not apply. The tolling provision found in OCGA § 17-3-2 (2) “requires proof that the person who committed the crime was ‘unknown,’ ” and when this “exception is relied upon, the tolling period ends when the State acquires ‘actual knowledge’ of the defendant’s identity” Scales v. State, 310 Ga. App. 48, 49 (1) (712 SE2d 555) (2011). Our Supreme Court has explained that “the General Assembly intended for the ‘person unknown’ tolling exception to apply to a situation . . . where there is no identified suspect among the universe of all potential suspects.” Jenkins v. State, 278 Ga. 598, 603 (1) (A) (604 SE2d 789) (2004). Thus, “[t]he tolling exception to the statute of limitations cannot be based upon the subjective opinion of the district attorney as to whether there was enough evidence to file charges against a particular person.” Id. In Jenkins, the police had interviewed the defendant the day after the armed robbery and murder of his nearby neighbor; found that he was a crack addict with three prior burglary convictions; determined that he initially lied about his alibi the night of the murder; and found that his DNA was consistent with that located on a cigarette butt at the crime scene. Thus, the Supreme Court concluded that the State had actual knowledge of Jenkins’s identity while investigating the crimes in 1993 and 1994, and the statutes of limitation for the non-murder charges were not tolled during the seven years before the State was able to definitively match a palm print lifted from the scene to Jenkins. Id.

Although the knowledge of a victim is imputed to the State, that knowledge must be actual knowledge. See Beasley v. State, 244 Ga. App. 836, 838 n.5 (536 SE2d 825) (2000) (“Although we have long held that the victim and others interested in the prosecution come within the class of persons whose knowledge will satisfy the statute, we have not held that such knowledge includes anything other than actual knowledge.”) (citations omitted). In Beasley, this Court refused to interpret OCGA § 17-3-2 (2) as applying a constructive knowledge or “should have known” standard. Id. at 837 (rejecting defendant’s assertion that the State should have been charged with knowledge of his identity because it did not exercise reasonable diligence in matching his fingerprint more than four years after commission of the burglary). See also Kenerly v. State, 325 Ga. App. 412, 423 (2) (b) (iii) (750 SE2d 822) (2013) (“under OCGA § 17-3-2 (2), the statute of limitation does not run while the crime or the person who committed the crime is unknown — it does not say and could not have been discovered through the exercise of reasonable diligence”) (citation and punctuation omitted) (physical precedent only).

Decided March 10, 2017.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin C. Armstrong, Assistant District Attorneys, for appellant.

Michael T. Ross, for appellee.

Here, the trial court found that J. W. knew Watson’s identity, including his name and telephone number. While we are sympathetic to the trauma J. W. experienced and acknowledge that she offered plausible explanations for her inability to remember certain facts, we are nonetheless bound to “accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous ...(Citation and punctuation omitted.) Boykin, 320 Ga. App. at 9. Based on the record before us, we cannot say the trial court’s findings are clearly erroneous as J. W. testified that Watson told her his name and there was some indication in her testimony that she had told the State at some point that she had been given Watson’s telephone number. Accordingly, the trial court did not err in granting the plea in bar.

Judgment affirmed.

McFadden, P. J., concurs. Miller, P. J., concurs in judgment only.

       See OCGA § 5-7-1 (a) (3).

       At the hearing, J. W. testified that she only knew his name at the time of the hearing because she had read it on her subpoena: “Kelvin Wright.” However, that is clearly not the defendant’s actual name.

       Although denied by J. W., the State asked her at the hearing whether she recalled previously stating that she and Watson had exchanged phone numbers that night.

       At the motion hearing, the State conceded that the statute had run on the false imprisonment count under OCGA § 17-3-1 (c).

       This amended statute applies to the 1996 rape at issue here because the rape prosecution would not have been time barred at the time OCGA § 17-3-1 (c.1) was enacted. “Where a statute extends the period of limitation, the extension applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any time within the newly established period.” (Citation and punctuation omitted.) Flournoy v. State, 299 Ga. App. 377, 379 (1) (682 SE2d 632) (2009).

       In 2012, this provision was redesignated as OCGA § 17-3-1 (d). Ga. L. 2012, p. 899, § 4-1.

       OCGA § 17-3-1 (b) provides that “prosecution for the crime of forcible rape shall be commenced within 15 years after the commission of the crime.”

       We note that, although Jenkins was decided following the General Assembly’s 2002 amendment to the statute now found at OCGA § 17-3-1 (d), the crimes at issue there were already time barred before the amendment’s effective date, and the amendment was, thus, inapplicable. See Flournoy, 299 Ga. App. at 379 (1) (a statute cannot operate to revive offenses that were barred at the time of its enactment).

       Due to the imprecision of the DNA test used in 1994, the crime lab could only report that Jenkins’s DNA profile was consistent with the DNAfound. Jenkins, 278 Ga. at 600 (1).

       The trial court specifically found “a lot of [J. W.’s testimony] was contradictory” and therefore had to be “held against her.” While we reject the notion that a victim’s knowledge of “the location of [the accused’s] neighborhood” would be alone sufficient to establish “actual knowledge” of the accused’s identity, as discussed above, the trial court otherwise found that J. W. knew the identity of her attacker.


author: BARNES, Presiding Judge.

text:
    A16A1705.
    S. D. E., INC. v. FINLEY.
    (798 SE2d 303)
   BARNES, Presiding Judge.

Timothy C. Finley, Jr., filed a personal injury action against S. D. E., Inc., after he slipped and fell at a McDonald’s restaurant in Summerville, Georgia owned by the corporation. The shift manager at the restaurant was served with a copy of the complaint, and when S. D. E. did not answer or otherwise appear, the trial court ultimately entered a default judgment in favor of Finley for $250,000. The trial court denied S. D. E.’s motion to set aside the judgment, and S. D. E. sought discretionary review of its order, which this Court granted. This appeal ensued. On appeal, S. D. E. contends that the trial court erred in concluding that service of process on a shift manager at one of its restaurants was sufficient to acquire personal jurisdiction over the corporation, the trial court erred in denying its motion to vacate because OCGA § 9-11-5 (a) violates the Georgia and United States Constitutions, and the $250,000 damages judgment is grossly excessive and unconstitutional. For the reasons that follow, we affirm.

S. D. E. is a Georgia corporation that owns and operates four McDonald’s restaurants in the state. It employs approximately 250 people, with about 82 of them employed at the Summerville restaurant. On October 23, 2014, Finley was allegedly injured after a fall at the restaurant. He filed a complaint against S. D. E. on December 5, 2014, and on December 8, 2014, a deputy sheriff served Frances Andrews, the shift manager at the restaurant, with a copy of the summons and complaint. Andrews is one of nine shift managers employed by S. D. E. at its restaurants.

