268 memoinsupportmotionforsummaryjudgement e&a kmart

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF MISSISSIPPI

EASTERN DIVISION

KMART CORPORATION, PLAINTIFF

VS. CIV. ACT. NO. 1:11CV103-GHD-DAS

THE KROGER CO., et al DEFENDANTS

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT E&A SOUTHEAST

LIMITED PARTNERSHIP’S MOTION FOR SUMMARY JUDGMENT

COMES NOW, Defendant E&A Southeast Limited Partnership (“E&A”), by and through

its attorneys, and respectfully submits this Memorandum of Law in Support of its Motion for

Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

Factual and Procedural Background

As stated previously by this Court,

From the evening of May 1, 2010 until the early morning hours of May 2, 2010,

heavy rain pelted the Corinth, Mississippi area, causing nearby Elam Creek to

flood. Plaintiff Kmart Corporation (“Kmart”) alleges that due to the acts and

omissions of several Defendants the flood water rose and flowed forcefully in the

back of the Corinth Kmart store, rushing in the rear doors and causing extensive

damage to the store. The Corinth Kmart store was closed for repairs from the

time of the May 2010 flood until February 2011, when the store reopened for

business… . Kmart brings this action against Defendants The Kroger Co.

(“Kroger”); E&A Southeast Limited Partnership; Fulton Improvements, LLC;

Kansas City Southern Railway Company; and the City of Corinth.

See Memorandum Order Granting Kroger’s Motion to Dismiss, attached hereto as

Collective Exhibit 1, page 1-2.

The Kmart store in Corinth, Mississippi was built in 1992 and is located in a shopping

center that is also anchored by a Kroger grocery store. Plaintiff alleges that the Kroger store was

built in a regulatory floodway and contends that as a result, the Kroger store should have been

Case: 1:11-cv-00103-GHD-DAS Doc #: 268 Filed: 10/08/13 1 of 19 PageID #: 3410

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leveled. See Complaint, attached hereto as Collective Exhibit 2, at page 3-4, ¶ 14 and ¶ 16.

Defendant E&A did not own the property at the time of its construction nor at the time of the

2010 flood. E&A owned the property from September 11, 1998 until December 14, 2007. See

Complaint, Ex. 2, at page 7, ¶ 29. E&A has not had any control or authority over the Kroger

building since selling the property approximately six years ago.

During E&A’s ownership of the property, E&A was approached by a third-party

company, Floodzone Correction Inc., which offered to apply for Letter of Map Amendments for

numerous E&A’s properties. See Deposition of E&A, attached hereto as Collective Exhibit 3, at

page 37:1-23. The Corinth, Mississippi property at issue sub judice was one of these properties,

and FEMA ultimately issued a Letter of Map Revision – Floodway (“LOMR”), stating that the

property had been inadvertently included in the floodway designation. See LOMR, attached

hereto as Collective Exhibit 4. This LOMR revised the existing and subsequent floodway maps.

Id.

Although Defendant Kroger was not an original tenant to the shopping center, Plaintiff

Kmart has been a tenant of the property since its construction in 1992, and in fact, Plaintiff

played an active role in the approval of the construction plans and architectural drawings. See

Kmart Lease Agreement, attached hereto as Collective Exhibit 5, page 7, ¶ 7. (“Said working

drawings and specifications shall be submitted to tenant in time to permit a review and approval

by tenant, prior to the commencement of construction.”) Moreover, as a condition of the Kmart

lease, the landlord was required to maintain a grocery store tenant in the location specific to the

Kroger store. Id. at page 10, ¶ 12.

In regards to Defendant E&A, Plaintiff alleges the following: (1) that the Kroger store

was improperly located in a floodway that existed at the time the store was constructed and


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during E&A’s ownership of the property; (2) that E&A improperly aided and supported the

issuance of a LOMAR [sic] for the Kroger store from FEMA in 2005, which allowed the Kroger

store to remain in the floodway; (3) that E&A was aware of the LOMAR [sic] and knowingly

and improperly allowed its building to remain in the floodway; (4) that the Kroger store’s

presence in the floodway caused a displacement of water and a rise in the water level resulting in

the flood damage incurred at the neighboring Kmart store; and (5) that Kroger’s location within

the floodway also altered the water flow from standing water to a rushing, forceful water flow

that resulted in flood damage to the Kmart store.1 See Complaint, Ex. 2, ¶¶ 29-35.

