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Wepking v. M.B.J. Properties7/27/2005
Before Brown, Nettesheim and Snyder, JJ.
Paul D. Wepking and Sharon Wepking (the Wepkings) appeal from a judgment dismissing their complaint against M.B.J. Properties, Inc. (MBJ). The Wepkings' complaint alleged that MBJ had created a nuisance by diverting water onto the Wepkings' property as the result of MBJ's development of an adjoining subdivision. The matter proceeded to a jury trial, but the trial court dismissed the complaint at the close of the Wepkings' evidence.
On appeal, the Wepkings raise three arguments: (1) the trial court erroneously rejected one of their witnesses as an expert witness; (2) their evidence was sufficient to survive MJS's motion for dismissal; and (3) the trial court erroneously rejected their posttrial motion to supplement the record. We reject the Wepkings' arguments and affirm the judgment of dismissal and the order denying posttrial relief.
BACKGROUND
The Wepkings' complaint alleged the following facts. MBJ developed a subdivision on lands adjacent to the Wepkings' property. As part of the development, MBJ constructed a drainage facility that "altered the natural characteristics of the property and changed its condition so as to interfere with the natural flow of the water." This resulted in surface water flowing onto the Wepkings' property causing repeated flooding. The Wepkings alleged that this condition constituted a nuisance. The Wepkings sought both damages and an injunction. MBJ's answer denied these allegations and its affirmative defense alleged that the subdivision had been constructed in accord with the plans and specifications of the Village of Paddock Lake.
At the ensuing jury trial, the Wepkings presented two witnesses: Sharon Wepking and a retired engineer, Milton Koch. Sharon Wepking's testimony established the following. The Wepkings had lived on their property for forty years. The subdivision area used to be a farm field that drained onto the Wepkings' property but did not cause flooding. Prior to the development of the subdivision, the Wepkings could use their back yard for gardening and recreation. After the development, the property is "continually flooded" after a rain. MBJ's grading of the subdivision changed the flow of the water. MBJ's drainage plan included a pond that was supposed to hold water, but does not. The discharge pipe from the pond discharges water directly onto the Wepkings' property. Paul Wepking had dug a trench in an effort to deal with the runoff. This helped "some ... but not a lot."
The Wepkings also presented Koch as an expert witness. We will discuss Koch's testimony in detail when we address the Wepkings' argument that the trial court erroneously rejected him as an expert witness.
At the conclusion of Sharon Wepking's and Koch's testimony, the Wepkings rested their case. MBJ then moved for dismissal arguing that the Wepkings had failed to demonstrate any negligence in support of their nuisance claim. The Wepkings responded that the "before and after" condition testified to by both Sharon Wepking and Koch was sufficient evidence to survive the motion to dismiss. The trial court disagreed. While sympathetic to the Wepkings' predicament, the court held that they had failed to present any evidence showing that MBJ's conduct was negligent. The trial court granted MBJ's motion to dismiss. The Wepkings appeal.
DISCUSSION
Koch as an Expert Witness
We first address the Wepkings' argument that the trial court erred by refusing to accept Koch as an expert witness and, instead, permitting Koch to testify only as a lay witness. However, the record of the jury trial does not support this argument.
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