During a non-jury hearing in the Superior Court of Heard County, the Franklin-Heard County Water Authority moved for the involuntary dismissal of Marie Meacham’s damages claim, and the trial court granted the motion.1 After the hearing, the trial court awarded the Authority its attorney fees pursuant to OCGA § 9-15-14. Meacham appeals and contends, inter alia, that the trial court erred in dismissing her claims without giving her the required notice and an opportunity to be heard, in excluding the testimony of her expert witness, and in awarding attorney fees. For the reasons explained below, we reverse the judgment dismissing Meacham’s damages claim, vacate the award of attorney fees, and remand the case. The record shows the following. In 2007, Meacham filed a complaint alleging that her home has been and is being damaged by pressure waves and vibrations that emanate from a nearby underground water line that the Authority maintains. Meacham claimed that her health has also been damaged as a result. Meacham averred that, by failing to remedy the problem, the Authority is interfering with her use and enjoyment of her land, resulting in an illegal taking of her property. In her prayer for relief, Meacham demanded an injunction barring the Authority from continuing to create a nuisance on her property, as well as monetary compensation for her personal injuries and property damage.
Before the close of discovery, Meacham filed a request that “a hearing for injunctive relief be set upon the next available calendar.” In her request, Meacham noted that her “claims for damages can be heard later.” The trial court specially set the matter to be heard on June 27, 2008. At the beginning of that hearing, the Authority’s counsel advised the court that one of the matters to be resolved was Meacham’s motion for an injunction, stating, “with Meacham’s counsel’s blessings I’ll characterize this hearing as a final hearing on injunctive relief and the merits. The only thing not being discussed in that brief is measure of damages.” Meacham’s counsel responded, “We’ll stipulate to that.” He added, Your honor, the Authority’s counsel and I have talked about this being the time to present the science of this case. The one caveat that I would have if at the end of this hearing your honor is in the position of saying, ” there is something else we can do to determine more concisely what may or may not be going on here”; if the science does not appear to be as exact as it could be with additional inquiry then I would ask that that final ruling be held until that additional science could be conducted. . . As all the experts today lay out the various scientific parameters of this case, it may be that in combination we do see that there is something else we can do to say, “ yes, it’s this” or, “no, it’s that.” If that appears to be the case, it would be my request that we allow that science to occur prior to saying, “it’s a slam dunk; it’s over right now.” The trial court then asked for an overview of the case from each side. During his overview, the Authority’s counsel noted, “we’re here for an injunction hearing. . . . My belief as to what Meacham’s counsel has been requesting is the possibility that the remedy, the actual remedy, perhaps be saved for another day to figure out how we can, if there is a problem, fix it.” Counsel argued that there was no additional scientific test that could be performed to determine how to correct any problem with the water system.
