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)

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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

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