George J. Saluri and Candace C. Saluri v. Jay R. Buckley and Cathy Buckley ( 2019 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 18-2008
    Filed November 6, 2019
    GEORGE J. SALURI and CANDACE C. SALURI,
    Plaintiffs-Appellants,
    vs.
    JAY R. BUCKLEY and CATHY BUCKLEY,
    Defendants-Appellees.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
    Judge.
    Plaintiffs appeal the district court decision granting summary judgment to
    defendants on the ground plaintiffs’ claims are barred by the statute of limitations.
    AFFIRMED.
    Nicholas L. Shaull and Nathaniel D. Staudt of Spaulding & Shaull, P.L.C.,
    Des Moines, for appellants.
    Mitchell R. Kunert of Nyemaster Goode, P.C., Des Moines, for appellees.
    Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
    .
    2
    MAHAN, Senior Judge.
    George and Candace Saluri appeal the district court decision granting
    summary judgment to Jay and Cathy Buckley on the ground the Saluris’ claims of
    negligence, negligence per se, temporary nuisance, permanent nuisance, and
    trespass are barred by the statute of limitations. We find the district court properly
    granted summary judgment to the Buckleys on the ground the Saluris’ claims are
    barred by the five-year statute of limitations in Iowa Code section 614.1(4) (2017)
    for injuries to property. We affirm the district court.
    I.     Background Facts & Proceedings
    The Saluris and Buckleys are adjacent property owners in Des Moines. The
    Saluris’ property is to the north of the Buckleys’ property. The Buckleys’ property
    is at a higher elevation than the Saluris’ property, and the Saluris have a retaining
    wall to the south, where their property abuts the Buckleys’ property. Due to the
    difference in elevation, the Saluris’ property is the servient estate, as water runs
    downhill from the Buckleys’ property to the Saluris’ property.
    In November 1997, the Saluris filed a civil action against the Buckleys,
    claiming a garage on the Buckleys’ property increased the flow of water onto the
    Saluris’ property and caused damage to the retaining wall. On August 14, 1998,
    the parties entered into a settlement in which the Saluris signed a release of liability
    and received $3500. The Saluris used the money to repair the retaining wall.
    The Buckleys constructed a home on their property in 2004.               During
    construction, the Buckleys placed a wall made of landscaping timbers or railroad
    ties to the north. They backfilled dirt behind the timbers. On February 15, 2005,
    Candace sent a letter to the Buckleys, stating:
    3
    The recent spring thaw and rains have demonstrated that the
    new house you have recently completed is going to drastically effect
    the water run-off to our property. If you will recall, in 1997 the addition
    of the outbuilding at your north property line, immediately adjacent to
    our servient property, caused considerable damage to our property.
    It was our hope that when you began the construction of your new
    house, at that same location, that the water run-off to our property
    would be considered. Instead, you have directed the water from your
    new home directly at our servient property. There has already been
    damage caused by such water flow this spring.
    We are asking that you voluntarily take such neighborly
    measures as to divert the water away from our property. We do not
    wish to spend additional resources on repairs only to have them
    washed away during the next rainfall.
    We appreciate your prompt attention to remedy this situation
    before more damage is caused to our property.
    In a deposition, Candace testified the top of the retaining wall “maybe had shifted
    a little bit” by 2005. She assumed the shifting was caused by “the weight of
    everything behind us,” and specified “the railroad ties against our fence.” No action
    was taken by the Buckleys or Saluris at that time as a result of Candace’s letter.
    In 2015, the Saluris became concerned about the condition of their retaining
    wall. They hired Bishop Engineering to do a site survey. Bishop determined the
    retaining wall was in “a particularly advanced state of collapse.” The survey
    showed the Buckleys’ landscape timber wall was on the Saluris’ property.
    Furthermore, the Buckleys’ garage was not ten feet from the property line.
    On August 2, 2017, the Saluris filed an action against the Buckleys on
    claims of negligence, negligence per se, temporary nuisance, permanent
    nuisance, and trespass. The Buckleys filed a motion for summary judgment,
    asserting the Saluris’ action was barred by the five-year statute of limitations for
    damages to property found in Iowa Code section 614.1(4). The Saluris resisted
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    the motion and claimed they discovered the injury to their property on April 13,
    2016, when they received a report from Bishop.
    The district court granted the motion for summary judgment. The court
    found all of the Saluris’ claims were governed by the five-year statute of limitations
    in section 614.1(4). The court stated,
    It is undisputed on the present record that the plaintiffs
    became aware of some damage to their property resulting from these
    activities; initially, in the form of water runoff (the focus of the
    February 2005 letter from Candace Saluri to Jay Buckley) which
    eroded their retaining wall and subsequently, the “shifting” of their
    retaining wall as a result of the increased pressure brought about by
    “the weight of everything behind” it. Once armed with this
    knowledge, the plaintiffs were under a duty to undertake an
    investigation as to the exact cause of their damage and to bring all
    of the claims arising from that investigation within five years of that
    discovery. This would have required the plaintiffs to bring the present
    action no later than some time in 2010; on the present record, it is
    clearly time-barred.