According to Andrews, she was working “the front line” when a man entered the restaurant and asked her to sign for some papers. Andrews testified that, despite his uniform, she did not know the man was a deputy sheriff or that the papers were a legal summons and complaint. She signed for them, took them back to the office, and laid them on the counter, because “that’s where we ... take everything we sign for.” Andrews did not tell anyone about the documents and did not know what happened to them afterward, but they were never transmitted to upper management. Andrews averred that as a shift manager, her duties include “monitoring cashier performance, safety, security, . . . profitability, inventory management and, generally, ensuring quality service and cleanliness to customers,” but that as a shift manager she does not “exercise a supervisory or managerial role.” She further averred that she did “not have the authority to and [was] not supposed to accept service on behalf of the corporation.”

When S. D. E. did not file an answer or other defensive pleading, upon a motion by Finley, on January 30, 2015, the trial court entered a default judgment against S. D. E. as to liability The trial court then scheduled a hearing on damages, and S. D. E., which apparently did not have notice of the hearing, did not attend. On February 6, 2015, the trial court entered judgment in favor of Finley for $250,000, plus interest and costs. On February 20, 2015, Finley sent a letter to S. D. E. at its LaFayette corporate office, informing it of the judgment, and requesting payment. On March 17, 2015, S. D. E. moved to set aside the judgment, arguing that the court had never obtained personal jurisdiction over it because it had not been properly served. S. D. E. argued that Andrews lacked sufficient managerial or supervisory authority to be its agent for service of process. Following a hearing, the trial court denied the motion, finding that

[t]he testimony of Frances Andrews in her deposition constitutes . . . evidence that when she was served with the Complaint and Summons she was, in fact, the corporate agent of the Defendant and, at all times relevant, was exercising a managerial and supervisory role of her principal, S. D. E„ Inc.

1. S. D. E. first contends that the trial court erred in finding that service of process on Andrews was effective to acquire personal jurisdiction over S. D. E. It contends that a shift manager does not have the supervisory or managerial authority contemplatedbyOCGA § 9-11-4 (e) to act on behalf of the corporation. According to S. D. E., within its organizational structure, the shift managers are “not ‘managers’ in the classic sense of one, who . .. hires, promotes, discharges, assigns, rewards, or disciplines other employees, or recommends such actions.”

Under Georgia law, when the defense of lack of personal jurisdiction due to defective service is raised by way of a motion to set aside the judgment, the trial court sits as the trier of fact. Our standard of review in this regard is the any evidence rule, and absent an abuse of discretion, we will not reverse a trial court’s refusal to set aside a judgment. However, where the facts are undisputed and the question is one of law, we review the ruling de novo.

(Citations and punctuation omitted.) Hooks v. McCondichie Properties 1, LP, 330 Ga. App. 583, 584 (767 SE2d 517) (2015).

OCGA § 9-11-4 (e) (1) (A) provides that service upon a Georgia corporation shall be made by delivering a copy of the summons and complaint “to the president or other officer of such corporation . . . , a managing agent thereof, or a registered agent thereof.” “ ‘[Mjanaging agent’ means a person employed by a corporation... who is at an office or facility in this state and who has managerial or supervisory authority for such corporation.” OCGA § 9-11-4 (e) (1) (B).

The former version of the statute, under which the most recent case law was decided, provided that service on a Georgia corporation could be made upon “the president or other officer of the corporation, secretary, cashier, managing agent or other agent thereof.” Former OCGA § 9-11-4 (e) (1). The 2013 revision to the statute omitted “cashier,” “secretary,” and “other agent,” and added “registered agent.” Thus, under the current version of OCGA § 9-11-4 (e), since it is undisputed that Andrews was not a registered agent of the corporation, the service upon S. D. E. was proper if Andrews was a managing or supervisory agent of the corporation. See OCGA § 1-3-1 (a) (“In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”); Evans v. State, 334 Ga. App. 104, 106 (778 SE2d 360) (2015).

In denying S. D. E.’s motion to set aside and vacate the judgment, the trial court found that Andrews’ deposition testimony clearly demonstrated that “when she was served with the Complaint and Summons she was, in fact, the corporate agent of [S. D. E.] and, at all times relevant, was exercising a managerial and supervisory role of her principal, S. D. E., Inc.” We agree.

“The purpose of service is notice, and not every employee can reasonably be expected to notify the corporate officers of the receipt of the complaint.” (Citation and punctuation omitted.) Austin v. Austin, 245 Ga. 487, 490 (265 SE2d 788) (1980). See Scott v. Atlanta Dairies Cooperative, 239 Ga. 721, 724 (2) (238 SE2d 340) (1977) (service of process “must be made on an agent whose position is such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him”) (emphasis supplied). Even under the former version of the statute, in cases where an employee was not an officer of the corporation and had not been expressly designated to receive service, we have looked to whether the employee “occupied] some position of managerial or supervisory responsibility within the organization.” G. J. Soracco, M.D., P.C. v. Domineck, 233 Ga. App. 166, 167 (502 SE2d 732) (1998) (physical precedent only) (service upon a medical assistant with no managerial duties insufficient to serve a professional corporation); Bowers v. Economation, Inc., 208 Ga. App. 661, 663 (431 SE2d 420) (1993) (service upon a “mere” receptionist without managerial or supervisory responsibilities will not suffice). But see Ogles v. Globe Oil Co., 171 Ga. App. 785, 786 (320 SE2d 848) (1984) (serving the manager of a company store who was responsible for daily operations, supervising employees, and submitting daily reports to corporate headquarters held to be sufficient); Southwest Community Hosp. and Med. Center v. Thompson, 165 Ga. App. 442, 443-444 (4) (301 SE2d 501) (1983) (service sufficient upon a secretary who had accepted service in the past and was knowledgeable about the procedures to be used when service did occur).

Here, in her affidavit, Andrews said that she did not have a supervisory or managerial role at the restaurant, did not make high-level or emergency decisions without the approval of the store manager or supervisor, was “not charged with relaying any communications to higher corporate levels,” and had no authority to accept service on behalf of S. D. E. She further averred that the supervisor was to “be notified if any person attempts to serve or deliver legal documents.”

At her deposition, however, Andrews testified that during her shift, she was responsible for supervising the other employees and ensuring the “effective operation” of the restaurant. To that end, she handled customer complaints, and ensured the quality of the food, service, cleanliness and safety of the premises. In the event of an accident, Andrews would create a report for upper management, and she also kept up with inventory, tracked waste, and made bank deposits at the end of her shift. Andrews testified that she saw her role “more as a manager” rather than a supervisor.

