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Collett v. Cordovana

Supreme Court of Virginia

June 4, 2015

GINA M. COLLETT
v.
GARY B. CORDOVANA, ET AL

FROM THE CIRCUIT COURT FOR THE CITY OF NORFOLK. Everett A. Martin, Judge.

Kevin E. Martingayle (Bischoff Martingayle, on briefs), for appellant.

Todd M. Fiorella (Fraim and Fiorella, on brief), for appellees Dion C. Hayle and 1273 West Ocean View, LLC.

Christopher J. Wiemken (James E. Brydges, Jr.; TaylorWalker, on brief), for appellees Gary B. Cordovana and Margaret H. Cordovana.

OPINION

Page 585

PRESENT: All the Justices

CLEO E. POWELL, JUSTICE.

Gina M. Collett (" Collett" ) appeals the final judgment entered by the Circuit Court for the City of Norfolk (" trial court" ) on June 26, 2014, sustaining demurrers filed by Gary B. Cordovana, Margaret H. Cordovana (collectively, " the Cordovanas" ), Dion C. Hayle, and 1273 West Ocean View, LLC[1] (collectively,

Page 586

" 1273 WOV" ) and dismissing Collett's complaint with prejudice.

I. BACKGROUND

Collett owns property located on West Ocean View Avenue in the City of Norfolk. The Cordovanas own the property located on one side of Collett's property and 1273 WOV owns the property on the other side of Collett's property.

Collett alleged in her second amended consolidated complaint[2] that the Cordovanas and 1273 WOV were " responsible for directing massive quantities of water run-off and pollutants from their properties onto [Collett's] property, thus causing significant and ongoing damage, financially and emotionally." Collett claimed that the Cordovanas and 1273 WOV were liable to her " pursuant to theories of trespass, nuisance, negligence per se and ordinary negligence." Collett requested compensatory damages up to $500,000 jointly against the defendants; punitive damages up to $350,000 against each defendant individually; and temporary and permanent injunctive relief.

With respect to the neighboring properties, Collett asserted that " instead of draining to the street, a significant portion of the defendants' rain and storm run-off drains to Collett's property, regularly causing it to flood and sustain damage to both the real estate and [her] personal property." She further alleged that " [t]he run-off includes . . . pollutants." Collett also argued that the water run-off from the Cordovanas' property and 1273 WOV's property violates Norfolk City Code § § 27-2 and 36-17(b) (the " Norfolk Ordinances" ).

Collett claimed that the Cordovanas and 1273 WOV " modified the topography of their property such that it has exacerbated the problem and essentially guarantees that Collett will suffer water-related damages every time a significant rain event occurs." Specifically, Collett asserted that the Cordovanas' property was altered in March 2010 by " dumping . . . a load of gravel on their parking lot, which raised it approximately four inches. The gravel was graded in such a manner as to ensure that water would flow from the [Cordovanas'] property onto Collett's property." The Cordovanas had " another load of gravel dumped on their rear parking lot, which raised it approximately four inches higher" in August 2013. However, the Cordovanas did not obtain proper permits and the City of Norfolk halted the project.

With regard to modifications by 1273 WOV, Collett asserted that mulch and " other modifications" were added to the property " in an effort to ...


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