5D06-2902 Baker v. Hickman

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D06-2902

Case Date: 11/05/2007

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2007

SADIE BAKER, Appellant, v. GEORGE HICKMAN, BARBARA HICKMAN, et al., Appellees. ________________________________/ Opinion filed November 9, 2007 Appeal from the Circuit Court for Brevard County, John D. Moxley, Jr., Judge. Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellant. Gregory P. Durham, Sr., of Reinman Matheson Vaughan Durham & Sack, P.A., Melbourne, for Appellees George Hickman, Barbara Hickman and Wayne D. Cattell. Donna M. Krusbe of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for Appellee Edith E. Berard. Douglas T. Noah, of Dean, Ringers, Morgan & Lawton, P.A., Orlando, Amicus Curiae for City of Melbourne. Case No. 5D06-2902

PLEUS, J. Sadie Baker, plaintiff below, appeals from adverse summary final judgments on her claims that neighboring landowners (defendants) were responsible for flooding on

her property. Because we conclude issues of fact exist as to the abatability of the flooding during the four years prior to filing suit, we reverse and remand. Baker owns a house in West Melbourne. homeowners. The defendants are adjacent

Baker sued the defendants in March 2003, claiming the adjacent

landowners' homes were constructed in such a way as to cause serious flooding on her property. Baker claimed she first noticed "pooling" on her land in 1989 and despite replacement of a culvert and the use of fill dirt, the problem periodically continued, resulting in damage to her home and personal property, particularly during major rain events, such as Hurricane Erin in 1995. West Melbourne was also joined in the lawsuit. The defendants moved for summary judgment asserting that Baker's nuisance and trespass claims were barred by the four-year statute of limitations. The trial court agreed and entered summary final judgments for the defendants. Baker argues that a genuine issue of material fact exists as to whether the injury to her property is permanent or whether it is re-occurring and temporary so that each successive flooding would give rise to new causes of action. She further maintains that the continuing torts doctrine provides an exception to the four-year statute of limitations for nuisance and trespass. Subsections 95.11(3)(g) and 95.11(3)(p), Florida Statutes, provide that actions for trespass on real property and nuisance must be brought within four years. The trial court ruled that the undisputed evidence established that Baker failed to bring her claims within this four-year limitations period.

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Baker contends that summary judgment was improvidently entered because genuine issues of material fact exist as to whether the flooding on her property is permanent in nature or rather what she labels "reoccurring, abatable, periodical and temporary" (emphasis added). Baker argues she presented evidence that over time, with each flood, new damage occurs to the property. She conceded below that she is not seeking to recover damages occurring prior to March, 1999 - - four years prior to the filing of her initial complaint in March, 2003. The defendants counter that at least since Hurricane Erin struck Brevard County in 1995, Baker "had irrefutable confirmation that the flooding was severe" and that development of the defendants' property had caused or contributed to the flooding and ensuing damage to her property. It is the defendants' position, accepted by the trial court, that Baker's failure to bring her nuisance and trespass actions against the defendants within four years of the summer of 1995 renders such causes of action timebarred. Baker averred in her amended affidavit that "flooding which damaged the garage and one bedroom cottage addition to the house, as well as the contents of both, began in 1995 and has continued despite our continuous digging of drainage ditches . . . ." However, the flooding is not constant and during drier weather periods, no flooding occurs. As a general proposition, statute of limitations periods begin to run with the discovery by the plaintiff of an act constituting an invasion of the plaintiff's legal rights. Wagner, Nugent, Johnson, etc. v. Flanagan, 629 So. 2d 113 (Fla. 1993). See also Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323 (Fla. 1990).

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In the context of a physical invasion of real property such as a flooding claim, when the statute of limitations begins to run on such claim, whether denominated as a nuisance or trespass action, turns upon whether the action is construable as a suit for permanent or temporary damages. 1 Kulpinski v. City of Tarpon Springs, 473 So. 2d 813 (Fla. 2d DCA 1985). See also Petroleum Prods. Corp. v. Clark, 248 So. 2d 196 (Fla. 4th DCA 1971) (oil stored in reservoir percolating underground onto neighboring property). In Town of Miami Springs v. Lawrence, 102 So. 2d 143, 146 (Fla. 1958), the Florida Supreme Court quoted with approval the following passage from 56 Am. Jur. Waters,

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