APPEAL fro THE BAXTER COUNTY CIRCUIT COURT. NO. CV-12-136-3. HONORABLE JOHN R. PUTMAN, JUDGE.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Alex T. Gray and Brian A. Pipkin, for appellant.
Cooper & Bayless, by: Paul Bayless, for appellees.
KENNETH S. HIXSON, Judge. WHITEAKER and BROWN, JJ., agree.
KENNETH S. HIXSON, Judge
This case involves the construction of an apartment complex that caused drainage damage to a homeowner's adjacent property. The appellees are R.M. Pangle and Lois K. Pangle, who have lived in their house in Mountain Home since 1974. The appellant is Valley Estates, Limited Partnership. Valley Estates completed construction of the apartments at issue in late 2007. Valley Estates appeals from a judgment in favor of the Pangles, wherein the trial court found that Valley Estates created a nuisance and awarded the Pangles $7087.50 in compensatory damages and $10,000 in punitive damages. Valley Estates' primary argument on appeal is that the Pangles' action was barred by the applicable statute of limitations. We agree, and we reverse and dismiss.
The Pangles initiated this case on June 4, 2012, when they filed a complaint against Valley Estates of Mountain Home Phase II, Limited Partnership, alleging that the construction of the apartment complex caused drainage damage to the Pangles' adjacent property. The Pangles amended their complaint on August 21, 2012, substituting Valley Estates, Limited Partnership as the proper defendant. The Pangles filed a second amended complaint on March 5, 2013, asserting that the construction
of the apartment created a nuisance and changed the slope of the terrain, resulting in damage to the Pangles' gravel driveway " every time it rains." The Pangles claimed that their driveway had been damaged more than eighty-seven times since June 2009 by rainfalls of one-half inch or more, and that every time the driveway was damaged the Pangles were forced to repair the driveway at their own expense.
In defending against the Pangles' lawsuit, Valley Estates asserted that the Pangles' claims were barred by the three-year statute of limitations. Valley Estates argued that the Pangles were asserting a permanent nuisance, as opposed to a temporary nuisance, and that the Pangles' cause of action arose upon completion of the construction project in late 2007. Because the Pangles filed their original complaint more than three years later on June 4, 2012, Valley Estates contended that the action was time-barred.
Mr. Pangle testified at the bench trial. He stated that on three occasions during construction of the apartment complex he spoke with supervisors of Valley Estates expressing his concerns about the change in the slope of the terrain. According to Mr. Pangle, the supervisors promised that they would fix the slope but it never happened. Mr. Pangle also stated that, when the apartments were built, Valley Estates installed twenty-one downspouts that drain onto his driveway. Mr. Pangle testified that the project engineer for Valley Estates had promised to take measures to alleviate the drainage problem, but that Valley Estates made no attempt to divert the water.
Mr. Pangle testified that any time it rained any amount, the water would flow from the apartments and wash out his driveway. Mr. Pangle stated that each time his driveway was damaged, he would repair it by rebuilding and grading it with his tractor. Mr. Pangle stated that the drainage issues were probably the worst thing that had ever happened to him, and that the damage occurred with such frequency that his quality of life was adversely affected from losing sleep. He said that he had to repair his driveway just a week before trial.
Ben Strider, an engineer, visually inspected the parties' properties. Mr. Strider testified that the apartment construction plans were not completed properly because there was no ditch behind one of the buildings to prevent water from flowing onto the Pangles' land. Mr. Strider further stated that the drainage problems were exacerbated by downspouts off of the back of the apartment buildings, which are aimed at the Pangles' property without the benefit of an underground ...