Opinion
No. 1D22-699.
03-29-2023
Lee MADDAN and Tamara E. Maddan, Appellants, v. OKALOOSA COUNTY, Appellee.
Joseph A. Morris of Morris, Andrews, Talmadge, & Driggers, LLC, Dothan, Alabama, for Appellants. Gregory T. Stewart and Carly J. Schrader of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellee.
Joseph A. Morris of Morris, Andrews, Talmadge, & Driggers, LLC, Dothan, Alabama, for Appellants.
Gregory T. Stewart and Carly J. Schrader of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellee.
Lewis, J.
Appellants, Lee Maddan and Tamara E. Maddan ("the Maddans"), seek review of the trial court's summary final judgment finding that their claims against Appellee, Okaloosa County, were barred by the four-year statute of limitations set forth in section 95.11(3)(g), (p), Florida Statutes (2019). For the reasons that follow, we affirm the final judgment.
Because the statute of limitations issue is dispositive, we do not address Appellants' remaining arguments on appeal.
BACKGROUND
On May 28, 2019, the Maddans filed suit against the County for injunctive relief (Count 1) and damages for trespass/nuisance (Count 2), arguing that the County's diversion of surface waters causes flooding to their property located at 374 Lewis Street, Fort Walton Beach, Florida, referred to as Lake Haven. The Maddans alleged that Lake Haven was created by the excavation of a borrow pit between the 1950s and 1979 and that the natural stormwater flow from Lake Haven was altered several times during construction in the surrounding areas between the 1960s and early 2000s. The County constructed a stormwater drainage system that runs through the Lake Haven drainage area and is integrated into a series of interconnecting underground stormwater pipes that route the flow of surface water for approximately one-half mile before discharge into Cinco Bayou. As part of that system, Lake Haven collects diverted stormwater discharge from surrounding areas, including a private school and residential neighborhoods. At least seven County-owned pipes carry stormwater into Lake Haven from other watersheds (approximately 300 acres) and the surrounding developed areas (approximately 80 acres). The only drainage out of Lake Haven is via a stormwater discharge pipe that was installed in the 1960s and functions as an outflow when the system is overburdened. The County has continuously utilized Lake Haven as part of its stormwater drainage system since at least 1976 without acquiring ownership of the borrow pit/Lake Haven or compensating Appellants, who obtained legal title to Lake Haven by a warranty deed in 2004.
The Maddans asserted that flood waters cover all or substantially all their land after heavy rains and that the condition can be abated by the County diverting the stormwater to an alternate location or restricting the amount of water being diverted into Lake Haven. The Maddans requested an injunction prohibiting the County from diverting surface waters into Lake Haven, asserting that they have no adequate remedy at law for future diversion of surface waters into Lake Haven as the injury is temporary and reoccurring and the diversion of waters into Lake Haven constitutes a continuing tort. The Maddans sought damages for the past, present, and continual loss of use of their property due to the County's unpermitted use of Lake Haven as a stormwater drainage area, resulting in intermittent damages to their property.
The Maddans served the County with their first written notice of claim pursuant to section 768.28(6)(a), Florida Statutes, on September 21, 2010. The notice asserted that there is a continuing tort every time it rains based on the County's unpermitted use of Lake Haven as a storm drainage area and sought lease payments by the County for its past and future use of the Maddans' property. Attached to the notice was a letter to the Maddans dated July 2010, in which their attorney opined that "[a]s a result of the continuing drainage of storm water runoff by Okaloosa County, you [the Maddans] have suffered and are continuing to suffer damage every time there is a rainstorm or other event causing drainage into Lake Haven. This amounts to a continuing tort for which you are entitled to compensation for the damages incurred." Counsel recommended that the Maddans "contact the County regarding [their] claim for compensation due to the unconstitutional taking of [their] property rights regarding Lake Haven."
The County moved for summary judgment asserting, in part, that the undisputed material facts demonstrate that the Maddans' claims are barred by the applicable four-year statute of limitations. The County relied on Mr. Maddan's deposition testimony and answers to interrogatories in a substantially similar lawsuit the Maddans brought against the County in 2016 for injunctive relief, which they voluntarily dismissed, to argue that the Maddans purchased the property knowing about the alleged permanent drainage structures that divert water into Lake Haven and that the property periodically floods.
