Richard France and Travis France v. Villages of Cross Creek Arkansas Suburban Sewer District No. 1
CourtCourt of Appeals of Arkansas
Date FiledOctober 7, 2026
StatusPublished
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Full Opinion
Cite as 2026 Ark. App. 473
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-25-483
RICHARD FRANCE AND Opinion Delivered October 7, 2026
TRAVIS FRANCE
APPEAL FROM THE BENTON
APPELLANTS
COUNTY CIRCUIT COURT
[NO. 04CV-23-2158]
V.
HONORABLE CHRISTINE
VILLAGES OF CROSS CREEK HORWART, JUDGE
ARKANSAS SUBURBAN SEWER
DISTRICT NO. 1
APPELLEE REVERSED AND REMANDED
CASEY R. TUCKER, Judge
Travis and Richard France (the “Frances”) appeal the Benton County Circuit Court’s
order granting summary judgment to Villages of Cross Creek Arkansas Suburban Sewer
District No. 1 (“VCC”) with respect to their complaint that they are entitled to payment for
the taking of their properties through inverse condemnation. The Frances specifically argue
that the taking resulted from repeated effluent “accumulated on the surface of the Sewage
Processing Tract” owned by VCC that migrated to the Frances’ tracts of land. The circuit
court issued an order finding that the Frances’ action was a tort claim for which VCC has
sovereign immunity and found that “no intentionality has been pled regarding the Frances’
claims for inverse condemnation.” We disagree and reverse the judgment and remand.
I. Procedural history
On August 15, 2023, the Frances filed a complaint against VCC alleging an improper
taking—inverse condemnation—without appropriate compensation. Specifically, the
complaint alleged as follows:
7. As the result of [VCC’s] use of their tracts, sewage has accumulated
on the surface of the Sewage Processing Tract and has migrated onto the Travis
France Tract and the Richard France Tract.
8. The aforesaid migration of sewage has been occurring with regularity
for over five years.
9. The sewage upon [the Frances’] land is a nuisance per se.
10. The five (5) years of repeated migration of sewage upon [the
Frances’] lands is a serious interruption of the common and necessary use of
property as to interfere with the rights of the owner.
11. The continuing trespass or nuisance has ripened into inverse
condemnation.
After timely filing its answer, VCC filed its motion for summary judgment claiming
that although the Frances titled their claim as one for inverse condemnation, the claim is a
tort claim from which VCC is immune via both statutory immunity under Ark. Code Ann.
§ 21-9-301(a) (Repl. 2022) and common-law immunity available to sewer districts.
In the summary-judgment motion, VCC stated that the Frances failed to plead and
could not prove intent as required to prove inverse condemnation. The Frances’ response
argued that because VCC knew of the sewage seepage onto the Frances’ property caused by
its operations over a period of years and knew of the damage resulting to the property, its
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actions and inaction to correct the damage ripened into intentionality under Arkansas case
law.
As “proof,” the Frances attached their affidavits concerning their complaints to
ADEQ1 since 2015 that led to investigations of VCC. The Frances also included responses
to requests for production of documents they received from VCC reflecting that VCC was
aware of the problems on the Frances’ properties since 2015. VCC filed a reply arguing for
the first time the statute of limitations as a defense to this suit. 2
At the hearing on the motion for summary judgment, the parties relied primarily on
their briefs in lieu of arguing their positions. The circuit court granted summary judgment
to VCC, finding recent cases controlling:
Well, when I reviewed your pleadings and your reply, Mr. Hirsch, and
then your reply, Mr. Brown, I found those most recent cases pretty on point,
and especially the Rogers v. -- City of Rogers v. Powell, which was just last year.
Accordingly, I am going to -- I believe that the Suburban Sewer District
Number One is entitled to both statutory, as well as common law immunity
against tort actions, and I am finding that the argument that no intentionality
has been pled regarding the plaintiff’s claim of inverse condemnation such
that the Motion for Summary Judgment should be granted.
II. Analysis
Our law is well settled that summary judgment is to be granted by a circuit court only
when it is clear that there are no genuine issues of material fact to be litigated, and the party
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Arkansas Department of Environmental Quality.
2
Because the circuit court opinion did not address VCC’s statute-of-limitations
defense, and the record before us is insufficient to resolve that issue, we decline to address
this issue in our opinion.
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is entitled to summary judgment as a matter of law. McCrory v. Wilson, 2022 Ark. App. 200,
644 S.W.3d 823. Once the moving party has established a prima facie entitlement to
summary judgment, the opposing party must meet proof with proof and demonstrate the
existence of a material issue of fact. Id. On appellate review, we determine if summary
judgment was appropriate by deciding whether the evidentiary items presented by the
moving party in support of the motion leave a material fact unanswered. Id. We view the
evidence in the light most favorable to the party against whom the motion was filed, resolving
all doubts and inferences against the moving party. Our review focuses not only on the
pleadings but also on affidavits and other documents filed by the parties. Id.
The object of summary-judgment proceedings is not to try the issues but to determine
if there are any issues to be tried, and if there is any doubt whatsoever, the motion should
be denied. Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006). When there are
genuine questions of material fact with regard to a party’s intent, summary judgment is
improper. Id. at 463, 231 S.W.3d at 715.