Applicable Law

Defendant E&A is entitled to summary judgment as to all claims against it pursuant to

this Court’s prior rulings and Mississippi law.

1. Summary judgment standard.

Summary judgment “should be rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine dispute as to any material fact

and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). See FED. R. CIV. P. 56(a); Weaver v.

CCA Indus., Inc., 529 F.3d 335, 339 (5th

Cir. 2008). The rule “mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who fails to make a

sufficient showing to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322, 106 S.

Ct. 2548.

1 Plaintiff initially sought damages arising out of a flooding event on April 27, 2011, but Plaintiff subsequently

withdrew its allegations stemming from the 2011 flood.


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The party moving for summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion, and identifying portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S. Ct. 2548. The

nonmoving party must then “go beyond the pleadings” and “designate ‘specific facts showing

that there is a genuine issue for trial.’” Id. at 324, 106 S. Ct. 2548 (citation omitted). When

reviewing the evidence, factual controversies are to be resolved in favor of the nonmovant, “but

only when . . . both parties have submitted evidence of contradictory facts.” Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). However, “conclusory allegations,

speculation, unsubstantiated assertions, and legalistic arguments have never constituted an

adequate substitute for specific facts showing a genuine issue for trial.” TIG Ins. Co. v. Sedgwick

James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.

1997); Little, 37 F.3d at 1075.

2. Any allegation stemming from the issuance of the LOMR falls squarely within

the ambit of the NFIA.

The plaintiff’s LOMR claims are barred, as previously recognized by this Court in this

case:

Kmart’s allegations challenging the issuance of the LOMR fall squarely within

the ambit of the NFIA. See e.g., Great Rivers Habitat Alliance v. FEMA, 615

F.3d 985, 987-89 (5th Cir. 2010); Coal. for a Sustainable Delta v. FEMA, 812 F.

Supp. 2d 1089, 1102 (E.D. Cal. 2011). Common-law negligence is not the proper

vehicle for such allegations, as any alleged duty to provide correct flood zone

determinations arises out of the NFIA, and not from any state law. See Ellis v.

Countrywide Home Loans, Inc., 541 F. Supp. 2d 833, 837 (S.D. Miss. 2008);

Kearney v. First Horizon Home Loan Corp., No. 1:07cv121 LG-JMR, 2007 WL

4302963 (S.D. Miss. Dec. 6, 2007); Lusins v. First Am. Real Estate Solutions of

Tex., L.P., No. 1:06cv646, 2007 WL 1745624 (S.D. Miss. June 14, 2007).

Therefore, such allegations are not tenable in a common-law negligence claim,

and furthermore, could only be brought against FEMA, which has the primary

responsibility for issuing LOMRs as part of the National Flood Insurance

Program. As the Court has already dismissed FEMA from the case sub judice


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on immunity grounds, Kmart is not entitled to offer evidence to prove the

allegations concerning the issuance of the LOMR, specifically, that the

LOMR “improperly permitted the Kroger store to remain in the floodway.”

See Kmart’s Compl. [1] ¶ 24.

See Memorandum Order Granting Kroger’s Motion to Dismiss, Ex. 1, at page 7 (emphasis

added).

As such, all allegations against Defendant E&A that a LOMR was “improperly received”

or that the LOMR “improperly permitted the Kroger store to remain in the floodway” should be

dismissed. Additionally, similar to the Court’s finding in granting the City of Corinth’s motion

to dismiss, the record is devoid of any evidence that E&A improperly sought a LOMR that

allowed the Kroger store to remain in the floodway. See Memorandum Opinion Granting City of

Corinth’s Motion to Dismiss, attached hereto as Collective Exhibit 6, page 22. “Thus, this claim

is also dismissible on its merits as a conclusory allegation unsupported by the record.” Id. at 22-

23.

