THE STATE OF NEW HAMPSHIRE SUPREME COURT 2009 TERM DECEMBER SESSION Ricky D. Hewitt. Alan W. Tardif and Ann M. Tardif

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT 2009 TERM DECEMBER SESSION Ricky D. Hewitt v. Alan W. Tardif and Ann M. Tardif APPEAL FROM BELKNAP COUNTY SUPERIOR COURT BRIEF OF THE PLAINTIFF Ricky D. Hewitt Respectfully submitted, Steven M. Latici, Esquire (#1436) Law Office of Steven M. Latici, P.A. PO Box 130 Gilmanton, NH (603)

2 TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ii COURT ORDER DATED JULY 1, iii COURT ORDER DATED AUGUST 10, iv QUESTIONS PRESENTED STATEMENT OF THE CASE STATEMENT OF THE FACTS SUMMARY OF ARGUMENT ARGUMENT I. DID THE LOWER COURT COMMIT REVERSIBLE 5 ERROR BY RULING THAT THE STATUTE OF LIMITATIONS BEGINS TO RUN FROM THE DATE OF THE ORIGINAL TORT. II. DID THE LOWER COURT COMMIT ERROR IN RULING 7 THAT THE CONTINUOUS FLOW OF WATER ONTO PLAINTIFF S LOT IS NOT AN ABATABLE NUISANCE. III. DID THE LOWER COURT COMMIT ERROR WHEN IT 8 AT LEAST IMPLICITLY RULED THAT THE DISCOVERY RULE DID NOT APPLY TO THIS CASE OR THAT THE PLAINTIFF SHOULD HAVE DISCOVERED THE CAUSAL CONNECTION BETWEEN HIS DAMAGE AND THE DISCHARGE OF WATER ONTO HIS PROPERTY. CONCLUSION REQUEST FOR ORAL ARGUMENT CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES CASES PAGE 54 C.J.S. Limitations of Actions 169 (1948) 6 Caron v. Margolin, 128 Me. 339, 343, 147 A. 419 (1929) 7 Eppling v. Seuntjens, 117 N.W. 2d 820 (Iowa, 1962) 6 Handley v. Town of Shinnston, 289 SE 2d 201 (W.Va. 1982) 6 Jacques v. Pioneer Plastics, 676 A. 2d 504 (Me. 1996) 7 Nordic Inn Condo Owners Assoc. v. Ventullo, 151 N.H. 571 (2004) 6 Singer Asset Finance Company, LLC v. Wyners,156 N.H. 468 ( 2007) 5 Sundell v. Town o f New London, 119 N.H. 839, 409 A.2d 1315 (1979) 7 ii

4 Copies of Orders of Lower Court Attached in Hard Copies. iii

5 QUESTIONS PRESENTED 1. Did the lower court commit reversible error by ruling that the statute of limitations begins to run from the date of the original tort? 2. Did the lower court commit error in ruling that the continuous flow of water onto Plaintiff s lot is not an abatable nuisance? 3. Did the lower court commit error when it at least implicitly ruled that the discovery rule did not apply to this case or that the Plaintiff should have discovered the causal connection between his damage and the discharge of water onto his property? 1

6 STATEMENT OF THE CASE This is an appeal of a decision rendered by Judge Kathleen McGuire in Belknap County Superior Court granting Defendants Motion to Dismiss Plaintiff s Petition for Injunctive Relief and Monetary Damages. The Court below ruled that Plaintiff s claims are time barred because the case was filed more than three years after the Defendants tortious act. STATEMENT OF THE FACTS Gunstock Acres is a 600 lot subdivision created in the late 1960's on very steep slopes opposite Gunstock Mountain. The lots within the subdivision are subject to a Declaration of Easements, Covenants and Restrictions of Gunstock Acres Inc. dated May 31, 1967, and recorded at Book 483, Page 367, of the Belknap County Registry of Deeds. Paragraph 8(f) of the Declaration prohibits the removal of trees in excess of 4 inches in diameter, except in the immediate area of the residential building and appurtenant structures. The lots, at the time of the creation of the subdivision, were thickly wooded with a typical mixture of very mature softwoods and hardwoods. The roads were originally privately owned but are now maintained by the Town of Gilford. There is a private water distribution system owned and operated by the Gunstock Acres Water Commission that services each of the lots. Plaintiff purchased his lot with an existing house in Plaintiff s house sits at an elevation about 25 feet below the grade of the roadway with a very steep embankment extending from the road to Plaintiff s driveway. The embankment contains several mature pines, oaks and other shrubs. Defendants purchased their lot in 1995 and began clearing the lot in Defendants clear cut the entire lot and in 1997 they conducted extensive blasting operations to 2

