Steven F. Kohler v. Dirk Van Peteghem , 330 Ga. App. 230 ( 2014 )

THIRD DIVISION
BARNES, P. J.,
BOGGS and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
November 6, 2014
In the Court of Appeals of Georgia
A14A1088. KOHLER et al. v. VAN PETEGHEM et al.
BARNES, Presiding Judge.
This case involves a dispute between next-door neighbors that began with a
drainage dispute but escalated to allegations of assault and battery and other
intentional torts, including an allegation that the plaintiff husband intentionally spat
on the face of the defendant wife during an argument. During the ensuing jury trial,
the trial court directed a verdict in favor of the defendants on the plaintiffs’ claim
brought under the Metropolitan River Protection Act, OCGA § 12-5-440 et seq. (the
“MRPA”) and in favor of the defendant wife on her battery counterclaim based on the
spitting incident. The jury subsequently returned a verdict in favor of the defendants
on all of the remaining claims and counterclaims, and the trial court entered judgment
accordingly.
On appeal from the denial of their motion for a new trial, the plaintiffs argue
that the trial court erred by directing a verdict in favor of the defendant wife on her
battery counterclaim and in its charge to the jury on that counterclaim because the
evidence was in dispute as to whether the spitting incident was intentional. The
plaintiffs further argue that the trial court erred by excluding their expert from
testifying at trial and by directing a verdict in favor of the defendants on the
plaintiffs’ MRPA claim.
Because the evidence did not demand a finding that the spitting incident was
intentional, we conclude that the trial court erred by directing a verdict to the
defendant wife on her battery counterclaim. Consequently, we reverse the trial court’s
grant of the defendant wife’s motion for a directed verdict on her battery counterclaim
and remand for a new trial solely on that counterclaim. We affirm the judgment in all
other respects.
The record reflects that Steven and Elizabeth Kohler live next door to Dirk and
Mia Francesca Van Peteghem in the Grand Cascades Subdivision in Forsyth County.
Both properties extend all the way to the Chattahoochee River, although the finished
backyards do not extend that far. When it rains, culverts along the street carry water
from several homes in the subdivision into a large drainage pipe that runs
2
underground along the property line between the Kohlers’ and Van Peteghems’
properties. The drainage pipe ends in the woods behind the two properties and
empties water there whenever it rains. The Van Peteghems’ property is at a higher
elevation than the Kohlers’ property; indeed, the Kohlers’ property is at the lowest
point in that area of the neighborhood. It is undisputed that there is a serious drainage
problem in the back portion of the Kohlers’ property; the dispute between the parties
concerns the cause of that problem.
On August 9, 2010, the Kohlers filed their complaint in the present action
against the Van Peteghems, alleging that the Van Peteghems had performed backyard
landscaping work that redirected the flow of water from their property onto the
Kohlers’ property whenever it rained. According to the Kohlers, the redirected flow
of water had caused extensive erosion and siltation problems. The Kohlers sought
damages for public and private nuisance and for breach of a legal duty based on
alleged violations of the MRPA, OCGA § 12-5-440 et seq.1
On September 13, 2010, the Van Peteghems filed their answer, denying that
their backyard landscaping work caused any redirection in the flow of water onto the
1
Initially, the Kohlers also sought attorney fees and costs, punitive damages,
and injunctive relief, but they dropped those claims from their amended complaint.
3
Kohlers’ property. According to the Van Peteghems, the erosion and siltation
problems on the Kohlers’ property preexisted the landscaping work and were the
result of runoff from the drainage pipe and from the fact that the Kohlers’ property
is downhill from the other properties in that area of the neighborhood. The Van
Peteghems also asserted multiple intentional tort counterclaims, including trespass,
nuisance, defamation, intentional infliction of emotional distress, invasion of privacy,
assault, and battery, based on their allegation that the Kohlers had subjected them and
their children to a long sequence of harassment as part of their dispute over the
landscaping work.
