H AND L FARMS LLC et al v. SILICON RANCH CORPORATION et al

Filing 171

ORDER denying #99 Motion for Partial Summary Judgment; denying #100 Motion for Partial Summary Judgment; granting in part and denying in part #102 Motion for Partial Summary Judgment; denying #103 Motion for Partial Summary Judgment; granting in part and denying in part #121 Motion for Partial Summary Judgment; denying #122 Motion for Summary Judgment; granting in part and denying in part #125 Motion for Summary Judgment; terminating #153 Motion to Strike. Ordered by US DISTRICT JUDGE CLAY D LAND on 01/17/2023 (CCL)

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
H&L FARMS LLC, SHAUN HARRIS, and
AMIE HARRIS,

*
*

Plaintiffs,
*
vs.

CASE NO. 4:21-CV-134 (CDL)
*

SILICON RANCH CORPORATION, et al.,
*
Defendants.
*
O R D E R
Defendants were involved in the design and construction of
a

solar

farm

Plaintiffs

facility

owned

and

on

land

resided

that

upon.

adjoined

property

Plaintiffs

assert

that
that

Defendants did not take adequate measures to prevent erosion
from

the

solar

farm,

which

led

to

Plaintiffs’ 21-acre fishing lake.
conduct

caused

the

pollution.

continuing

below,

the

Court

denies

of

Defendants deny that their
Presently

Court are seven summary judgment motions.
forth

pollution

pending

before

the

For the reasons set

Plaintiffs’

summary

judgment

motions on their trespass claims (ECF Nos. 99 & 103), denies
both

summary

judgment

motions

on

Infrastructure

and

Energy

Alternatives, Inc.’s second affirmative defense (ECF Nos. 100 &
122),

grants in part and denies in part Plaintiffs’ summary

judgment motion on Defendants’ non-party fault theory (ECF No.
102),

denies

Westwood

Professional

Services

Inc.’s

summary

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 2 of 21

judgment motion except as to Plaintiffs’ simple negligence claim
(ECF No. 121), and denies Defendants’ summary judgment motion
(ECF

No.

allowed

125)
to

except

recover

to

the

extent

“emotional

that

distress”

Plaintiffs
damages

are
on

not

their

nuisance claim (but they may recover damages for “discomfort,
annoyance, loss of peace of mind, and unhappiness”).
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

In determining whether a

Fed. R.

genuine dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
The basic facts in this case are not complicated.1

H&L

Farms, LLC is a Georgia limited liability company whose sole

1

The Court spent considerable time sifting through the parties’
lengthy, overly complicated statements of “material” facts to find a
little grain among an abundance of chaff.

2

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 3 of 21

owners are Shaun and Amie Harris.
99-3.

S. Harris Aff. ¶ 3, ECF No.

H&L Farms purchased a 1,630 acre property from Kawikee

Refuge, LLC on March 16, 2021 (“Property”).
Harrises live in a house on the Property.

Id. ¶ 4.

Id. ¶¶ 2, 6.

The

Silicon

Ranch Corporation purchased property previously known as Kawikee
Two, which is adjacent to and upstream from the Property.

Pls.’

Mot. Summ. J. Attach. 8, Limited Warranty Deed, ECF No. 102-8;
Pls.’ Mot. Summ. J. Attach. 9, Topographical Map, ECF No. 102-9;
S. Harris Aff. ¶ 9.
a

wholly

owned

Alternatives,
construct

a

IEA Constructors, LLC (“IEA Constructors”),

subsidiary

Inc.
solar

Lumpkin, Georgia.

(“IEA
farm

of

Infrastructures

Inc.”),

was

facility

on

retained
Silicon

to

and

Energy

design

Ranch’s

and

land

in

Westwood Professional Services, Inc. provided

professional engineering services for the project.

Plaintiffs

contend that Defendants’ erosion controls were inadequate and
that as a result significant amounts of silt and sediment from
the solar farm facility regularly flow into the 21-acre fishing
lake on the Property, polluting it.
Plaintiffs

assert

claims

against

nuisance, trespass, and negligence.
Westwood

was

professionally

all

Defendants

for

Plaintiffs also claim that

negligent.

Plaintiffs

seek

compensatory damages, punitive damages, and injunctive relief
from all Defendants.

Defendants deny that their conduct caused

damage to Plaintiffs’ property.

3

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 4 of 21

DISCUSSION
There

are

seven

pending

summary

judgment

motions.