7 construct a foundation for a substantial home and a driveway. The land in Gunstock Acres, and Defendants lot in particular, contains substantial amounts of granite ledge and, in fact, Defendants lot during the construction period looked more like a granite quarry operation. It is best described as a mountain of crushed stone covered by asphalt, and a thin layer of topsoil and sod. Defendants constructed a lengthy asphalt paved driveway. Along the side boundary of their lot, Defendants constructed a drainage ditch lined with granite rip rap into which they discharge the foundation drains and roof drains of their house, as well as the run off from the paved surfaces and any water flowing onto their lot from other lots above them. Defendants lot is located across the road and is up gradient from Plaintiff s lot. After the Defendants house and driveway were constructed, Plaintiff did not experience problems with excessive water coming onto his lot. In the Winter of Plaintiff, for the first time, suffered extensive water flow onto his lot which formed a thick layer of ice in his driveway. In the Spring of 2005, Plaintiff, suspecting a water line leak, contacted the Gilford Public Works Director, Sheldon Morgan. The Gunstock Acres Water Commission was also contacted. Representatives of the Town of Gilford, as well as the Water Commission, made site visits over the course of the summer of In August 2005, Mr. Crawshaw, of the Water Commission, notified Plaintiff that the water line was not leaking in the vicinity of Plaintiff s lot. In late Summer of 2005, conditions became very dry and the flow of water onto Plaintiff s lot have all but ceased. However, in the Spring of 2006, water began flowing onto Plaintiff s lot at a significant rate. Plaintiff hired a hydrologist, Don Boynton, to investigate the source of the water. Mr. Boynton conducted a site visit and reported to Plaintiff that the source of the water was from Defendants lot. In 2007, Plaintiff contacted Defendants and asked them 3

8 to take remedial measures to halt the flow of water onto his lot and Defendants refused to take any action. Plaintiff filed his Petition for Temporary and Permanent Injunction and Money Damages on September 19, Defendants filed a Motion to Dismiss on April 10, 2009 claiming that Plaintiff s case was time barred because he first experienced the onslaught of water in 2005, more than three years before the Petition was filed. The Court denied the Motion to Dismiss and ordered Plaintiff to file an Amended Petition with more specific dates. Plaintiff filed a verified Amended Petition for Temporary and Permanent Injunction and Money Damages on or about May 7, Defendants again moved to dismiss on statute of limitations grounds. The Court granted Defendants Motion to Dismiss and denied Plaintiff s Motion to Reconsider. SUMMARY OF ARGUMENT The lower Court committed reversible error by failing to recognize that the gravamen of Plaintiff s Petition is a claim for an ongoing abatable nuisance that causes new injury every time it rains. The lower Court further committed reversible error by failing to apply the discovery rule to Plaintiff s claim when the Court ruled that the statute of limitations begins to run from the date Plaintiff first experienced a substantial flow of water onto his property, presumably in the Winter of

