Facts

In January 2004, a massive landslide occurred across the common boundary line of properties owned by John and Barbara Treat, and their neighbor, Mary Lee Scheidt. In April of 2005, the Treats filed suit against Scheidt for damages resulting from the January 2004 slide, and Scheidt cross-complained. The parties entered a Settlement Agreement in February of 2006.

Before the parties entered into the Settlement Agreement, they jointly retained Dennis Furby to act as the project engineer for the parties, and in late 2005, Furby prepared a comprehensive slide repair plan to repair the 2004 slide. Craig Herzog served as the geotechnical consultant for Scheidt, and Alan Kropp was the geotech for the Treats. The 2004 Slide Repair included a large new retaining wall, as well as grading and drainage improvements on both properties. The Settlement Agreement provided that Scheidt paid for 75 percent of the 2004 Slide Repair costs ($281,250), while the Treats paid the remaining 25 percent ($93,750). All of the drainage from the Scheidt and Treat slide repair area was placed in a new corrugated metal pipe that was to run across the downslope property owned by Ronald and Diana Lamson, at the bottom of the slope on Highland Avenue. Scheidt was solely responsible for securing an easement from the Lamsons for the drainage pipe. Scheidt represented to the Treats that she had obtained the Lamsons' agreement to the easement, as of the date of the Settlement Agreement.

Furby, the engineer of record for the project, certified the 2004 Slide Repair work as complete in mid-March of 2006. Three weeks later, on April 11, 2006, minor earth movement occurred immediately downslope of the new wall, on both sides of the common property line between Scheidt and the Treats. That movement included an area of sloughing on the Treats' property, as well as settlement and tension cracks on both properties. The drainage pipe was damaged by mud flow. Without contacting the Treats, Scheidt directed RWR Construction, the contractor for the 2004 Slide Repair, to perform emergency work on the properties of Scheidt, the Treats and the Lamsons. RWR billed $5,484 for that work -- Scheidt directed RWR to bill the Treats exclusively.

After the 2006 slide, Scheidt retained Furby to meet with Kropp to jointly recommend an appropriate scope of repair. The engineers agreed on a project that required remediation of the tension cracks on the Scheidt and Treat properties, grading of the disturbed soil area just below the retaining wall on both properties, and grading of the slough area on the Treat property. Other jointly recommended work included removal of tree stumps from the disturbed area, placement of jute netting, re-vegetation of the area, a video survey and repairs to the drainage pipe, and clean-out of the inlet and culvert at Highland Avenue. Despite mediation and a court settlement conference, the parties were unable to come to agreement on apportionment of the repair costs, estimated to be about $40,000.

PLAINTIFF'S CONTENTIONS:
Scheidt alleged that, although she had all the easement legal work prepared and the Lamsons were willing to agree to the easement language, they were not willing to grant the easement until the 2006 slide was repaired according to the recommendations by Kropp and Furby. Scheidt stated that she has been responsible for maintaining all of the 2004 Slide Repair improvements. She further claimed that the Treats had promised to pay for and carry out the Furby/Kropp recommendations and failed to do so. Scheidt filed claims for negligence, nuisance, trespass, declaratory relief, and breach of settlement agreement.

DEFENDANTS' CONTENTIONS:
The Treats alleged that the 2006 slide event was primarily caused by adverse drainage and grading conditions on the Scheidt property, dating back to the original development of that property. They cross-complained against Scheidt, contending that, unless negligence could be shown against the Treats for some act or omission committed during the scant three weeks between completion of the 2004 Slide Repair and the April 11, 2006 event, each property owner should bear the expense of repairs on his or her property, and they should jointly bear the expense of work within the Lamson easement.

Result

The court ruled that there was no negligence by either party. Judgment was entered for Scheidt on the claims of nuisance, trespass, and equitable indemnity. The court ruled that the tension cracks and ground settlement on the Scheidt property were caused by the sloughing on the Treat property. The court ordered the Treats to pay for the scope of the repair and remediation work on the properties of Scheidt, Treat and the Lamsons, as jointly agreed by Furby and Kropp. Judgment was entered for Scheidt for RWR's bill for the April, 2006 work, in the sum of $5,484. Scheidt moved for an award of attorneys' fees and costs in the sum of $29,727. The Treats moved to tax costs, and their motion was granted except as to attorney's fees for Scheidt in the amount of $2,795.50.

Other Information

FILING DATE: Aug. 12, 2009.