Court attempts to address them in an organized manner.

The
Here’s

the roadmap. First, the Court determines whether genuine fact
disputes exist as to which entities are potentially liable for
trespass (ECF Nos. 99, 102 & 103).

Then, the Court evaluates

the partial summary judgment motion brought by IEA Constructors,
Silicon Ranch, and SR Lumpkin, LLC (ECF No. 125).

Next, the

Court decides the parties’ cross-motions for summary judgment
which raise the issue of whether IEA Inc. is a proper party in
this action (ECF Nos. 100 & 122).

Finally, the Court considers

Westwood’s partial summary judgment motion (ECF No. 121).
I.

Which Entities Are Potentially “At Fault” for Plaintiffs’
Injuries for Apportionment of Damages?
Plaintiffs assert that Silicon Ranch, IEA Inc., and IEA

Constructors

are

liable

Defendants,

on

contributed

to

Plaintiffs’

damages.2

extent

that

the

other

the

they

for

hand,

erosion

may

trespass
argue

and

(providing

for

that

Therefore,

they

be

liable,

found

apportionment

a

matter
five

sedimentation

apportioned among the “at fault” parties.
33

as

of

maintain

of

law.

non-parties
that
that

damages

caused
to

should

the
be

See O.C.G.A. § 51-12-

damages

according

to

the

percentage fault of each person or entity).

Those non-parties

2

by

The notices of non-party fault were filed
Constructors, Silicon Ranch, and SR Lumpkin, LLC.

4

IEA

Inc.,

IEA

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 5 of 21

include four entities that were involved in harvesting timber
from

the

Forest

Silicon

Ranch

Management,

property:

Inc.,

Kawikee

Interfor

U.S.,

Two,

LLC,

Inc.,

American

and

Forestry, Inc. (collectively, “Timber Harvesters”).

Wayback

The fifth

non-party upon whom Defendants cast blame is Kawikee Refuge,
LLC.
law

Plaintiffs argue that the Court should find as a matter of
that

none

of

the

non-parties

identified

by

Defendants

contributed to their damages, and that the Court should find as
a matter of law that there shall be no apportionment of damages
between the named parties and the non-parties.

Consistent with

this strategy, Plaintiffs ask the Court to find as a matter of
law that the named party Defendants are liable for trespass.
The Court first addresses the apportionment issue as it
relates

to

establish a

the

non-parties.

Defendants

have

the

“burden

to

rational basis for apportioning fault to a non-

party.” Johnson St. Properties, LLC v. Clure, 805 S.E.2d 60, 68
(Ga.

2017).

Generally,

the

question

“whether

the

non-party

contributed to the alleged injury is a question of fact for a
jury.”
to

Id.

suggest

Plaintiffs’

Plaintiffs argue that Defendants have no evidence
that

any

injuries

of

and

the

that

non-parties

the

present

contributed

record

would

to
only

permit a jury to conclude that Defendants are responsible for
Plaintiffs’
simple.

injuries.

Kawikee

Two,

The

central

LLC

sold

5

the

facts

on

property

this
for

issue
the

are

solar

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 6 of 21

facility to Silicon Ranch.

As part of the sale, Kawikee Two and

Silicon Ranch had an agreement for Kawikee Two to access the
land to harvest timber after the closing.

Kawikee Two hired the

other Timber Harvesters to harvest and sell the timber.

The

timber harvesting began in November 2020 and concluded on March
15, 2021.

H&L Farms purchased the Property from Kawikee Refuge,

LLC on March 16, 2021.
Plaintiffs

noticed

Defendants’

site

Following a rain event on April 1, 2021,

muddy

water

preparation

in

and

their

21-acre

construction

lake.

As

activities

on

Silicon Ranch’s property continued, more sediment was discharged
into the lake.

According to Plaintiffs’ experts, Defendants did

not use adequate erosion controls.
The

parties’

summary

judgment

motions

regarding

apportionment of damages first require the Court to determine
whether

evidence

exists

in

the

present

record

from

which

a

reasonable jury could conclude that the conduct of the non-party
Timber Harvesters contributed to the pollution of Plaintiffs’
lake.

Defendants pointed to evidence that during the Timber

Harvesters’

“silvicultural

(trees

any

areas

and
of

Counsel

understory)

exposed

Attach.

soils

13,

2021), ECF No. 61-13.

operations,
removal

were

Tech.

nearly

occurred

evident.”