The supervisor of the restaurants averred that as a shift manager, Andrews did “not exercise a supervisory role.” According to the supervisor, Andrews’ job responsibilities included “monitoring cashier performance, safety, security, and profitability, inventory management and, generally, ensuring quality, service and cleanliness to customers.” She further averred that Andrews had “no capacity to bind [S. D. E.],” could not “make high-level or emergency decisions without a store manager or supervisor’s approval,” and was “not supposed to accept service on behalf of the corporation.” At her deposition, the supervisor testified that, according to S. D. E.’s protocol, as supervisor, she was authorized to accept service for the corporation, but that shift managers were instructed to “send [the process server] back” if they attempted to serve them with legal papers. However, despite this alleged corporate protocol of rejecting service, the supervisor acknowledged that another shift manager had also recently accepted service of a summons and complaint against S. D. E., but had successfully then given the document to the supervisor. She did not testify that the shift manager was reprimanded for disregarding protocol or that she should not have accepted the papers.

We agree with the trial court that there was some evidence that Andrews’ position as shift manager at the restaurant was of a supervisory or managerial nature such that she was a managing agent of S. D. E. pursuant to OCGA § 9-11-4 (e).

Here, the evidence demonstrated that Andrews was responsible for supervising the other employees on her shift and had managerial responsibilities, including handling customer complaints, quality control, and creating reports for upper management. Moreover, given that another shift manager had also been served and had successfully transmitted the summons and complaint to a corporate officer, there was also evidence that it was anticipated that someone in that position would be served as an agent of the corporate principal.

Accordingly, the trial court did not err in denying S. D. E.’s motion to set aside the judgment based on insufficiency of service.

2. S. D. E. also contends that OCGA § 9-11-5 violates due process because it was not afforded notice or the opportunity to be heard. Upon review, we cannot consider this argument.

The record reveals that S. D. E. did not raise the constitutional argument below and thus failed to invoke any ruling from the trial court regarding the constitutionality of the statute. “A constitutional issue cannot be considered when asserted for the first time on appeal but must be clearly raised in the trial court and distinctly ruled upon there. Contentions regarding a constitutional issue which were not made below are thus not passed upon here.” (Citation and punctuation omitted.) Flott v. Southeast Permanente Med. Group, 288 Ga. App. 730, 732-733 (2) (655 SE2d 242) (2007).

3. Likewise, we also cannot consider for the first time on appeal S. D. E.’s contention that the damage award was so grossly excessive that it violates the Eighth and Fourteenth Amendments of the United States Constitution. This argument also was not raised or ruled on by the trial court. Moreover, even if this argument had been raised and ruled on, the record does not include a transcript of the damages hearing or any other evidence related to Finley’s injuries. Such issues cannot be determined absent a trial transcript or evidence from which the damages may be evaluated in light of the judgment. Moss v. Flav-O-Rich, Inc., 231 Ga. App. 288, 288 (498 SE2d 361) (1998). S. D. E. appears to have made no attempt to secure a transcript or a reconstructed transcript of the proceedings approved by the trial judge; therefore, we must assume that the judgment was correct and supported by the evidence. See Wells Fargo Home Mtg. v. Cook, 267 Ga. App. 368, 369 (1) (599 SE2d 319) (2004) (this Court cannot determine if damages are excessive, because trial record did not provide complete record of what transpired in the case).

Decided March 13, 2017

Lewis Brisbois Bisgaard & Smith, R. Scott Masterson, Brantley C. Rowlen, for appellant.

Cook & Connelly, Bobby Lee Cook, C. Sutton Connelly; Copian Cobb, Michael A. Copian, Benjamin W. Cheesbro, for appellee.

Judgment affirmed.

Rickman and Self, JJ., concur.

       S. D. E.’s registration with the Secretary of State lists Stephen Ensley as the company’s registered agent at an address in LaFayette. Finley did not attempt to serve Ensley.

       The statute was amended effective July 1, 2013. See Ga. L. 2013, p. 591, § 1/SB 113.


text:
    A16A1920.
    BRAZEAL v. NEWPOINT MEDIA GROUP, LLC.
    (798 SE2d 300)
   McMlLLIAN, Judge.

This is the second appearance of this case arising out of a contractual dispute between Plaintiff David Brazeal (“Brazeal”), and his former employer, Defendant NewPoint Media Group, LLC (“NewPoint”). In Brazeal v. NewPoint Media Group, LLC, 331 Ga. App. 49 (769 SE2d 763) (2015) (Brazeal I), this Court upheld the grant of summary judgment to NewPoint on Brazeal’s claim that he was owed severance pay under the terms of his employment agreement with NewPoint (“Agreement”) after NewPoint declined to renew the Agreement for an additional one-year term. Id. at 53-57. However, we declined to rule on Brazeal’s claim for breach of the implied covenant of good faith and fair dealing, noting that any issues relating to that claim were not ripe for appellate review because the trial court did not rule on the implied covenant claim in its summary judgment order. Id. at 53 n.2.

Upon remittitur, NewPoint renewed its motion for summary judgment on Brazeal’s claim for breach of the implied covenant of good faith and fair dealing. The trial court granted NewPoint’s motion and entered a partial final judgment, finding that Brazeal had failed to set forth a claim for the breach of the implied covenant of good faith and fair dealing and that even if he had, he had failed to present sufficient evidence to create a disputed issue of material fact as to whether NewPoint acted in good faith. We discern no error in the grant of summary judgment and now affirm.

As set out in Brazeal I, Brazeal was hired as chief financial officer (“CFO”) of NewPoint under the terms of the Agreement, which was dated June 28, 2012. The Agreement contained two separate and distinct provisions governing how Brazeal and NewPoint could end the employment relationship. Section 1, which was headed “Term,” provided for an initial term of employment for one year and an automatic renewal for additional one-year periods unless Brazeal or NewPoint provided the other party written notice of “non-renewal”:

1. Term. The term of Employee’s employment will commence (the “Start Date”) on the later of (a) the date of this Agreement and (b) the date on which the Company acquires substantially all of the assets of Network Communications, Inc. (the “Seller”), and continue for a period of one year (the “Initial Term”) and shall thereafter automatically renew for additional twelve (12) month periods (each, a “Renewal Term”) unless written notice of non-renewal is given by one party to the other at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term, as applicable. Employee’s actual term of employment by the Company under this Agreement is referred to as the “Term.” The provisions of Sections 8 through 11 hereof shall survive the termination of Employee’s employment with the Company in accordance with their respective terms.

(Emphasis in original.)

Under Section 6 of the Agreement, NewPoint also had the ability to terminate Brazeal’s employment, with or without cause, and Brazeal could resign at any time for any or no reason, if certain notice requirements were met:

6. Ability to Terminate. Notwithstanding Section 1, Employee understands and agrees that the Company reserves the right upon thirty (30) days prior written notice (which notice will not be required in the event of termination for Cause, in which case termination shall be effective on the date of the notice) to terminate Employee’s employment with the Company at any time for any reason or for no reason whatsoever, with or without Cause. Likewise, Employee may Resign his employment with the Company at any time (upon thirty (30) days prior written notice) for any reason or for no reason whatsoever. Employee’s employment by the Company will automatically terminate upon Employee’s death or Permanent Disability.

