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 2 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 1 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. 3 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 4 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 5 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 6 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 7 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. 8