Mem.

No.

100%
and

Mot.

21054.01

at

vegetation
significant

to
8

Disqualify
(Dec.

30,

According to Defendants’ evidence, by the

end of February 2021, most of the upland portions of the land

6

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 7 of 21

for the solar farm facility “had been cut and contained exposed
soils.”

Id.

During that time, “elevated turbidity” (low water

clarity) was evident in the lake on the Property.

Id.

From

this evidence, a reasonable jury could conclude that the Timber
Harvesters

contributed

to

the

creation

or

continuance

of

increased discharge of sediment from Silicon Ranch’s property
into

Plaintiffs’

lake.

See,

e.g.,

Ingles

Markets,

Inc.

v.

Kempler, 730 S.E.2d 444, 450 (Ga. Ct. App. 2012) (noting that an
entity may be liable for nuisance/trespass if it is “the cause
or

a

concurrent

cause

of

the

creation,

continuance,

or

maintenance of the nuisance” (quoting Sumitomo Corp. of Am. v.
Deal, 569 S.E.2d 608, 613 (Ga. Ct. App. 2002))).
While

Plaintiffs

have

reasonable

jury

conclude

activities

had

could
a

causal

produced
that

connection

evidence

from

Defendants’
to

the

which

a

construction
pollution

of

Plaintiffs’ property and that Defendants were aware of the issue
but did not take adequate steps to ameliorate it, that is not
the only conclusion that the jury could reach from the evidence
in the present record.
issue.
for

A genuine factual dispute exists on this

And thus Defendants have established a rational basis

having

a

jury

Timber Harvesters.

decide

whether

to

apportion

fault

to

the

Plaintiffs’ summary judgment motion, which

7

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 8 of 21

seeks a holding that the non-party Timber Harvesters are not at
fault as a matter of law (ECF No. 102), is denied.3
For similar reasons, Plaintiffs are not entitled to summary
judgment

on

trespass.

their

claims

against

the

named

Defendants

for

Genuine factual disputes exist as to their liability

and the extent of their fault. Accordingly, the Court denies
Plaintiffs’

summary

judgment

motions

seeking

to

hold

Silicon

Ranch, IEA Inc., and IEA Constructors liable for trespass as a
matter of law (ECF Nos. 99 & 103).
The remaining question is whether Defendants established a
rational

basis

contributed

to

for

concluding

Plaintiffs’

that

damages.

Kawikee
Defendants

Refuge,

LLC

contend

that

Kawikee Refuge failed to maintain the Property before it sold
the

Property

maintain

was

to
a

H&L

Farms

potential

and
cause

that
of

this

alleged

Plaintiffs’

failure

damages.4

to
In

support of this theory, Defendants point out that Plaintiffs’
expert found sediment on the Property that was not from Silicon
Ranch’s property.

But they did not point to sufficient evidence

from which the jury could conclude that the sediment was on the
Property

because

Kawikee

Refuge

3

failed

to

perform

adequate

The Court notes that Plaintiffs make no other arguments as to why the
apportionment statute should not apply here.
4
Defendants also contend that Kawikee Refuge did not receive the
correct permit for the 21-acre lake to be used for recreational
purposes and that the only intended purpose for the lake was an
irrigation pond.
As discussed infra § II.F, there are genuine fact
disputes on the intended purpose of the lake.

8

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 9 of 21

maintenance.

The Court thus finds that Defendants have failed

to produce evidence from which a reasonable jury could conclude
that non-party Kawikee Refuge was “at fault” for purposes of the
apportionment

statute.

No

genuine

factual

dispute

exists.

Accordingly, Defendants have failed to demonstrate a rational
basis

for

Plaintiffs’

concluding

that

damages.

For

Kawikee
these

Refuge

reasons,

contributed

the

Court

to

grants

Plaintiffs’ summary judgment motion as to the fault of non-party
Kawikee Refuge (ECF No. 102).

The jury will therefore not be

permitted to apportion fault to Kawikee Refuge, and Defendants
shall

not

be

able

to

argue

that

Kawikee

Refuge

is

somehow

responsible for Plaintiffs’ damages.
II.

Are Defendants Entitled to Partial Summary Judgment on Any
Issues?
Consistent

with

the

modern-day

litigation

practice

of

“let’s take a shot at getting the judge to throw out as much
stuff as possible regardless of the likelihood of that shot
hitting the mark,” Defendants seek partial summary judgment on
seven issues.5

Duty-bound to address the frivolous and the non-

frivolous, the Court addresses each issue in turn.
A.