Further, NewPoint was required to pay Brazeal severance pay if NewPoint terminated the Agreement without cause under the provisions of Section 6, as specifically set out in Section 7 (b):

7. Termination obligations.

(b) Following the Company’s termination of Employee’s employment without Cause, . . .
(i) the Company will continue to pay Employee, in accordance with the Company’s usual payroll practices and subject to all applicable withholding and deductions, Employee’s then current Base Salary for a period of nine (9) months (the “Severance Period”).

Brazealbegan serving as CFO sometime in June 2012. NewPoint decided to replace Brazeal as CFO in December 2012, and in January 2013 formally initiated a search for his replacement. Brazeal, however, was not informed of these developments at that time, and in March 2013 NewPoint’s board of directors sent Brazeal a letter notifying him that the company did not intend to renew his initial one-year term of employment for an additional term in accordance with Section 1 of the Agreement. There is no question that the letter satisfied the notice requirements set out in Section 1 for non-renewal.

Brazeal subsequently filed the present suit, alleging, among other things, that NewPoint breached the Agreement by failing to pay him severance pay under Section 7 of the Agreement and breached the covenant of good faith and fair dealing by exercising its discretion to invoke the non-renewal provisions of Section 1 instead of the Termination without Cause provisions of Section 6, thereby avoiding paying him severance pay. In Brazeal I, we upheld the trial court’s grant of summary judgment to NewPoint on Brazeal’s breach of contract claim and must now decide if summary judgment was proper on his breach of implied covenant claim.

Generally speaking, under Georgia law, “every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” (Citation and punctuation omitted.) Hunt ing Aircraft, Inc. v. Peachtree City Airport Auth., 281 Ga. App. 450, 451 (1) (636 SE2d 139) (2006). More

[specifically, we have held that this implied duty requires both parties to a contract to perform their promises and provide such cooperation as is required for the other party’s performance. And, whether the manner of performance is left more or less to the discretion of one of the parties to the contract, he is bound to the exercise of good faith.

(Citation and punctuation omitted; emphasis in original.) Id. at 452 (1).

At the same time, however, as we explained in Martin v. Hamilton State Bank, 314 Ga. App. 334 (723 SE2d 726) (2012),

[f]irms that have negotiated contracts are entitled to enforce them to the letter, even to the great discomfort of their trading partners, without being mulcted for lack of “good faith.” Although courts often refer to the obligation of good faith that exists in every contractual relation, this is not an invitation to the court to decide whether one party ought to have exercised privileges expressly reserved in the document. “Good faith” is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties. When the contract is silent, principles of good faith fill the gap. They do not block use of terms that actually appear in the contract.

(Citation and punctuation omitted.) Id. at 335-36.

We agree with the trial court that Martin is instructive here. In that case, which involved the failure to pay a loan, the parties had entered into several promissory notes which gave the Bank the right to pursue different remedies in the event of default, including restructuring the debt, which the borrower wanted the Bank to do, or declaring default and accelerating the debt, which was the remedy the Bank opted to pursue. 314 Ga. App. at 334-35. The debtor contended the Bank had violated the implied duty of good faith and fair dealing when it decided to pursue its remedy instead of agreeing to restructure, but this Court upheld the grant of summary judgment to the Bank on this claim, finding that “[t]he express terms of the note identify the remedies available to the Bank in the event of a default, and the Bank was entitled to choose whichever remedy it preferred.” Id. at 336.

Similarly here, the parties agreed that they could end their employment relationship in several ways and incorporated these options in the Agreement. NewPoint opted to use the method that allowed Brazeal to be paid until the end of the initial term of the Agreement, but did not entitle him to any severance pay under Section 7 of the Agreement. Nothing in the Agreement required NewPoint to choose the method that was most advantageous to Brazeal, and if the parties had wanted to do so, they clearly could have done so in drafting the Agreement.

Moreover, we do not think the cases cited by Brazeal require a different result. For instance in ULQ, LLC v. Meder, 293 Ga. App. 176 (666 SE2d 713) (2008), the LLC’s Board of Managers had the ability to terminate officers of the corporation “with or without cause,” but could only do so “whenever in their judgment the best interests of the [LLC] will be served thereby[.]” Id. at 177. We found this best interests provision constrained or qualified the power of the Board of Managers, id. at 178 (1), and that in making this discretionary determination, they were “bound to the exercise of good faith in making the determination that the removal of [the officer] from office was in the best interests of the company” Id. at 179 (1).

In Hunting Aircraft, the contract granted the airport authority the ability to declare the parties’ agreement in default if the other party conveyed or assigned its property interests and easement rights without first obtaining the written consent of the authority In that situation, whether to consent to the assignment was subject to an implied obligation of good faith so as not to unreasonably deprive the party seeking to assign his ability to do so, or allow the authority to declare the other party in default merely by withholding its consent for no good reason. 281 Ga. App. at 452-53 (1). See also Planning Technologies, Inc. v. Korman, 290 Ga. App. 715 (660 SE2d 39) (2008) (Board of Directors was required to exercise good faith in deciding if there had been a “change in control,” which would allow a corporate officer to accelerate certain stock options).

Here, the Agreement provides several ways in which the employment relationship could end and did not require either party to pick the method that would be most advantageous, or less damaging, to the other party This was the Agreement negotiated by the parties, and the parties were free to exercise their discretion in deciding which method to use so long as they otherwise complied with the terms of the Agreement respecting their choice. “There can be no breach of an implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do.” Automatic Sprinkler Corp. of America v. Anderson, 243 Ga. 867, 868 (257 SE2d 283) (1979). Accordingly, the trial court did not err by granting summary judgment to NewPoint on this basis, and we need not reach the trial court’s finding that Brazeal failed to present sufficient evidence to create a disputed issue of material fact on NewPoint’s good faith.

Decided March 13, 2017

Bodker Ramsey Andrews Winograd & Wildstein, Robert E. Rig-rish, Thomas Rosseland, for appellant.

Weinberg Wheeler Hudgins Gunn & Dial, Nicholas P. Panayoto-poulos, for appellee.

Judgment affirmed.

McFadden, P. J., concurs. Miller, P. J., concurs in judgment only.

       The trial court specifically noted that the issue of attorney fees had not yet been resolved.

       We set out only those facts necessary to decide this case. A more complete recitation of the procedural and factual history of this case is set out in Brazeal I.


author: Branch, Judge.

text:
    A16A1979.
    PETREE v. GEORGIA DEPARTMENT OF TRANSPORTATION et al.
    (798 SE2d 482)
   Branch, Judge.

