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Art Shulte and Diane Shulte v. Roger K. Flowers

February 8, 2013


Appeal from Circuit Court of Sangamon County No. 08L285 Honorable Peter C. Cavanagh, Judge Presiding.

The opinion of the court was delivered by: Justice Appleton

Carla Bender 4th District Appellate Court, IL

JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.


¶ 1 Plaintiffs, Art Shulte and Diane Shulte, brought this action against defendant, Roger K. Flowers, Sr., alleging he had caused them damages by altering his land so as to increase the flow of surface water onto their land. At first, after hearing evidence in a bench trial, the trial court found in plaintiffs' favor, awarding them $80,000 in damages. Defendant thereafter filed a motion for reconsideration, in which he argued that the court's judgment was against the manifest weight of the evidence. The court agreed with defendant, granting the motion for reconsideration "as to all issues," vacating the judgment in plaintiffs' favor, and entering judgment in defendant's favor. Plaintiffs appeal. We find no abuse of discretion in the trial court's decision to grant defendant's motion for reconsideration. Implicit in that decision is the finding that plaintiffs failed to prove their case. That finding is not against the manifest weight of the evidence. Therefore, we affirm the trial court's judgment.


¶ 3 In 1987, plaintiffs bought the land upon which their mobile-home park, Charter Oaks, is located. Charter Oaks has a north road and a south road, which are connected so as to form a U. Under the north road is a storm sewer. Mobile homes sit on both sides of the north road and the south road.

¶ 4 Terminal Avenue runs along the eastern boundary of Charter Oaks, and the nine acres on the other side of this avenue, directly across from Charter Oaks, were used as a junkyard for wrecked automobiles. The cars were arranged in rows, separated by brick roadways, and vegetation grew between the rows and along the fence surrounding the nine acres.

¶ 5 In 2006 or 2007, defendant bought these nine acres with the intention of making a parking lot and storage facility for his business, Flowers Sanitation Service. He removed about 350 to 400 truckloads of asphalt, concrete, rock, and vegetation from the 9 acres. Then he sold half the parcel, the east 4.5 acres, to County Materials Corporation. Thus, from a bird's-eye view, looking from the west to the east, one would see Charter Oaks and then Terminal Avenue and then defendant's 4.5 acres and then the 4.5 acres he sold to County Materials.

¶ 6 After selling the east 4.5 acres to County Materials, defendant did further work on his remaining land. He needed a firm surface for garbage trucks, roll-off containers, and other heavy equipment, which otherwise would have left ruts and would have sunk into the ground. So, he removed an additional 6 inches of topsoil from his 4.5 acres and compacted the soil on the north 2.25 acres, where the trucks would be parked. He then covered the north 2.25 acres with smaller gravel and the south 2.25 acres with larger 3-inch gravel. The larger gravel, arranged in wind rows, was supposed to slow the runoff of water. In addition, he widened and deepened the ditch in front of his property, along Terminal Avenue, so as to allow for more water retention. With the gravel making up for the removed dirt, he kept the elevation of his property about the same except that he raised, by one foot, the ground on which he erected a 48-foot by 52-foot metal building.

¶ 7 County Materials laid gravel on its 4.5 acres and compacted the gravel. It also dug a ditch on its land, approximately three or four feet east of the boundary between its land and defendant's land. According to the testimony of Peter Devos, who is an employee of defendant, water from defendant's land does not run into the County Materials ditch, because defendant's land has a 1% slope to the west and a 3% slope to the south.

¶ 8 Charter Oaks is the lowest area on Terminal Avenue. It has always been subject to flooding because all the surrounding parcels of land drain onto it. Nevertheless, several witnesses, mostly longtime residents of Charter Oaks, testified that after defendant's alteration of his land, the flooding became considerably worse. Whereas before it might have been ankle-deep, now it was knee-deep, rolling like a river, carrying tires, tire rims, and other debris and ripping the skirting off mobile homes, until the storm sewers caught up.

¶ 9 Most witnesses testified that the flooding became worse, but that view was not unanimous. Devos saw little difference in the flooding before and after defendant's construction activities.

¶ 10 In any event, the evidence tended to show three additional factors that might have worsened the flooding. First, there was greater than average rainfall in 2008, 2009, and 2010 (the bench trial occurred in October 2011). The average annual precipitation for Springfield was 35 inches, based on data from 1971 through 2000. In 2007, the total rainfall was 32 inches. In 2008, however, it was 54 inches; in 2009, it was 53 inches; and in 2010, it was 47 inches.

¶ 11 Second, an employee of plaintiffs, James Taapken, took photographs and videos of some floods, and he testified that the video he took on May 30, 2008, showed the heaviest water coming off County Materials. Likewise, he testified that the video he took on June 22, 2010, showed water running primarily off County Materials, down Sidings Road (which abutted the southern boundary of defendant's property), and then into the ditch alongside Terminal Avenue, after which the water overflowed the ditch, spilling across Terminal Avenue and onto Charter Oaks. In another picture, according to Taapken, the straw that a flood had strewn across Charter Oaks had come from County Materials. Art Shulte admitted in his testimony that defendant's property was not the only property contributing to the flooding.

¶ 12 Third, a civil engineer, Jay Jessen, put a video camera in the 18-inch sewer pipe that ran along the southern boundary of Charter Oaks, and he found that the pipe was obstructed by tree roots and a large chunk of concrete.


ΒΆ 14 A. Our Standard ...

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