9 ARGUMENT I. The lower Court committed reversible error by ruling that the statute of limitations begins to run from the date of the original tort. In its ruling on Plaintiff s Motion to Reconsider, the lower Court elaborated on its earlier ruling granting Defendants Motion to Dismiss. In the order appealed from, the trial Court relied on Singer Asset Finance Company, LLC v. Wyners,156 N.H. 468 ( 2007) and stated, While the damage to petitioner s property may be ongoing, the tort that caused the damage is not (Order dated August 10, 2009). In Singer, the plaintiff, an assignee of defendant s structured settlement, brought suit to recover funds paid to defendant under an assignment of defendant s structured settlement which assignment the court determined was void. Defendant counterclaimed for the damages she sustained through the assignment. The court determined that defendant s counterclaim was time barred since she sustained damage because the assignment severely discounted the value of her structured settlement payments. The discounted value was incurred with the first payment and since that damage occurred more than three years prior to her counterclaim, the action was deemed time barred. In the instant case, the lower Court incorrectly assumed that damage was sustained by Plaintiff when the Defendants first engaged in tortious conduct. Although the lower Court did not explain what the initial tort was, it is presumed that the Court was referring to the initial clear cutting of the lot and the subsequent alteration of the natural runoff patterns of water from Defendants lot. The instant case is distinguished from the Singer case in two important aspects; the injury is ongoing causing additional damage to Plaintiff s lot and, more importantly, Plaintiff did not make the causal connection between 5

10 Defendants conduct and his injury until 2006 when he hired an expert to investigate the source of water coming onto his lot. Courts in several other jurisdictions have applied the continuous tort rule to cases involving nuisance and ongoing trespass, particularly in situations involving continuous flooding. Under this rule, although the initial tortious act may have occurred longer than the statutory period prior to the filing of an action, an action will not be barred if it can be based on the continuance of that tort within that period, Nordic Inn Condo Owners Assoc. v. Ventullo, 151 N.H. 571 (2004), citing 54 C.J.S. Limitations of Actions 169 (1948). In Handley v. Town of Shinnston, 289 SE 2d 201 (W.Va. 1982), the court, citing 54 C.J.S. Limitations of Actions 169 (1948), Where a tort involves a continuing or repeated injury the cause of action accrues at, and limitations begin to run from the date of the last injury or when the tortious overt acts cease. In Handley, the defendant Town had installed a water line across portions of plaintiffs land. In 1972, plaintiffs reported to the Town that the line was leaking. In 1976, the line ruptured and a large crack appeared in plaintiffs land. The Town repaired the leaking line and the land, and in 1978 the waterline was removed. After the removal of the line, however, a sink hole developed and plaintiffs foundation shifted and was damaged. The court held that the tort was continuing even though the line had been removed and the limitations period began to run from the date the last injury occurred, or when the tortious overt acts cease. In the instant case, although the original tortious act of clearing the land, changing the contours of the land and adding impervious services had occurred more than three years prior to the filing of the action, the Defendants continued to divert water into a drainage ditch that saturated the ground and eventually emerged through the embankment on Plaintiff s property. In Eppling v. Seuntjens, 6

11 117 N.W. 2d 820 (Iowa, 1962), the court allowed an action for damages to crops and pastureland caused by the construction of a dike on defendant s property adjacent to a stream that also flowed through plaintiff s property. The dike had been constructed several years earlier and the construction date was well outside the period of limitations, however, the court, nonetheless, allowed an action for damage that was caused within the statutory period. II. The lower court erred in ruling that the continuous flow of water onto Plaintiff s lot is not an abatable nuisance. A nuisance is deemed to be continuous when the thing that causes the nuisance is not of such a permanent nature that it can not be readily removed and thus abated, Caron v. Margolin, 128 Me. 339, 343, 147 A. 419 (1929). In Jacques v. Pioneer Plastics, 676 A. 2d 504 (Me. 1996), the Maine court held that the chemical waste deposited to the Plaintiffs land before the Plaintiff bought the land and earlier than the six year statutory time period, constituted an ongoing nuisance. There the Court stated, Likewise many courts have considered the question of abatability to be the deciding factor in their determination of whether a nuisance or trespass is continuous or permanent. New Hampshire has long recognized the doctrine of continuing wrong. In Sundell v. Town o f New London, 119 N.H. 839, 409 A.2d 1315 (1979), this Court upheld a lower court ruling that the continuous discharge of effluent into a brook that flowed to a lake was a continuous wrong for which successive actions by littoral owners would lie since the nuisance was abatable. The trial court in that case specifically held that it did not matter that the condition of the lake would not immediately improve with the abatement of the discharge of the effluent. All that mattered in determining whether or not the nuisance was an abatable nuisance was if the condition of the lake would eventually improve. In the instant case, we are dealing 7