Are Amie and Shaun Harris Proper Plaintiffs?

Defendants argue that Amie and Shaun Harris may not pursue
any

claims

in

this

action

because

5

their

limited

liability

The partial summary judgment motion was filed by IEA Inc., IEA
Constructors, Silicon Ranch, and SR Lumpkin, LLC.

9

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 10 of 21

company owned the Property, not them.

Ownership or occupancy of

property “is a necessary element of a claim for nuisance under
Georgia law.”

Parker v. Scrap Metal Processors, Inc., 386 F.3d

993, 1017 (11th Cir. 2004).

Defendants argue that because H&L

Farms owns the Property and because the Harrises did not reside
there until January 2022, the Harrises do not have standing to
assert

a

nuisance

claim.

“But

Georgia

law

residence is not necessary for occupancy.”

is

clear

that

Oglethorpe Power

Corp. v. Est. of Forrister, 774 S.E.2d 755, 769 (Ga. Ct. App.
2015).
or

Rather, a person “may occupy a residence by holding it

keeping

it

for

use.”

Id.

at

770

(quoting

Scarbrough, 471 S.E.2d 199, 201 (Ga. 1996)).

McIntyre

v.

Plaintiffs pointed

to evidence that, when H&L Farms purchased the Property, it was
the Harrises’ intent to make improvements to the Property and
reside

there.

evidence

that

S.
the

Harris
Harrises

Aff.

¶ 4.

began

They

remodeling

also
a

pointed

house

on

to
the

Property shortly after the purchase and that they spent time at
the

Property

“almost

every

day.”

Id.

¶ 5.

A

jury

could

therefore conclude that the Harrises occupied the Property, so
Defendants’ summary judgment motion on this ground is denied.
B.

Should the Jury Decide Punitive Damages?

Plaintiffs claim that punitive damages are warranted for
Defendants’ conduct and that attorney’s fees should be awarded
under O.C.G.A. § 13-6-11.

Defendants contend that there is no

10

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 11 of 21

evidence from which a jury can conclude that IEA Constructors
acted with the requisite intent for punitive damages or an award
of litigation expenses.

“Punitive damages may be awarded in

tort actions in which clear and convincing evidence proves that
a defendant’s ‘actions showed willful misconduct, malice, fraud,
wantonness, oppression, or that entire want of care which would
raise

the

presumption

of

conscious

indifference

to

consequences.’”

Tyler v. Lincoln, 527 S.E.2d 180, 182 (Ga.

2000)

O.C.G.A.

(quoting

§ 51–12–5.1(b)).

And

litigation

expenses under O.C.G.A. § 13-6-11 may only be awarded “where the
defendant has acted in bad faith, has been stubbornly litigious,
or has caused the plaintiff unnecessary trouble and expense.”
O.C.G.A. § 13-6-11.
Punitive damages are authorized for “a willful repetition
of a trespass,” for a “claim of continuing nuisance,” or for
“failure to adequately ameliorate the runoff of water and silt
onto another’s property.”

Tyler, 527 S.E.2d at 183.

And, an

intentional tort like trespass “invokes a species of bad faith
that

entitles

a

person

wronged

to

litigation including attorney fees.”

recover

the

expenses

of

Id. (quoting Ponce de Leon

Condos. v. DiGirolamo, 232 S.E.2d 62, 64 (Ga. 1977)).

In Tyler,

for example, the Georgia Supreme Court reversed the grant of
summary
claims

judgment
for

in

punitive

favor

of

damages

developers

and

11

on

litigation

the

plaintiffs’

expenses

because

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 12 of 21

there was evidence that “the developers had not taken adequate
soil erosion control measures” within their development; that
the development’s “drainage system was designed in a manner that
would increase the runoff of storm water onto” the plaintiffs’
property;

and

that

the

plaintiffs

repeatedly

asked

the

“developers to correct the problems, but failed to get them to
take any action to remedy the situation and the ongoing damage.”
Id.
Here,

pointing

only

to

Defendants

contend

that

IEA

ameliorate

the

downstream

their

own

experts’

Constructors

impacts

of

activities on Silicon Ranch’s property.

testimony,

took

their

action

to

construction

But there are clearly

genuine fact disputes on the adequacy of the erosion controls,
Defendants’ knowledge of the continuing problems, and whether
Defendants

intentionally

disregarded

the

continuing

problems.

