A Tumbling-T v. Flood Dist. of Maricopa

• Decision Date: 08 October 2009
• Docket Number: No. 1 CA-CV 07-0453.,1 CA-CV 07-0453.
• Citation: A Tumbling-T v. Flood Dist. of Maricopa, 217 P.3d 1220, 222 Ariz. 515 (Ariz. App. 2009)
• Parties: A TUMBLING-T RANCHES, an Arizona general partnership; Russell Badley Farms, Inc., an Arizona corporation; Rosemary L. Edwards, individually and as Trustee of the Rosemary L. Edwards Trust; John E. Fornes, Jr. and Shelley Fornes, husband and wife; PJ Farms Limited Partnership, an Arizona limited partnership; J&A Fornes, II, an Arizona general partnership; Delmar John and Jean John, husband and wife dba Delmar John Farms; Gila River Farms, Inc., an Arizona corporation; Roy Pierpoint and Ella Pierpoint, husband and wife; Pierpoint Farms, Inc., an Arizona corporation; and Wood Brothers Farms, an Arizona general partnership, Plaintiffs/Appellants/Cross-Appellees, v. FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, a body politic, Defendant/Appellee/Cross-Appellant.
• Court: Arizona Court of Appeals

217 P.3d 1220

A TUMBLING-T RANCHES, an Arizona general partnership; Russell Badley Farms, Inc., an Arizona corporation; Rosemary L. Edwards, individually and as Trustee of the Rosemary L. Edwards Trust; John E. Fornes, Jr. and Shelley Fornes, husband and wife; PJ Farms Limited Partnership, an Arizona limited partnership; J&A Fornes, II, an Arizona general partnership; Delmar John and Jean John, husband and wife dba Delmar

John Farms; Gila River Farms, Inc., an Arizona corporation; Roy Pierpoint and Ella Pierpoint, husband and wife; Pierpoint Farms, Inc., an Arizona corporation; and Wood Brothers Farms, an Arizona general partnership, Plaintiffs/Appellants/Cross-Appellees, v. FLOOD CONTROL DISTRICT OF MARICOPA COUNTY, a body politic, Defendant/Appellee/Cross-Appellant.

No. 1 CA-CV 07-0453.

Court of Appeals of Arizona, Division 1, Department A.

October 8, 2009.

Kinerk, Beal, Schmidt, Dyer & Sethi By Burton J. Kinerk and Angela Poliquin, Haralson Miller Pitt Feldman & McAnally PLC By Stanley G. Feldman, Thomas G. Cotter, and Rebecca A. Reed, Tucson, Law Offices of Reed King By Reed W. King, Phoenix, Attorneys for Plaintiffs/Appellants-Cross Appellees.

Helm & Kyle Ltd. By John D. Helm, Roberta S. Livesay, and Jeffrey Lawrence Hrycko, Julie M. Lemmon, Attorney at Law By Julie M. Lemmon, Tempe, Swenson Storer Andrews Frazelle & Sayre PC By Michael J. Frazelle, Phoenix, Attorneys for Defendant/Appellee-Cross Appellant.

OPINION

BROWN, Judge.

¶ 1 Plaintiffs ("the Farmers") appeal the trial court's denial of their motions for judgment as a matter of law ("JMOL") relating to their unsuccessful inverse eminent domain claim against the Flood Control District of Maricopa County ("the District"). On cross-appeal, the District challenges the negligence claim the Farmers successfully asserted against it. The District argues the Farmers did not establish the standard of care, a breach of that standard, or causation; and that the trial court's damages instruction relating to diminished land values was erroneous. The District further argues the trial court erred in preventing it from asserting numerous affirmative defenses. For the following reasons, we affirm.

BACKGROUND¹

¶ 2 Located between Buckeye and Gila Bend, the Gillespie Dam was built in 1921 to divert water from the Gila River for irrigating farmland. The concrete dam was 1,700 feet long and 21 feet high. Shortly after its construction, sediment filled the dam's reservoir and formed a large wedge at the dam's face that tapered off four to seven miles upstream. This sediment wedge raised the shallow groundwater table, allowing dense tamarisk (or saltcedar) thickets² to carpet the area upstream from the dam.

¶ 3 Heavy rainfalls had previously caused major flooding along the Gila River in 1978, in both March and December, and one of the largest floods on record in 1980, in terms of peak flow. Landowners located within the Gila River floodplain upstream from the Gillespie Dam suffered extensive damage to their properties because the tamarisk thickets reduced the velocity of the river's flow and redirected floodwaters in this area. To alleviate the problem, the District cleared the vegetation in a 1,000-foot wide corridor starting at the Gillespie Dam and ending at 91st Avenue in Phoenix, a total of 35.8 miles. The District completed the clearing project in 1985 and maintained it until 1992. The District also excavated a pilot channel in places where the river's low flows were outside the clearing project. On average, the channel was three feet deep and 50 to 100 feet wide. The channel's construction was intermittent but extended roughly 22.5 miles. The District completed the channel in 1992. By removing vegetation and creating a more direct path for the Gila River, these projects were designed to efficiently move floodwaters downstream. By increasing water velocity in the area, the projects also enabled floodwaters to more readily transport sediment.