On March 18, 2011, the Van Peteghems filed a motion to dismiss the Kohlers’
complaint as a sanction for their allegedly repeated failure to comply with discovery.
On July 27, 2011, the trial court, after conducting a hearing,2 entered an order
declining to dismiss the Kohlers’ complaint but setting certain parameters for the
parties’ conduct and instituting specific discovery deadlines (the “Discovery Order”).
Among other things, the Discovery Order provided that except in emergency
situations, the parties, other than through their attorneys, were henceforth prohibited
from contacting third parties “for the purpose of making or investigating any
2
A transcript of the hearing was not included as part of the appellate record.
4
complaint or alleged issue or condition on either of the properties at issue in this case
or any party to this case.” The Discovery Order also required the Kohlers to identify
any experts to be used at trial by July 30, 2011, and make them available for
deposition by October 15, 2011.
The trial was specially set for the week of December 10, 2012. However, the
Kohlers first identified Adam Hazell as a plaintiffs’ expert to be used at trial in their
portion of the pretrial order served on the Van Peteghems on November 16, 2012, and
the Kohlers did not provide any information about Mr. Hazell’s expected testimony
to the Van Peteghems until December 8, 2012, two days before the first day
scheduled for trial.
The Van Peteghems filed a motion in limine to exclude Mr. Hazell as an expert
witness at trial. When the trial court heard the motion, the Kohlers informed the court
that Mr. Hazell was a representative of the Georgia Mountains Regional Commission
and would be offering testimony related to their MRPA claim, and that their counsel
had not interviewed him until two weeks before trial, resulting in his belated
identification as an expert. The trial court granted the Van Peteghems’ motion and
excluded Mr. Hazell from testifying based on the Kohlers’ failure to comply with the
expert deadlines in the Discovery Order.
5
On December 10, 2012, the parties proceeded with the trial, which lasted
several days.3 Mrs. Kohler was the sole witness to testify on behalf of the Kohlers
during their case-in-chief. She testified that the landscaping work in the Van
Peteghems’ backyard had caused a major increase in water runoff onto the Kohlers’
property, resulting in soil erosion, the growth of a large “chasm” in the wooded area
of their property near the Chattahoochee River, and a substantial drop in the resale
value of their property. The Kohlers also introduced photographs and video
recordings that they had made in an effort to show the drainage problems caused by
the Van Peteghems’ landscaping work.
After the Kohlers rested their case, the Van Peteghems moved for a directed
verdict on the Kohlers’ MRPA claim. The Van Peteghams contended that the Kohlers
had failed to present any evidence showing that their landscaping work violated the
MRPA and that, in any event, the MRPA did not create a private right of action for
3
Because the trial occurred in December 2012, the new Georgia Evidence
Code does not apply to any of the evidentiary issues addressed in this case. See Ga.
Laws 2011, Act 52, § 101 (“This Act shall become effective on January 1, 2013, and
shall apply to any motion made or hearing or trial commenced on or after such
date.”).
6
damages. The trial court granted the Van Peteghams’ motion and dismissed the
Kohlers’ MRPA claim.
The Van Peteghems then presented their case-in-chief. They called several
witnesses, including an expert in civil engineering who opined that the conditions on
the Kohlers’ property were naturally occurring as a result of runoff from the drainage
pipe and from the topography of the land and were not the result of the Van
Peteghems’ landscaping work. Additionally, the Van Peteghems both testified
regarding acts of harassment they allegedly had suffered at the hands of the Kohlers.
Among other things, Mrs. Van Peteghem testified regarding an incident in her front
yard in which Mr. Kohler stood in her face screaming at her and his spit landed on her
face.
After the Van Peteghems presented their case-in-chief, they moved for a
directed verdict on Mrs. Van Peteghem’s battery counterclaim against Mr. Kohler.