Accordingly, a jury should decide whether IEA Constructors is
liable for litigation expenses and punitive damages, including
whether

IEA

Constructors

acted

with

specific

intent

to

harm

Plaintiffs.
C.

Are the Negligence Claims Barred?

Defendants contend that Plaintiffs’ negligence claims are
barred as a matter of law because Plaintiffs voluntarily assumed
the

risks

associated

with

buying

12

property

downstream

from

a

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 13 of 21

solar facility construction site.6

To prevail on an assumption

of risk defense, a defendant “must establish that the plaintiff
(1) had knowledge of the danger; (2) understood and appreciated
the

risks

exposed

associated

herself

to

with

those

such

danger;

risks.”

and

Saulsbury

(3)
v.

voluntarily
Wilson,

823

S.E.2d 867, 869 (Ga. Ct. App. 2019) (quoting Gilreath v. Smith,
797 S.E.2d 177, 180 (Ga. Ct. App. 2017)).

Defendants pointed to

zero evidence that Plaintiffs knew and fully appreciated the
possibility that Defendants would not take adequate measures to
control erosion or that Defendants would not take action to fix
problems once they came to light.

Simply being concerned about

potential problems is not the same as fully understanding and
appreciating
Defendants

the
are

risks

not

associated

entitled

to

with

summary

a

known

judgment

danger.
on

their

assumption of the risk defense.
D.

May H&L Farms Recover for Diminution in Value?

H&L

Farms

damages

on

its

seeks

diminution

trespass,

in

nuisance,

value
and

as

the

measure

negligence

of

claims.

Defendants point out that “diminution of fair market value is

6

In support of this frivolous argument, Defendants rely on a case
where an individual assumed a risk of injury as a matter of law when
she intervened in a dog fight with her bare hands.
Saulsbury v.
Wilson, 823 S.E.2d 867, 869 (Ga. Ct. App. 2019). They also rely on a
case where a bank assumed the risk of making a loan for a developer to
buy property even though the bank knew when it made the loan that the
property had no legally enforceable right of access to a public road.
Cynergy, LLC v. First Am. Title Ins. Co., 706 F.3d 1321, 1333 (11th
Cir. 2013).

13

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 14 of 21

the measure of property damages for permanent nuisance and lost
rental value is the measure of property damages for abatable
nuisance.”

City of Gainesville v. Waters, 574 S.E.2d 638, 642

(Ga. Ct. App. 2002).

Defendants contend that any nuisance they

created is abatable, not permanent, and that the proper measure
of

damages

is

thus

lost

rental

value

of

the

Property.

An

abatable nuisance is one that is “can and should be abated by
the person erecting or maintaining it.”

Id. at 643 (quoting Ga.

Power Co. v. Moore, 170 S.E. 520, 522 (Ga. Ct. App. 1933)).

In

support of their argument that any nuisance here is abatable
rather than permanent, Defendants point to their own expert’s
opinion that site stabilization is improving.

But Defendants

acknowledge

lake

that

the

impacts

to

Plaintiffs’

will

not

improve unless and until there is full stabilization of the
solar facility site, and there are genuine fact disputes on
whether the erosion of sediment from Silicon Ranch’s property
into Plaintiffs’ lake will continue under Defendants’ current
erosion control plan.

Therefore, a jury must determine whether

any nuisance is permanent or abatable.
Defendants argue that, even if diminution in value is the
correct measure of damages, Plaintiffs do not have any evidence
of diminution in value.

That is false.

to

testimony

exclude

the

expert

of

Even if the Court were
Plaintiffs’

real

estate

broker witness, an owner of property like Shaun Harris, the

14

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 15 of 21

owner and manager of H&L Farms, can testify about the diminution
in value to his own property.

See, e.g., Dep’t of Transp. v.

Into, 464 S.E.2d 886, 887 (Ga. Ct. App. 1995) (stating that an
owner of property is generally allowed to testify
value of his own property).
Farms

is

entitled

to

about the

Thus, a jury may decide whether H&L

diminution

in

value

damages,

and

Defendants’ summary judgment motion on this ground is denied.
E.

May Plaintiffs Recover Emotional Distress Damages?

The

Harrises

claim

that

distress

damages,

among

other

nuisance

claim.