    The court also found the circumstances of this case did not “fit within the
    parameters of the continuing wrong doctrine.” The court found the claims were
    based on the construction of the home, rather than continuing acts.
    The Saluris filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),
    which was denied by the district court. The Saluris now appeal.
    II.    Standard of Review
    We review a district court’s ruling on a motion for summary judgment for
    correction of errors of law. Kunde v. Estate of Bowman, 
    920 N.W.2d 803
    , 806
    (Iowa 2018). Under Iowa Rule of Civil Procedure 1.981(3), summary judgment
    should be granted when the moving party shows “there is no genuine issue as to
    any material fact and the moving party is entitled to judgment as a matter of law.”
    “In determining whether a grant of summary judgment was appropriate, we
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    examine the record in the light most favorable to the nonmoving party, drawing all
    legitimate inferences that may be drawn from the evidence in his or her favor.”
    Homan v. Branstad, 
    887 N.W.2d 153
    , 163–64 (Iowa 2016).
    III.   Statute of Limitations
    A.     The Saluris claim the district court erred by finding their negligence,
    negligence per se, permanent nuisance, and trespass claims were barred by the
    statute of limitations. Section 614.1(4) provides claims for injuries to property must
    be brought within five years. The Saluris assert that under the discovery rule the
    time period began to run in 2016, when they learned the cause of the injury to their
    retaining wall, and their claims were timely under section 614.1(4).
    Under the discovery rule, “the statute of limitations does not begin to run
    until the injured person has actual or imputed knowledge of all the elements of the
    action.” Franzen v. Deere & Co., 
    377 N.W.2d 660
    , 662 (Iowa 1985). Where the
    discovery rule applies, it tolls the statute of limitations. Skadburg v. Gately, 
    911 N.W.2d 786
    , 793 (Iowa 2018). We conclude the district court did not err in finding
    the Saluris were aware in 2005 of slight shifting of the retaining wall and that this
    was caused by “the weight of everything behind us,” and specifically “the railroad
    ties against our fence.” The Saluris had at least imputed knowledge of their injuries
    and the cause in 2005, and the district court did not err in concluding the statute of
    limitations began to run at that time. See Hook v. Lippolt, 
    755 N.W.2d 514
    , 523
    (Iowa 2008) (noting an injured party who knows of an “injury and its cause must
    conduct a reasonable investigation of the nature and extent” of the person’s legal
    rights).
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    B.     In the alternative, the Saluris claim the Buckleys’ conduct constituted
    an ongoing and continuous harm. They assert they should be able to recover
    under theories of negligence and temporary nuisance for injuries occurring within
    five years before the petition was filed.
    “[W]here the wrongful act is continuous or repeated, so that separate and
    successive actions for damages arise, the statute of limitations runs as to these
    latter actions at the date of their accrual, not from the date of the first wrong in the
    series.” Hegg v. Hawkeye Tri-Cty. REC, 
    512 N.W.2d 558
    , 559 (Iowa 1994). On
    the other hand, when an injury is considered to be permanent, the statute of
    limitations begins to run at the time of the first injury. K & W Elec., Inc. v. State,
    
    712 N.W.2d 107
    , 118–19 (Iowa 2006). A nuisance may be considered to be
    continuing if it is temporary and subject to abatement. See Bennett v. City of
    Marion, 
    93 N.W. 558
    , 559 (Iowa 1903).
    The district court found,
    The present case does not fit within the parameters of the
    continuing wrong doctrine. The alleged actions of the [Buckleys] are
    not “continuous or repeated”; to the contrary, they clearly were
    concluded once the construction activities on the [Buckleys’] property
    were completed. Shortly thereafter, the [Saluris] observed what they
    perceived as damage to their property attributable to these activities
    (the aforementioned water runoff, erosion and “shifting” of the
    retaining wall). While those damages may be recurring [or] ongoing,
    they all arise from a discrete set of actions completed in 2005, not “a
    chain of tortious activity.”
    We determine the district court did not err in its conclusion the continuing wrong
    doctrine should not be applied in this case. The Saluris’ claims arise from the
    Buckleys’ actions in building the garage, home, and timber retaining wall, as well
    as backfilling dirt behind the wall, which all occurred by 2005. The evidence does
    7
    not show the Buckleys engaged in continuous or repeated activities causing
    damages to the Saluris.
    C.     On their claim of negligence per se, the Saluris claim the applicable
    statue of limitations should be twenty years under section 614.1(6), which applies
    to actions founded on a judgment of record. They state the Buckleys entered into
    a consent decree with the City of Des Moines in 1999 that required them to follow
    all municipal codes, but they violated the municipal code by not having a sufficient
    set-back for the garage. The district court rejected this claim “without further
    comment.”
    The Saluris’ petition alleged injury to their property due to the Buckleys’
    actions. The Saluris are not seeking to enforce a judgment. We determine the
    proper statute of limitations is section 614.1(4), not section 614.1(6).
    We affirm the district court decision granting summary judgment to the
    Buckleys on the ground the Saluris’ claims are barred by the statute of limitations.
    AFFIRMED.