Peterson v. Springdale Land Co.

Decision Date19 September 2018
Docket NumberNo. 0856,0856
PartiesMICHAEL F. PETERSON, ET UX. v. SPRINGDALE LAND COMPANY LLC, ET AL.
CourtCourt of Special Appeals of Maryland

Circuit Court for Carroll County

Case No. 06-C-14-66986

UNREPORTED

Nazarian, Reed, Krauser, Peter B. (Senior Judge, Specially Assigned), JJ.

Opinion by Reed, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Michael and Faith Peterson, the appellants, were found liable for breach of a 2006 Settlement and Mutual Release Agreement ("Settlement Agreement") which they entered into with appellees Springdale Land Company, LLC and Lovell Grass Fed Cattle Company, LLC ("the Lovells"), and Sharon Clinton ("Clinton") as the result of a water discharge dispute in 2005. On appeal, the appellants present four questions for our review, which we have re-phrased as follows:

1. Did the circuit court err in granting partial summary judgment as to liability in favor of the Lovells and Clinton?
2. Did the circuit court abuse its discretion by denying appellants' Motion to Compel Site Inspection and prohibiting the requested re-inspection of the Lovells' real property?
3. Did the circuit court abuse its discretion by striking the proffered affidavit and testimony of the appellants' expert and/or by not considering the expert's proffered affidavit and testimony in the determination to enter partial summary judgment in favor of the Lovells and Clinton?
4. Did the circuit court err in awarding the Lovells and Clinton their respective and requested litigation costs and expenses?

For the following reasons, we answer these questions in the negative and affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND
A. 2006 Litigation and Settlement Agreement

Appellees Springdale Land Company, LLC and Lovell Grass Fed Cattle Company, LLC are owned and managed by John and Virginia Lovell ("the Lovells"). The Lovells operate an organic cattle farm on a single plot of land ("Springdale Property") located offBark Hill Road in Union Bridge, Maryland. Appellants Michael and Faith Peterson ("the Petersons") own and occupy the real property across Bark Hill Road from the appellees. The appellants' property is immediately adjacent to the real property owned by Sharon Clinton ("Clinton"). Both the Peterson and Clinton properties are located uphill from the Springdale Property. Water naturally flows from the appellants' property onto Clinton's property, where it is then directed under and across Bark Hill Road toward the Springdale Property by means of a culvert built and maintained by Carroll County.

In 2005, the appellees filed a lawsuit in Carroll County alleging that the appellants and Clinton were actively discharging water through a buried pipe in the direction of the Springdale Property in such quantities that it was causing significant erosive damage to a 1,700 foot long grassed waterway1 on the Springdale Property.2 The source of the water flow at issue was water that was being directed out of the appellants' basement via sumppump, drain pipe, and extension pipe to the front of the appellants' property and eventually onto the appellees' property.

In November 2006, the Lovells, the Petersons, and Clinton entered into a Settlement Agreement whereby the appellants agreed to disconnect their drain pipe and pay damages, in conjunction with Clinton, to the appellees. Paragraph 4 and 5 of the agreement, the appellants promised and agreed not to pipe or direct water onto the appellees' property:

4. The Petersons represent and warrant that they have disconnected the outside extension pipe previously connected to the drain pipe of the sump pump servicing the house on the Peterson Property.
5. The Petersons affirmatively covenant, promise, and agree not to pipe or direct water onto the Plaintiff's Property or the Clinton Property. The Petersons further affirmatively covenant, promise, and agree that they shall not reconnect the extension pipe or any similar extension pipe. The Clintons affirmatively covenant, promise, and agree not to pipe or direct water onto the Plaintiffs' Property or the Peterson Property. Nothing herein shall be construed to prohibit the natural flow of water from the Peterson Property or the Clinton Property to the Plaintiff's Property.

Following the settlement, the appellants removed the extension pipe connected to the sump pump system in their basement and redirected the water to the rear of their property to be drained into seepage pits. In turn, the appellees made repairs to the damaged grass waterway on the Springdale Property and installed a French drain throughout the length of the waterway to provide additional protection against erosion. The appellants maintain that the work they undertook in 2006 fully resolved the water issue that resulted in the prior litigation.