Defendants

they

are

entitled

elements
assert

of

that

to

damage,

emotional
on

emotional

damages are not recoverable on a nuisance claim.

their

distress

Technically,

Defendants are correct: while plaintiffs in a nuisance claim may
recover for “discomfort and annoyance,” such damages “in the
context of nuisance is not a species of emotional distress, but
a

distinct

element

of

nuisance

Corp., 774 S.E.2d at 767.

damages.”

Oglethorpe

Power

Defendants are entitled to summary

judgment on this narrow issue.

So, while the Harrises may not

recover “emotional distress” damages, they may recover damages
for

“discomfort,

loss

of

peace

of

mind,

unhappiness

and

annoyance” caused by a nuisance. Id. (quoting City of Warner
Robins

v.

Holt,

470

S.E.2d

238,

241

(Ga.

Ct.

App.

1996)).

Genuine fact disputes exist on whether the Harrises experienced
“discomfort,”

“annoyance,”

“loss

15

of

peace

of

mind,”

and/or

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 16 of 21

“unhappiness,” so to the extent that Defendants seek summary
judgment on this issue, the motion is denied.
F.

Should “Discomfort and Annoyance” Damages Be Limited?

Defendants
annoyance”

argue

damages

are

that

even

recoverable

though
on

a

“discomfort

nuisance

and

claim,

the

damages here should be limited as a matter of law because the
lake

on

Plaintiffs’

property

was

irrigation lake, not a fishing lake.
that

discomfort

and

annoyance

originally

permitted

as

an

But Defendants acknowledge

damages

are

available

when

a

property cannot be used for the purposes intended by its owner
or occupier.

Id. at 769.

There is plenty of evidence from

which a jury could conclude that the lake was intended to be
used for recreation and fishing.

The jury may consider that

evidence in determining the pre-damage value of the Property and
in

evaluating

discomfort

and

annoyance

damages.

Defendants’

summary judgment motion on this issue is denied.
G.
In

Should Plaintiffs’
Dismissed?
addition

injunctive relief.

to

Claim

damages,

for

Injunctive

Plaintiffs’

Relief

complaint

Be

seeks

Defendants contend that because Shaun Harris

verified the contents of some but not all paragraphs in the
complaint,
dismissed.

Plaintiffs’

claims

for

injunctive

relief

must

be

Georgia law requires that a petition for injunction

“be verified positively by the petitioner or supported by other

16

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 17 of 21

satisfactory proofs.”
Plaintiffs

submit

O.C.G.A. § 9-10-110 (emphasis added).

satisfactory

proof

entitled to injunctive relief.

at

trial,

they

If

may

be

Defendants are not entitled to

summary judgment on this issue.
H.

Summary

In summary, Defendants’ summary judgment motion (ECF No.
125) is denied except on one narrow issue: Plaintiffs may not
recover “emotional distress” damages on their nuisance claim.
III. Is IEA Inc. a Proper Party?
IEA Inc. argues that it is not a proper party in this
action because its wholly owned subsidiary, IEA Constructors,
was

the

construction

project.

contractor

on

the

solar

farm

facility

IEA Inc. contends that there is no evidence that it

participated in the project at all.

Plaintiffs, on the other

hand, assert that the present record establishes that IEA Inc.
was

directly

facility

and

involved
that

IEA

in

the

Inc.

development

should

not

of

be

the

solar

allowed

to

farm
argue

otherwise.
Plaintiffs pointed to evidence that IEA Inc.’s senior vice
president of solar construction operations, Joseph Broom, made a
professional

certification

statement

as

the

“Permittee,”

certifying that the erosion, sedimentation and pollution control
plan

for

the

solar

facility

direction or supervision.

project

was

prepared

under

his

Pls.’ Mot. Summ. J. Attach. 8, Civil

17

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 18 of 21

Constr. Plans § 2.1, ECF No. 100-8.

He also certified, “I will

adhere to the Plan and comply with all requirements of this
permit.”
Broom’s

Id.

In

company

this

is

section

listed

as

Alternatives, Inc.”

Id.

is

“Operator,”

listed

as

operational

the

control

responsibility
§ 6.1.

In

for

that

of

the

construction

“Infrastructure

&

plans,
Energy

Plaintiffs also point out that Broom

of

who

had

construction

erosion
section

of

control
the

primary,

site

plan

day-to-day

activities

requirements.

construction

plans,

Broom’s company is listed as IEA Constructors, LLC.

and
Id.

though,
Id.

IEA

Inc. does not dispute that Broom was an executive officer of IEA
Inc.

