Alexander v. Hulsey Environmental Servs. Inc.

A genuine issue of material fact existed as to whether the corporate owners of a waste disposal facility actively directed and participated in the alleged nuisance by approving waste that was disposed of on the site and by operating a sprinkler system that sprayed wastewater into the air.

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Darren Alexander and others sued LHR Farms, Inc., Hulsey Environmental Services, Inc. HES, John Hulsey, Jr., and Devin White, claiming that they operate a waste disposal facility which constitutes a nuisance. LHR, HES, Hulsey and White moved for summary judgment. After a hearing, the trial court entered an order denying summary judgment to LHR, but granting summary judgment to HES, Hulsey and White. Alexander and the other plaintiffs appeal from the grant of summary judgment in Case No. A10A1429, and LHR cross-appeals from the denial of its motion in Case No. A10A1430. In Case No. A10A1429, we affirm in part and reverse in part, and in Case No. A10A1430 we affirm. A10A1429

1. HES, Hulsey and White contend that this direct appeal is improper because it is actually from the grant of their motion to dismiss for failure to state a claim, and not from a grant of summary judgment. The motion which they filed in the trial court was a motion to dismiss or, alternatively, for summary judgment. There were affidavits attached to the motion, and it is apparent from the record that the trial court considered material beyond the pleadings in ruling on the motion. Because evidence outside the pleadings was considered, the motion was “required to be treated as one for summary judgment OCGA § 9-11-12 b, and the losing party has the right to a direct appeal from an order granting . . . summary judgment. OCGA § 9-11-56 h.”1

Alexander v. Hulsey Environmental Servs. Inc.

A genuine issue of material fact existed as to whether the corporate owners of a waste disposal facility actively directed and participated in the alleged nuisance by approving waste that was disposed of on the site and by operating a sprinkler system that sprayed wastewater into the air.

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