After her property suffered damage from the repeated flooding of a drainage ditch located at the back of her residential lot, Dixie Petree sued the Georgia Department of Transportation (the “DOT”) and Macon-Bibb County (the “County”) in Bibb County Superior Court. Petree’s complaint asserted claims for negligence, trespass, and nuisance, and she alleged that the DOT and the County were responsible for the conditions that resulted in the flooding of her property Petree now appeals from the trial court’s order dismissing her complaint, asserting that the trial court acted improperly when, over Petree’s objection, it considered evidence other than the pleadings to determine whether Petree’s complaint stated a claim against the County Petree further contends that the trial court erred in finding that her claims for ordinary negligence were subject to the expert affidavit requirement of OCGA § 9-11-9.1, and that the DOT was entitled to sovereign immunity from such a claim. Finally, Petree argues that the court erred when it found that her claims for nuisance and trespass were barred by the applicable statute of limitation and/or her failure to provide the DOT with a timely ante litem notice. For reasons explained more fully below, we affirm the trial court’s dismissal of Petree’s claims against the DOT, reverse the order of dismissal as to the County, and remand the case for further proceedings consistent with this opinion.

We review the grant of any motion to dismiss de novo, applying the rule that a motion to dismiss “should not be granted unless the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof.” Babalola v. HSBC Bank, USA, 324 Ga. App. 750, 752 (2) (751 SE2d 545) (2013) (citation and punctuation omitted). See also Sadler v. Dept. of Transp., 311 Ga. App. 601, 603 (716 SE2d 639) (2011). And when reviewing a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, this Court is cognizant of the fact that “the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act.” Campbell v. Ailion, 338 Ga. App. 382, 384-385 (790 SE2d 68) (2016) (citation and punctuation omitted). Thus, “[we] treat[ ] all material allegations set forth in the complaint as true, treat[ ] all denials set forth in the answer as false, and resolv[e] any doubts in favor of the plaintiff.” Id. at 383 (citations omitted).

Viewed in the light most favorable to Petree, the record shows that Petree filed suit in May 2014 and alleged that acting individually and jointly, the defendants had “caused, maintained, and allowed to exist a drainage ditch adjacent to, and which has been allowed to become a part of, [Petree’s] property”; had negligently planned, designed, constructed, and maintained the ditch; and had “been negligent in allowing the drainage ditch to exist in its past and present state”; had “caus[ed] construction in adjacent areas which worsened the condition of the drainage ditch”; and had “fail[ed] and refus [ed] to make necessary improvements to prevent damage caused by the drainage ditch.” Petree further alleged that her property had been and continued to be damaged by the discharge of water from the drainage ditch, and that such damage had begun in 2000. Finally, Petree asserted that despite having taken measures in an effort to mitigate these damages, the discharge of water “continues to occur whenever any significant amount of rain falls in or about the vicinity.” Attached to the complaint were copies of the ante litem notices that Petree had provided to the State and the County on July 30, 2013.

Both the DOT and the County filed answers in which they asserted that the complaint failed to state a claim for relief and that Petree’s claims against them were barred by the applicable statute of limitation and the doctrine of sovereign immunity The DOT also asserted that Petree’s claims against it were barred by Petree’s failure to provide a timely ante litem notice. Additionally, the DOT argued that to the extent Petree’s negligence claim was premised on an assertion that the defendants had been negligent in the planning, design, or construction of the ditch, that claim was barred by Petree’s failure to attach an expert affidavit, as required by OCGA § 9-11-9.1. Contemporaneously with the filing of its answer, the DOT also filed a motion to dismiss based on the affirmative defenses asserted in its answer. The County thereafter filed a motion to dismiss based on its asserted defenses.

In support of its motion to dismiss, the DOT filed a brief to which it attached 58 pages of exhibits showing that Petree first became aware of an increased water flow in the ditch by no later than 2001, that she began corresponding with the County regarding the increased flow at that time, and that flooding from the ditch began causing erosion to her property by 2002. These exhibits also showed that Petree had originally provided the State with an ante litem notice in June 2011, and that this notice was virtually identical to the second ante litem notice she provided in July 2013. The County filed a brief in support of its motion to dismiss, to which it attached 20 pages of exhibits. These exhibits included two plats showing Petree’s residential lot, with one of those plats denoting the drainage ditch at the back of Petree’s property as a “natural ditch.” The second of these plats showed a retention pond located directly behind Petree’s property. It appears from the exhibits submitted by both the DOT and the County that this retention pond was filled in by the County sometime between 2006 and 2009. The exhibits also indicated that in November 2005 the DOT had informed Petree that it was not responsible for maintaining the ditch, and indicated that the County had refused to repair, maintain, or otherwise alter the ditch no later than March 2009.

At the time it filed its motion to dismiss, the DOT also filed a motion for a preliminary hearing on the issue of sovereign immunity and requested that it be allowed to present oral testimony on that issue at such a hearing. The trial court granted that motion, and on December 17, 2014, issued a rule nisi directing the parties to appear for a January 7, 2015 hearing and advising them that “Defendant [DOT] will present oral testimony at said hearing.”

At the outset of the hearing on the motions to dismiss, Petree’s lawyer stated on the record that he was aware the DOT would be presenting testimony that was relevant to the threshold issue of sovereign immunity. Counsel further stated that just prior to the hearing, the County’s attorney had “handed” him the affidavit of the County engineer and that he believed the County intended to offer the same as evidence at the hearing. Petree’s attorney then expressed his concern regarding the presentation of this additional evidence, stating, “we’re stretching the boundary between a motion to dismiss and a motion for summary judgment because evidence is being presented but not a whole lot of it.” The lawyer continued that if the court intended to consider evidence that addressed issues other than sovereign immunity, he would ask that Petree be allowed additional time to present affidavits. The court responded that it assumed the only testimony being offered would relate “specifically to [the defendants’] motions to dismiss,” but that if “something comes out in this hearing that you think you may need some additional time from the court to present, I’ll hear from you, and then if it’s appropriate .. . I’ll allow you that time to present [additional evidence] as well.”

The DOT presented the testimony of one of its employees that the only road projects for which it was responsible and that might have affected Petree’s property were completed no later than 1998; that the drainage ditch at issue was not constructed as part of any DOT project; and that the employee had no idea how the ditch came to be in existence. When the court questioned the employee regarding the origins of the ditch, it was the County’s attorney who responded. The attorney referenced the plat of Petree’s property which was attached to the brief the County filed in support of its motion to dismiss and which referred to the ditch as a “natural ditch.” The DOT also called Petree to testify and introduced her handwritten notes which detailed her efforts, beginning in 2000, to have the County address the ongoing damage to her property. When the DOT tendered this document into evidence, the court stated to Petree’s attorney, “I assume there is no objection as it is something your client wrote.” The lawyer responded that he had no objection but “again, if we need to file any additional affidavits or [evidence] subsequent to [the hearing] . . . The court responded that it would decide at the end of the hearing whether any such additional evidence was needed.

