Terrell v. Payne

The Court of Appeals erred in relying on selectively-chosen evidentiary items included in the fact portion of the trial court's order denying the appellees' request for a permanent injunction against the proposed construction of chicken houses on the appellants' property.

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The Court of Appeals reversed the trial court’s denial of a permanent injunction sought on nuisance grounds by appellees, various members of the Payne family, to restrain the construction of four chicken houses that their neighbors, appellants Louise and William Terrell, proposed to construct on their property. Payne v. Terrell , 269 Ga. App. 540 604 SE2d 551 2004. The facts of the case are set forth at length in the Court of Appeals’ opinion and need not be repeated here. In assessing the trial court’s ruling that the evidence did not show to a reasonable degree of certainty that appellants’ proposed chicken houses would constitute a nuisance, the Court of Appeals correctly recognized there was some evidence, albeit conflicting, to support the trial court’s factual findings. Id. at 543 1. However, in determining that the trial court erred as a matter of law under the criteria set forth in May v. Brueshaber , 265 Ga. 889 466 SE2d 196 1995 by rejecting appellees’ nuisance claim, the Court of Appeals relied on selectively-chosen evidentiary items included in the fact portion of the trial court’s order to reach its conclusion. We conclude that the Court of Appeals erred when it chose to rely on the selected evidentiary items. Despite the manner in which the order designated these items, it is clear from reading the trial court’s entire order that the items summarized in the fact portion of the order did not constitute the actual findings of fact by the trial judge. That portion of the trial court’s order was more a summary of the testimony provided at the hearing than formal “findings of fact” by the trial judge.

Terrell v. Payne

The Court of Appeals erred in relying on selectively-chosen evidentiary items included in the fact portion of the trial court's order denying the appellees' request for a permanent injunction against the proposed construction of chicken houses on the appellants' property.

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