Fifth District reverses Lopinot in O'Fallon residential flooding case
Bethany Krajelis Oct. 4, 2012, 7:19am
The Fifth District Appellate Court has reversed St. Clair County Associate Judge Vincent Lopinot who had dismissed a complaint against the city of O'Fallon and a home builder over flooding allegedly caused by the development of Cambridge Condominiums.
In 2007, Lucy and Lyndell Adcock filed a fourth amended complaint against the city and H&L Builders, which developed the Third Street condo complex that was completed in 2005.
The Adcocks, who live and own land about 1,200 feet away from the complex on Orchard Street, filed their first complaint in 2001, after they experienced flooding they claim occurred when the land was being prepared for the development.
They sought a preliminary injunction, which eventually led to the passage of a city ordinance that set various building guidelines in an attempt to resolve flooding issues.
The Adcocks dismissed their request for an injunction, but filed a complaint in 2006 to enforce the ordinance through mandamus after they began to experience flooding issues.
They filed their fourth amended complaint the following year, seeking injunctive relief and damages, as well as findings against H&L Builders of nuisance and a lack of compliance with city ordinances.
In 2010, Lopinot dismissed the Adcocks' complaint, holding that there was insufficient evidence to prove the city caused the alleged flooding.
Among other determinations, he also found that there was not sufficient evidence that the builder violated the ordinance or that the nuisance was created by new flooding.
The Fifth District Appellate Court, however, reversed Lopinot's ruling in an unpublished order released Wednesday.
"After careful consideration of the record before us, we find the trial court erred in finding insufficient evidence that the nuisance action is due to new and different water collection than had previously occurred on plaintiffs' property," Justice Richard Goldenhersh wrote for the court.
In remanding the case, the panel directed the trial court to hear "additional testimony and evidence as to the status of the flooding at this point and any corrective action that may have been taken since the trial court entered its order on September 22, 2010."
The panel also said the city's argument over governmental immunity, which was not addressed by the trial court's order, "is an issue that should be further developed and ruled upon by the trial court."
Justices Melissa Chapman and James Wexstten concurred in Goldenhersh's order.
The citation for the unpublished order is 2012 IL App (5th) 100484-U.