3. The statute of limitations has run on all claims against Defendant E&A.

The allegations as to Defendant E&A are related solely to its period of ownership. In

fact, many of Plaintiff’s allegations stem from decisions and events that occurred prior to E&A’s

ownership of the property. As such, the allegations against E&A are untimely and barred.

Defendant E&A sold the Corinth, Mississippi shopping center in December, 2007. Mississippi

Code Ann. § 15-1-49 (Rev. 2012)2 provides for a three-year statute of limitations for any claims

resulting from E&A’s ownership of this facility; thus, the statute of limitations ran in December

2010. This action was first filed on May 2, 2011, and no exception applies. The Plaintiff’s

claims are therefore time-barred.

2 “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next

after the cause of such action accrued, and not after.” Miss. Code. Ann. §15-1-49 (Rev. 2012).


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Plaintiff is estopped from arguing that the discovery exception should apply. The

discovery rule applies “where the plaintiff will be precluded from discovering the harm or injury

because of the secretive or inherently undiscoverable nature of the wrongdoing in question or . . .

when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.”

Angle v. Koppers, Inc., 42 So. 3d 1, 7 (Miss. 2010). However, the discovery rule is not available

because Kmart approved the original plans and signed off on them, a fact admitted by Plaintiff’s

own corporate representative:

Q. Kmart, at the time that this lease was entered, had a construction department; is

that correct?

A. Yes.

Q. And would you agree, were the plans and specifications for the site submitted to

Kmart’s construction department? And when I say “the site,” I mean, the

premises where Kmart and Kroger are located in Corinth, Mississippi.

A. I want to say yes. That does sound like it wouldn’t have happened. Sounds like it

would have happened.

…..

Q. “Said working drawings and specifications shall be submitted to tenant in time to

permit a review and approval by tenant, prior to the commencement of

construction.” Kmart received the drawings and specifications for the site before

the construction started; is that correct?

A. According to this document.

Q. And Kmart had the ability to review them in any way they wanted and get back

with the landlord, if they thought the site was deficient in any way, including

elevation or anything such as that?

A. If they wanted to make suggestions changes [sic], they probably could have. I

think that’s reasonable. I think these are – this is common for a landlord to have

its architect draw up plans and pass them to the proposed tenant to be reviewed

and approved by the tenant just, you know, courtesy re-review or review in depth

more by its own architects.

Deposition of Dale Menendez, attached hereto as Collective Exhibit 7, page 55:14-24, 56:2-25.


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The testimony from Kmart’s 30(b)(6) deposition and provisions of the lease agreement

that Kmart entered into years prior to E&A’s ownership of the property clearly show that not

only did Plaintiff have the ability to discover the alleged wrongdoing but was also privy to such

information years prior to Defendant E&A. In addition, Kmart’s “construction department,”

with far more sophisticated knowledge and experience than the average “layman,” reviewed and

approved the location of the entire shopping center. See Deposition of Menendez, Ex. 7 at 205,

218, 223-24. In addition, during Plaintiff’s 30(b)(6) deposition, the deponent repeatedly

conceded that its case was based on public records. Id. at 56. Therefore, Plaintiff is clearly not in

a position to avail itself of the discovery exception. As such, Plaintiff’s claims stemming from

any decisions made by E&A during its ownership are barred by the statute of limitations and

should be dismissed with prejudice.

4. The Kroger building is not located within a floodway.

Plaintiff can present no evidence to show that the Kroger store is or ever was in a

floodway. All of the evidence proves quite the opposite. The first floor elevation of the

Kmart/Kroger building is at or above the FEMA 100-year flood elevation for Elam Creek. See

Elevation Certificate, attached hereto as Collective Exhibit 8. Therefore, it is not in violation of

FEMA standards per 44 C.F.R. 60.3. Moreover, FEMA has already determined that the Kroger

building is not located within a floodway and was previously inadvertently included in the

floodway . See LOMR, Ex. 4. “[A] complete failure of proof concerning an essential element of

the non moving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

Plaintiff’s own expert, John Krewson, admitted that the building is not in the floodway as

displayed in the original construction plans, which he did not review prior to issuing his report:


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Q. So you have looked at the original construction plans?

