Lugue v. Hercules, Inc.

• Citation: 12 F.Supp.2d 1351
• Decision Date: 22 October 1997
• Docket Number: Civil Action No. CV296-133.,Civil Action No. CV296-122.
• Parties: Maria LUGUE, Plaintiff, v. HERCULES, INCORPORATED, Defendant and Third Party Plaintiff, v. Margaret Nix LUGUE and Roberto Lugue, Sr., Third Party Defendants. Margaret Nix LUGUE, Plaintiff, v. HERCULES, INCORPORATED, Defendant.
• Court: U.S. District Court — Southern District of Georgia

12 F.Supp.2d 1351

Maria LUGUE, Plaintiff, v. HERCULES, INCORPORATED, Defendant and Third Party Plaintiff, v. Margaret Nix LUGUE and Roberto Lugue, Sr., Third Party Defendants.

Margaret Nix LUGUE, Plaintiff, v. HERCULES, INCORPORATED, Defendant.

Civil Action No. CV296-122.

Civil Action No. CV296-133.

United States District Court, S.D. Georgia, Brunswick Division.

October 22, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Walter Douglas Adams, Brunswick, GA, for Plaintiffs.

T. Joshua Archer, J. Kevin Buster, Carmen R. Toledo, King & Spalding, Atlanta, GA, James A. Bishop, Brunswick, GA, for Defendants.

ORDER

ALAIMO, District Judge.

Plaintiffs, Maria Lugue ("Maria") and Margaret Nix Lugue ("Margaret"), bring this action seeking injunctive and monetary relief for alleged contamination and trespass to their real property by Defendant, Hercules, Incorporated ("Hercules"). Currently before the Court are three Motions for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Hercules brings two Motions for Summary Judgment addressing the issues of causation, damages, injury, and title. Plaintiff, Maria Lugue, brings one Motion for Summary Judgment on the Issue of Trespass. For the following reasons, Hercules' Motion for Summary Judgment on the Issue of Title will be DENIED, Hercules' Motion for Summary Judgment on the Issues of Causation, Damages, and Injury will be DENIED, and Plaintiff's Motion for Summary Judgment on the Issue of Trespass will be DENIED.

FACTS

This action is the consolidation of two cases, one brought by Maria Lugue, and the other, by Margaret Lugue. Maria contends that she owns the property located at 234 Benedict Road in Brunswick, Georgia. (Compl. ¶ 4). Maria's mother, Margaret, contends that she owns the vacant lot adjacent to 234 Benedict Road. (Compl. ¶ 4). Margaret is married to Roberto Lugue, Sr. ("Roberto Sr."), who managed the rental property located at 234 Benedict Road. Plaintiffs contend that their properties were contaminated by toxaphene located at Hercules' 009 landfill. Plaintiffs contend that the contamination is on-going, due to the toxaphene which is still stored at the landfill. Furthermore, Plaintiffs allege property damage from the removal of topsoil and trees from the property. Specifically, the complaints contain four counts: 1) Hercules' negligence in dealing, transporting, and disposing of the chemicals at the landfill, 2) trespass for the unauthorized removal of soil, trees, and vegetation, 3) nuisance, and 4) strict liability based on Hercules' involvement with an abnormally dangerous activity.

The properties involved originally were owned by L. Nix, who conveyed the land to Granville Nix. (1952 Deed). In 1960, Granville Nix placed the land in trust for his daughters, Margaret and Ruby Nix, naming himself as trustee. (1960 Deed of Trust). Then, in 1966, Granville Nix, individually and as trustee, conveyed the property to his former wife, Pauline Nix, as trustee for Margaret and Ruby Nix. (1966 Deed). Pauline Nix later divided the property and conveyed the vacant lot to Margaret, (1968 Deed), and the remaining property to "Maria Lugue and Roberto Lugue." (1979 Deed).

From 1948 to 1980, Hercules manufactured toxaphene, a pesticide, at its plant in Brunswick, Georgia. In 1975, Hercules built the 009 landfill adjacent to the land at issue in this case. Hercules operated the landfill until 1980 as a depository for waste resulting from the manufacture of toxaphene. After the landfill closed, unacceptable levels of toxaphene were found in the soil and groundwater of neighboring areas. In 1995, Hercules cleaned up the neighborhood soils which contained toxaphene under a consent decree with the Environmental Protection Agency ("EPA").¹ The clean-up included the removal of contaminated soils from the land, which then was replaced with clean soil. Since the clean-up, Hercules has continued to test the land surrounding the landfill.²

The land at issue in this case was involved in that clean-up effort. Hercules negotiated with Roberto Sr. in connection with the planned clean-up of the property. The discussions between Hercules and Roberto Sr. dealt with the details of Hercules' access to the property, the amount of compensation for the removed soil, trees, and vegetation, and permission to have the properties connected to the public water system at Hercules' expense. At one point, Roberto Sr. offered to sell the property to Hercules. Hercules rejected the offer, and the parties finally agreed upon $29,000 as compensation for Hercules' entry onto the land. Hercules paid and Roberto Sr. accepted $29,000. Hercules also connected the property to the city water supply and paved Nix Lane, which is located on the property.