Rather, IEA Inc. asserts that Broom was an employee of IEA

Management Services, Inc. and served as an executive officer of
IEA Inc.

IEA argues that Broom’s actions were not on behalf of

IEA Inc.
The Court is satisfied that the present record permits the
conclusion
involved

that
in

the

Broom,

an

day-to-day

IEA

Inc.

executive

operations

of

the

officer,

was

construction

project on behalf of IEA Inc., including the erosion control
plan.
through

Thus, a reasonable juror could conclude that IEA Inc.,
its

executive

solar farm facility.

officer,

was

directly

involved

in

the

For these reasons, the Court finds that

IEA Inc. is not entitled to summary judgment on Plaintiffs’
claims against it, and IEA Inc.’s summary judgment motion (ECF

18

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 19 of 21

No. 122) is denied.

But the Court does not find that the

present record mandates a conclusion that Broom acted on behalf
of

IEA

Inc.

(as

opposed

to

IEA

Constructors),

so

the

Court

denies Plaintiffs’ summary judgment motion on this defense (ECF
No. 100).

A genuine factual dispute exists for the jury to

decide.
IV.

Is Westwood Entitled to Partial Summary Judgment?
Westwood provided civil engineering construction plans for

the solar facility site.

Those plans called for certain “best

management practices” to control erosion.

Westwood acknowledges

that genuine fact disputes exist on Plaintiffs’ claims against
it for professional negligence based on Westwood’s construction
plans.

Westwood, however, argues that it cannot be held liable

under trespass, nuisance, or simple negligence theories.
Plaintiffs contend that Westwood is liable for nuisance and
trespass because its faulty erosion control plan was a cause of
the nuisance and trespass committed by the other Defendants.7
Westwood

argues

that

there

is

no

evidence

that

it

acted

intentionally to cause a trespass or that it had any control
over what the construction team did.

The Court, however, finds

that the present record contains evidence from which jury could
conclude that Westwood intentionally designed the solar facility

7

Westwood contends that Silicon Ranch and the IEA Defendants did not
follow its plan, but there is a genuine fact dispute on this issue.

19

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 20 of 21

site to increase direct stormwater (and accompanying sediment)
to Plaintiffs’ Property.
at 8.

E.g., Wellington Aff. 5, ECF No. 66-9

Thus, a reasonable jury could conclude that Westwood’s

conduct was a concurrent cause of the other Defendants’ creation
and maintenance of the conditions causing trespass and nuisance.
If the evidence at trial does not bear this out, the Court will
revisit the issue at trial after the Plaintiffs rest their case.
As to the simple negligence claim, Plaintiffs contend that
Westwood negligently installed erosion control measures on the
solar

facility

site.

But

the

evidence

Plaintiffs

cite

in

support of this assertion is that Westwood employees inspected
the site after construction began and provided the construction
team

with

advice

on

how

erosion control measures.
No.

115.

negligence

This
claim

negligence claim.

conduct
against

to

troubleshoot

problems

with

the

E.g., Mlynek Dep. 243:22-244:1, ECF
is

part

of

Westwood,

Plaintiffs’
not

a

professional

separate

simple

Plaintiffs did not point to other conduct

that would support a simple negligence claim, so Westwood is
entitled to summary judgment on this narrow issue.
CONCLUSION
As discussed above, the Court denies Plaintiffs’ summary
judgment motions on their trespass claims (ECF Nos. 99 & 103),
denies

both

summary

judgment

motions

on

IEA

Inc.’s

second

affirmative defense (ECF Nos. 100 & 122), grants in part and

20

Case 4:21-cv-00134-CDL Document 171 Filed 01/17/23 Page 21 of 21

denies

in

Defendants’

part

Plaintiffs’

non-party

fault

summary
theory

judgment

(ECF

No.

motion
102),

on

denies

Westwood Professional Services Inc.’s summary judgment motion
except as to Plaintiffs’ simple negligence claim (ECF No. 121),
and denies Defendants’ summary judgment motion (ECF No. 125)
except to the extent that Plaintiffs are not allowed to recover
“emotional distress” damages on their nuisance claim, but they
are entitled to seek damages for “discomfort, annoyance, loss of
peace of mind, and unhappiness.”

The Court terminates as moot

Westwood’s motion to strike certain arguments in the briefs by
the other Defendants (ECF No. 153).
IT IS SO ORDERED, this 17th day of January, 2023.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

21