The County's summary judgment evidence demonstrated that Mr. Maddan lived near the property all his life and during all relevant times was familiar with the development on and nearby the property, including the drainage structures impacting it. Notwithstanding his knowledge of the stormwater improvements affecting the property, Mr. Maddan unsuccessfully attempted to buy the property in the late 1970s from its former owner, who had excavated the borrow pit and developed one of the surrounding residential neighborhoods. Before his ultimate purchase of the property, Mr. Maddan was aware of all seven stormwater pipes, the last of which was installed no later than 2001, and the floodwaters affecting the property, and he did not hire any professionals to opine about the property's suitability of use. The Maddans held the property in an "equitable ownership" under a Contract for Purchase and Authority to Act from approximately 2001 until 2004, when legal title to the property was transferred to them via deed. Although no structure had existed on the property in the previous forty years, Mr. Maddan intended to use it as his home site, and he planned to remedy the flooding by building structures higher than the crown of the road at Lewis Street. Mr. Maddan has lived on the property since 2003, when he placed a modular home on it. Mr. Maddan was specifically aware that there are times the property would flood— roughly three or four times a year—including prior to his placement of his home on the property. This condition has been consistently occurring from 2003 to the present.
The County further contended that there are no allegations of any County actions after 2001 that increased the flow of stormwater or otherwise altered the conditions on the Maddans' property. As for the alleged abatability of the flooding condition, the County asserted that it is not clear that rerouting the existing drainage could be accomplished under current environmental permitting standards and would at a minimum require the taking of private property for stormwater treatment and cost millions of dollars. In support of its motion, the County filed the affidavit of Jason Autrey, the County's Public Works Director and a licensed professional engineer.
Mr. Autrey attested that none of the stormwater facilities and improvements at issue were installed by the County, that the complained-of stormwater improvements and facilities were constructed in the 1960s and 1970s, and that there have not been any newly constructed developments since 2001. Autrey further declared that even if it were possible under modern permitting standards to reroute the existing stormwater improvements and facilities, the County would have to replace and resize all discharge pipes to route the stormwater to outfall at Cinco Bayou, which would require it to construct a stormwater basin, reconstruct the existing roadway system, and take property from private landowners, at a cost of millions of dollars.
In their response to the summary judgment motion, the Maddans argued that this is a continuing tort action, with the last tortious act occurring on 2/12/2018, which is when the most recent significant flooding event occurred. In support of their response, the Maddans filed the deposition transcript of Mark Seiner, the president of Choctaw Engineering, Inc., whom they hired in 2013 to survey the drainage structure and the roadway. During a heavy rainfall, Seiner observed water backflowing out of a drainage structure in the opposite direction he would expect it to flow, but he acknowledged that the pipe design "appears to be within reasonable sound engineering principles." He did not have any information as to when the stormwater facilities were installed.
Following a summary judgment hearing, the trial court granted the County's motion and entered final judgment in its favor, finding, in part, that the undisputed facts conclusively demonstrate that the Maddans' claims regarding the County's diversion of surface waters into Lake Haven are barred by the four-year statute of limitations. The trial court found that the Maddans purchased the property with knowledge about the alleged permanent drainage structure that diverted water into Lake Haven, as well as about the periodic flooding of the property during heavy rainfalls, and there is no evidence that any complained-of action by the County or even private development increased the flow of stormwater or otherwise altered the conditions on their property after 2001. This appeal followed.
ANALYSIS
We review a trial court's order granting summary judgment de novo. Rockwell at Amelia Passage, LLC v. Williams, 343 So.3d 627, 629 (Fla. 1st DCA 2022). The party moving for summary judgment must establish the absence of any genuine issue of material fact and its entitlement to judgment as a matter of law. Bradley v. Fort Walton Beach Med. Ctr., Inc., 260 So.3d 1178, 1180 (Fla. 1st DCA 2018). When the movant satisfies this initial burden, the burden shifts to the opposing party to demonstrate the existence of disputed issues of fact by presenting evidence of countervailing facts or justifiable inferences from the facts presented. Id.; see also Garbark v. Gayle, 312 So.3d 1286, 1288 (Fla. 1st DCA 2021).
We note that effective May 1, 2021, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.510(c) to adopt the federal summary judgment standard. See In re Amendments to Florida Rule of Civil Procedure 1.510, 309 So.3d 192 (Fla. 2020). Our holding in this case would not be affected by the new standard.