The sole issue in this appeal is whether there is a material fact in dispute that VCC’s
actions and failure to act with respect to the sewage that migrated onto the Frances’ land
ripen into to the level of intentional conduct resulting in inverse condemnation. Given that
we look at the proof in the light most favorable to the Frances, we believe that material facts
remain in dispute.
We find Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990), controlling.
Despite continued pleas to the City of Ashdown, the Robinsons proved over a nine-year
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period that their home had been flooded intermittently with effluent from the sewer
constructed and operated by the City of Ashdown. The Robinsons sought compensation
from the City for the taking of their property. The circuit court found that the Robinsons
had shown only negligence on the part of the City and directed a verdict in favor of the City
based on sovereign immunity.
Our supreme court reversed the circuit court, finding the following:
When a municipality acts in a manner that substantially diminishes the value
of a landowner’s land, and its actions are shown to be intentional, it cannot
escape its constitutional obligation to compensate for a taking of property on
the basis of its immunity from tort action.
Id. at 232, 783 S.W.2d at 56–57.
The court discussed how a tort can ripen into inverse condemnation and
defined intent:
Although injury to property through negligence or trespass does not, without
more, qualify as a taking, it has been held that a continuing trespass or
nuisance can ripen into inverse condemnation. City of Jacksonville v. Schumann,
167 So.2d 95 (Fla. App. 1964).
....
[W]hen one knows that an invasion of another’s interest in the use and
enjoyment of land is substantially certain to result from one’s conduct the
invasion is intentional. See Rest. Torts 2d, 825(b), comment (d).
Id. at 230, 232, 783 S.W.2d at 55, 56.
While the circuit court relied on City of Rogers v. Powell, 2024 Ark. App. 415, 698
S.W.3d 390, in granting summary judgment in the case before us, we do not find it
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persuasive. Nor are we persuaded by the two other cases cited by VCC in support of its
position.
In City of Rogers, the City approved a revised drainage plan that complied with its
stormwater requirements, and the property owner presented no evidence that the City knew
the plan was substantially certain to cause flooding. Although the City was notified after
flooding occurred, the owner identified no governmental action beyond the initial plan
approval and pipe installation. Id. at 5–6, 698 S.W.3d at 393–94. We agreed that summary
judgment should have been granted to the City on the basis of immunity and “that Powell
failed to put forth proof of any intentional conduct necessary to establish a taking. . . . [T]here
is no evidence that the City knew the plans it approved were substantially certain to lead to
flooding on the property.” Id. at 6, 698 S.W.3d at 394.
In City of McCrory v. Wilson, 2022 Ark. App. 200, 644 S.W.3d 823, the plaintiffs
alleged that several sewer backups that occurred over a four-month period were caused by
the City. The City installed a backflow preventer, after which no further problems occurred.
We reversed an order denying summary judgment and held that the four individual incidents
and subsequent corrective action by the City did not mature into a claim of inverse
condemnation as contemplated in Robinson, supra. Id.
Nor does City of Sherwood v. Bearden, 2023 Ark. App. 67, 661 S.W.3d 213, compel
affirming summary judgment in this case. In City of Sherwood, flooding resulted from drainage
pipes installed by a private developer. The plaintiffs could not show that the City installed
the pipes. We held that the City’s approval of the developer’s plans, without more, did not
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constitute governmental action amounting to a taking. We also found no evidence that the
City knew, when it approved the plans, that flooding was substantially certain to occur. Id.
at 6–7, 661 S.W.3d at 216–17. Accordingly, there was no proof of intentional conduct on
the part of the City necessary to establish a taking like in Robinson, supra.
By contrast, the Frances presented their uncontroverted affidavits in support of their
response to summary judgment that VCC had firsthand knowledge of the ponding of
effluent and subsequent migration of effluent onto their properties for several years yet failed
to remedy it. In the record, VCC presented documentation that it was on notice of the
Frances’ complaints and was aware of the effluent runoff because it agreed to work with
consultants to address the issue as far back as July 7, 2015. The complaints and the reports
to VCC continued until this case was filed by the Frances in 2023. This issue is governed by
the principle recognized in Robinson, supra—when one knows that an invasion of another’s
interest in the use and enjoyment of land is substantially certain to result from one’s conduct,
the invasion is intentional. Robinson, 301 Ark. at 232, 783 S.W.2d at 57. Thus, the relevant
question is not whether VCC intended the initial invasion but whether VCC knowingly
continued conduct substantially certain to cause the effluent invasion onto Frances’
properties. This is a factual issue that cannot be summarily resolved against the Frances.
Factual questions remain about how often effluent ponding and migration to the
Frances’ properties occurred, when the damage became so extensive to interrupt the
enjoyment and use of the properties, and what—if any—actions VCC took to alleviate the
damage to the properties. These are all questions of fact that are determinative of whether
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the claims of nuisance or trespass ripen into inverse condemnation. Therefore, viewing the
evidence in the light most favorable to the Frances, we hold that the circuit court erred in
granting summary judgment.
Reversed and remanded.
WOOD and HIXSON, JJ., agree.
Hirsch Law Firm, P.A., by: E. Kent Hirsch, for appellants.
Harrington, Miller, Kieklak, Eichmann & Brown, P.A., by: J. Greg Brown, for appellee.
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