FERGUSON, V. CITY OF SUNRISE BEACH, MISSOURI CT. APP. (APRIL 2025)
CLAIMS: Property owner plaintiffs sued the City of Sunrise Beach, alleging two tort claims for nuisance and negligence based on hazardous spills discharged from the City’s wastewater treatment facility that flowed onto their properties and into the Lake of the Ozarks near their land.
EVIDENCE: The trial exposed evidence that a City wastewater facility employee “was purposefully skipping vital purification processes to ‘save money with the City’ that ‘would equate to a raise.’” The employee did 2-hour water quality tests in 45 minutes, where he would “make up” sample measurements. The facility’s charcoal filters, which were used to purify the wastewater, were shut off 90% of the time he worked there, resulting in sewage not being filtered. Additionally, the sludge grinders were never connected to electricity and were not working; the lack of grinders resulted in the aeration basins becoming oversaturated with sludge, which then prevented disinfecting the wastewater. The sludge would be pumped out of the facility and eventually make its way into the plaintiffs’ properties. In October 2019, an employee was seen pumping sewage into a trench and under the facility’s fence, toward a creek. This same creek is where the plaintiff owners continuously used the creek and cove during the same time, swimming with their children and grandchildren, and playing in the water. The plaintiffs first noticed the issues when they saw trees dying by the creek and noticed smells throughout the summer, having to keep their windows closed because of the sewage smell. The plaintiffs had contacted the City and were told that it was merely a pump problem and that it had been promptly fixed and wouldn’t happen again. Despite continued discoloration in the water, the City told them it was safe because it went through purification.
COURT RULING: Despite overwhelming evidence of serious wrongdoing, the Court denied the claims for nuisance and negligence and instead ruled that the property owners were required to bring their claims through an inverse condemnation takings claim, and not tort damage claims of nuisance and negligence. The Court further reasoned that loss of use and enjoyment of property resulting from a nuisance operated by an entity with eminent domain power is not compensable as damages in a tort claim. And that instead of damages in tort, the loss of use of property was a factor to consider when valuing the property in an inverse condemnation claim. Lawsuit is redirected to be amended and further litigated accordingly.
FRG-X-NJ2, LP V. ROBMAR REALTY ASSOCS., NEW JERSEY SUP. CT., (JANUARY 2025)
CLAIMS: Plaintiff Landlord sues defendant Tenant for eviction and possession after warehouse Lease is terminated at end of the applicable lease term.
EVIDENCE: The Lease between the parties had been through multiple amendments and had been renewed previously without any issues and without significantly advanced notice from Tenant to renew. A signed second amendment had included a new provision requiring 365 days’ advance notice to renew the Lease, with time being of the essence. Tenant failed to provide the 365 days’ notice, which was due in October 2021, but Tenant did provide 214 days’ notice and again at 196 days’ notice in March and April 2022. The Landlord had sold the property in December 2021 to a new Landlord. The new Landlord sued in November 2022 to evict the Tenant. The Tenant passively stored 33 automobiles worth $15M on the property and testified that he never really read the Lease amendments because his tenancy just rolled over at every term without any action necessary. Thus, Tenant argued that the Landlord had repeatedly waived any requirement of advance notice. There was further evidence that the Landlord had received and held rent checks after the Lease expired, as the Tenant kept submitting them.
COURT RULING: The Court focused on the wording in the second amendment that clearly required an advance notice to renew the Lease and reasoned that the Landlord’s actions of including a new advance notice for renewals in the Second Amendment demonstrated an intent to enforce rather than waive any renewal notice provisions as they had previously done. As to Landlord holding the rent checks as Tenant kept delivering them, the Court carefully distinguished that evidence in finding that “acceptance of rent must be distinguished from receipt of rent.” And that “when a tenant makes a payment to the landlord, it will be deemed to have been received only.” And it is only considered as “accepted if the landlord deposits it, which means cashes it.” Landlord wins.
EVANS V. LIVINGSTON, TEX. CT. OF APP. (MAY 2025)
CLAIMS: Multiple residential property owners in Kenefick, Texas sued a lot owner in their subdivision, claiming that the lot owner had violated residential neighborhood restrictive covenants by putting in a prefabricated manufactured home.
EVIDENCE: The 1978 neighborhood covenants included provisions regarding the size of homes and materials to be used in the exterior of homes. The restrictions specified areas where mobile homes could be placed, and such areas did not include the lot that the defendants had bought and located the pre-manufactured home. The covenants affecting the Defendant’s lot clearly stated that: “no residence constructed on a lot shall be of less than twelve hundred (1,200) square feet of covered floor space, exclusive of carport, garage, patio, and porch, and all residences shall be built on a concrete slab or concrete pier. Each residence shall be built out of brick, stone, or some other type of masonry or painted or stained redwood, cedar, finished lumber, cypress, or treated pine logs.” In 2021, the defendant’s family purchased a 1,900 square foot modular home and placed it on the lot. The pre-manufactured home was placed on a concrete slab and had a composite shingle roof, with hardie board plank siding.
COURT RULING: The Court took a close reading of the specific wording in the covenants and found that uncontroverted evidence showed the modular home, as modified, complied with the deed restrictions regarding exterior materials and construction type. The Court noted that the specific language as applicable to the defendant’s lot “only required” that homes be “built out of brick, stone, or some other type of masonry or painted or stained redwood, cedar, finished lumber, cypress, or treated pine logs.” The Court agreed with the defendant’s expert testimony that the home was compliant with the substance of the covenant in that it was of sufficient square footage, that it was “built” on a concrete pad, and that the hardie board siding was a cementitious material enough to satisfy the exterior finish material requirement. Therefore, the covenants were met, and Defendant wins.