12 with the flow of water onto Plaintiff s land, a condition that virtually every other court has deemed to be an abatable nuisance. All that is required to stop the discharge of water onto Plaintiff s property is to intercept the flow of water through a drainage and collection system installed on Defendants property to capture and divert the flow of water before it gets to Plaintiff s property. If the flow of water is captured and diverted, the ongoing damage caused by excess water stops instantly. It is difficult to imagine an ongoing problem that is more easily abated than water flow. III. The lower court erred when it at least implicitly ruled that the discovery rule did not apply to this case or that the Plaintiff should have discovered the causal connection between his damage and the discharge of water onto his property. In its order granting the Renewed Motion to Dismiss, the lower court simply granted the motion for the reasons stated in Defendants objection. The principal facts relied on by Defendants in support of their argument that the claim was time barred is the fact that Plaintiff hired someone to construct a stone retaining wall and discovered water seeping up from the ground more than three years prior to the date of the suit and the fact that Plaintiff had a two foot thick ice flow in his yard in the Winter of Although the lower court never specifically addressed the issue of the discovery rule and whether Plaintiff met his burden of proof on that issue, the order granting the Renewed Motion to Dismiss impliedly incorporates that reason in support of the order. The water that flows onto Plaintiff s land is not a torrent of water that flows over the road and down the slope of Plaintiff s property. It is water that comes through the embankment facing Plaintiff s house. The reason it comes through the embankment is because Defendants channel their surface water into a drainage ditch which discharges into an 8

13 embankment on Defendants property and supersaturates the soil under the road where it is ultimately released onto Plaintiff s property. When Plaintiff discovered the excess water coming onto his lot in the Winter of 2005, he made the reasonable assumption that it was the water line running along the road and up gradient of his property. When the wet condition abated in the Fall of 2005, Plaintiff reasonably assumed that the problem had gone away. When the on flow of water re-emerged in the Spring of 2006, Plaintiff took further steps to investigate the source of water and hired a hydrologist who opined that the source of water was the Defendants lot and was caused by the removal of trees and forest mat that acted like a natural sponge to absorb the surface water. Plaintiff acted reasonably in discovering the source of the water in 2006 and his action for damages filed in September 2008 was therefore timely. CONCLUSION The lower court erroneously concluded that the continuous flow of water onto Plaintiff s property was a non-abatable permanent condition triggered by a tort that occurred more than three years prior to the filing of the lawsuit. In as much as the problem of water flow is easily corrected by the installation of a simple drainage and collection system, the wrong committed by Defendants should be deemed continuous in nature and, so long as the damage has occurred within the statutory period allowed for bringing suit, Plaintiff s claim should be considered as timely filed. The prayer for relief in Plaintiff s Amended Petition requests a permanent injunction against Defendants preventing them from discharging water onto Plaintiff s lot. The lower court incorrectly ruled that Judge Smukler, in his order on the Temporary Injunction, addressed this issue. Judge Smukler only dealt with the issue of excessive salt use on Defendants driveway and never addressed in any fashion the issue of excessive water discharge. 9

14 The continuous wrong doctrine clearly applies to this case and governs both the claim for injunctive relief and the claim for money damages. Plaintiff s claim for money damages to his shrubs, lawn and trees that occurred during the statutory period and which continues today should be allowed. Plaintiff requests that this matter be remanded to the lower court with instructions that Plaintiff s claim for both injunctive relief and his claim for money damages should go forward. Respectfully submitted, Ricky D. Hewitt, By his Attorney, Law Office of Steven M. Latici, P.A. Dated: December 3, 2009 /s/ Steven M. Latici Steven M. Latici, Esquire (#1436) PO Box 130 Gilmanton, NH (603) ORAL ARGUMENT REQUESTED Pursuant to Supreme Court Rule 16(10), Plaintiff requests fifteen (15) minutes to present oral argument by Attorney Steven M. Latici. CERTIFICATE OF SERVICE I, Steven M. Latici, certify that on this day I caused two copies of the within Plaintiff s Brief to be forwarded, via first class mail, to Christopher J. Poulin, Esquire, opposing counsel. Dated: December 3, 2009 /s/ Steven M. Latici Steven M. Latici, Esquire 10