A faulty septic system left an Ohio homeowner wringing her hands for 10 years, as she hired consultants and made repairs in attempts to resolve backups in her sink and toilet. She sued the previous owners and their real estate agent, accusing them of fraud and inflicting emotional distress, but was the complaint filed too late? Read on.
A home’s sewage problems plagued an Ohio woman for 10 years, but she waited too long before filing suit against the previous owners, their real estate agent and others. A trial court denied all of the claims, and her luck wasn’t much better with the Court of Appeals of Ohio, Ninth District, Wayne County, which affirmed the ruling on nearly all of the claims on April 7.
Plaintiff Dorothy L. Stewart bought a house in Creston, Ohio in March 1994. The previous tenant allegedly mentioned to Stewart that on occasion he could smell odors from the home’s septic system, so Stewart conditioned the purchase of the property on the county health department performing an inspection and approval of the system. Otherwise, the home was purchased “as is.”
The septic system, installed in 1958, was designed so that effluent from the septic tank would flow into a leach field running beneath a nearby vacant wetland property. The county was unable to locate the system’s outlet when it performed the inspection. Stewart claimed the seller’s real estate agent had provided the department with an “altered diagram” of the system’s layout. The county informed the sellers they need to locate the outlet, replace the septic tank lid and schedule another inspection.
Digging for a drain
The real estate agent allegedly dug a hole and removed drain tiles to give the appearance that the drain ended on the seller’s property and the sewage flowed into the hole and down to the street, passing through a ditch on the neighboring property. The county approved the system.
When Stewart bought the house, she claimed she was given a copy of only the second inspection report. After moving in, she immediately experienced septic system problems, including a backup of a drain near her washing machine and the discovery that tree roots penetrated the system’s drain tiles. She replaced many of the tiles that traveled from her house to the septic tank, which allegedly resolved the problems for a while.
Between July 1994 and March 1996, Stewart’s toilet stopped flushing properly, and the sink began stopping up. She again called a drain cleaning service, but they were unable to locate any problems. At some point in 1996, Stewart noticed the hole where the sewage emptied had become deteriorated, so she began dredging the ditch which ran down to the street, in an effort to improve drainage from the hole.
Stewart hired an environmental consultant in 2002 to investigate the possibility that the drainage hole itself was the source of the problems. The consultant discovered that the hole and the “ditch solution” that the real estate agent allegedly rigged was not draining properly, and that Stewart’s neighbors filled in a portion of their vacant property and built a driveway, which damaged Stewart’s leach field and prevented proper drainage. He also found that the driveway inhibited surface water from Stewart’s property from flowing across the neighbor’s property.
Starting the septic lawsuit
Stewart sued her neighbors, the sellers and their real estate agent in 2003. The county health department tested Stewart’s septic system in 2004 and ordered her to correct the improper drainage within 30 days. The county never took action against Stewart, however. Stewart voluntarily dismissed her case, but refilled it in 2005, adding the county health department as a defendant. Her claims included fraud, trespass, nuisance, negligence, fraudulent concealment, fraudulent misrepresentation, intentional infliction of emotional distress, breach of contract and breach of warranty.
She sought compensatory damages and an injunction to prevent the county from taking action against her, and also sought a declaration granting her an easement across her neighbor’s property so her septic system could be repaired. The Court of Common Pleas for Wayne County granted the defendants’ motions for summary judgment, finding that the claims were barred by the statute of limitations, and ruling the health department was immune from liability.
Stewart asserted that her claims of trespass and nuisance were timely filed because she didn’t uncover the defendants’ alleged wrongful conduct until 2002. Her former neighbors, Stewart claimed, created the alleged nuisance when they dumped “tons” of fill on the property, burying the original outlet for the septic system and crushing the drain tiles.
The current neighbor allowed the condition to continue, Stewart asserted, and the real estate agent allegedly contributed to the problems when she dug a hole on the property to further alter the tank’s sewage flow. Additionally, Stewart argued that she didn’t discover these issues until after the environmental consultant provided his report.
When did you know what you know?
The appellate court pointed out, however, that in her deposition, Stewart testified that she had problems with the property’s septic system from the time she moved in, in 1994, and had standing water on the property since at least 1996. Her testimony which stated she went out to the drainage ditch sometime in spring 1994 and saw a hole had been created on her property and drain tiles were displaced further pointed to the fact that she may have had knowledge of problems as far back as 1994, which would bar her claims.
A continuing trespass or nuisance claim would toll the expiration of the statute of limitations, the appellate court said, whereas a permanent trespass or nuisance would occur when the defendant’s alleged tortious act was fully accomplished, but the injury to the plaintiff’s estate from the act would persist even in the absence of further conduct.
Most of the conduct that caused the alleged nuisance happened prior to or about the time Stewart purchased the house, the appellate court found. Although her neighbors continued to place fill on their land before she moved in, it didn’t raise the elevation of the property, and thus she asserted a permanent trespass or nuisance rather than a continuing nuisance.
If Stewart had exercised due diligence, she should have known about the damages to her property and septic system by 1996 at the latest, the appellate court said. The four-year statute of limitations for the nuisance and trespass claims would have expired in 2000, and Stewart didn’t file her complaint until 2005, and thus the trial court’s ruling that the claims were barred was correct.
Stewart next contended that her fraud claims weren’t time-barred because she didn’t discover the septic system’s defects until 2002, and wasn’t aware that the real estate agent had provided the health department an altered diagram until 2004. But Stewart indicated that water was backing up into the house as early as 1994. Additionally, the appellate court noted that the original septic system layout was available as a public record on file at the health department, and she was free to view them at any time. At the very latest, the appellate court said, she should have known about the defendants’ alleged fraudulent acts by 1996, and as a result the fraud claims were appropriately barred by the district court.
House was bought ‘as is’
Stewart further argued that her claims of breach of contract and breach of warranty were timely, because they fell under a 15-year limitations period under the state statute. But, even if the action was timely filed, the appellate court determined the claims failed because she signed a purchase agreement which noted the property was bought in “as is” condition.
The intentional infliction of emotional distress claim was timely filed, Stewart argued, because her injury was continuous. But that claim was based on the same conduct as stated in the other claims, and since the conduct was complete when Stewart bought the property, her emotional distress claim accrued at the same time.
“Ms. Stewart’s statement that she suffered ‘10 years of hell’ from 1994 to 2004 further demonstrates that she began feeling the emotional impact of her injuries in 1994,” the appellate court said. The district court’s decision to bar the emotional distress claim was therefore affirmed.
The appellate court did, however, agree with Stewart on at least one point. It found that the denial of her declaratory relief claim was improper. Stewart made the request, she said, so she could repair the drain tiles for her septic system’s leach field. The defendants didn’t address the easement request in their motions for summary judgment, and also failed to brief the issue on appeal. The defendants therefore failed to establish that the request was untimely or that they were entitled to judgment on it. Stewart’s claims for injunction and declaratory relief were sustained.
With the exception of the injunctive and declaratory relief claims, Stewart’s claims were overruled, and the district court’s judgment was affirmed.
Dorothy L. Stewart v. Sally Allen, et al.