325 Goodrich Ave., LLC v. Sw. Water Co.

• Decision Date: 04 September 2012
• Docket Number: No. 5:10–CV–452 (CAR).,5:10–CV–452 (CAR).
• Citation: 891 F.Supp.2d 1364
• Parties: 325 GOODRICH AVENUE, LLC, Plaintiff, v. SOUTHWEST WATER COMPANY, and John Doe, Defendants.
• Court: U.S. District Court — Middle District of Georgia

891 F.Supp.2d 1364

325 GOODRICH AVENUE, LLC, Plaintiff,

v.SOUTHWEST WATER COMPANY, and John Doe,¹ Defendants.

No. 5:10–CV–452 (CAR).

United States District Court,

M.D. Georgia,

Macon Division.

Sept. 4, 2012.

C. Bradford Marsh, Joseph John Angersola, Atlanta, GA, Christopher Channing Spencer, Elizabeth Kinland Shoenfeld, Richmond, VA, for Plaintiff.

Thomas Ryan Mock, Jr., Atlanta, GA, for Defendants.

ORDER ON PARTIES' MOTIONS TO EXCLUDE AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

C. ASHLEY ROYAL, District Judge.

The following Motions are presently before the Court: Defendant Southwest Water Company's (“SWWC”) Motion for Summary Judgment [Doc. 40], SWWC's Motion to Exclude Expert Testimony of Dr. Rubin Shmulsky [Doc. 54], and Plaintiff 325 Goodrich Avenue, LLC's (“Goodrich”) Motion to Exclude Certain Expert Testimony of Carl Michael Gates [Doc. 55]. Having considered the parties' Motions, all responses and replies thereto, and the applicable law, SWWC's Motion for Summary Judgment [Doc. 40] is GRANTED in part and DENIED in part, and Goodrich's Request for Oral Argument [Doc. 77] is DENIED. Additionally, SWWC's Motion to Exclude Dr. Rubin Shmulsky's Expert Opinion [Doc. 54] is DENIED in part and TERMINATED as MOOT in part, and Goodrich's Motion to Exclude Certain Expert Testimony of Carl Michael Gates [Doc. 55] is GRANTED.

BACKGROUND

On October 8, 2008, water flowed out of an uncapped and severed standpipe (the “Flood”) located on the first floor of two old warehouses (“Buildings A and B”) on Goodrich's property at 325 Goodrich Avenue, Thomaston, Georgia (the “Property”).² The Flood allegedly damaged the antique hardwood first floor of Buildings A and B resulting in damages in excess of $1 million. In the instant action, Goodrich alleges that SWWC ³ caused the Flood and is thus liable for the resulting damages. The facts in the light most favorable to Goodrich, the non-movant on summary judgment, are as follows.

The Property

In June of 2008, Goodrich purchased the Property, a former B.F. Goodrich tire cord manufacturing facility known locally as Martha Mills, for $1.5 million. The Property consisted of eleven buildings, including Buildings A and B, a water well, and two water towers. Goodrich purchased the Property with the intention of renovating some buildings for historical tax purposes and salvaging some hardwood floors and steel pipes in the buildings for resale. Shortly after purchasing the Property in June, Goodrich requested that SWWC discontinue the Property's water service, and SWWC accordingly complied.

Buildings A and B were both three-story brick warehouses, although Building A was substantially larger than Building B. Both buildings had the same hardwood antique floors comprised of three different layers of wood: a maple top layer, a yellow pine middle layer, and a heart pine beams bottom layer. As to be expected from the Property's previous use as a manufacturing facility and textile mill, certain areas of the floor were dirty, scratched, or oily. At the time of the Flood, an uncapped and severed vertical water standpipe was located on the first floor of Buildings A and B. It is unclear whether these pipes were uncapped and severed during Goodrich's ownership, but, reading the facts in the light most favorable to Goodrich, this issue is irrelevant.

October 8, 2010 & the Flood

Matthew Molenkamp, Goodrich's Project Manager, was in charge of removing and salvaging the hardwood floors in Buildings A and B. On the day of the Flood, October 8, 2010, Molenkamp was supervising the removal of precariously positioned steel pipes in Building A that posed a safety hazard to the eventual floor removal process.

That day around “lunchtime” water began “steadily flowing” from the open standpipes in both buildings and onto the first floors. Matthew Molenkamp Dep. 21:9, 120:2 May 25, 2011 [Doc. 42 at 21]. At some point, likely sooner rather than later, Goodrich's employees who were removing pipes in Building A, notified Molenkamp. Upon arriving, Molenkamp instructed his secretary to call SWWC. Once notified, SWWC employees “immediately” began working where the water line was controlled on the Property.⁴Id. at 41:9 [Doc. 42 at 41]. From the time he arrived at Building A until the time the water stopped, no more than ten minutes had passed. Molenkamp estimates that water covered a combined total of 23,000 square feet of the hardwood floors in Buildings A and B, and in some places the water was two to three inches deep.

