* See previous story: Little movement in Lake Alice saga.
CUMMING — Four parties await a decision in the coming weeks from visiting Judge Martha Christian on whether to dismiss the first of what will presumably be many lawsuits related to the May 2013 Lake Alice dam breach.
The case was filed by Gregory Scott Lindy, who lives on a Timber Lake Trail property near a cove of Lake Lanier that was damaged when the dam broke. The torrents of water and sediment from Lake Alice traveled into the cove he shares with about 50 residents.
His suit names: the Mashburn family, which owned the dam; the city of Cumming, which owned a portion of the water in the lake; and the Sembler Family Partnership, which developed Cumming Town Center off Market Place Boulevard, which runs alongside the western edge of the former lake.
Also named are up to 10 contractors, subcontractors and entities who helped develop the retail project. The suit levels various grievances against the defendants, including nuisance, negligence and riparian rights, among others.
Before Christian heard arguments to dismiss the case, Lindy’s attorney, Robert Jackson, asked the judge to remove the city of Cumming’s legal representation from the case due to a possible conflict of interest.
The firm, Miles Patterson Hansford Tallant LLC, has previously represented Lindy and his business in family, criminal and civil cases. Jackson said the firm knows “intimate details about [Lindy’s] life, his business and his family” that could be used against him in the Lake Alice case.
But Kevin Tallant argued that the firm hasn’t represented Lindy since January and made it clear it wouldn’t represent him in this matter.
He also noted Lindy has known about the case since he filed it, and waited until Thursday’s hearing to mention his opposition to the city’s legal representation.
Christian ruled against Lindy, but cautioned Tallant to take appropriate actions not to use information from previous cases in future arguments on the matter.
“We will take every step possible,” Tallant responded.
He led the charge on the motion to dismiss, joining Jennifer Pennington, an attorney for the Mashburn family and Irene Vander Els, attorney for Sembler.
The clearest reason to dismiss, Tallant contended, is Lindy does not own Lanier, or land next to the lake. Lindy’s property is “next to the property that’s adjacent to the lake.
“That’s what the bulk of this motion deals with is the lacking ownership, by the plaintiff, of property that is either in the lake or that is adjacent to the lake,” Tallant said.
He also cited the Hulsey v. Department of Transportation case to support their contention that even in a matter where someone owned property adjacent to the lake, they were unsuccessful in court.
Lindy’s dock permit, Tallant said, does not give him ownership rights to the lake.
Pennington added that the U.S. Army Corps of Engineers, which does own the lake and its shoreline, could claim property rights damage, as well as the Mashburns.
The family’s property rights were damaged by the breach, she said, “by virtue of their ownership of a portion of the lakebed in Lake Alice and the adjacent shoreline property and a portion of the dam itself.”
She also disputed the Lindy’s claim that the Mashburns had been negligent by noting Georgia law did not require the family to maintain the dam.
Tallant, too, questioned the negligence issue. To be negligent, according to the attorney, there needs to be a repeated flooding of property.
However, Jackson countered that the negligence has continued, because Lindy’s claim was not about the flood, but about the sediment that continues to flow from Lake Alice’s bed into the Lanier cove.
According to Jackson, Lindy is not claiming he owns the lake, but rather that he has a right to enjoy the lake and “the right to go down there and sit on his dock and watch his kids swim in the water without worrying that they’re swimming in mud or silt.”
“He paid extra and bought this house on the lakefront, but now he can’t use it for any of his water craft and he’s got mud on his dock or he’s got mud on his boats,” Jackson said.
“His use and enjoyment of his property is a right of his that’s been impacted by their negligence.”
He also maintained that the city doesn’t have immunity from negligence when it failed to act on its administerial duties. That failure occurred, he said, when the city violated the state’s water quality act by discharging into the lake without a permit.
In his response, Tallant reiterated his contention that since Lindy does not own the water or the shoreline, it’s not his right to file suit.
“When the law says there is no claim, the motion to dismiss is proper,” he said.
The city and Mashburn family have agreed to — and the state has approved — a remediation plan for repairing and restoring the damaged area and cove.
The plan calls for the family to build a weir structure to effectively block sediment from flowing from Lake Alice’s bed into the cove.
A weir is a barrier that forms an obstruction smaller than most dams, pooling water behind it while also allowing it to flow steadily over the top.
Once the sediment is stopped, the city will dredge and clean the sediment that’s collected in the cove over the past year.
However, the remediation plan is on hold while Sembler, in response to Lindy’s suit, conducts its own investigation into the matter.