LEIGHTON H. LIPPERT v. B & D REAL ESTATE PROPERTIES, LLC

Syllabus

A developer failed to use proper erosion control measures, resulting in recurring sediment runoff into a pond owned by neighboring landowners and increasing accumulation of sediment therein. The trial court concluded that developer's actions constituted a temporary, not permanent, nuisance and awarded injunctive relief and damages. Damages for emotional distress were included among the damages the trial court awarded. The developer appeals, challenging the trial court's finding as to proximate causation and asserting that its actions, if a nuisance, were a permanent and not temporary nuisance, and accordingly the landowners' suit was barred by the statute of limitations. The developer also asserts that the trial court erred as to the remedies awarded, challenging both the injunctive relief and emotional distress damages. We affirm the trial court's findings as to proximate causation and its conclusion that the nuisance is temporary. We also affirm the trial court's imposition of an injunction. However, we reverse the award of damages for emotional distress based upon deficient pleading.