¶ 4 The Gila River experienced additional major flooding just one year after the District completed its channel project. On January 9, 1993, peak floodwaters breached the Gillespie Dam. The breach eventually expanded to 200 feet in width, releasing a massive amount of sediment downstream as fast-moving floodwaters cut a trench into the sediment wedge that had accumulated for 70 years.

¶ 5 Although the 1993 flood's peak flow, in terms of magnitude, was roughly equal to the preceding years' floods, its total volume was significantly higher due to record rainfall throughout the first part of that year. The dam's breach and the District's flood control projects contributed to the release of an estimated 34 million cubic yards of sediment into the river. An additional five million cubic yards of sediment was attributed to natural flooding.

¶ 6 The resulting sedimentation clogged the Gila riverbed downstream from the Gillespie Dam. Previously, the riverbed in this area had a depth of five or six feet. After the 1993 flood, the riverbed's depth was reduced to approximately two feet, which sharply reduced the river's water-carrying capacity even during moderate flooding. As a result, floodwaters would now flow in unpredictable and irregular patterns, increasing the risk of flood-related damage to landowners.³

¶ 7 In 1995, the Farmers, collectively owning about 9,500 acres of land along a 37-mile stretch of the Gila River located downstream from Gillespie Dam and upstream from Painted Rock Dam, sued the past and current owners of the Gillespie Dam and an engineering firm (collectively "the Dam Owners"), alleging that the dam was poorly constructed, maintained, and operated. The Farmers also sued the District, alleging its flood control project contributed to the dam's failure and, more generally, to downstream sedimentation which damaged their properties and significantly increased the risk of damage from future flooding. The Farmers claimed negligence, strict liability, trespass, and nuisance, and in the case of the District, inverse eminent domain.⁴

¶ 8 In 1997, the District sued the Dam Owners, seeking a judicial declaration that it did not owe an obligation to indemnify or defend the Dam Owners against the Farmers' lawsuit. The Dam Owners had earlier asserted that this obligation arose from an indemnity provision contained in easements the District obtained from the Dam Owners to permit construction of the District's project. The Dam Owners counterclaimed, under negligence and inverse eminent domain theories, alleging the District's projects proximately caused the Gillespie Dam to fail. The trial court consolidated the District's lawsuit with the case previously filed by the Farmers.

¶ 9 The Dam Owners and the District temporarily put aside their differences to jointly move for summary judgment against the Farmers. They argued the Farmers' damages, if any, were caused by the "magnitude and duration" of the 1993 flood and not by the failure of Gillespie Dam. The motion asserted that the sediment trapped behind the dam, once released, was too fine to settle in the Gila riverbed adjacent to the Farmers' lands; instead, it settled when floodwaters were impounded by the Painted Rock Dam. The Farmers countered that they were only required to show that the defendants caused them "some damages." The trial court granted the motion for summary judgment, but this court reversed. See A Tumbling-T Ranches v. Paloma Inv. Ltd. P'ship, 197 Ariz. 545, 550-53, ¶¶ 17-22, 5 P.3d 259, 264-67 (App.2000) (holding (1) a genuine issue of material fact existed as to whether the defendants' actions increased downstream sedimentation and thereby contributed to the Farmers' damages and (2) the Farmers were not required to show "individualized damages" under the indivisible injury rule).

¶ 10 On remand, the trial was bifurcated into a liability phase and a damages phase. The liability trial started in April 2004 and lasted seven weeks. At that time, the Dam Owners again asserted their claims against the District. They argued the District had aimed "a water cannon" at the Gillespie Dam by constructing its flood control projects, focusing fast-moving floodwaters on a limited portion of the dam, thereby causing it to fail during the 1993 flood. To this, the Farmers added that the "water cannon" was aimed at a negligently designed, maintained, and operated dam. Further, the Farmers advanced their own theory: the District's projects, regardless of the dam's failure, contributed to the massive shift of sediment downstream, which reduced the capacity of the downstream channel and created an increased risk of future flooding.

¶ 11 The liability jury rejected the Dam Owners' claims against the District, finding by way of a general verdict that the clearing and channelization projects did not cause the Gillespie Dam to fail. The jury also rejected the Farmers' inverse eminent domain claim. The jury did, however, return a verdict for the Farmers on their negligence claim, apportioning liability as follows: 80% to the Dam Owners, 10% to the District, and 10% to non-parties at fault. As such, the jury found that the Dam Owners and the District, as joint tortfeasors, caused the Farmers at least some damages unrelated to natural flooding. The court entered a liability judgment in December 2004, but the order was not appealable. The District requested and was denied a new trial.

¶ 12 A twelve-day trial on damages was held in November 2006.⁵ The jury awarded the Farmers approximately $5.36 million in damages.⁶ In May 2007, the trial court entered final judgment against the District in the amount of $536,000, based on its percentage of fault. The Farmers filed a timely notice of appeal and the District cross-appealed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") Section 12-2101(B) (2003).⁷

DISCUSSION

I. The Farmers' Appeal

¶ 13 At the close of evidence during the liability trial, the Farmers made an oral motion for judgment as a matter...