Borne v. Estate of Carraway

• Decision Date: 18 July 2013
• Docket Number: No. 2011–CA–00267–SCT.,2011–CA–00267–SCT.
• Citation: 118 So.3d 571
• Parties: Michael BORNE, Honey E. Holman, Eastover Lake Association, and Bryant M. Allen, et al. v. ESTATE OF T.L. CARRAWAY, Jr.; Thomas L. Carraway, Jr. Living Trust and City of Jackson, Mississippi and City of Jackson, Mississippi v. Estate of T.L. Carraway, Jr.; Eastover Lake Association; Michael Borne; Honey E. Holman; and Bryant M. Allen, et al.
• Court: Mississippi Supreme Court

118 So.3d 571

Michael BORNE, Honey E. Holman, Eastover Lake Association, and Bryant M. Allen, et al.

v.ESTATE OF T.L. CARRAWAY, Jr.; Thomas L. Carraway, Jr. Living Trust and City of Jackson, MississippiandCity of Jackson, Mississippi

v.Estate of T.L. Carraway, Jr.; Eastover Lake Association; Michael Borne; Honey E. Holman; and Bryant M. Allen, et al.

No. 2011–CA–00267–SCT.

Supreme Court of Mississippi.

July 18, 2013.

Toby Justin Gammill, David E. Stovall, Jackson, Samuel E.L. Anderson, Clyde X. Copeland, Matthew W. Vanderloo, Tiffany Piazza Grove, Reeve G. Jacobus, Jr., Ridgeland, Thomas Y. Page, Jackson, Thurman Lavelle Boykin, III, Patrick M. Tatum, William Lock Morton, III, Ridgeland, Donald Partridge, Jackson, attorneys for appellants.

James Anderson, Jr., Jon Heath Powell, Connie Marie Smith, Flowood, Pieter John Teeuwissen, Lara E. Gill, Ridgeland, attorneys for appellees.

EN BANC.

KITCHENS, Justice, for the Court:

ON MOTION FOR REHEARING

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. An underground culvert system failed and caused a large sinkhole behind the Carraway residence. The culvert system drains Eastover Lake, which is owned by the surrounding property owners (collectively, “the Lake Owner Defendants”) and maintained by the Eastover Lake Association (ELA). On October 9, 2006, T.L. Carraway Jr.¹ filed suit against the Lake Owner Defendants and ELA. The Lake Owner Defendants and ELA filed third-party complaints for indemnity against the City of Jackson, alleging that the City's sewer-line repairs had caused the sinkhole. The chancellor found the Lake Owner Defendants, ELA, and the City jointly and severally liable for the repair. The Lake Owner Defendants, ELA, and the City appeal.

¶ 3. We affirm in part, finding that the issues raised by the Lake Owner Defendants, the ELA, and the City are without merit, except that the chancellor erred by ordering joint and several liability. We reverse and render, finding that the Lake Owner Defendants, ELA, and the City are severally liable for the costs of the repairs of the culvert and sinkhole in proportion to their respective allocations of fault as determined by the chancery court.

FACTS

A. Eastover Lake

¶ 4. The Carraway property lies within Eastover Subdivision, which was developed by Eastover Corporation between 1949 and 1962. Eastover Lake was constructed as a part of the development. The lake was formed by building an earthen dam to contain runoff water. The Lake Owner Defendants own lots abutting the lake. Lake Circle Drive lies south of the lake, and the Carraway property lies south of Lake Circle Drive across from the lake. ELA is a homeowner's association that maintains the lake.²

¶ 5. Eastover Lake is drained by a concrete spillway that is connected to an underground culvert system. The spillway collects the overflow water from the lake and the culvert system and drains it to Pearl River.³ The culvert system is 250 feet long and consists of fifty-three sections of interlocking concrete pipe sloping down toward Pearl River. The culvert system begins at the spillway at the southeastern corner of the lake, runs under Lake Circle Drive, then runs beside the Carraways' eastern property line, and then empties the water out behind the Carraway property. The water then flows through a swampy area down to the Pearl River. Ownership of the culvert system was disputed at the trial.

¶ 6. The chancellor found that, in 1962, Eastover Corporation dedicated streets, rights of way, and easements to the City by plat map. The plat map shows a ten-foot utility easement between Lots 19 and 20,⁴ but it does not show the lake and culvert system, indicating that they remained the property of Eastover Corporation. In 1978, ELA was incorporated for the purpose of accepting a flowage easement from the developer for the “inundation, ownership, control, operation and maintenance” of Eastover Lake. Subsequently, Eastover Development, Incorporated, the successor of Eastover Corporation, conveyed and quitclaimed ownership of Eastover Lake, the dam, spillway, and any related easements. Eastover Development conveyed fee simple title to the lake to the abutting property owners. After this conveyance, each lake owner's lot line extended to the middle of the lake. Along with this conveyance of the lake, a flowage easement was conveyed to ELA for the inundation, ownership, control, operation, and maintenance of the lake. Additionally, a perpetual drainage-ditch easement was conveyed to the Lake Owner Defendants and “all others” having a natural easement to the flow of the surface waters of the lake.⁵

