Judge Throw’s out $400,000 Drainage Claim Against the HOA

A Superior Court Judge dismissed the jury trial of an owner’s claim for drainage nuisance in excess of $400,000 against the homeowner’s association shortly following opening statements to the jury by Winter Capriola and Zenner’s litigation team.  The owner claimed that the Association was responsible for not preventing the surrounding homeowners from creating a drainage nuisance, and as such, was liable for damages to correct the situation.  The Judge disagreed, stating that the owner should have sued his surrounding neighbors.  Consequently, the Judge ordered a mistrial so the owner could have a chance to bring into the litigation the neighbors.

The owner had purchased an undeveloped lot in a large single family residential community.  The lot was on a downhill slope.  The owner contended that the surrounding lots were developed in such a fashion as to turn their lot into a bowl. Moreover, the neighbor in the rear, when attempting to level their lot, had placed substantial fill dirt onto the owner’s lot.  The owner on several occasions insisted that the association force the surrounding neighbors to remedy the situation.

The litigation team of Winter Capriola and Zenner, led by partner Marvin Pastel, quickly pointed out to the jury and judge that developer had retained control of all approval rights during the development of the community, to the complete exclusion of the Association, and that the owner had a separate claim against the Developer for $2.2 million.  In addition, the owner had already sued and settled with the neighbor in the rear, consenting to the existing conditions and receiving $50,000.

Following opening statements to the jury, the owner had its drainage expert testify as to the nature and cause of the drainage problem.  At which point, the Judge stopped the trial questioning the owner as to why it was suing the association when the developer and neighbors were at fault.  Upon the owner’s failure to articulate a sound bases in the law, the Judge declared a mistrial so that the owner would have an opportunity to sue the proper properties.  The Association was extremely pleased of the litigation team’s professional behavior.