The trial court granted the Van Peteghems’ motion for a directed verdict and later
instructed the jury that Mr. “Kohler’s action of spitting on Mrs. . . . Van Peteghem
constituted a battery under the laws of Georgia,” but that it was up to the jury to
determine any harm she had suffered and the amount of damages that should be
awarded to her, if any.
7
Following its deliberations on the remaining claims and counterclaims, the jury
returned a verdict in favor of the Van Peteghems on the Kohlers’ nuisance claim and
in favor of the Van Peteghems on all of their counterclaims. The jury awarded
$250,500 in damages to the Van Peteghems, with the damages broken down by claim
in a special verdict form. The trial court thereafter entered final judgment and denied
the Kohlers’ motion for a new trial, resulting in this appeal.
1. The Kohlers contend that the trial court erred by directing a verdict in favor
of the Van Peteghems on the battery counterclaim. According to the Kohlers, the jury
would have been authorized to find from the testimony that errant spittle landed on
Mrs. Van Peteghem when Mr. Kohler was screaming at her and that he did not
actually intend to spit on her. The Kohlers thus contend that the evidence did not
demand a finding that Mr. Kohler committed the intentional tort of battery when his
spit landed on Mrs. Van Peteghem. We agree.
Our review of a trial court’s grant of a motion for directed verdict is de novo.
Sun Nurseries v. Lake Erma, LLC, 316 Ga. App. 832, 835 (730 SE2d 556) (2012).
The trial court should grant a directed verdict only if there is no conflict
in the evidence as to any material issue and the evidence introduced,
with all reasonable deductions therefrom, shall demand a particular
verdict. The court construes the evidence in favor of the party opposing
8
the motion for a directed verdict. We thus affirm the grant of a directed
verdict only if all the evidence demands it.
(Punctuation and footnotes omitted.) Continental Maritime Svcs. v. Maritime Bureau,
275 Ga. App. 533, 534 (621 SE2d 775) (2005).
The touching of another without her consent, even if minimal, constitutes a
battery. See Lawson v. Bloodsworth, 313 Ga. App. 616, 618 (722 SE2d 358) (2012);
King v. Dodge County Hosp. Auth., 274 Ga. App. 44, 45 (616 SE2d 835) (2005).
Moreover, the “unlawful touching of a person’s body is actionable even if the
unlawful touching is indirect, as by throwing an object or substance at the person.”
(Citation omitted.) Lawson, 313 Ga. App. at 618. Nevertheless, unauthorized
touching alone is not enough; battery is an intentional tort, and “[i]t is the intent to
make either harmful or insulting or provoking contact with another which renders one
civilly liable for a battery.” (Emphasis omitted.) Hendricks v. Southern Bell Tel. &
Tel. Co., 193 Ga. App. 264, 265 (1) (387 SE2d 593) (1989). If the tortfeasor acts with
the belief that such unauthorized contact is substantially certain to result from his
actions, that too can constitute the requisite intent to prove battery. See generally
Reeves v. Bridges, 248 Ga. 600, 603 (284 SE2d 416) (1981) (discussing intent
necessary to prove an intentional tort); Charles R. Adams III, Ga. Law of Torts § 2:1
9
(2013-2014 ed.) (same). “Intent is a question of fact for jury resolution and may be
proven by circumstantial evidence, by conduct, demeanor, motive, and all other
circumstances.” (Citation and punctuation omitted.) Stack-Thorpe v. State, 270 Ga.
App. 796, 805 (7) (608 SE2d 289) (2004). See Regents of Univ. Sys. of Ga. v.
Blanton, 49 Ga. App. 602 (1) (a) (176 SE 673) (1934) (noting that “the question of
intent is peculiarly within the province of the jury”).
