Date: 12-02-2012

Case Style: Marilyn Wehlung v. Robert John Schultz

Case Number: CJ-2008-1850

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Jennifer S. Jones and James P. Kelley

Defendant's Attorney: John R. Shelton and Roger K. Gofton

Rodney D. Stewart for Abuderixiti Aimaiti and Rehanguti Tuerxun.

David H. Dobson on behalf of Eugene Sorrell, Jr.

Description: Marilyn Wehlung sued Robert John Schultz on a negligence theory claiming:

1. That the Plaintiff is the owner of and in possession of certain real property, having an address of 9801 and 9803 Larkspur, Oklahoma City, Cleveland County, Oklahoma, which is more particularly described as follows, to-wit

Lot 11, Shadowlake Vifiage UT, being a part of the Northeast
Quarter of Section 6, Township 10 North, Range 2 West
Cleveland County, Oklahoma, according to the recorded
plat thereof.

2. Defendants, Robert John Schultz and Jennifer Schultz, are the owners of and in possession of certain real property with a property address of 2216 SW 96th Street, Oklahoma City, Cleveland County, Oklahoma, which is more particularly described as follows:

Lot Eight (8), Block Seven (7), Pennsylvania South Section 8, an Addition to Oklahoma City, Cleveland County. Oklahoma, according to the recorded plat thereof.

3. Defendant, Eugene Sorrel, Jr. and spouse. if any, are the owners of and in possession of certain real property with a property address of 2220 SW 96th Street, Oklahoma City, Cleveland County, Oklahoma, which is more particularly described as follows:

Lot Nine (9), Block Seven (7), Pennsylvania South Section 8, an Addition to Oklahoma City, Cleveland County, Oklahoma, according to the recorded plat thereof.

4. That Plaintiff’s backyard and Defendants’ backyards share a common back lot line.

5. Plaintiff’s backyard has a significant slope to the back lot line.

6. Defendants’ backyards, where contiguous with Plaintiffs backyard, were historically level with the Plaintiff’s backyard.

7. Historically, surface water would flow from Plaintiff’s and Defendants’ backyards into a detention pond approximately 200 yards east of the properties.

8. Without the knowledge or consent of Plaintiff, the Defendants, Robert John Schultz and Jennifer Schultz, constructed a fence and filled in approximately three feet of dirt above the level of Plaintiff’s backyard.

9. Without the knowledge or consent of Plaintiff, ‘Pefendants, Eugene SorreL Jr. and spouse, if any, constructed a fence and filled in approximately three feet of dirt above the level of Plaintiffs backyard. Defendants SorteR replenished the level of their backyard after being contacted by Plaintiff about surface water pooling in her yard.

10. Since the construction of the fences, surface water does not drain as it did historically but pools in Plaintiffs backyard damaging same, and making it unusable.

11. Plaintiff and/or her agents have contacted the Defendants concerning this problem, and Defendants have taken no remedial action.

12. Since the heavy rains in the spring and summer of 2007, Plaintiff has suffered and will continue to suffer irreparable harm from the raising of the level of the backyards of Defendants due to water backing up and pooling on her property.

13. Water now runs into Plaintiff’s basement; and mold has begun growing in Plaintiffs basement due to the constant moisture.

14. Plaintiff’s property is uninhabitable in its current condition, and Plaintiff has no adequate remedy at law.

15. Plaintiff has suffered damages in excess of $10,000.00 as a result of Defendants’ actions.

WHEREFORE, Plaintiff prays that this Court a) order Defendants to return their backyards to their historical condition; b) issue a permanent injunction enjoining Defendants from placing a barrier of any kind which would prohibit the historical drainage of surface water, causing surface water to pool on Plaintiff’s property; c) award Plaintiff damages for lost rents; d) repair of Plaintiffs backyard to its previous condition; e) reimburse Plaintiff for expenses and repairs for mold remediation and to return Plaintiff’s basement to its previous conditioit and f) for attorneys’ fees and costs such other relief as this Court may deem just and proper.


Defendant answered as follows:

1. These Defendants admitthe allegations contained in numerical paragraphs 1, 2,
3, 4 and 5of Plaintiff’s Petition;

2. These Defendants are without sufficient information, knowledge or belief to admit or deny the allegations contained in numerical paragraphs 12 and 13 of Plaintiff’s Petition, demanding strict proof thereof.

3. These Defendants deny the allegations contained in numerical paragraphs 6, 7,
8, 9, 10, 11, 15 and 15 of Plaintiff’s Petition, demanding strict proof thereof. Affirmative Defenses
1. Plaintiff’s Petition fails to state facts upon which relief may be granted.
2. These Defendants deny they were in any way negligent but if it is determined that they were negligent, the negligence of the Plaintiff was greater than the negligence of these Defendants thus precluding Plaintiff’s right of recovery.

3. The actions for which Plaintiff makes claim were caused or contributed by persons whom these Defendants have no control and for whom these Defendants are not responsible thus precluding Plaintiff’s right of recovery.