During his argument to the court, the County’s attorney contended that the ditch was a permanent rather than an ongoing nuisance. At that time, the County’s attorney offered as additional evidence the restrictive covenants from Petree’s subdivision. The attorney used these covenants to support his argument that the County had no legal duty to maintain the ditch, asserting that the covenants “appear [ ] to put the onus on the property owner” to remedy any problems caused by the presence of the drainage ditch on the property.

Following the presentation of the foregoing evidence and argument, Petree’s attorney conceded that in the absence of an expert affidavit, the only negligence claim Petree could assert related to the maintenance of the drainage ditch, and not to the planning, design or construction of the same. The attorney further conceded that he was aware of no action taken by the DOT since 1998 that would have impacted the ditch, and that he was unaware of anything indicating that the State had a duty to maintain the ditch. With respect to the County, however, Petree’s lawyer stated that a motion to dismiss was inappropriate, given that Petree had not been allowed to submit evidence. The attorney stated “[w]e believe that we will be able to develop evidence to show that at various times the County has come in and performed some acts which have caused the situation to worsen,” and argued that the County could be liable if it did “something that cause[d] a change” in the ditch that resulted in damage to private property The lawyer also stated his belief that the evidence would show that the County’s decision to fill in the retention pond situated near Petree’s property had increased the water flow into the ditch. The attorney concluded that “[a]gain, ... if ... we need to present any evidence, affidavits, that sort of thing, we would like to have the opportunity to do that,” and he acknowledged his understanding that the court was telling him that his complaint might need to be amended. At the end of the hearing, the trial court indicated to Petree’s attorney that it would not be receptive to any additional evidence that might be filed post-hearing.

Approximately three weeks after the hearing, the trial court entered its written order dismissing Petree’s complaint. The court dismissed Petree’s negligence claims based on its findings that Petree’s failure to comply with the expert affidavit requirement of OCGA § 9-11-9.1 meant that she could not state a claim for the negligent plan, design, or construction of the drainage ditch; that the DOT was entitled to sovereign immunity for Petree’s claim as to negligent maintenance of the ditch; and that because the ditch was “naturally occurring,” Petree could not show that the County had a legal obligation to maintain it. The court dismissed Petree’s claims for nuisance and trespass based on its finding that because the drainage ditch was a “natural ditch,” any nuisance arising from it was permanent in nature. Given this finding, the trial court concluded that Petree had failed to bring suit against the County and the DOT within the applicable limitation period and that she had failed to provide the DOT with a timely ante litem notice. Petree now appeals from the trial court’s order.

1. In her first enumeration of error, Petree asserts that the trial court erred by considering evidence outside the pleadings in deciding the County’s motion to dismiss. We agree. The motions to dismiss filed by the DOT and the County differed in that the DOT’s motion was based on its assertion of sovereign immunity and on its claims that Petree had failed to provide a timely ante litem notice and had failed to file suit within the limitation period set forth in the Georgia Tort Claims Act (GTCA), OCGA § 50-21-20 et seq. Thus, the DOT’s motion was brought under OCGA § 9-11-12 (b) (1), as it was asserting that the trial court lacked subject matter jurisdiction over Petree’s claims against it. Sadler, 311 Ga. App. at 603. Given that the DOT’s motion to dismiss concerned the court’s subject matter jurisdiction, the trial court was entitled to consider the evidence presented at the hearing below to the extent that it “shed light on the trial court’s jurisdiction” over Petree’s claims against the DOT. Marietta Properties v. City of Marietta, 319 Ga. App. 184, 186 (1) (732 SE2d 102) (2012) (citation omitted). See also OCGA § 9-11-43 (b).

Unlike the DOT’s motion, the County’s motion to dismiss did not concern the court’s subject matter jurisdiction. Instead, the County’s motion, brought pursuant to OCGA §9-11-12 (b) (6), sought the dismissal of Petree’s complaint on the grounds that it failed to state a claim upon which relief could be granted. Accordingly, in deciding the County’s motion, the trial court could not consider anything other than the pleadings themselves. See Morrell v. Wellstar Health System, 280 Ga. App. 1, 2 (1) (633 SE2d 68) (2006). Specifically, the trial court could consider only the answer, the complaint, and documents attached to either the answer or the complaint and explicitly incorporated therein by reference. Id. See also Ezeoke v. FIA Card Svcs., 320 Ga. App. 73, 75 (739 SE2d 81) (2013) (when ruling on a motion to dismiss, trial court erred in considering documents attached to complaint but not incorporated therein by reference). When a trial court considers evidence outside the pleadings, including documents attached to and/or offered in support of a defendant’s motion to dismiss for failure to state a claim, it converts the motion to dismiss into a motion for summary judgment. Morrell, 280 Ga. App. at 2. See also Babalola, 324 Ga. App. at 751, n. 4. Under such circumstances, the trial court “has the burden of informing the party opposing the motion that it will consider” evidence that was attached to the motion to dismiss or that was submitted at the motion hearing “and that, if the opposing party so desires, the party [may have] no less than 30 days to submit evidence in response to [what is now a] motion for summary judgment.” Carter v. VistaCare, LLC, 335 Ga. App. 616, 617 (1) (782 SE2d 678) (2016) (citation and punctuation omitted). See also Cox Enterprises v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000). Here, the trial court did not inform Petree it was converting the County’s motion to dismiss into a motion for summary judgment, and in fact it indicated to Petree’s attorney that it was not doing so. Moreover, the trial court did not afford Petree an opportunity to respond to the evidence presented at the hearing, and further indicated to Petree’s attorney that it would not be receptive to any additional evidence. Thus, as discussed more fully below, the trial court committed reversible error when it relied on evidence outside the pleadings to dismiss Petree’s claims against the County

2. As noted above, Petree’s negligence claims against both the DOT and the County were based on her allegations that one or both of the defendants had negligently planned, designed, constructed, and/or maintained the drainage ditch at issue. On appeal, Petree does not challenge the trial court’s dismissal of her claims for the allegedly negligent plan, design, or construction of the drainage ditch. Instead, she asserts that the trial court erred in dismissing her claims for ordinary negligence, which were premised on the assertion that the DOT and/or the County had negligently maintained the drainage ditch.