In the present case, Mr. Kohler did not testify regarding the spitting incident.4
In contrast, Mrs. Peteghem testified that on the day in question, she was standing
outside with a county inspector and the president of the neighborhood homeowners’
4
The Van Peteghems argue that because Mr. Kohler failed to testify, they were
entitled to a rebuttable presumption that the battery counterclaim against him was
well-founded pursuant to former OCGA § 24-4-22 (2012), which provided:
If a party has evidence in his power and within his reach by which he
may repel a claim or charge against him but omits to produce it, or if he
has more certain and satisfactory evidence in his power but relies on that
which is of a weaker and inferior nature, a presumption arises that the
charge or claim against him is well founded; but this presumption may
be rebutted.
But Mr. Kohler was a party defendant to the battery counterclaim, and “no
presumption is created against the defendant for failure to testify” under OCGA § 24-
4-22. Gurin v. Harris, 129 Ga. App. 561, 563 (3) (200 SE2d 368) (1973). See
Hendley v. Evans, 319 Ga. App. 310, 318 (2) (b) (ii) (734 SE2d 548) (2012); Maloy
v. Dixon, 127 Ga. App. 151, 154-155 (2) (a) (193 SE2d 19) (1972); Ramirez v.
Mansour, 104 Ga. App. 651, 652 (1) (122 SE2d 594) (1961). The presumption does
not apply in this context because a defendant “is under no duty to aid the plaintiff in
making out his case.” Maloy, 127 Ga. App. at 154 (2) (a).
10
association when Mr. Kohler approached and began yelling at all of them about the
landscaping work and how it was damaging his property. Mrs. Peteghem testified that
Mr. Kohler “just kept going on and on and on in my face.” She then testified as
follows:
Counsel: Did he spit on you in the process?
Mrs. Van Peteghem: Not the first time he was doing it. And I asked him
to step back at least three times. And I kept saying – literally my belly
was touching his belly. And I said, please, step back. I’m pregnant,
please step back. I don’t know where any of this is coming from. I really
want to try to work – I don’t know what you are talking about. . . .
Counsel: Did spit land on you in this process?
Mrs. Van Peteghem: The third time . . . when he didn’t step back. And
then he spit on me.
Counsel: Where did it land?
Mrs. Van Peteghem: On my face. . . .
Counsel: Okay. Had you asked him more than once to backup?
Mrs. Van Peteghem: I asked him three separate times, please, back up.
11
Counsel: Did he on any of those occasions backup when you asked him?
Mrs. Van Peteghem: The first time he step[ped] once, but then as soon
as he started talking it was right back in my face.
Counsel: Were you scared?
Mrs. Van Peteghem: I – yes, I was scared. . . .
Counsel: Was he raising his voice when he did it? . . .
Mrs. Van Peteghem: He was shouting, veins bulging, red in the face. I
could feel his breath on my face. And just enraged . . . . And he’s a big
guy and in my face just frothing at the mouth and spitting on me. His hot
breath on my face. Shouting that I destroyed the forest. . . .
The individual who was the president of the neighborhood homeowners’
association at the time the landscaping work was performed in the Van Peteghems’
backyard, and who was present at the time and location of the alleged spitting
incident, also testified at trial. He testified that on that day, Mr. Kohler “was very
agitated” over the landscaping work and walked into a circle of people standing
outside that included himself, the county inspector, and Mrs. Van Peteghem. The
former president further testified that while standing in the circle of people, Mr.
12
Kohler was “expressing his point of view” and pointed his finger at Mrs. Van
Peteghem. However, the former president testified that “there [were] a number of
people there during this discussion” and “[i]t wasn’t like Mr. Kohler was one-on-one
against [Mrs.] Van Peteghem.”
Based on this record, the trial court erred in granting a directed verdict to the
Van Peteghems on the battery counterclaim. To “spit” on someone simply means to
eject saliva from the mouth, see http://www.merriam-webster.com/dictionary/spit, and
it can be intentional or unintentional. See Sutton v. Tacoma Sch. Dist. No. 10, 324
P.3d 763, 767 (Wash. Ct. App. 2014) (noting that “saliva may accidentally escape the
mouth when someone is yelling in the face of another person”); Engle v. Bosco, No.