4. These Defendants did not alter the natural flow of surface water but if same has been altered, it is not to the detriment of the Plaintiff.

5. These Defendants seek leave to amend their Answer as Discovery proceeds.

WHEREFORE, premises considered, these Defendants pray that Plaintiff takes nothing by way of her Petition and that these Defendants be excused with their costs, attorney’s fees and such other relief as the Court deem just and proper.

Defendant moved for summary judgment which was overruled.

Plaintiff filed an amended petition alleging:

1. Plaintiff realleges and restates all allegations contained in the Petition filed herein on the 12th day of September, 2008.

2. Plaintiff makes all of such allegations and statements against said Additional Party Defendants.

3. Additional Party Defendants, Abuderixiti Aimaita and Rehanguti Tuerxun, are the owners of and in possession of certain real property with a property address of 2224 SW 96th Street, Oklahoma City, Cleveland County, Oklahoma, which is more particularly described as follows:

Lot Ten (10), Block Seven (7), Pennsylvania South Section 8, an Addition to Oklahoma City, Cleveland County, Oklahoma, according to the recorded plat thereof.

4. Without the knowledge or consent of Plaintiff, the Additional Party Defendants, Abuderixiti Aimaita and Rehanguti Tuerxun, constructed a fence and filled in approximately three feet of dirt above the level of Plaintiff’s backyard.

WHEREFORE, Plaintiff prays that this Court: a) order all Defendants to return their backyards to their historical condition; b) issue a permanent injunction enjoining all Defendants from placing a barrier of any kind which would prohibit the drainage of surface water and causes surface water to pool on Plaintiff’s property; c) award Plaintiff damages for lost rents, repair of Plaintiff’s yard to its previous condition; d) reimburse Plaintiff for expenses and repairs for mold remediation and to return Plaintiff’s basement to its previous condition; e) for attorney’s fees and costs; and f) for such other relief as this Court may deem just and proper.

Defendants answered as follows:

COMES NOW the Defendant, Eugene Sorrell, Jr. and for
Amended Petition states and alleges as follows

1. Sorrell re-adopts and re-alleges all matters contained in his Answer filed herein on October 24, 2008.

WHEREFORE, premises considered, Defendant, Eugene Sorrell Jr. respectfully prays that plaintiff take nothing by way of her Amended Petition and that he be dismissed with his costs and attorney fees and such other and further relief as the Court deems just and proper.

Defendants Aimaiti and Tuerxun answered as follows:

1. Plaintiffs original Petition asserts no claims or causes of action against these answering Defendants. As it pertains or may pertain to these Defendants, they deny each and every allegation set forth in Plaintiffs original Petition filed herein on the 12th day of September, 2008.

2. Paragraph 2 of Plaintiffs Amended Petition contains no allegations against these
Defendants.

3. Defendants admit that they currently own and are in possession of the real property described in Paragraph 3 of Plaintiff’s Amended Petition; however, Defendants deny that they were
the owners of or had any interest in such property at the time of the events giving rise to Plaintiff’s claims and causes of action herein.

4. Defendants deny Paragraph 4 of Plaintiff’s Amended Petition.

AFFIRMATIVE DEFENSES

1. Plaintiff’s claims as to these Defendants is barred in whole or in part by the applicable statute(s) of limitations.

2. Plaintiffs claims as to these Defendants is barred by Plaintiff’s unclean hands.

3. Plaintiff’s claims as to these Defendants is barred by the doctrine of laches.

4. Plaintiffs claims as to these Defendants is barred because Defendants did not own or possess their current property
at the time of Plaintiff’s alleged harm.

5. Plaintiff’s alleged harm is the result of her own actions and omissions and/or the condition of her own real property over which these Defendants have no control.

6. Plaintiffs alleged harm is the result of the acts and omissions of third parties over whom these Defendants have no control.

7. These Defendants were unaware of the allegations asserted herein by Plaintiff and have taken no action that caused or contributed to Plaintiff’s alleged harm.

8. Plaintiff’s claims as to these Defendants are frivolous and without any factual or legal basis, entitling these Defendants to an award of their attorney’s fees and litigation expenses, at a minimum.

9. These Defendants are new parties to this action and they reserve the right to assert additional defenses and to bring appropriate counter claims and/or cross claims.

Robert and Jennifer Schultz made the following offer of judgment:

COME NOW, the Defendants, Robert John Schultz and Jennifer Schultz, and pursuant to and in accordance with Title 12 §940 of the Oklahoma Statutes, do offer to allow judgment to be taken againstthem in the total sum of $2,500.00, inclusive of all costs and attorneys’ fees.

Eugene Sorrell, Jr. made the following offer of judgment:

COMES NOW the Defendant, Eugene Sorrell, Jr., pursuant to 12 0.5. § 940 and hereby offers to allow judgment to be taken against him in the total sum of $25,000.00,
inclusive of all costs and attorneys’ fees.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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