B. 2014 Complaint

In April 2014, the appellees claimed they "discovered and personally observed water once again being discharged from Appellant's property at what appeared to be the same constant rate and quantity of discharge as in 2005 and from what looked to be the same buried pipe." The appellees noted that the water being discharged from the appellants' property was causing the same erosive damage as that which occurred eight years prior. After receiving no response from the appellants to their cease and desist letter,3 the appellees initiated the underlying litigation by filing a Complaint to Enforce Settlement Agreement against the appellants and Clinton on July 23, 2014.The Complaint also included claims of nuisance, trespass, and negligence. Along with the Complaint, the appellees filed a Motion for Temporary Restraining Order and Preliminary Injunction against the appellants and Clinton, enjoining both parties "from piping, channeling, and directing water onto the [appellees'] [p]roperty until a final determination has been made on the merits of [the appellees'] claims."4

The appellants acknowledged that water was discharged onto the appellees' property for a brief period of time between April 2014 and July 2014,5 but denied that the temporary event constituted a breach of the Settlement Agreement. The following excerpt from an email sent on August 13, 2014, by the appellants' counsel to appellees' counsel for settlement purposes elaborates:

At some point after the prior litigation was resolved, the Petersons were forced to address a water flow issue arising from their septic system. This initially involved the installation of a new pipe, but was subsequently resolved by the creation of a drainage pit around the septic system. Until sometime this Spring [sic], no water flowed from this septic system drainage pipe towards your clients' property. Instead, the water flow was halted via the drainage pit. For reasons unknown (likely higher than typical water runoff from the past season's snow and a rise in the local water table), there was a brief period in which water did apparently flow from the area of the septic system through the pipe in the front of the Peterson property. Once this water flow was noticed, the Petersons took immediate steps to remedy the issue and a new and enlarged septic drainage pit was installed. At the same time, the subject septic drainage pipe was removed.
The Petersons assert that they were never contacted by your clients (or by your office) in regard to this brief septic drainage issue, but resolved the issue on their own initiative once they became aware of the issue. Under these circumstances, I do not see a viable basis for the Complaint to Enforce Settlement Agreement just filed. The source of the water is different. The means by which the water flow has been directed is different. The issue now complained of has been resolved and the pipe, which is different from the pipe in the initial litigation, has been removed. As a result, I would request that your clients dismiss their Complaint.

The appellees did not dismiss their Complaint, but instead filed and were granted a Motion to Extend Temporary Restraining Order.

C. Site Inspection

The appellees and appellants both designated engineers as expert witnesses to support their conflicting positions as to the source of the 2014 water issue and the extent of the damage that the water caused to the Springdale Property. The appellees designated Mr. John Klein, the same environmental engineer who testified in the 2006 litigation, while the appellants retained Mr. David Bastian, a civil engineer.6

It is undisputed that on October 13, 2014, Mr. Klein and Mr. Bastian conducted a site inspection. However, the appellants offer an account as to what this inspection entailed and where it occurred that is inconsistent with the record. The appellants claim that on October 13, 2014, the parties and their respective expert witnesses and attorneys inspected the real properties at issue in this appeal. However, the record indicates that the site inspection was only of the Peterson Property, not the Springdale Property, and that it was conducted solely by Mr. Klein and Mr. Bastian.

Next, the appellants allege that the primary purpose of the October 13 site inspection was for Mr. Bastian to "view, inspect, and document the areas of damage to [the Petersons'] neighbors' properties as alleged in the subject Complaint and Cross-Claim." However, Mr. Peterson stated in an affidavit signed September 23, 2014, that Mr. Peterson and/or hiscounsel invited the appellees to inspect the Peterson Property "to confirm that the water issue complained of ha[d] been resolved and ha[d] been resolved for some time."

Following Clinton's deposition on April 14, 2015, the appellants contend that the appellees' counsel "represented that the areas of alleged damage to [the Springdale Property] was significantly more extensive than the area inspected initially . . . ."...

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