A. Yes.

Q. And you say that it shows these two buildings not being in the floodplain?

A. That’s correct.

Q. Does it also show them being -- Does it also show that they are not in the

floodway?

A. That’s correct.

Deposition of Plaintiff’s Expert John Krewson, attached hereto as Collective Exhibit 9, at

241:19-25; 242:1-2. Mr. Krewson opined in his initial report that the building construction did

not comply with regulations. However, he later admitted that the construction plans in fact did

not show the property in the floodway, and that the construction plans were more detailed as to

the actual property conditions:

Q. Are you also offering an opinion as to whether or not there has been compliance

with regulations?

A. When I wrote the report, that was my intent. But since I’ve seen the construction

plans, it appears that it complied, as far as an outside review would have been,

because on the construction plans that’s out of the floodway and floodplain as

shown on the construction drawings.

The floodplain and the floodway on the construction drawings do not appear, as

nearly as I can tell, to match what’s on the 1981 FEMA flood map. So I don’t

know the derivative of the flood lines on the construction drawings.

Q. So you can’t offer any opinion as to whether or not there was compliance with

any floodway regulations when the store was constructed then? Is that what

you’re saying?

A. Well, no, it was in compliance because it was out of the -- In the construction

drawings, it was out of the floodplain on the -- as shown on the construction

drawings. I just note that there seems to be a contradiction between the two

different drawings.

Q. Well, the construction plans are the only ones -- Well, let me back up,


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The construction plans that you looked at as compared to the FEMA map that you

looked at for 1982 which showed the floodway, which of those two documents

had the actual elevations for the terrain of the Kmart and the Kroger store -- or

then Bruno’s – and the surrounding area?

A. Construction plans.

Q. So the construction plans were more reflective of the terrain as it actually was at

the time of construction?

A. Yes.

Deposition of Krewson, Ex. 9 at 244:14-25; 245:1-23.

These discrepancies were not unforeseeable, and were even planned for. “FEMA

anticipated such occurrences where there may have been discrepancies between the mapped

boundaries of the flood plain and actual conditions. The City’s Flood Damage Prevention

Ordinance, prepared by FEMA and adopted by the City of Corinth, provided for cases where

‘there appears to be a conflict between a mapped boundary and actual field conditions’, the

Building Inspector shall make such interpretations needed to determine the exact location of the

correct boundaries.” See Bob Eley’s Report, attached herein to as Collective Exhibit 10, at page

3. The City of Corinth not only issued Certificates of Occupancy for the Kmart and Kroger

buildings, see Certificates of Occupancy, attached herein as Collective Exhibit 11, but also

executed the Community Acknowledgement Form during the LOMR application process. See

Community Acknowledgement Form, attached herein as Collective Exhibit 12.

The pre-construction site survey and subsequent site elevation surveys by Scott

Surveying clearly show that the Kroger and Kmart buildings were above the 100-year flood

elevation, although the Flood Insurance Rate Map (FIRM) in effect at the time of the shopping

center’s construction showed a portion of the Kroger building in the floodway. See Eley’s


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Report, Ex. 10 at 2-3. In fact, Plaintiff’s own expert does not dispute that the 100 year flood

elevation at the Kroger store is 432.4 and the floor elevation of the building is 433.00:

Q. You would agree that in 1992 the elevation of the Kroger and Kmart building --

not the building, the ground elevation was at least somewhere around 431.8 feet?

A. Above that, yes.

Q. And when the store was built, it was build above that?

A. Yes.

Q. And it was built above 432.2 feet?

A. Yes.

Deposition of Krewson, Ex. 9 at 98:9-18. According to Defendants’ expert, Jamie Monohan, the

Kroger building was removed “from the 100-year flood zone and subsequently, the floodway, by

virtue of (1) the lowest adjacent grade elevation is at or above the 100-year flood elevation, and

(2) the structure was not elevated by the placement of fill…. If a structure is vertically outside

the 100-year flood zone, and was not elevated on fill, then by definition it is outside the

regulatory floodway as well.” See Monohan Report, attached hereto as Collective Exhibit 13, at

2.

