Donald Camp, Brenda Camp and Donnie Camp collectively, “the Camps” sued Kennedy Development Company, Inc. “Kennedy” for negligence, nuisance and continuing trespass, alleging that Kennedy’s development of a subdivision on nearby property and its alteration of an existing detention pond caused stormwater runoff to flood and damage their property. Kennedy, in turn, filed a third party complaint against the Newton’s Crest Homeowners’ Association, Inc. “NCHA”, contending that, pursuant to a contract between the parties, the NCHA agreed to defend and indemnify Kennedy for any claims, actions or damages related to the construction, maintenance, repair or operation of the subdivision or the detention pond. The NCHA moved for summary judgment on Kennedy’s third party complaint and, in Case No. A10A1573, appeals the denial of its motion.1 In Case No. A10A1867, Kennedy filed a cross appeal from the trial court’s denial of its motion for summary judgment on the Camps’ complaint.2 For the following reasons, we affirm the denial of summary judgment to Kennedy in Case No. A10A1867, and reverse the denial of summary judgment to the NCHA in Case No. A10A1573. In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Citations omitted. Benton v. Benton , 280 Ga. 468, 470 629 SE2d 204 2006. So viewed, the record shows the following facts. In 1967, Donald and Brenda Camp purchased about six acres of rural property in Gwinnett County. They purchased another six acres of adjacent property in the 1990s. Throughout this time, a natural creek ran through the Camps’ property. On the north side of the Camps’ property is the Hunter’s Pond subdivision, which was developed in the 1970s around a lake that is now called “Hunter’s Pond.” Historically, excess stormwater from the pond drained into the creek on the Camps’ property.
Tycor, Inc. owned approximately 47 acres of undeveloped property northwest of and uphill from the Hunter’s Pond subdivision, and the corporation planned to develop a new subdivision on the land. Pursuant to a February 2001 agreement between Tycor and the Hunter’s Pond subdivision “the detention facility agreement”, the new subdivision was going to be allowed to use Hunter’s Pond as its detention pond. Under the detention facility agreement, Tycor agreed to repair the pond’s “dam and outlet structure,” to drain the pond and lower its floor, to maintain the pond in good working order, and to remove and dispose of “all future accumulated post-development sediments.”
