Schultz v. Southeast Supply Header, LLC
| Decision Date | 21 September 2009 |
| Docket Number | Civil Action No. 1:09-00055-KD-C. |
| Parties | Donald and Erin SCHULTZ, Plaintiffs, v. SOUTHEAST SUPPLY HEADER, LLC, Defendant. |
| Court | U.S. District Court — Southern District of Alabama |
John W. Parker, Daphne, AL, for Plaintiffs.
Benjamin Young Ford, Duane A. Graham, Scott G. Brown, Armbrecht Jackson LLP, Mobile, AL, for Defendant.
This matter is before the Court on Defendant's Motion for Summary Judgment (Docs. 13, 14), Plaintiffs Response in opposition (Docs. 17, 18) and Defendants' Reply thereto (Docs. 20, 21); Defendant's Motion to Strike Affidavit of Donald Schultz (Doc. 22). The Magistrate Judge's Report and Recommendation (Doc. 25) regarding Defendant's Motion to Dismiss and/or Strike (Docs. 4, 5), to which Objection has been filed (Doc. 29), is also pending. For the reasons set forth herein, Defendant's Motion for Summary Judgment (Doc. 13) is GRANTED, and Defendant's Motion to Strike Affidavit of Donald Schultz (Doc. 22) and Motion to Dismiss and/or Strike (Docs. 4, 25) are DENIED as moot. Further, the Clerk of Court is ordered to TERMINATE as moot the Magistrate Judge's Report and Recommendation (Doc. 25).
Plaintiffs Donald and Erin Schultz ("the Schultzes"), who are citizens of Alabama, instituted this suit, which includes claims for negligence, trespass, nuisance, and inverse condemnation. (Doc. 1). Diversity jurisdiction obtains pursuant to 28 U.S.C. § 1331 (Docs. 1, 6, 33), and the parties do not dispute that Alabama law governs the substance of this dispute. (See Docs. 14, 17).
Plaintiffs own approximately forty (40) acres in Irvington, Alabama, as well as a "homeplace and appurtenant structures and improvements" built thereon. (Doc. 1).
Defendant Southeast Supply Header ("SESH") is a Delaware limited liability corporation consisting of two members CenterPoint Energy Gas Transmission, Inc., a Delaware corporation with its principal place of business in Texas (Docs. 6, 35), and Spectra Energy Transmission, LLC, a Delaware limited liability company. (Doc. 6). Spectra Energy Transmission, in turn, is wholly owned by Spectra Energy Corp, a Delaware corporation. (Doc. 33).
In early 2008, Defendant negotiated with Plaintiffs to acquire an easement that included a fifty-foot wide permanent right-of-way and an additional temporary workspace easement. (Docs. 1, 14). Defendant planned to install a long-haul natural gas pipeline running from northeastern Louisiana into southern Mobile County, Alabama. (Id.) After Defendant succeeded in purchasing the easement from Plaintiffs, it installed the natural gas pipeline across Plaintiffs' property. (Id.)
Plaintiffs contend Defendant damaged their 40-acre Irvington property in the course of installing pipeline to the northwest of the property, "during which time the Defendant SESH stripped the land northwest of [Plaintiffs'] property ... of natural vegetation and placed wood matting so as to walk equipment to the project site and during the course of stripping the land to the northwest removed vegetation and trees that would otherwise scatter and absorb rainwater and the flow of stormwater." (Doc. 1, ¶¶ 1, 3). Plaintiffs further allege that, "in addition to creating [this] swale of open land to the northwest of Plaintiffs, which property was otherwise previously vegetated and wooded," Defendant "breached the bank of Fowl River Tributary No. 3 and on or about August 15, 2008 moved the matting for the area northwest of [Plaintiffs'] property ... extending from Cook Avenue to Fowl River Tributary No. 3 causing waters flowing through Fowl River Tributary to be directed onto [Plaintiffs'] property...." (Id. ¶ 4). Plaintiffs claim that as a result of Defendant's "removal of the matting," Plaintiffs' property was "inundated and converted into a holding pond for the Defendant's easement stormwater runoff when it rained. (Id. ¶ 5).
Plaintiffs further claim that on August 20, 2008, Plaintiff Donald Schultz informed the Defendant's representatives that:
due to the breaching of the creek bank, which was a navigable water known as Fowl River Tributary No. 3, and the removal of the wooden matting or the staging area for construction on the Defendant's easement, and the removal by the Defendant of vegetation and wooded areas from the Defendant's easement, the easement was acting as a conduit or channel for waters from the Fowl River Tributary No. 3 and stormwater onto [Plaintiffs'] properties ... inundating the unimproved property of the Plaintiffs as well as silting a pond constructed on [Plaintiffs'] property and causing the septic tank system around [Plaintiffs'] homeplace ... to malfunction resulting in effluent from the septic tank system and tank to be deposited on the surface.