Petree is correct that she was not required to submit an expert affidavit to support any claim for ordinary negligence set forth in her complaint. Drawdy v. Dept. of Transp., 228 Ga. App. 338, 339 (491 SE2d 521) (1997). Nor could the DOT assert a sovereign immunity defense based on OCGA § 50-21-24 (10) to any such claim. Ga. Dept. of Transp. v. Crooms, 316 Ga. App. 536, 538 (729 SE2d 660) (2012), overruled in part on other grounds, Riverav. Washington, 298 Ga. 770 (784 SE2d 775) (2016). We therefore examine whether Petree’s complaint states a claim against either the County or the DOT for negligent maintenance.

(a) The trial court based its dismissal of Petree’s ordinary negligence claim against the County on the evidence showing that the drainage ditch was a “natural ditch.” The court appeared to conclude that because the County had not created the ditch, it was not obligated to maintain the ditch, even if the County used the ditch as part of its drainage system. To make this finding, however, the trial court had to rely on evidence beyond the scope of the pleadings. And it appears that the court relied on the following evidence submitted by the County in support of its motion to dismiss: the subdivision plat depicting Petree’s residential lot; the restrictive covenants applicable to Petree’s subdivision; the statements of the County attorney; and the affidavit of the County engineer. By considering this evidence, the trial court improperly converted the motion to dismiss this claim into a motion for summary judgment, and it did so over Petree’s objection and without affording her an opportunity to respond. Accordingly, we reverse the dismissal of Petree’s claim for ordinary negligence against the County.

(b) We further find that Petree has waived her right to challenge the trial court’s dismissal of her negligent maintenance claim against the DOT. Petree’s attorney conceded at the motion to dismiss hearing that he was aware of no facts or law that would indicate that the DOT had a duty to maintain the drainage ditch. Thus, Petree essentially acquiesced to the dismissal of her ordinary negligence claim against the DOT, and having done so, she may not challenge that ruling on appeal. See Ga. Dept. of Human Resources v. Phillips, 268 Ga. 316, 320 (2) (486 SE2d 851) (1997) (“[i]tis well established that one cannot complain of a judgment, order, or ruling that her own procedure or conduct procured or aided in causing, nor can she be heard to complain of or question on appeal a judgment which she invokes”) (footnote omitted).

3. Petree asserts that the trial court erred in finding that her trespass and nuisance claims arose out of a permanent nuisance, and were therefore barred by the applicable statute of limitation and by her failure to provide the DOT with a timely ante litem notice. We agree with Petree that the trial court erred in relying on the current evidence of record to find that her complaint was based on a permanent nuisance, and we therefore find that the trial court erred in concluding that Petree’s claims against the County were not filed within the applicable limitation period. We further find, however, that Petree cannot state a claim for nuisance or trespass against the DOT.

As a general rule, a “[tjrespass is a wrongful interference with the right to the exclusive use and benefit of a property right. Nuisance is anything that causes hurt, inconvenience, or damage to another’s person or property” Bishop Eddie Long Ministries v. Dillard, 272 Ga. App. 894, 901 (3) (613 SE2d 673) (2005) (footnotes omitted). See also OCGA §§ 51-9-1 (definingtrespass); 41-1-1 (definingnuisance). Thus, a trespass generally involves a wrongful act that interferes with an owner’s right to the exclusive use and enjoyment of his property Rinzler v. Folsom, 209 Ga. 549, 552 (2) (74 SE2d 661) (1953). A nuisance, on the other hand, may result from an act that is itself legal, but which nevertheless causes damage to the property of another. Id. See also J. D. Jewell, Inc. v. Hancock, 226 Ga. 480, 483 (2) (175 SE2d 847) (1970) (“[tjhe distinction between trespass and nuisance consists in the former being a direct infringement of one’s right of property, while in the latter the infringement is the result of an act which is not wrongful in itself, but only in the consequences which may flow from it”) (citation and punctuation omitted). Depending on the circumstances, “taking an action that diverts excess water onto another’s property can constitute a trespass” or a nuisance. Merlino v. City of Atlanta, 283 Ga. 186, 190 (3) (657 SE2d 859) (2008) (citations omitted) (trespass); City of Columbus v. Myszka, 246 Ga. 571, 571 (1) (272 SE2d 302) (1980) (nuisance).

(a) With respect to Petree’s claims against the County, Georgia law provides that where a county creates a trespass upon or creates and/or maintains a nuisance that damages private property to the extent that the damage could be considered a taking of that property, then that county may be held liable for “damages that would be recoverable in an action for inverse condemnation.” Fielder v. Rice Constr. Co., 239 Ga. App. 362, 364 (1) (522 SE2d 13) (1999) (citations omitted). See also Stanfield v. Glynn County, 280 Ga. 785, 786 (1) (631 SE2d 374) (2006). “Inverse condemnation claims based on trespass or nuisance are subject to a four-year statute of limitation.” Liberty County v. Eller, 327 Ga. App. 770, 772 (2) (761 SE2d 164) (2014) (citations and punctuation omitted). At what point the limitation period begins to run depends on whether the nuisance is considered permanent or continuing in nature. Id. A nuisance is viewed as permanent if it is not abatable, and the “statute of limitation begins to run against such a claim upon the creation of the nuisance once some portion of the harm [it causes] becomes observable.” Oglethorpe Power Corp. v. Forrister, 289 Ga. 331, 333 (2) (711 SE2d 641) (2011). A nuisance is continuing “if it is one which can and should be abated.” Id. (citation and punctuation omitted). “A continuing nuisance . . . does not necessarily mean a constant and unending nuisance or injury, but one which occurs often, and is so necessarily an incident to the use of the property involved, that it can fairly be said to be continuous.” Rinzler, 209 Ga. at 552-553 (2) (citations omitted). Where a nuisance is continuing, “every continuance of the nuisance is a fresh nuisance for which a fresh action will lie, and the statute of limitation will begin to run at the time of each continuance of the harm.” Oglethorpe, 289 Ga. at 333 (2) (citation and punctuation omitted).

Here, relying on the evidence showing that the ditch was “naturally occurring,” the trial court found that any nuisance associated with the ditch was permanent in nature and that the limitation period had begun to run in 2002. Petree challenges this ruling on appeal, arguing that the trial court impermissibly relied on evidence outside the pleadings to determine the statute of limitation question. Petree further contends that even if the trial court could consider evidence other than the pleadings, that evidence failed to show conclusively that the nuisance was permanent in nature. We agree with both of these arguments.

A statute of limitation defense goes to the merits of the claim, and is therefore subject to a motion to dismiss under OCGA § 9-11-12 (b) (6). Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991). Accordingly, for the reasons explained supra in Division 1, the trial court erred when it relied on evidence outside the pleadings (specifically the County’s evidence regarding the fact that the drainage ditch was a “natural ditch”) to grant the County’s motion to dismiss.

