Grimmett v. Smith

238 W.Va. 54

792 S.E.2d 65

Reginald S. Grimmett, Defendant Below, Petitioner

v.William D. Smith and Kerry L. Smith, Plaintiffs Below, Respondents

No. 14–1105

Supreme Court of Appeals of West Virginia.

Submitted: September 14, 2016

Filed: October 12, 2016

George J. Cosenza, Esq., Cosenza Law Office, Parkersburg, West Virginia, Attorney for Petitioner.

Robert L. Bays, Esq., John C. Hudson, Esq., Bowles Rice LLP, Parkersburg, West Virginia, Attorneys for Respondents.

LOUGHRY, Justice:

The petitioner and defendant below, Reginald S. Grimmett, appeals a September 23, 2014, order of the Circuit Court of Wood County setting aside a jury verdict and granting a new trial to the respondents and plaintiffs below, William Smith and his wife, Kerry Smith. The Smiths filed a complaint on May 20, 2011, asserting Mr. Grimmett damaged their real property while developing a mobile home community on his adjacent tract of land by allowing sediment to cross the boundary line and settle into their pond. At the end of a three-day trial in July 2014, the jury returned a verdict finding Mr. Grimmett not liable. Thereafter, pursuant to a motion for a new trial filed by the Smiths, the circuit court found the verdict was against the clear weight of the evidence, clearly wrong, and would result in a miscarriage of justice. In this appeal, Mr. Grimmett argues that sufficient evidence was presented at trial to support the jury's verdict.

Upon review of the parties' briefs and arguments, the submitted record, and pertinent authorities, we find the circuit court committed reversible error by setting aside the jury verdict and granting the Smiths a new trial. Accordingly, we reverse the circuit court's decision and remand this case for entry of an order reinstating the jury's verdict.

I. Factual and Procedural Background

The Smiths and Mr. Grimmett are adjacent owners of real estate located in Mineral Wells, West Virginia. Mr. Grimmett purchased his eleven-acre tract in 2002 and developed it into a mobile home rental community known as Skyview Acres in 2003.¹ The Smiths obtained their property, which includes a dwelling and a half-acre pond, in July 2003. At the time of their purchase, the Smiths were aware of the ongoing development of the Grimmett tract.

In 2009, Mr. Grimmett constructed a walking trail around the perimeter of his property to mark his boundary and provide an exercise area for his tenants. Two years later, he began to construct a small amphitheater and picnic shelter. During the course of construction, Mr. Grimmett was cited for various violations of West Virginia Department of Environmental Protection (DEP) regulations related to erosion control; however, he was never fined. Mr. Grimmett corrected the environmental violations, completed the project, and the construction permit was terminated.²

The Smiths filed this civil action seeking compensation for damage to their real property allegedly caused by Mr. Grimmett's development and excavation of his adjoining land. At trial, the key witness for the Smiths was Garland Roberts, who is employed by the DEP as a construction stormwater inspector for the southwest region of the state. Mr. Roberts testified that he visited Mr. Grimmett's property on three occasions after Mr. Grimmett requested termination of his construction permit. Mr. Roberts stated that during his first and second visits to the property, he documented violations of relevant DEP regulations, testifying:

There was a violation for water quality standards, deposits were noted in the stream below. Conditions not allowable. There was a violation for not inspecting the erosion and sediment control devices according to the requirement. There was a violation for not maintaining records of those inspections. There was a violation of not proper operation and maintenance of all erosion and sediment control structures. And there was a violation for not posting the required outlet marker. An additional violation was issued for not reestablishing vegetation within 30 days of it failing to germinate.

Mr. Roberts further testified that before he ever visited the property, Mr. Grimmett called him asking for assistance "quite a number of times." Mr. Roberts said he advised Mr. Grimmett that "he needed to put in controls for stream stabilization to hold the sediments in place," but "I didn't specify exactly what controls he needed to install." Acknowledging that providing assistance to permittees is part of his job, Mr. Roberts explained he is responsible for thirteen counties and thousands of permits, and he does not always have time to render help.

Regarding his third visit to the property, Mr. Roberts testified he determined the site was stabilized and, accordingly, terminated Mr. Grimmett's construction permit. Mr. Roberts stated that Mr. Grimmett corrected the violations in a timely manner and, while sediment from the Grimmett property went downstream, he did not have any idea what volume of sediment left the site or where the sediment was ultimately deposited. Mr. Roberts said he never visited the Smiths' property and he never examined their pond. During Mr. Roberts's testimony, photographs he took during his inspections were shown to the jury.