An action for trespass on real property or "[a]ny action not specifically provided for in these statutes," including nuisance, must commence within four years. § 95.11(3)(g), (p), Fla. Stat. (2019); see also Anderson v. Epstein, 202 So.3d 893, 899 n.2 (Fla. 3d DCA 2016). The limitations period runs from the time the cause of action accrues; that is, when the last element constituting the cause of action occurs. § 95.031(1), Fla. Stat. (2019). In a continuing tort action, however, the statute of limitations runs from the last tortious act. SDI Quarry v. Gateway Estates Park Condo. Ass'n, 249 So.3d 1287, 1292 (Fla. 1st DCA 2018).
"Under the continuing tort doctrine, the cause of action accrues when the tortious conduct ceases." Effs v. Sony Pictures Home Entm't, Inc., 197 So.3d 1243, 1244 (Fla. 3d DCA 2016). "A continuing tort is `established by continual tortious acts, not by continual harmful effects from an original, completed act.'" Id. (quoting Suarez v. City of Tampa, 987 So.2d 681, 686 (Fla. 2d DCA 2008)) (emphasis omitted). "`When a defendant's damage-causing act is completed, the existence of continuing damages to a plaintiff, even progressively worsening damages, does not present successive causes of action accruing because of a continuing tort.'" Chakra 5, Inc. v. City of Miami Beach, 254 So.3d 1056, 1065 (Fla. 3d DCA 2018) (quoting Suarez, 987 So. 2d at 686); see also Black Diamond Props., Inc. v. Haines, 69 So.3d 1090, 1094 (Fla. 5th DCA 2011).
In cases involving flooding of land, the statute of limitations "does not begin to run until actual harm is inflicted to the plaintiff's land, regardless of the installation date of the construction or obstruction causing the overflow." Town of Miami Springs v. Lawrence, 102 So.2d 143, 145 (Fla. 1958). Whether flooding gives rise to a single right of action or successive rights of action generally depends on whether the injury or the causative condition is permanent or temporary:
... if the injury is permanent, or if the causative structure or condition is of such a character that injury will inevitably result and the amount of the damage can be determined or estimated, a single action may and should be brought for the entire damages, both past and prospective. But if the overflow is merely temporary, occasional or recurrent, causing no permanent injury to the land, or if the situation involves other elements of uncertainty, such as the possibility or likelihood of the alteration or abatement of the causative conditions, or uncertainty in regard to the future use or improvement of the land, so as to prevent a reasonably accurate estimate of future damages, it is generally held that each repetition of the overflow gives rise to a new cause of action for which successive actions may be brought.
Id. at 146 (quoting 56 Am. Jur., Waters, s 443, p. 858-59).
In Lawrence, the Florida Supreme Court determined that where the town was sued for flooding based on the raising of the elevation of a street, the condition was abatable, and thus not permanent, because the plaintiff built a dike and the property was no longer subjected to the overflow. Id. at 144-46. There, the issue turned on the fact that the condition had already been abated based on the specific facts that the dike built by the plaintiffs had "stopped the overflow." Id.
Similarly, in Carlton v. German Hammock Groves, where the appellant sued the appellee for damages from the flooding of his property caused by a berm on the appellee's property, the Fourth District reversed the summary judgment the trial court had entered for the appellee based on the statutes of limitations because "[a]s in Lawrence, damage to the property was caused by intermittent flooding occurring during rainfall, and the flooding was abatable." 803 So.2d 852, 853 (Fla. 4th DCA 2002). "In Lawrence, the flooding was abated by a dike. In this case, the flooding did not occur before the culvert was crushed; and thus, a culvert would abate the flooding." Id. at 856. "Because the injury is allegedly reoccurring and abatable, it is arguably not a permanent injury to the land, but rather a reoccurring injury to the land." Id.; see also Millender v. Dep't of Transp., 774 So.2d 767, 768 (Fla. 1st DCA 2000) (reversing the trial court's ruling that the statute of limitations barred the appellant's 1993 lawsuit against the DOT for inverse condemnation and injunctive relief, and reflecting that the alleged injury of erosion to the appellant's property caused by the DOT's rerouting of a river channel in 1975 was abatable given that the appellant successfully slowed down erosion by constructing a seawall, which he was forced to remove after eight years of litigation ending in 1993); Stokes v. Huggins Constr. Co., Inc., 626 So.2d 327, 328-30 (Fla. 1st DCA 1993) (disagreeing with the trial court that the statute of limitations began to run when the plaintiffs were given notice of the need to act on their neighbor's excavation of soil to avoid potential problems to their property because they suffered no actual harm due to the excavation at that point and they did not have knowledge of the permanency of their injury until their house collapsed the following year, and noting that if the neighbor's excavation was the cause of the fallen house, then abatement could have prevented the damages).