¶ 7. A former president of ELA, Steve Rogers, testified that the lake is private and is protected by restrictive covenants, and that the purpose of the culvert system is to drain the lake so it does not overflow onto surrounding properties. He testified that the culvert system has been in use since Eastover Lake was constructed. Rogers testified that ELA cleaned the lake and maintained liability insurance that covered property damage associated with the premises, including the “concrete and steel spillway.” Rogers wrote periodic letters to ELA members about dues and to apprise them of matters involving the lake. On January 8, 2002, he wrote a letter stating “we need to take certain actions each year. Specifically, we need to clean the lake, repair the dam and spillway, and remove (kill) beavers periodically.”

B. The Sinkhole

¶ 8. In the late 1990s, Kirk Carraway, a relative of T.L. Carraway and a local contractor, inspected the Carraway property while planning the construction of an addition to the house. Kirk Carraway noticed severe erosion problems around the outlet end of the culvert pipe where the water exited the pipe and flowed down toward the Pearl River. He told the Carraways of the problem.

¶ 9. In 2002, the City repaired a sanitary sewer line adjacent to Lake Circle Drive. In the process, City employees dug up and removed several sections of the culvert pipe to access the sewer line, which lay approximately six feet beneath the culvert pipe. The City workers did not obtain permission to remove the sections of culvert pipe, even though they knew it was part of the drainage system for the lake. They also failed to consult anyone about proper instructions for replacing the pipe.⁶

¶ 10. Sylvia Carraway testified that, in April 2004, she discovered a sinkhole in her back yard. Sylvia testified that the sinkhole was about ten to twelve feet long and two feet deep. Sylvia contacted the City about the sinkhole, believing that the City's work had caused the problem, but the City did not provide any relief. In June 2004, Sylvia approached Rogers, then the president of ELA, about the sinkhole, but ELA provided no relief.

¶ 11. Rogers testified that, in 2004, he had suspected the lake was leaking. On June 11, 2004, Rogers wrote the lake owners, stating: “We continue to monitor the lake level to determine if we have a sub-surface leak at the spillway. Sylvia Carraway has a good bit of damage in her backyard from the lake overflow that appears to have spilled from a pipe break. This does not appear to be our challenge ... there was some damage to the pipe when the city dug up the street a year ago.” On October 6, 2004, Rogers wrote the following: “The lake has dropped about 8 inches during the recent drought so it is hard to tell if the leak in the dam is the culprit or just simple evaporation.... We may have to repair this next summer but in the meantime we will monitor the cracks, leaks and the water level.” Rogers testified that, after obtaining an engineering report, he had concluded that the lake's unusually low level was due to drought. However, the engineer who performed the inspection stated in a January 2005 letter that seepage “is probably occurring around one or both ends of the spillway abutments.”

¶ 12. Carraway's complaint, filed on October 9, 2006, alleged that the Lake Owner Defendants and ELA are responsible for maintaining the culvert system, but they negligently failed to do so, causing the sinkhole to form in the Carraways' yard. The complaint alleged that the Lake Owner Defendants and ELA were liable for repairing the damage to the Carraway property. In October 2007, the Lake Owner Defendants and ELA filed third-party complaints for indemnity against the City, alleging that the City had damaged the culvert system when it had repaired the sewer line in 2002, which had led to the failure of the culvert system and to the sinkhole. The complaint against the City included a general prayer for “any relief as this court may deem appropriate.” The City denied liability and asserted immunity and other defenses under the Mississippi Tort Claims Act (MTCA).

¶ 13. At trial, Sylvia testified that the sinkhole has grown, and that it is now fifty feet long, twenty-five to thirty feet wide, and between fifteen and twenty feet deep. She stated that it is located directly above the underground culvert pipe, near the outlet. She stated that the culvert system has not been replaced or maintained since she moved in.

C. Expert testimony

¶ 14. Soil borings taken near several sections of the culvert pipe established the presence of Yazoo clay beneath the culvert system. The expert testimony was in agreement that leaks in the culvert system had caused escaping water to contact the Yazoo clay, which had resulted in earth movement which caused further damage to the culvert pipe, causing the sinkhole. But the expert testimony conflicted as to how the initial leaks had occurred.

¶ 15. Carraway's expert, Alain J. Gallet, testified that the culvert pipe was in a very poor state of repair, and that many sections had joint separations that had leaked and caused the sinkhole. His geotechnical exploration report showed separation between joints 1 and 2, 10 and 11, 11 and 12, 12 and 13, 13 and 14, 17 and 18,...