Response To Motion To Quash Protective Order Rev 3 Ocr¶

FILED 12/27/2023 9:18 PM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA

JAB IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA JONATHAN SWEATMAN,

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Plaintiff,

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V.

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SARAH ZEEMAN,

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Defendant.

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§ CIVIL ACTION NO. 21CV9795

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DEFENDANT ZEEMAN’S RESPONSE TO PETITIONER

JONATHAN SWEATMAN’S

MOTION TO QUASH AND FOR PROTECTIVE ORDER COMES NOW, SARAH ZEEMAN, Defendant and responds to Petitioner’s motion to

quash and for a protective order. 1. Defendant’s Counterclaim Is for a Nuisance Defendant Zeeman’s counterclaim in part is for a nuisance. She alleges that Plaintiff Sweatman has for years been concentrating and discharging water onto her backyard. She knew her backyard was flooding but did not know the source until this case was brought. A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. OCGA§ 41-1-1

The right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie.; Dowdell v. Cherry, 209 Ga. $49 (76 SE2d 499) (1953)

A landowner has no right to concentrate and collect water and thus cause it to be discharged upon the land of the lower landowner in greater quantities at a particular locality or in a manner different from that in which the water would be received by the lower property if it

simply ran down upon it from the upper property by the laws of gravity. Sumitomo Corp. of

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America v. Deal, 256 Ga. App. 703, 569 S.E.2d 608 (Ga. App. 2002). Ms. Zeeman testified that the flooding in her backyard was caused by the downspouts in Mr. Sweatman’s yard being piped underground to the edge of her property. Zeeman DepoP. 59 L.

21. 2. Punitive Damages May Be Awarded in an Action for Nuisance If the Defendant to proves, by clear and convincing evidence, that the Plaintiff Sweatman was guilty of willful misconduct, malice, fraud, wantonness, oppression, or entire want of care that

would raise the presumption of conscious indifference to consequences, then the jury would be

authorized to award punitive damages. Alliance Transp., Inc. v. Mayer, 165 Ga. App. 344, 345 (1983). “A conscious indifference to consequences relates to an intentional disregard of the rights

of another. Willful and intentional misconduct is not essential. But a trespass is an intentional act. Thus, a willful repetition of a trespass will authorize a claim for punitive damages. So too, will a claim of continuing nuisance. And specifically, the failure to adequately ameliorate the runoff of water and silt onto another's property has been held to justify a punitive damage award.” McDonald

v. Silver Hills Homes, LLC, 343 Ga App 194,(2017) citing Tyler v. Lincoln, 272 Ga. 118, 120— 121 (1), 527 S.E.2d 180 (2000)...

1. The Measure of Damages and Punitive Cases Is Based Upon Factors Including Income and Net Worth

In determining an amount for an award of punitive damages the jury may consider

factors

including the financial circumstances and/or net worth of Mr. Sweatman. guidance. State

Farm

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Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003) Hospital Authority of

Gwinnett Co. v. Jones, 259 Ga. 759, 764 (1989). Punitive damages do not have to bear a relationship to the actual damages awarded by the jury..." Hospital Authority of Gwinnett County v. Jones, 409 S.E.2d 501, 261 Ga. 613 (Ga. 1991).

“Punitive damages are not compensation for injury. Instead, they are private fines levied by civil

juries to punish reprehensible conduct and to deter its future occurrence.... A deterrence award is

based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury."... Southeastern Sec. Ins. Co. v. Hotle, 222 Ga. App. 161, 473 S.E.2d 256 (Ga. App. 1996) Accordingly, the Defendant has served the Notice to Produce at Trial, tax records, and bank

records.

Conclusion

The Plaintiff has characterized the Notice to Produce at trial as pretrial discovery. It is not. Nor is it based on a mere allegation. Ms. Zeeman testified that Mr. Sweatman

directed excess water onto her property. In fact the consolidated pretrial order states that some of the issues for the jury is nuisance, and punitive damages. The Defendant is not moved for summary judgment based upon nuisance or punitive damages. Therefore, unless the Plaintiff gets

a directed verdict on nuisance, that issue will be left for the jury. Therefore, the Plaintiff’s motion should be denied.

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This 27th day of December, 2023. RESPECTFULLY SUBMITTED,

Jeff Banks Attorney for Defendant

State Bar No. 005445 Banks & Riedel, P.C.

970 Walnut St.

Macon, Georgia 31201

Phone No.: (478) 254-3230 Facsimile: (478) 254-3880 jeffsbanks@hotmail.com

/s/ Brett Michael-Schiff Ledermeier

Attorney for Ms. Zeeman 11625 Rainwater Drive Ste 125 Alpharetta, GA 30009 Direct: 404.365.4564

Main: 770.200.7000

bledermeier@mmatllaw.com

Sweatman v. Zeeman

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IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA JONATHAN SWEATMAN,

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Plaintiff,

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SARAH ZEEMAN,

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Defendant.

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CIVIL ACTION NO. 21CV9795

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CERTIFICATE OF SERVICE

I have served the foregoing Response to Plaintiff's Motion to Quash and Motion for a Protective Order by transmission to an electronic filing service provider for service through the state’s electronic filing manager (Odyssey eFileGA) LISA ROSE (Via Electronic Service): lisa@roselitigation.lawyer TIM MITCHELL (Via Electronic Service): tmitchell@cmlawfirm.com This 27th day of December 2023. RESPECTFULLY SUBMITTED,

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Jeff Banks Attorney for Defendant State Bar No. 005445 Banks & Riedel, P.C.

970 Walnut St. Macon, Georgia 31201

Phone No.: (478) 254-3230 Facsimile: (478) 254-3880 banksnriedel@gmail.com

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