Schambeau Props. LP v. Waffle House, Inc., CIVIL ACTION 11-0029-WS-B

• Decision Date: 30 December 2011
• Docket Number: CIVIL ACTION 11-0029-WS-B
• Parties: SCHAMBEAU PROPERTIES, LP, Plaintiff, v. WAFFLE HOUSE, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

SCHAMBEAU PROPERTIES, LP, Plaintiff,

v.WAFFLE HOUSE, INC., et al., Defendants.

CIVIL ACTION 11-0029-WS-B

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

Dated: December 30, 2011

ORDER

This matter comes before the Court on defendant Alabama Sound Investments, Inc.'s Motion for Summary Judgment (doc. 66). The Motion has been briefed and is now ripe for disposition.¹

I. Background.

A. Nature of the Case.

This action arises from allegations that a parcel of commercial property in Bayou La Batre, Alabama has been damaged by storm water runoff from development of adjacent property. In an Amended Complaint filed in state court, plaintiff, Schambeau Properties, LP, asserted overlapping sets of claims against named defendants Waffle House, Inc., Sonic Restaurants, Inc., and Alabama Sound Investments, Inc. ("ASI"), as well as against certain fictitious defendants.² ASI removed this action to this District Court on January 14, 2011. Eventhough the Amended Complaint was confined to purely state-law causes of action, ASI predicated federal jurisdiction on the diversity of citizenship provisions of 28 U.S.C. § 1332.³

The Amended Complaint alleges four causes of action against ASI. As the factual underpinnings for these claims, ASI alleges that "[o]n or about the 1st day of January, 2008, through and including the date of this Complaint, ... [ASI] ... has caused the property owned by the Defendant on the east side of Wintzell Avenue in Bayou La Batre, Alabama to be stripped of its natural vegetation, filled and elevated in the course of constructing a Waffle House Restaurant proximately causing waters to be collected, channelized, diverted and directed onto theproperties of the Plaintiff situated directly south of and contiguous to the properties of [ASI]." (Amended Complaint, ¶ 28.) The Amended Complaint further alleges that Schambeau repeatedly placed ASI on notice that these activities "caused waters and sedimentation to be channelized, diverted and directed onto the properties of the Plaintiff and the Plaintiff further request[ed] that the continued trespass activities cease." (Id., ¶ 29.) According to the Amended Complaint, ASI ignored these requests "and constructed the Waffle House Restaurant consisting of impervious surfaces ... directing water and sedimentation on a continuous basis from the Defendant's construction site and restaurant site directly onto the properties of the Plaintiff." (Id., ¶ 30.) In its pleading against ASI, Schambeau emphasizes "the site of the Waffle House Restaurant" and references "its construction and installation of sidewalks, pavement, asphalt and roofs by Defendant, Alabama Sound Investments, Inc." (Id., ¶ 31.)

On the strength of these factual allegations, Schambeau asserts claims against ASI on theories of continuing trespass (Count Nine), continuing nuisance (Count Ten), negligence (Count Eleven), and wantonness (Count Twelve). No other portion of the Amended Complaint purports to state a claim against ASI. Now ASI maintains that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law on all of Schambeau's state-law claims.

B. Relevant Facts.⁴

In April 1999, ASI purchased a parcel of real estate bearing the street address of 13025 Wintzell Avenue, Bayou La Batre, Alabama. (Doc. 67, Exh. 2.) ASI redeveloped the property and, later in 2009, completed construction of a Sonic Drive-In Restaurant at the Wintzell Avenue location, which ASI owned and operated for several years. (McClain Dep. (doc. 67, Exh. 9), at 11.)⁵ Throughout the time period of April 1999 through March 2009, ASI's property wasbounded on both the south and the east by undeveloped lands owned by Schambeau (the "Schambeau Property").⁶ In approximately late 2008, and in no event later than March 2009, ASI shut down the Sonic restaurant at the Wintzell Avenue site. (McClain Dep., at 25, 57.)

