Fiebelkorn v. Alford

105 So. 3d 110, 2012 WL 4127253, 2012 La. App. LEXIS 1159
CourtLouisiana Court of Appeal
DecidedSeptember 20, 2012
DocketNo. 47,423-CA
StatusPublished
Cited by1 cases

This text of 105 So. 3d 110 (Fiebelkorn v. Alford) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fiebelkorn v. Alford, 105 So. 3d 110, 2012 WL 4127253, 2012 La. App. LEXIS 1159 (La. Ct. App. 2012).

Opinion

GASKINS, J.

_JjThe plaintiffs, Jack L. Fiebelkorn and Jean F. Fiebelkorn, appeal from a trial court judgment rejecting their claims for damages against the defendants, Allen Ray Alford and Janet Schultz Alford. The plaintiffs alleged that their home and lot suffered water damage after the defendants modified the adjoining lot to construct a home. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiffs’ house, located in a golf course community in Calhoun, Louisiana, was constructed in 1984-1985. The plaintiffs, who are in their 70s, purchased the house in 2005. In October 2005, the plaintiffs installed a sprinkler system and in 2006, they had a landscape designer put in extensive flowerbeds around the house. [112]*112The lot south of their property was vacant. The parties’ lots face the road on the east, and the golf course is behind them, on the west side. This area drains into a catch basin to the north of the properties.

The defendants purchased the lot next to the plaintiffs in 2008 and constructed a house. The plaintiffs contend that they never had problems with flooding on their lot until the defendants built their house. The plaintiffs claim that the defendants altered the drainage of the area, causing an overflow of silt onto their property, standing water in their yard, and water that came into the house, damaging their wood flooring and creating a musty smell. The plaintiffs filed suit against the defendants and trial was held in February and April 2011.

Mr. Fiebelkorn testified that he and his wife are real estate brokers and generally buy a house, live in it for several years, and then sell it. According to Mr. Fiebel-korn, at the time he bought this house in 2005, it was inspected and Rno problems were found. He stated that the drainage on the property was good and that water drained from the street to the back of the property, toward the golf course, through swales or indentions in the ground.

In October 2005, the Fiebelkorns installed a sprinkler system in the yard and in 2006, they installed flowerbeds around the house. Mr. Fiebelkorn testified that the landscaping did not cause any problems with the drainage on his property. However, after the Alfords began constructing their house on the adjoining lot, Mr. Fie-belkorn claimed his drainage and flooding issues commenced. Shortly after Mr. Alford moved dirt on the lot to build up the house pad, heavy rains washed the fill dirt onto the Fiebelkorns’ yard. Mr. Fiebel-korn said that the dirt was red and contained iron ore.

Mr. Fiebelkorn claimed that the Alfords built up their lot and changed the drainage so that all the water flowing off the defendants’ lot comes through the plaintiffs’ house. Mr. Fiebelkorn alleged that dirt from the Alfords’ lot filled up a swale that previously had drained the Fiebelkorns’ property. When the flooding problems began, Mr. Alford put sandbags out, but Mr. Fiebelkorn said they were put in the wrong place. Mr. Fiebelkorn stated that Mr. Alford put a French drain on his property, but when it gets clogged, water gushes onto the plaintiffs’ lot. Mr. Fiebel-korn contended that as a result of his drainage problems, bricks on the house are cracked, his slab is cracked and water is coming up through the slab into the house. He stated that there is mold in the cracks of the slab. The ground on one side of the house is always soft and wet and he cannot mow there or drive his golfcart on that area. He stated that since the defendants moved in, he has had water in his house 20 times.

| sMr. Fiebelkorn testified that the wood flooring in the house came up and they had to remove it and have not replaced it. According to Mr. Fiebelkorn, he could always tell how many inches of rain had fallen because the floorboards of the house would be raised by that amount. Mr. Fie-belkorn said that with the drainage problems now existing in the property, he cannot sell the house, as had been his plan.

Mr. Fiebelkorn claimed that the flooding of their house and property adversely affected his wife’s health. During the time the problems with water in the house arose, Mrs. Fiebelkorn had a pacemaker installed. Mr. Fiebelkorn stated that the stress of the situation with the house aggravated his wife’s physical condition.

Mr. Alford installed a French drain on the plaintiffs’ property, but Mr. Fiebelkorn said it is not working. He testified that [113]*113the French drain does not appear to be removing water from his property. According to Mr. Fiebelkorn, Mr. Alford constructed a retaining wall on his own property, but he claimed that water comes over the top of Mr. Alford’s retaining wall during heavy rains. Mr. Fiebelkorn identified material from the Alfords’ retaining wall that had washed over into his flowerbed. Mr. Alford also put a 12-inch drainage pipe on his property that empties into a catch basin. Mr. Fiebelkorn claimed that the defendants have created a situation where the water table in the ground is higher than his slab, forcing the groundwater up through his slab.

Mrs. Fiebelkorn testified that she is 70 years old and has been married to Mr. Fiebelkorn for 27 years. She stated that there were no drainage problems with the house before the Alfords began construction. After the drainage problems began, closet doors in the house were hard to open and the wood ^flooring began to come up, necessitating its removal. She stated that the concrete slab appears to have water coming up from below. Mrs. Fiebelkorn said that her husband has a seizure disorder for which he takes “heavy medication” and does not need to have a lot of stress.

Robert Hilory Quinn, Jr., sold the house to the Fiebelkoms. He testified that he purchased the house in 1990 and never had any drainage problems in the house, including during an area flood in 1991.

Brandon Antley is affiliated -with the flooring company that removed the wood floors from the Fiebelkorn home. He stated that it cost $1,550 to remove the flooring. He observed that there was moisture in the slab and mold and mildew were growing under it.

Nicholas Charles Hilburn mows the Fie-belkorns’ lawn. He stated that there were no problems with mowing before the Al-fords built on the lot next door. He observed that the Affords’ fill dirt washed onto the plaintiffs’ property and filled in the swale so that it does not drain as well. He testified that the flowerbeds are constructed so that the water drains away from the house and the weep holes are open all around the house.1

Foy Bryon Gadberry worked for an engineering firm and was accepted as an expert in architecture and building. He testified for the Fiebelkorns and was familiar with the area before the Affords’ house was built. He stated that the water flowed southeast to northwest on the front and flowed toward the golf course in the back. He said that the water basically sheet-flowed over the Affords’ property before construction. After they built their house, the swale |Bwhich drained the area was narrowed and created a dam for water that previously had come from the street and flowed over the Affords’ lot. He said that the construction slowed the drainage on the plaintiffs’ property. He observed that the defendants’ dirt was within two feet of the retaining wall that the defendants built and that silt was built up halfway between the retaining wall and the flowerbeds. On a later visit to the site, he observed that the ground had been sodded and the swale was not as well defined as it had previously been.

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Cite This Page — Counsel Stack

Bluebook (online)
105 So. 3d 110, 2012 WL 4127253, 2012 La. App. LEXIS 1159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fiebelkorn-v-alford-lactapp-2012.