In accordance with Lawrence, whether the statute of limitations bars the Maddans' action depends on whether each flooding event on their property gives rise to a new cause of action, against which the limitations period begins to run from the time of each successive injury. To answer that question, we must determine whether the Maddans' action is a suit for permanent or temporary damages. If the action is for permanent damages, then a single action is to be brought for the entire damages, past and prospective.
We find that the nature of the injury alleged reflects that the injury is of a permanent character. The undisputed evidence established that the underground pipe systems are permanent drainage structures, that the Maddans were aware of the pipes and the floodwaters affecting the property before purchasing the property and moving onto the property in 2003, and that floodwaters have been consistently occurring on the property following heavy rains three or four times a year since 2003. The Maddans' knowledge of those conditions is further evidenced by their notice of claim to the County dated 2010, as well as their lawsuit against the County in 2016. Nevertheless, the Maddans waited until 2019 to bring this lawsuit. As the Fourth District has aptly noted, flooding whenever it rains "is not permanent in the sense that it involves a body of water forever present on the plaintiffs' property, but it is permanent in the sense that rain is a condition that is reasonably expected to continually reoccur in the future." Kendry v. State Rd. Dep't, 213 So.2d 23, 27 (Fla. 4th DCA 1968). The remedy the Maddans seek likewise suggests a permanent injury in that they are seeking a permanent injunction prohibiting the County from future diversion of water into Lake Haven and compensatory damages for the past, present, and continual loss of use of their land. The alleged damages—past, present, and prospective—are consistent with the theory of suit for permanent damages. See Lawrence, 102 So. 2d at 146.
Moreover, the undisputed evidence demonstrates that the flooding of the Maddans' property cannot be categorized as "abatable." The County presented evidence through the affidavit of a licensed professional engineer that even if rerouting the existing stormwater improvements would be possible under current permitting standards, it would require the County to replace and resize all discharge pipes to route the stormwater to outfall at Cinco Bayou, which would entail the County having to construct a stormwater basin, reconstruct the existing roadway system, and take property from private landowners, at a cost of millions of dollars. Given such, the injury here cannot be remedied simply by building a dike (Lawrence), installing or replacing a culvert (Carlton), or constructing a wall (Millender). Although the Maddans argued that the injury can be abated by the County diverting the stormwater to an alternate location or restricting the amount of water being diverted into Lake Haven, they presented no evidence in support of their assertion, and the County's evidence to the contrary remains undisputed. See Bradley, 260 So. 3d at 1180 (explaining that a mere assertion that an issue exists does not suffice; "general allegations and legal argument do not constitute evidence of disputed issues of material fact"); cf. Baker v. Hickman, 969 So.2d 441, 446 (Fla. 5th DCA 2007) (reversing because the affidavits of a licensed professional engineer and a general contractor the appellant/plaintiff presented as evidence that the flooding was abatable by the construction of a retaining wall and water diversion system was sufficient to create an issue of fact as to abatability to preclude summary judgment).
Based on these facts, we conclude that the Maddans' action is a suit for permanent damages. Because the asserted injury is permanent, and the causative structure or condition is of such character that the injury of flooding will inevitably result with heavy rains, a single action is to be brought for the entire damages, past and prospective. See Lawrence, 102 So. 2d at 146. The Maddans' action accrued no later than September 21, 2010, the date on which the first claim letter under section 768.28, Florida Statutes, was sent to the County. This letter demonstrated the Maddans' knowledge, understanding, and refusal to maintain the status quo regarding the alleged trespass or physical invasion due to the drainage system and discharge into Lake Haven, the permanency of the injury as of that date, and the existence of a potential cause of action against the County. The Maddans sent the claim letter to the County more than eight years prior to filing the instant action. As such, the Maddans failed to bring their action within the four-year statutory period, and their action is thus barred by section 95.11(3)(g), (p), Florida Statutes.
CONCLUSION
Therefore, the trial court correctly determined that the Maddans' claims were barred by the four-year statute of limitations and we affirm its final judgment for the County.
AFFIRMED.
Rowe, C.J., and Long, J., concur.