The Smiths also presented testimony from their neighbor, Patricia Mulinex, who grew up in the area. Ms. Mulinex testified she has lived in her current house, which is located next to the Smiths, since 1999. Ms. Mulinex's testimony focused on the the color of the pond before and after Mr. Grimmett completed his construction projects. On cross-examination, she was asked, "And was the pond clear today?" Mrs. Mulinex answered, "It was looking pretty good."

Terry Lane Smith, a commercial and residential contractor with thirty-two years of experience in the excavating business, testified for the Smiths regarding the cost to clean out the pond.³ Terry Smith testified that he visited the Smiths' property on two occasions and provided two estimates.⁴ In 2010, he estimated the cost to clean out the pond would be approximately $96,000. In 2013, his estimate ranged from $126,000 to $212,000. He attributed the difference in price to the method of debris removal he proposed to use and the fact he believed that by 2013, additional sediment had flowed into the pond. However, Terry Smith was not able to say how much sediment was actually in the pond. He testified he did not know the depth of the pond when the Smiths purchased the property; he never measured the depth of the pond when he gave his estimates; and he did not have a conversation with the Smiths regarding their desired depth for the pond. When asked to explain how he arrived at his estimates, Terry Smith indicated he factored in the cost of renting equipment to complete the project. He admitted, though, that he had not obtained any price quotes from the companies that would provide the equipment.⁵

William Smith testified he and his wife purchased their property for $168,000. Mr. Smith described the pond at the time of purchase as "rich in sediment" and "reddish-brown" in color. He stated "the color was off putting to my wife," explaining she would not swim in the pond. He indicated, however, that he was not concerned about the condition of the pond at the time of purchase. Mr. Smith further testified that after a few years, the color of the pond improved until Mr. Grimmett began constructing his walking trail in 2009. Mr. Smith testified he does not know how deep the pond was when he purchased his property and he has never had the depth of the pond measured. During Mr. Smith's testimony, a video showing runoff leaving Mr. Grimmett's property was presented to the jury. Testifying that the runoff went into his pond, Mr. Smith used this video to indicate the flow pattern. While maintaining Mr. Grimmett's property is the source of the sediment in his pond, Mr. Smith acknowledged that runoff from other surrounding properties has also resulted in the depositing of silt and debris in his pond. In that regard, he testified on cross-examination as follows:

Q: So you're getting some muddy water and things off the Mulinex property when there's a heavy rain?

A: Yes.

Q: And that's feeding into your pond?

A: Yes.

Q: Have—

A: Quite a bit.

Q: Have you ever tried to do anything with them to stop that from happening?

A: No. Again, that's—those are some really good people, and it's a drop in the bucket really.

Q: Okay.

A: It's not worth hurting our relationship over.

Q: But it is contaminating your pond?

A: Not really.

Q: It's silty water coming in your pond, isn't it?

A: It's—to compare the two is just absurd.

Q: Well, okay. But you would at least agree with me that the water that's being deposited into your pond from time-to-time from the Mulinex property is dirty water?

A: Yes.

Q: That carries silt and other particles in it, correct?

A: Yes.

After the Smiths presented their case, Mr. Grimmett testified on his own behalf but did not present any additional witnesses. Mr. Grimmett told the jury about the various construction projects on his property and his methods of erosion control, explaining that he used "a lot of silt fencing." Generally, Mr. Grimmett disputed the Smiths' claim that excessive amounts of sediment left his property as a result of his construction activities and flowed into their pond. During his testimony, the jury was shown a video of the Smiths's pond that Mr. Grimmett took a few days prior to trial. According to the record in this case, this video showed that the pond was clear with lily pads growing in the water.⁶

The jury was given a verdict form to complete during deliberations with the following three questions pertaining to liability:

Have the Plaintiffs proven, by a preponderance of the evidence, that the Defendant, Reginald Grimmett, in the development of his real property, unreasonably caused silt, dirt or other pollutants, to come upon the property of the Plaintiffs, William D. Smith and Kerry L. Smith?

Have the Plaintiffs proven, by a preponderance of the

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