Mr. Krewson incorrectly assumed that the Kroger building was still located within the

floodway because the 2010 FEMA map did not change the floodway limits. However, the

FEMA revalidation letter explains that “since the new FEMA maps dated September 17, 2010

will not be revised as a result of these Letter of Map Change cases, they remain in effect and

continue to clarify the FIRM’s depiction of these properties (including the Kroger property). See

FEMA revalidation letter, attached hereto as Collective Exhibit 14, page 1. Mr. Krewson

acknowledged that he failed to take this fact into account when preparing his report:


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Q. … You have suggested several times in your report that the Kroger store is

located in a floodway?

A. Yes.

Q. All right. Based on the LOMR issued by FEMA, that’s not a true statement, is it?

A. On FEMA’s map, it’s in the floodway, so I’m not sure exactly how to answer that.

Q. Well, the whole purpose of the LOMR was to take the Kroger building out of the

floodway, was it not?

A. That’s true.

Deposition of Krewson, Ex.9 at 67:13-25; 68:1-2. Mr. Krewson provided additional testimony

further demonstrating the error of his assumptions:

Q. Mr. Krewson, have you ever seen that document?

A. I saw it yesterday.

Q. And for the record, identify that document, please, since you are looking at it and

I’m not.

A. It’s a letter from the Federal Emergency Management Agency dated August 3rd

or

31 --….. addressed to Mayor Latch of the City of Corinth.

Q. And what’s the substance of that letter?

A. It revalidates the determination for properties and/or structures in the reference

community as described in the Letters of Map Change previously issued by the

Department of Homeland Security’s Federal Management Agency, FEMA, on the

dates listed on the enclosed table.

“As of the effective date shown, will revise the Effective National Flood

Insurance Program, NFIP, map dated September 17, 2010, and will remain in

effect until superseded.”

Q. Is there an attachment to that letter?

A. Yes.

Q. And what is that attachment?

A. It’s a list of three -- I guess they’re all LOMAs or LOMCs.


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Q. And is the Kroger store identified, maybe not by name, but by property

description?

A. Yes. Well, Kroger at Fulton, yes.

Q. You did not see this until yesterday?

A. No.

Deposition of Krewson, Ex. 9 at 69:8-25; 70:1-19. And further testimony:

Q. And according to FEMA, the Kroger store is not in a floodway as of today, right?

A. That’s correct, yes.

Q. And it wasn’t in a floodway in 2010 during the flood, right?

A. No.

Q. No, it was not in the floodway?

A. It was not, no, according to FEMA.

Deposition of Krewson, Ex. 9 at 258:22-25; 259:1-11. Based on Mr. Krewson’s admissions as to

his erroneous assumptions, his report can provide no evidence showing that the Kroger building

was located in a floodway.

Plaintiff is unable to present any evidence that the Kroger building is or was located

within a floodway. In fact, all evidence indicates otherwise. The Kroger building’s base floor

elevation is and always has been above the 100-year flood level, and does not belong in a

floodway. As such, any and all allegations against Defendant E&A based upon the assumption

that the building was located in a floodway are incorrect and unsubstantiated. Because of

Plaintiff’s “complete failure of proof concerning an essential element” of the claim, Plaintiff’s

claim must be dismissed.


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5. Plaintiff cannot show that the presence of the Kroger building caused any

damage to the Kmart store during the May 2010 flood.

Plaintff’s only evidence that the Kroger building caused damage to the Kmart store

during the May 2010 flood is incorrect and thus unreliable. Plaintiff relied on the HEC-RAS

models executed by Krewson to argue that the Kroger building caused a one (1) foot rise in the

floodwaters that inundated the Kmart store. However, as pointed out by defendants during his

deposition, Krewson used an incorrect flow value that was disproportionately larger than the

flow value used on the other runs. As this was only “a comparative model” as testified to by Mr.

Krewson and not an exact model, the flow volumes had to be consistent to show the effect, if

any, that the presence of the Kroger store had on the flood. Because inconsistent flood flows

were used for HEC-RAS Runes 1 and 2, no conclusion can be drawn regarding the effect of the

Kroger building on the flood elevation at Kmart.