CV054006996S, 2006 Conn. Super. LEXIS 2792, at *10 (Conn. Super. Ct. Sept. 14,
2006) (no action for battery where “errant spittle landed on plaintiff” as the defendant
was yelling at the plaintiff). Based on the entirety of Mrs. Van Petegham’s testimony
about her encounter with Mr. Kohler, it is somewhat ambiguous whether Mr. Kohler
intended to spit in her face during the heated encounter, or whether errant spit
accidentally landed on her face as he yelled at her. Either inference could have been
drawn by the jury. Furthermore, the testimony of the former president of the
homeowners’ association, construed in the light most favorable to the Kohlers, could
13
have led the jury to find that Mr. Kohler was not “one-on-one against” Mrs. Van
Peteghem but instead was heatedly “expressing his point of view” among a circle of
people standing in the street, which would call into question whether the spitting was
intentional. Accordingly, because the evidence and all reasonable inferences drawn
from it did not demand a finding that Mr. Kohler intentionally spat on Mrs. Van
Peteghem and thus committed a battery, the trial court erred in granting the motion.
See Continental Maritime Svcs., 275 Ga. App. at 534.
The Van Peteghems argue, however, that the trial court’s grant of the motion
for directed verdict on the battery counterclaim should be affirmed under the “right
for any reason” rule because there was other uncontroverted evidence to support the
court’s determination that a battery had occurred. See generally Sims v. G. T.
Architecture Contractors Corp., 292 Ga. App. 94, 96 (1), n. 6 (663 SE2d 797) (2008)
(“If a judgment entered pursuant to the granting of a directed verdict is right for any
reason, it will be affirmed.”) (citation and punctuation omitted). Specifically, the Van
Peteghems contend that the evidence undisputedly showed that Mr. Kohler physically
touched Mrs. Van Peteghem with his body during the spitting incident. It is certainly
true that Mrs. Van Peteghem’s testimony would support such a conclusion. But, as
previously noted, the former president of the homeowners’ association testified that
14
“there [were] a number of people there during this discussion” and “[i]t wasn’t like
Mr. Kohler was one-on-one against [Mrs.] Van Peteghem,” which, when construed
in favor of the Kohlers, could have been construed by the jury as a denial that any
one-on-one physical contact occurred between Mr. Kohler and Mrs. Van Peteghem
during the incident.
For these reasons, we conclude that there was at least some evidence in the
record from which the jury could have found that Mr. Kohler accidentally spat on
Mrs. Van Peteghem and never physically touched her during the encounter. A trial
court should grant a motion for directed verdict “only where the evidence is truly
clear, palpable and undisputed.” Service Merchandise v. Jackson, 221 Ga. App. 897,
898-899 (1) (473 SE2d 209) (1996). Hence, “if there is any evidence to support the
case of the nonmoving party, a directed verdict must be reversed.” (Footnote
omitted.) Franklin v. Augusta Dodge, 287 Ga. App. 818 (652 SE2d 862) (2007). We
therefore must reverse the trial court’s grant of the Van Peteghems’ motion for a
directed verdict on the battery counterclaim against Mr. Kohler and remand for a new
trial on that specific claim.
2. The Kohlers also argue that the trial court erred in charging the jury that Mr.
“Kohler’s action of spitting on Mrs. . . . Van Peteghem constituted a battery under the
15
laws of Georgia.” The Kohlers further argue that the charge on the spitting incident
was so “incendiary” that it poisoned the jury’s deliberations, necessitating the grant
of a new trial on all of the claims and counterclaims raised in the case.