We recognize, however, that the trial court may have been authorized to consider the evidence in question to decide the DOT’s claim of sovereign immunity, including the DOT’s claim that Petree failed to provide a timely ante litem notice and failed to file suit within the limitation period set forth in the GTCA. Even assuming that the trial court did not err in also considering that evidence with respect to the County’s motion to dismiss, this evidence did not support the court’s conclusion that Petree’s claims were barred by the applicable statute of limitation. Specifically, the fact that the ditch is a naturally occurring feature of the land does not, without more, mean that any nuisance associated with the ditch is permanent in nature. See Myszka, 246 Ga. at 571 (1) (reversing a grant of summary judgment to the city on plaintiff’s claims for a continuing nuisance, which resulted from a stream and ditch that intersected on plaintiff’s property; the evidence showed that both had “become enlarged drastically over the years as the volume of water flowing through them [had] increased due to rain water run-off resulting from” the conduct of the city and other defendants). See also Reid v. Gwinnett County, 242 Ga. 88, 89 (249 SE2d 559) (1978) (where a county diverts surface water onto the property of another and thereby causes damage to the property, it has created a continuing nuisance); City Council of Augusta v. Boyd, 70 Ga. App. 686, 688 (29 SE2d 437) (1944) (flooding from an existing drainage ditch could give rise to a continuing nuisance claim).

Moreover, the nuisance that Petree is complaining of is not the ditch itself. Instead, she is alleging that the County has engaged in conduct that has diverted excess water onto her property and/or impeded the flow of water through the ditch situated on that property Alternatively, Petree’s complaint can be read as asserting that the County has breached a duty to maintain its drainage system and/or the ditch itself. Georgia law is clear that such allegations are sufficient to state a claim for a continuing nuisance. See Hibbs v. City of Riverdale, 267 Ga. 337, 338 (478 SE2d 121) (1996) (“where a municipality negligently constructs or undertakes to maintain a sewer or drainage system which causes the repeated flooding of property, a continuing, abatable nuisance is established”) (citations omitted); Myszka, 246 Ga. at 571 (1) (evidence showing that city’s diversion of excess water into a ditch and stream on plaintiff’s property caused flooding thereon supported plaintiff’s claim for continuing nuisance); Liberty County, 327 Ga. App. at 773 (2) (“[1] an downers may show a continuing nuisance through evidence that an existing condition, such as a culvert or drainpipe, was improperly maintained”) (citations omitted).

Decided March 13, 2017.

Thomas F. Jarriel, for appellant.

(b) With respect to Petree’s claims against the DOT, counsel for Petree conceded at the hearing on the motion to dismiss that he was aware of no action taken by the DOT at any time after 1998 that would have impacted the flow of water into or through the ditch. Instead, counsel stated his belief that it was the County’s conduct that had caused the increased water flow to the ditch and the resulting damage to Petree’s property. Petree’s attorney further acknowledged that he did not have any basis for arguing that Petree could maintain a claim against the State, and that he had previously discussed with his client that it was “very likely” that the DOT would be dismissed from the lawsuit. In light of these concessions, we find that Petree cannot state a claim against the State for trespass or nuisance. We therefore affirm the dismissal of those claims against the DOT. Accordingly, we need not address Petree’s assertion that the trial court erred in finding that she had failed to provide the DOT with the timely ante litem notice or that she failed to file suit within the limitation period set forth in the GTCA.

For the reasons set forth above, we affirm the trial court’s dismissal of Petree’s claims against the DOT. We also affirm the trial court’s dismissal of any claims against the County for negligence in the planning, design, or construction of the drainage ditch. We reverse the dismissal of Petree’s claims against the County for ordinary negligence, trespass, and nuisance. The case is remanded for further proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part, and case remanded.

Mercier, J., concurs. Ellington, R J., concurs in judgment only.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston-Pope, Senior Assistant Attorney General, Melissa A. Tracy, Assistant Attorney General; Adams, Jordan & Herrington, Virgil L. Adams, Dawn M. Lewis, for appellees.

       Additionally, the exhibits submitted by the County and the DOT included copies of at least some of Petree’s correspondence with the County and the DOT, in which Petree referred to the drainage ditch at issue as a “natural ditch.”

       During his rebuttal argument, the attorney for the County admitted that the County had filled in a retention pond on land adjacent to Petree’s property.

       Where a complaint seeks damages resultingfrom professional negligence, OCGA § 9-11-9.1 (a) requires the plaintiff “to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist in the factual basis for each such claim.” Among the professions to which this Code section applies are professional engineers, OCGA § 9-11-9.1 (g) (21), and therefore the affidavit requirement of OCGA § 9-11-9.1 applies where a plaintiff is seeking damages resulting from the allegedly negligent designor construction of a road. Lennen v. Dept. of Transp., 239 Ga. App. 729, 730 (1) (521 SE2d 885) (1999); Bray v. Dept. of Transp., 324 Ga. App. 315, 318 (3) (750 SE2d 391) (2013). Additionally, under OCGA § 50-21-24 (10), the State is shielded from liability for losses resulting from “[t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.” Thus, to proceed with a suit against the DOT based upon the negligent planning or design of a roadway, a plaintiff must present “expert testimony or other competent evidence to show that the plan or design [at issue] was not prepared in substantial compliance with generally accepted engineering or design standards at the time such plan was prepared.” Sadler, 311 Ga. App. at 603-604 (1) (punctuation and footnote omitted). Applying this law, the trial court dismissed Petree’s claims for the negligent plan, design, and construction of the drainage ditch.

       We note that the trial court’s consideration of the evidence at issue was somewhat selective, as it does not appear that the court considered any evidence that could support a claim that the County had a legal duty to maintain the drainage ditch. This evidence included the fact that the subdivision plat showed a drainage easement, but did not indicate to what property (or entity) the easement belonged; that the County at some point acknowledged to Petree that it had an obligation to maintain the ditch, but later changed its position; that the County had performed at least some maintenance on the ditch during the time Petree resided on the property; and that trees had fallen from what appeared to be County property into the ditch, obstructing the flow of water.

       The charter for the Macon-Bibb County consolidated government provides that “ [t] he tort and nuisance liability of the restructured government shall follow the law and rules of tort liability applicable to counties in Georgia.” Ga. L. 2012, p. 5595, § 2 (j).

       The maintenance of a nuisance “is the failure to abate the nuisance after notice by the injured party.” Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 731 (2) (426 SE2d 387) (1992).

       The trial court based its conclusion as to the date on which Petree’s cause of action accrued on Petree’s handwritten notes, introduced into evidence at the hearing.

       The plat relied upon by the trial court depicts the area in question as a “ditch”; it does not denote a creek or a stream. Thus, while the evidence showed that the ditch itself was not man-made, it did not show that the water flowing through the ditch was a natural occurrence. In other words, the evidence left open the possibility that water flowed in and through the ditch not because it was a naturally occurring waterway, but because water was diverted there, possibly by a storm drain system.