Shortly after the water stopped, Molenkamp and SWWC foreman, Albert Woodard, examined the Flood's aftermath. While inside Building A, Woodard explained that SWWC had accidentally “cut on the valve” when they were trying to fix a water issue on another nearby property and reassured Molenkamp that the water would not hurt the “old wood.” Id. at 47:25 [Doc. 42 at 47]. In a subsequent deposition, Molenkamp testified that he could not remember what Woodard said about the Flood.⁵ Woodard testified that he did not “recall” anything about this conversation or the Flood. Albert Woodard Dep. 13:21–14:15, June 22, 2011 [Doc. 71 at 4].

After the Flood

By that evening, Goodrich's employees had removed the water “to the best of [their] ability.” Molenkamp Dep. 230:4, May 25, 2011 [Doc. 42 at 230]. Notwithstanding their efforts, it still took “a few days” before the hardwood floors had completely dried. Id. at 78:24 [Doc. 42 at 78]. The following day, on October 9, Goodrich filed a claim for damages with its insurance company, Faraday Capital Limited (“Faraday”).

From the end of December 2008 through January 2009, Faraday commissioned three experts to inspect the extent of damage to Buildings A and B. Dan Arnold, a fire protection engineer, investigated whether the standpipes were part of the sprinkler system; Christopher Dawkins, a building consultant, determined the general condition of the wood floors, and inspected, photographed, and conducted infrared examinations looking for moisture; and Carl Michael Gates, an insurance adjustor, calculated the actual cash value and replacement costs of the wood floors.

Goodrich subsequently removed all of the wood floors in Building B, including the allegedly damaged wood from the first floor. Goodrich sold the yellow pine and heart pine layers of the damaged flooring, but stored the top maple layer in Building A. Goodrich also removed the entire second and a majority of the third floor in Building A, but did not remove the damaged first floor.

In November 2009, over one year after the Flood and over eight months after Faraday's experts conducted their investigations, Building B was demolished as part of Goodrich's ordinary course of business. Shortly after demolition, a portion of Building A's roof “caved in.” Id. at 79:13 [Doc. 42 at 79]. The record indicates that Goodrich never repaired the roof.

Goodrich's Wood Salvaging Business

The success of Goodrich's wood salvaging business leaves plenty of room for the imagination. The little the Court was able to piece together is as follows: Before the Flood, Goodrich's business of selling salvaged antique wood was relatively new and no salvaged wood had been resold. After the Flood, Goodrich began to sell wood in one of two conditions: as is or re-milled. Depending on the amount of wood purchased, Goodrich sold the former materials for $1–$5 and the latter for $4–$9, although it is unclear whether this amount reflects the retail price of the undamaged or damaged wood from Building B. The cited record is also silent as to Goodrich's cost of removal, cost of re-milling, or amount of profit, if any, that it realized for selling either type of wood.

Molenkamp's Arrest, July 2011

On July 21, 2011, Molenkamp was arrested by Chief Dan Greathouse and Officer Bobby Ellington of the City of Thomaston Police Department for demolition without a permit.⁶ There is some dispute as to what, if anything, Molenkamp told the officers when he was arrested. According to the officers' testimony, Molenkamp stated that he thought he was being arrested for the fraud against SWWC. Molenkamp, however, who was “frustrated and distraught” at the time of the arrest, does not remember. Id. at 6:25 [Doc. 43 at 6].

Procedural History

Goodrich initiated the instant action against SWWC on November 23, 2010, after seeking, and subsequently obtaining, a consent Order by this Court to dismiss SWWC as a Third–Party Defendant to the Companion Case. Goodrich presently asserts four claims against SWWC: nuisance, trespass, attorneys' fees, and punitive damages.

After initiating this suit, and thus, after the demolition of Building B, Goodrich retained Dr. Rubin Shmulsky, Professor of Forest Products at Mississippi State University, to investigate the existence and extent of damage to the flooring and the valuation of the sustained damage. SWWC did not retain an expert to investigate the water damage, but has named two of Faraday's experts, Arnold and Dawkins, as its own potential expert witnesses.

Discovery concluded on September 1, 2011, and SWWC subsequently filed its timely Motion for Summary Judgment and Motion to Exclude the Testimony of Dr. Rubin Shmulsky. Goodrich responded to both Motions and filed a Motion to Exclude Certain Testimony of Carl Michael Gates. Neither party filed a Reply Brief to their respective Motions and the time for which to do so has expired. Pursuant to the Court's request, the parties filed supplemental briefs on the issue of damages. [Docs. 83, 84]. Therein, Goodrich represents that it is seeking replacement costs for the antique flooring in Building A and diminution in value damages for the salvaged wood in Building B.

MOTION FOR SUMMARY JUDGMENT

In its Motion for Summary Judgment, SWWC challenges Goodrich's nuisance, attorney's fees, and punitive damages claims in their entirety, as well as the causation element of its trespass and nuisance claims. SWWC additionally argues that Goodrich's recoverable damages should be limited...