ELECTRONICALLY FILED 10/23/2013 4:43 PM 02-CV-2013-902873.00 CIRCUIT COURT OF MOBILE COUNTY, ALABAMA JOJO SCHWARZAUER, CLERK IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA THOMAS FINCH AND KATHLEEN FINCH, v. Plaintiffs, MOBILE AREA WATER AND SEWER BOARD, MOBILE WATER AND SEWER BOARD, and A, B, and C, who are those persons, firms, corporations, and/or other entities whose errors omissions, negligence, or other acts caused Plaintiffs damages; and D, E, and F, who are those persons, firms, corporations, or other entities responsible for the engineering, design, maintenance, and/or construction of the Holding Pond Project, including its storm water retention and drainage system, whose names are unknown at the present but will be added by amendment, Defendants. CIVIL ACTION NO. CV-2013- COMPLAINT COME NOW Plaintiffs, THOMAS FINCH and KATHLEEN FINCH, by and through undersigned counsel, and file this Complaint against Defendant, Mobile Area Water and Sewer Board (MAWSS), and for their Complaint state as follows: 1. Plaintiffs, THOMAS FINCH and KATLEEN FINCH, husband and wife, are adult resident citizens of Mobile County, Alabama. Plaintiffs own a home and real property located at 1724 Northview Drive, Mobile, Alabama 36618. Such property is adjacent to the MAWSS Project referenced herein and is directly down-gradient from the Project.
2. Defendant MAWSS is the owner of the Project and associated property located in Mobile County, Alabama. 3. Defendants A, B, and C are the persons, firms, corporations, and/or other entities whose errors, omissions, negligence, or other acts caused Plaintiffs damages complained of herein and whose names are currently unknown but will be added when ascertained. 4. Defendants D, E, and F are the persons, firms, corporations, or other entities responsible for the engineering, design, maintenance, construction, placement, and supervision of the construction of the Project, located adjacent to and west of Plaintiffs home, including its storm water retention and drainage system, and whose names are currently unknown but will be added when ascertained. Facts 5. Defendants designed and constructed the Project on property owned by MAWSS located north of Moffett Road, and adjacent to the Plaintiffs home. In conjunction with such construction, Defendants removed the trees and vegetation on the subject property and changed the contour of the said property thereby causing rain waters to flow therefrom and onto the Plaintiffs property in greater quantity and velocity than rain waters had normally flowed from said property. Defendant MAWSS s land disturbance and construction has caused and allowed huge amounts of rain waters and sediment to be channeled from the said Project and onto Plaintiffs property. 6. No flooding or erosion problems existed on Plaintiffs property prior to the commencement of the Project. Indeed, the property upon which the Project is located was historically of similar elevation to the Plaintiffs property. Defendant brought in thousands of tons of red clay in order to construct the Project, resulting in slopes along the eastern boundary 2
thereof which are extremely steep and cause significant stormwater flow and sedimentation loss therefrom. 7. On many occasions within the past six (6) months, Plaintiffs property has been flooded with stormwater and sediment from the Project, due to its altered drainage and lack of retention system for its slope flows and the failure to employ Best Management Practices (BMPs), thereby proximately causing damage to Plaintiffs home, sheds, drives, gardens, yard, garage, etc., causing same to be rendered temporarily and permanently less valuable, and causing Plaintiffs to suffer emotional distress and mental anguish, personal injury, financial loss, cost of repair/remediation, loss of use and enjoyment, and other damages in connection therewith. 8. Plaintiffs have notified Defendants of the damages being suffered by Plaintiffs as a result Defendants wrongdoing to no avail. See Exhibit A. Prior to such formal correspondence, Plaintiffs complained directly to Defendant concerning the water and sediment problems they were experiencing. Representatives of the Defendant and its contractors inspected the first event reported and told the Plaintiffs your problems have just begun. Subsequently, an engineer told the Plaintiffs I told them they needed to do something to address this situation. Unfortunately (for the Plaintiffs), Defendant did little to nothing to address the damages Plaintiffs were sustaining in each rain event. COUNT ONE 9. Plaintiffs adopt and reassert each and every allegation as set forth in the preceding 10. Defendant negligently designed, engineered, altered, modified, and constructed the Holding Pond Project and its associated land contours, drains, drainage ways, retention facilities, and/or culverts (or lack thereof) and diverted storm waters and sediment, and 3
channeled same onto Plaintiffs property and thereby invaded the Plaintiffs property causing substantial and foreseeable damages to Plaintiffs properties and to Plaintiffs. 11. As a proximate result of such negligence, Plaintiffs have been damaged. COUNT TWO 12. Plaintiffs adopt and reassert each and every allegation as set forth in the preceding 13. Defendants are guilty of creating a nuisance and an aggravated nuisance which has proximity caused Plaintiffs to be damaged as aforesaid. COUNT THREE 14. Plaintiffs adopt and reassert each and every allegation as set forth in the preceding 15. Defendants are guilty of committing trespass upon Plaintiffs property before and after notice to quit which has proximately caused Plaintiffs to be damaged as aforesaid. COUNT FOUR 16. Plaintiffs adopt and reassert each and every allegation as set forth in the preceding 4
17 Plaintiffs are entitled to entry of a mandatory injunction requiring alteration to the Project, including its drainage and retention system, so as to assure that Plaintiffs property will no longer be subjected to flooding caused by the alteration of the natural contours and drainage ways on and across the property, and to assure that erosion from said Project is adequately prevented and contained thereon. WHEREFORE, Plaintiffs demand entry of a permanent mandatory injunction against Defendants, and entry of judgment against Defendants for compensatory damages, interest, Plaintiffs costs and attorney s fees, and such other relief to which the Plaintiffs may be entitled. OF COUNSEL: Law Offices of J. Patrick Courtney III P. O. Box 2205 (1 North Royal Street) Mobile, AL 36652-2205 251/694-1001 251/433-3752 (fax) jpc3law@aol.com /s/ J. Patrick Courtney III J. PATRICK COURTNEY III (COU004) Attorney for Plaintiffs, THOMAS FINCH and KATHLEEN FINCH PLEASE SERVE BY CERTIFIED MAIL: MOBILE AREA WATER AND SEWER BOARD 207 North Catherine Street Mobile, AL 36604 5