We agree with the Kohlers that the trial court’s jury charge was erroneous and
that they are entitled to a new trial on the Van Peteghems’ battery counterclaim for
the reasons we articulated supra in Division 1. However, we do not believe that the
charge was so “incendiary” as to require a new trial on the remaining claims and
counterclaims. With the consent of the parties, the trial court submitted a special
verdict form to the jury which required it to consider and allocate damages separately
for each of the claims and counterclaims. Under these circumstances, we cannot say
that the jury’s verdict on any other claim or counterclaim was tainted by the trial
court’s charge on the battery counterclaim. See Grant v. Hart, 197 Ga. 662, 673 (3)
(30 SE2d 271) (1944) (when the trial court givens an erroneous jury charge and the
jury returns a special verdict answering specific questions, a new trial may be granted
only as to the specific questions that were connected with and affected by the charge).
3. The Kohlers also contend that the trial court abused its discretion in granting
the Van Peteghems’ motion in limine to excluded Adam Hazell from testifying as an
16
expert based on the Kohlers’ failure to comply with the expert deadlines imposed by
the Discovery Order. We are unpersuaded.
The imposition of scheduling deadlines for the identification of experts, and
questions regarding the admission or exclusion of expert testimony, are left to the
broad discretion of the trial court. See Caswell v. Caswell, 285 Ga. 277, 280 (3) (675
SE2d 19) (2009); Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175)
(2008); Vaughn v. Wellstar Health Sys., 304 Ga. App. 596, 601-602 (3) (696 SE2d
506) (2010). And we have held that a trial court may exercise its discretion and
exclude testimony from an expert not properly identified by a party, when done in
violation of an express court order. See Collins v. Dickman, 295 Ga. App. 601, 603-
604 (1) (672 SE2d 433) (2008). See also Kroger Co. v. Walters, 319 Ga. App. 52, 60
(2) (b) (735 SE2d 99) (2012) (noting that “[i]n a civil suit it is an abuse of discretion
to exclude a relevant witness solely on the ground that the witness was not identified
during discovery or in a timely manner,” unless the failure to properly identify the
witness was in “violation of an express court order”).
Here, the Discovery Order expressly required the Kohlers to identify any
experts to be used at trial by July 30, 2011, and make them available for deposition
by October 15, 2011. Yet, the Kohlers did not identify Mr. Hazell as an expert until
17
November 16, 2012, more than 16 months after the expert deadline and three weeks
before the specially set trial. Moreover, the Kohlers failed to provide any information
about Mr. Hazell’s expected testimony until Saturday, December 8, 2012, two days
before trial. Given these circumstances, the trial court did not abuse its discretion in
excluding Mr. Hazell’s testimony for violations of the express deadlines contained
in the Discovery Order. See Collins, 295 Ga. App. at 603-604 (1).
The Kohlers, however, emphasize that the Discovery Order was entered on July
27, 2011, and thus gave them “a scant two business days” to identify any experts
since July 30, 2011 fell on a Saturday. According to the Kohlers, such a short time
frame for identifying experts was unreasonable and constituted an abuse of discretion
by the trial court. Their claim in this regard is without merit. The discovery period
began with the timely filing of the Van Peteghems’ answer on September 13, 2010,
see Uniform Superior Court Rule 5.1, and thus the parties had many months to name
experts before the Discovery Order was issued on July 27, 2011. Indeed, the Kohlers
named a different engineer as a potential expert on November 8, 2010, nearly nine
months before the trial court issued the Discovery Order. Hence, the Kohlers’
18
suggestion that they had too little time to identify an expert is unpersuasive, and we
discern no abuse of discretion by the trial court in excluding Mr. Hazell’s testimony.5
4. Lastly, the Kohlers contend that the trial court erred in granting the Van
Peteghems’ motion for a directed verdict on the Kohlers’ MRPA claim. According
to the Kohlers, the trial court erred in concluding that the MRPA does not create a
private right of action for damages. We discern no basis for reversal.