DISCUSSION

I. Summary Judgment

Plaintiff, Maria Lugue, and Defendant, Hercules, have moved for summary judgment on various issues pursuant to Federal Rule of Civil Procedure 56. Summary judgment requires the movant to establish the absence of genuine issues of material fact, such that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Lordmann Enterprises, Inc. v. Equicor, Inc., 32 F.3d 1529, 1532 (11th Cir.1994), cert. denied, 516 U.S. 930, 116 S.Ct. 335, 133 L.Ed.2d 234 (1995). After the movant meets this burden, "the non-moving party must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial." Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The non-moving party need make this showing only after the moving party has satisfied its burden. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

Rule 56(c) of the Federal Rules of Civil Procedure provides in relevant part that:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Only the specific items listed in Rule 56(c) should be considered by the Court when ruling on a motion for summary judgment. Jones v. Menard, 559 F.2d 1282, 1286 n. 5 (5th Cir.1977).³ Furthermore, all reasonable inferences from the evidence will be made in favor of the non-movant. Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.1992).

Rule 56(e) provides that affidavits must be based on personal knowledge, set forth facts that would be admissible as evidence, and demonstrate that the affiant is competent to testify to the matters stated therein. See Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir. 1980); Ali v. City of Clearwater, 915 F.Supp. 1231, 1236 (M.D.Fla.1996). Unsworn statements do not qualify as affidavits and are not considered by the Court when ruling on a motion for summary judgment. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 n. 17, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142, 154 (1970); Gordon v. Watson, 622 F.2d 120, 122 (5th Cir.1980); White v. Wells Fargo Guard Serv., 908 F.Supp. 1570, 1579 (M.D.Ala.1995).

Additionally, documents and exhibits provided to support a motion for summary judgment must be complete. If a document is referred to in an affidavit, but no sworn or certified copy is attached, the Court should disregard all references to that document. 28 Federal Procedure, Lawyers Ed., Pleadings and Motions § 62:603 (1984). Documents which are not properly authenticated and verified do not meet the requirements of Rule 56(e) and should not be considered when evaluating a motion for summary judgment. First Nat'l Life Ins. Co. v. California Pacific Life Ins. Co., 876 F.2d 877, 881 (11th Cir.1989); Davis v. Howard, 561 F.2d 565, 569 (5th Cir.1977).

II. Defendant's Motion for Summary Judgment on the Issue of Title

Hercules contends that Plaintiffs do not have marketable title of the real property and, therefore, cannot maintain their claims against Hercules. It is true that the chain of title is complex, but Plaintiffs appear to have sufficient interests in the land to maintain their claims. Thus, Defendant's motion will be denied.

Hercules' argument is based upon the allegedly inappropriate exercise of power by Pauline Nix ("Pauline"), as trustee of the land. The relevant portion of the chain of title of the land begins when Granville Nix ("Granville") owned the property. In 1960, he placed the land in trust for his daughters, Margaret and Ruby Nix, naming himself as trustee. The deed of trust granted Granville, as trustee, the power to sell, convey or dispose of the land.⁴ In 1966, Granville conveyed the property to Pauline, as trustee for Margaret and Ruby Nix, providing her with the same powers that he had possessed as trustee.⁵ Pauline then divided the property and conveyed part of the land to Margaret and the remainder of the land to Maria and Roberto Lugue. Hercules contends that Pauline did not have the power to convey the property, because the power to case, the 1966 instrument expressly granted Pauline the power to convey and sell the trust property. Hercules contends that, regardless of the express language of the instrument, Pauline did not possess the power to convey or sell the property, because Granville could not transfer the power to her. Hercules contends that Granville's power to convey the land was personal to him, and that personal powers cannot be transferred to subsequent trustees. (Def.'s Br.Supp.Summ.J. p. 5). See Maynard v. Greer, 129 Ga. 709, 710, 59 S.E. 798 (1907).

Hercules' argument fails, however, because Granville's power to convey the land was not a personal power. Georgia courts have provided a variety of factors to determine whether a trustee's powers are personal, or if the powers are attached to the office of the trustee. Courts...