Circuit Court Finds Town Willfully Occupied Private Land Without Just Compensation After Damage to Drains Caused Flooding and Failed to Fix the Problem for Years, Virginia Court of Appeals The award of damages was approved.
The town argued that the petition alleges negligent repair of the pipes, rather than the public use claims required for reverse condemnation.
Justice Mary Grace O’Brien dissented, saying the petition clearly asserts a contrary accusation.
“(D)Despite knowing that the City’s water mains would continue to flood (Plaintiff’s) property, the Town chose to do nothing to prevent the problem from occurring and recurring,” she wrote. He added that this is “exactly what the city needs to correct.” It’s the opposite of blaming. ”
Senior Judges Robert J. Humphries and Daniel E. Ortiz joined O’Brien in affirming Town of Irongate Virginia v. Simpson (VLW 024-7-288) and awarding reasonable appellate attorneys’ fees. The matter was remanded for a decision.
Prominent domain litigator Joshua Baker of Wald & Lyle in Norfolk represented Simpson. When she contacted him, he thought it sounded like “an obvious act of reverse accusation.” He did not anticipate the town’s reaction to his first letter asking for reconciliation.
“The new town council and attorney have announced that they will hold a public meeting to address the ‘possible imposition of the Jennifer Simpson tax,'” he told Virginia Lawyers Weekly. “The whole town gathered, but then the power went out, so they continued to gather in the dark.”
Baker felt the town was trying to intimidate and ostracize Simpson.
“This set the tone for the next five years of litigation,” he said.
This town currently has no representative. The town’s former attorney did not respond to a request for comment.
persistent flooding
The Town of Irongate owns stormwater management drains under private property. The town booted the pipe in 2011 after the previous owner notified the town that the pipe was causing flooding. The floods continued. The town did nothing further.
Jennifer Simpson bought the property in 2013 without knowing about the pipes or its history of flooding. She did not seek help from the town until 2018, even as the flooding intensified. The town removed a 20-foot section of pipe, leaving an open ditch. Simpson’s property continued to flood.
Simpson filed suit seeking reverse condemnation. After a liability trial, the circuit court found that the town had effectively created a drainage easement over the entire Simpson property by intentionally using it as a drainage flood without just compensation.
Based on the testimony of Simpson’s expert witness Dennis Gruel, the jury awarded Simpson $37,586 for the value of the take. On cross-examination, the Town asked if Mr. Gruel would consider the Town’s proposal to repair the pipe. Mr Gruel said it was within the scope of the liability order.
While questioning Gruel’s opinion that prospective buyers would need to sue, the town argued that repairs to the water mains were not authorized. The court upheld Simpson’s objection to further questioning on the matter and subsequently excluded evidence of the town’s offer to repair the pipes.
The court affirmed the jury’s verdict and ordered the town to pay Ms. Simpson’s attorney fees and costs of $206,785.74. The town appealed.
public use
The town only disputed whether Mr. Simpson claimed public use. Although the town stipulates that it operates and maintains stormwater drainage facilities for public use, Simpson argued that he was simply claiming that the pipe repairs were ineffective.
The Town relied on the Virginia Supreme Court’s opinion in AGCS Marine Insurance Co. v. Arlington County, stating that “misconduct or dishonesty by a government official outside of its legal authority can never be a sufficient legal basis.” No,” he claimed. That in itself is grounds for a reverse condemnation award. ”
But O’Brien said Simpson is not alleging mere negligence on the part of the town.
“In the context of flooding, the Supreme Court (Livingston v. Virginia Department of Transportation) held that the “public use” element was satisfied based on a claim that the government had failed to maintain the drainage system. i) essentially…elected to use (the private property) as a temporary storage site for excess rainwater,” the judge explained.
Contrary to the town’s claims, O’Brien said that Simpson’s petition contains numerous factual allegations that the town intended to submerge her property, making Simpson’s reverse condemnation theory He said it was clearly stated.
“This is exactly what a reverse condemnation lawsuit should correct. To correct the town’s choice to use (Simpson’s property) as a temporary storage site for excess stormwater instead of maintaining the infrastructure.” It is. ” the judge explained.
And while Mr. Simpson cited the town’s failed remediation plans, these claims do not prove that the town owns the pipes and is aware that the problem persists. It was helpful.
“In other words, the failure to repair itself was not a fact relied on by Ms. Simpson to establish the town’s liability, and her complaint is not flawed,” O’Brien argued.
“A lot of leeway.”
The town claims it was wrongly prevented from presenting mitigating evidence at the due diligence hearing, specifically “an agreement and promise to repair the pipes and (Simpson’s) property to (her) specifications.” did.
Armed with this evidence, the town intended to cross-examine Mr. Gruel and challenge his belief that further reverse condemnation litigation was inevitable and that the market value of the property would decline.
Citing Bradshaw v. State Highway, Mr. O’Brien said, “In a just compensation proceeding, “the aim in eminent domain litigation is usually to minimize damage to the residue as much as is reasonably possible.” “It is the duty of the owner of the property that has been taken away.” . Comal.
Here, the town introduced evidence of plans to repair the pipes in the liability trial.
“However, this ‘plan’ included unilaterally presenting Mr. Simpson with a deed of gift, which Mr. Simpson did not sign,” the judge noted. “The town then mischaracterized this evidence during cross-examination of Gruel at the due restitution trial, stating that the town was ‘not authorized’ to repair the pipes and that Simpson was ‘not authorized to replace and repair the pipes. “We rejected the town’s offer.”
Indeed, the trial court granted the town considerable leeway to attack the weight and credibility of Gruel’s opinion regarding mitigation before Simpson objected.
“The court could argue that the town did not consider Gruell’s proposal to repair the pipes before ultimately upholding Simpson’s objections to the town continuing with this line of questioning. “I admitted that,” O’Brien said.
Additionally, the judge stated that evidence of the town’s offer and Mr. Simpson’s refusal to sign the gift deed without an attorney constituted evidence of settlement negotiations inadmissible at trial under Virginia Rule of Evidence 2:408. Ta.
Therefore, the trial court did not abuse its discretion in issuing its evidentiary ruling.
actually occurred
According to the town, Ms. Simpson had not yet paid and therefore did not actually incur the legal costs and expenses required by Virginia Statute § 25.1-420.
O’Brien disagreed, pointing out that the Black Law Dictionary defines “incur” as “to suffer or bring upon oneself (responsibility or expense).”
“Thus, ‘incurring’ attorney’s fees and costs means being legally responsible for them, but not necessarily having to pay them,” the judge said.
Additionally, he said courts have not interpreted the statute’s word “in fact” to literally require payment of out-of-pocket costs.
“Instead, the phrase ‘actually incurred’ ensures that the plaintiff’s charged fees are directly tied to the disparagement action,” O’Brien wrote.
Although Ms. Simpson had not yet paid her attorney’s fees, she “actually incurred” the legal costs.
“Her lawyer was not working for free, and she had a clear obligation to pay her lawyer,” O’Brien said. “The timing of that payment does not determine whether she “actually incurred” the legal costs. These things “actually occurred” from the moment the lawyer performed the work related to the reverse accusation issue. ”
O’Brien affirmed the trial court’s judgment but remanded for an determination of reasonable appellate attorney fees.