(Id. ¶ 6). According to Plaintiffs, after receiving this notice Defendant took no action to alleviate the stormwater runoff and flooding that allegedly occurred as a result of the pipeline construction until October, 2008, after Plaintiffs retained counsel in connection with this dispute. (Id. ¶¶ 7-8)
Plaintiffs further allege that, as a result of the foregoing, Plaintiffs' property has been rendered unuseable and has essentially been reduced to a retention pool or holding pond for runoff from Defendant's construction site and has diminished in value as a result. (Id. ¶¶ 10-11, 14, 17). The Plaintiffs also claim that they have incurred physical pain and discomfort as well as severe inconvenience and mental anguish as a result of the foregoing. (Id. ¶¶ 11, 14, 17, 20). In addition, Plaintiffs make claims for punitive damages and costs. (Id. ¶¶ 14, 17).
The first count of Plaintiff's complaint alleges that the above-described acts and omissions constitute negligence that proximately caused Plaintiffs' property (which includes a homeplace, pond, swimming pool, and septic tank system) to be flooded and rendered unuseable, and that the property has diminished in value as a result. (Id. ¶¶ 1-11)
In the second count of the Complaint, Plaintiffs claim that Defendant, after receiving notice, caused or allowed water, sedimentation, and construction debris to be diverted onto Plaintiffs' property, and that this constitutes a continuing trespass. (Id. ¶¶ 12-14)
The third count of the Complaint alleges that Defendant's "continuing maintenance" of the "construction site ... in its present condition" and the failure to remediate or alleviate the stormwater runoff resulting from the above-described activities constitutes a continuing nuisance. Plaintiffs claim that this alleged nuisance rendered the use and enjoyment of the Plaintiffs' homeplace and property impossible and proximately caused a threat to their health and safety due to the damage to their septic tank and field line. (Id. ¶¶ 15-17)
In the final count, Plaintiffs claim that Defendant's "continuous conduct" as described above constitutes "a taking and ... converting the same into a holding pool for the construction, debris, waters, and sedimentation directed and channelized from the Defendant's work site and easement to the Plaintiff's properties without compensation" in violation of Section 18-1(a) et seq., 18-1(a)-32 of the Alabama Code. (Id. ¶¶ 18-20) In connection with this count, Plaintiffs allege that Defendant SESH has "condemning authority relative to the installation of the natural gas transmission pipeline." (Id. ¶ 19).
In support of its motion for summary judgment, Defendant SESH submits a copy of an Advance Damage Release ("the Release") dated January 24, 2008. (Doc. 13-2). George Thomas Bartolazzi, who is employed by Defendant as an Engineering and Construction Right-of-Way Manager with custody over SESH's business records pertaining to the acquisition of easements and right-of-way associated with the company's pipeline, submitted an affidavit authenticating the Release. (Doc. 13-2; Bartolazzi Aff.)
The Release bears Plaintiffs' signatures and indicates that Plaintiffs received $10,900.00 from Defendant "in full payment and settlement of all claims and damages of every kind whatsoever, present and future, to interests of the undersigned arising from or related to the surveying, preparation, laying and construction of a pipeline and appurtenances under, upon, and across the land described in" a "Grant of Easement/Servitude" that is also dated January 24, 2008. (Doc. 13-2, Advance Damage Release). The Release further provides that it "covers all damages to real or personal property and any and all other damages resulting from the construction of [SESH's] proposed pipeline and appurtenances, including but not limited to ... Uneconomic Remnant 0.44 (acres)"— "$7,040.00"; "Timber"—"$500.00"; "Hay X 2 yrs."—"2,000.00"; and "10 loads of subsoil/21 yard per load"—"$1,360.00."
The Release also includes several covenants SESH made to the Schultzes. Defendant agreed to: "install and leave a culvert from production for access to the right-of-way"; "build a 4' field fence and install a gate from the southwest corner of the property to the eastern most point of the right-of-way on the south property line"; "build a 4' field fence and install a gate from the southwest corner of the property to the northern most point of the right-of-way on the west property line"; and, specifically, to "install the gate in the right-of-way for access to the adjacent property."
In support of their Opposition to Defendant's Motion for Summary Judgment, Plaintiffs furnish the Court with a copy of the Grant of Easement ("the Easement"), which Plaintiffs executed and which is referred to in the Release. (Doc. 18-2, Exh. 3; Grant of Easement). The Easement grants Defendant a right-of-way for, among other things "the purposes of constructing, laying, maintaining, operating, inspecting, altering, repairing,...
To continue reading
Request your trial
-
ThyssenKrupp Steel USA, LLC v. United Forming, Inc.
...are a question of law which may be decided under appropriate circumstances, by summary judgment.’ ”Schultz v. Southeast Supply Header, LLC, 661 F.Supp.2d 1260, 1265 (S.D.Ala.2009) (quoting Boggan v. Waste Away Group, Inc., 585 So.2d 1357, 1359–60 (Ala.1991)) (other citations omitted).19 Fiv......
-
McGuffie v. Mead Corp.
...asbestos-related injury or death occurring at the time of the release or “in the future.” 85See, e.g., Schultz v. Southeast Supply Header,LLC, 661 F.Supp.2d 1260, 1268–69 (S.D.Ala.2009), aff'd376 Fed.Appx. 986 (11th Cir.2010) (“As the Alabama Supreme Court has previously noted, ‘all’ is all......