The city of Newton was in court Friday under allegations it disposed of evidence in a pending civil lawsuit.


The city of Newton was in court Friday under allegations it disposed of evidence in a pending civil lawsuit.

Sedgwick County District Court Judge William Wooley ruled against a motion requesting sanctions against the city in a case involving a baked-up sewer at the home of Mike and Lisa Snow, 105 S.W. Ninth in Newton.

The Snows were requesting payment of attorney fees and costs in excess of $10,000 associated with discovery for a lawsuit over damages from the sewer backup in September and December 2008.

More than a foot of raw sewage flowed into the Snow’s finished basement.

“We have had to replace everything down there — the hot water heater,” Lisa Snow said. “We’ve had to tear out the sheetrock and the floors. We haven’t finished all of it yet.”

Snow said it was not just the monetary losses that were difficult. The second backup happened the day after Christmas.

“You have no idea,” Lisa Snow said regarding the clean-up. “And it was not just the clean-up, it was all of the heart break of the things we had down in the basement — pictures and family things in storage.”

Two pieces of concrete were found in the pipe directly down stream from the Snows’ home.

The Snows allege the concrete came from road work done in the area by Kansas Paving, which was under contract from the city.

Several days after the concrete pieces were found in the sewer line, they were discarded in the city’s concrete landfill.

The Snows’ attorney argued 75 percent of the discovery that was done in the case would not have been necessary if the city would have preserved the two pieces of concrete found in the sewage line.

The Snow’s contacted the city three days after the backup about filing a claim for the damage done to their house.

The city’s insurance carrier later denied the Snows’ claim for damages because it said without the concrete pieces, no one could prove how the damage was caused or who was at fault.

“The government has all the cards because the government has the evidence,” said Susan Schrag, the Snows’ attorney.

Schrag said the city had reason to believe a lawsuit would be filed in the case but made no effort to retrieve the concrete until it could no longer be found at the landfill.

“If the city is rewarded for its wrongful conduct, it is not very good for the administration of justice or a good way to get to the truth,” Schrag said.

William Townsley III, the city’s attorney, said the city had no idea when the concrete was discarded the Snows would file a lawsuit.

Although the Snow’s attorney had asked for the concrete prior, the lawsuit was not filed until August 2009.

The city’s attorney pointed to testimony from a city worker who said because of the volume of concrete at the landfill, the concrete could not have been found one week much less months after the concrete had been disposed of.

In reply, Schrag argued city workers testified the concrete was moon shaped as if it had come from a manhole and was black because it had been sitting in raw sewage for months.

She said these were specific characteristics that would have allowed city workers to locate the concrete if they had searched earlier.

Basing his opinion on the testimony of city workers that the volume of the concrete at the landfill and overfill from other city departments would have made the concrete pieces impossible to find, the judge ruled in favor of the city.

The Snows’ insurance did not cover the cost of the damage. They still have a lawsuit pending against the city on the damages to their home.

They are seeking $185,000, including actual damages and devaluation of their home from the sewage backup. The case is set to be in court in August.

The Snows were planning on putting their home on the market shortly before the sewage backup, but now they can’t do that because of problems with the basement, Lisa Snow said.

Even when the basement is fixed, Snow said they will not be able to sell their home for its previous value because they will have disclose sewage has backed up in the basement.

The Snows have not had any more sewage backups since the concrete was removed from the sewage line.