From the time that construction of the Sonic restaurant was completed in 1999 until ASI closed the facility in or about late 2008, ASI made no changes to the site in terms of pavement, ground disturbance or ground movement. (McClain Dep., at 57.)⁷ Additionally, Schambeau was aware of no water drainage issues or problems from the ASI property onto the Schambeau Property (whether to the south or to the east of the ASI site) as of 1999. (Greenspan Dep., at 81.) The status quo remained unchanged for the next ten years. (Id. at 209-10.) Schambeau regularly monitored the condition of its property, both through routine maintenance work (i.e., mowing the grass) and through its representative going on-site to observe the property at least several times per year; however, plaintiff observed no water or drainage issues from the Sonic site during this time frame.

On March 3, 2009, ASI sold the southern portion of its parcel to non-party WH Capital, LLC, which subsequently constructed a Waffle House restaurant at that location. (Doc. 67, Exh.4.)⁸ A certificate of occupancy was issued for that restaurant on August 25, 2009. (Lee Dep. (doc. 67, Exh. 12), at 37.) The uncontroverted record evidence is that ASI retained no interest in the parcel sold to WH Capital and was not involved in the design or construction of the Waffle House restaurant. (Williams Dep. (doc. 67, Exh. 11), at 73-74; Lee Dep., at 49.)

Schambeau's awareness of water/drainage problems on its property coincided with the construction of the Waffle House restaurant.⁹ Indeed, plaintiff first learned of drainage issues at that location between August 2009 and October 2009. (Greenspan Dep., at 81-82.) The matter initially came to Schambeau's attention in the late summer of 2009 when its "lawn mower maintenance man" reported that he was having difficulty cutting the grass at the Schambeau Property because pooled water had accumulated there. (Id. at 82.)¹⁰ Although its attorneys promptly confronted Waffle House about the drainage issue, Schambeau never contacted ASI, gave ASI notice of its concerns, or requested that it do anything to correct the drainage problem before filing suit against ASI in August 2010. (Id. at 134, 143.)

Civil engineer (and third-party defendant) Steve Geci has offered expert opinions in this case that surface water naturally flows from the ASI property and Waffle House property to the east, onto the back lot of the Schambeau Property, rather than south onto the portion of the Schambeau Property fronting Wintzell Avenue. (Geci Dep. (doc. 67, Exh. 13), at 89.)According to Geci, all drainage from Wintzell Avenue and properties fronting it flows to the east, to the back lot of the Schambeau Property, where it ultimately reaches a drainage ditch (the product of an easement described infra) from whence it flows south into the bayou. (Id.) The natural flow of water from the ASI and Waffle House properties is east, not south. (Id. at 91.) Water does not migrate from the ASI property south, across the Waffle House property and onto the portion of the Schambeau Property that fronts Wintzell Avenue. (Id. at 93.)

The Schambeau property was subject to an easement styled "Easement for Drainage Ditch and Back Slope" dated November 12, 1959 and properly recorded with the Mobile County Probate Court. (Doc. 67, Exh. 5.) In that easement, the then-owner of the Schambeau Property granted and conveyed to Mobile County "a right of way or easement for the construction of a drainage ditch with back slopes over and across" that property. (Id.) The drainage easement was for a length of 1,610 feet, at a width of 20 feet. (Id.; see also Geci Dep., at 96.) It runs north to south across the "back lot" portion of the Schambeau Property, carrying runoff from areas west of that back lot (including Wintzell Avenue, the ASI property and the Waffle House property) south to the bayou. As of September 2010, Schambeau was unaware of this easement and had not maintained the drainage ditch on the back lot to the east of the ASI property. (Greenspan Dep., at 62-63, 102.)¹¹ According to Geci, the ASI and Waffle House properties, as well as all other properties fronting Wintzell Avenue, "need[] that easement to drain to the bayou." (Geci Dep., at 104.)

II. Summary Judgment Standard.

Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant toshow the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). "Summary judgment is justified only for those cases devoid of any need for factual determinations." Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citation omitted).

III. Analysis.

ASI's Motion for Summary Judgment identifies several theories for relief. The only two that need be reached to resolve the Motion are as follows: (i) plaintiff's claims against ASI fail because ASI was not involved in construction, design...