As previously noted, the grant of a motion for directed verdict will be affirmed
if right for any reason. See Sims, 292 Ga. App. at 96 (1), n. 6. Pretermitting whether
the trial court correctly concluded that the MRPA does not create a private right of
action for damages, we affirm the trial court’s directed verdict on the MRPA claim
because the Kohlers failed to present evidence sufficient to show that the Van
Peteghems’ landscaping work violated the MRPA.
5
The Kohlers also argue that the trial court abused its discretion by including
the provision in the Discovery Order that, except in emergency situations, prohibited
the parties, other than through their attorneys, from contacting third parties “for the
purpose of making or investigating any complaint or alleged issue or condition on
either of the properties at issue in this case or any party to this case.” Even if the trial
court’s inclusion of this prohibition in the Discovery Order was improper (a question
we need not resolve), the Kohlers have failed to show that they suffered any harm by
virtue of the prohibition and thus cannot demonstrate any basis for reversal. See
Gropper v. STO Corp., 276 Ga. App. 272, 277 (2) (623 SE2d 175) (2005) (“Reversal
requires a showing of harm as well as error[.]”).
19
In enacting the MRPA, OCGA § 12-5-440 et seq., the General Assembly
intended to create a statutory and regulatory framework that would protect “major
streams in certain metropolitan areas” from pollution, erosion, and over-intensive
development, among other problems. OCGA § 12-5-442 (a).6 To that end, regional
commissions that have been established for the aforementioned metropolitan areas
are charged with the preparation and adoption of “comprehensive, coordinated land
and water use plans” for “stream corridor[s].” OCGA § 12-5-443 (1); Pope v. City of
Atlanta, 242 Ga. 331 (249 SE2d 16) (1978). A “stream corridor” includes “all land
in the area in the watercourse, within 2,000 feet of the watercourse, or within the
flood plain, whichever is greater.” OCGA § 12-5-441 (17).
The MRPA imposes different restrictions on development in an area that is part
of a stream corridor depending on whether a land and water use plan has been
adopted by the regional commission. See OCGA § 12-5-444 (a), (b). Once a regional
commission has adopted a plan, it is unlawful to engage in any “land-disturbing
6
The MRPA defines a metropolitan “area” as an area “having a population of
more than 1,000,000,” OCGA § 12-5-441 (2), and it defines a “major stream” as “any
stream or river, whether navigable or nonnavigable, which flows through any area
and which is the source of at least 40 percent of the public water supply of any such
area.” OCGA § 12-5-441 (11).
20
activity” incompatible or inconsistent with the plan,7 and anyone who intends to
conduct such activity must first obtain a certificate for the proposed use from the
appropriate local governing authority. See OCGA § 12-5-444 (b) (1).
Here, the Kohlers presented no evidence regarding whether a land and water
use plan had been adopted by a regional commission covering the area of the
Chattahoochee River in question or the requirements under such a plan. Nor did the
Kohlers present any evidence regarding whether the Van Peteghems had failed to
comply with any specific plan requirements or with the appropriate certification
process in carrying out their landscaping work. Indeed, counsel for the Kohlers
conceded at the hearing on their motion for new trial that the excluded expert
testimony of Mr. Hazell, a representative of the Georgia Mountains Regional
Commission, would have been necessary for establishing that the Van Peteghems
violated the MRPA. As counsel noted, “Ms. Kohler couldn’t do it,” and she was the
only witness who testified in the Kohlers’ case-in-chief. Consequently, we conclude
that the Kohlers failed to present evidence sufficient to show a violation of the
7
“‘Land-disturbing activity’ means scraping, plowing, clearing, dredging,
grading, excavating, transporting, or filling of land or placement of any structure or
impervious surface, dam, obstruction, or deposit.” OCGA § 12-5-441 (10).
21
MRPA, and that the trial court’s grant of a directed verdict to the Van Peteghems on
that claim was appropriate.
Judgment affirmed in part, reversed in part, and case remanded with
instruction. Boggs and Branch, JJ., concur.
22