Q. So you weren’t trying to model what happened on May 2nd, 2010?

A. I was not. I was trying to do a comparative model to see that the impact.

Q. So are you telling me that based on all this work that you’ve done, you have got

no opinion on what caused damage to the Kmart on May 2nd, 2010?

A. No, I have an opinion.

Q. Well, what’s it based on?

A. It’s based on the comparative results of the models, if the models stand up.

Q. If the models stand up?

A. That’s correct. I have agreed that there’s a problem in the model.

…..

Q. But, I mean, the whole point of that though is your flow rate needs to be right, if

you’re going to have an accurate model?

A. Yes…. That’s right.


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Deposition of Krewson, Ex. 9, at 229:3-18; 268:14-18. At his deposition, Krewson admitted that

the flow numbers should have been the same throughout all three computer runs. Subsequently,

Krewson attempted to amend his report by using the correct flow rates. Although the Court

denied Plaintiff’s motion to amend Krewson’s report, the Court noted that “[t]he proposed

amended report shows that with the correct flow rates, the presence of the Kroger building does

not create a substantial rise in the level of the flood.” See Order Denying Motion, attached

hereto as Collective Exhibit 15, at page 3. In addition “Krewson’s error meant the difference

between a reasoned theory of liability and no viable theory of liability relating to the alleged

intrusion of the Kroger building into the floodway.” Id. at 5.

Moreover, Krewson also admitted that it is impossible to say that but for the Kroger

building, the Kmart store would have flooded.

Q. Is it possible that so much rain fell on May 2nd, 2010, that the Kroger building --

Excuse me -- the Kmart building would have flooded, regardless of whether the

Kroger building was there or not?

A. It’s obviously possible.

Q. Yes. Now, tell me how you, in creating these reports in your methodology and

your data, how can you rule that out?

A. How can I rule out that it would have flooded so much that the Kroger store-- or

Kmart store would have flooded, no matter if Kroger was there or not?

Q. Yes.

A. I don’t think I can rule it out, no.

Deposition of Krewson, Ex. 9 at 234:11-23.

6. The proximate cause of the May 2010 flooding was an “act of God” and was thus

unforeseeable.

Plaintiff cannot recover for any negligence claims stemming from the 2010 flood because

the flood was an unforeseeable “Act of God.” “An Act of God is an injury due exclusively to

forces of nature, without human intervention, which could not have been prevented by the use of


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due care and reasonable foresight.” City of Jackon v. Brummett, 80 So.2d 827, 829 (Miss. 1955).

“The Act of God defense applies to ‘events in nature so extraordinary that the history of climatic

variations and other conditions in the particular locality affords no reasonable warning of them.’”

McFarland v. Entergy Mississippi, Inc., 919 So. 2d 894, 904 (Miss. 2004). “No one is liable for

an injury proximately caused by an act of God.” Brummett, 80 So.2d at 829.

Even Krewson repeatedly testified to the size and exceptional nature of the rain that

caused the flooding in May 2010.

A. … I wanted to make it clear that this was a storm of record. In my opinion, it

appeared to be a storm of record. It wasn’t some small event that occurred.

Q. Was it a 100-year rainfall event?

A. I believe it was, yes.

Q. That’s your opinion that it was?

A. At least that.

Q. Probably greater than that, correct?

A. I think it was possibly a greater than 100-year flood event.

Deposition of Krewson, Ex. 9 at 84:2-11. According to Jamie Monohan’s report, relying on the

amount of rainfall as suggested by Krewson’s report that fell in the Corinth area on May 1st and

2nd

, 2010, the Elam Creek drainage area basin “received a rainfall depth on the greater end of the

6 to 13 inch range. Using the average depth of 9.5 inches over a twelve hour duration (late

evening on May 1 to 8:00 am on May 2) translates into a rainfall amount that exceeds the 12-

hour, 100-year rainfall depth by 2.9 inches. This is based on an estimated 12-hour, 100-year

rainfall depth from NOAA Technical Paper 40 of 6.6 inches.” See Monohan report, Ex. 13 at 1.

“Excessive rains, floods and inundations have long been considered acts of God.”

Gabler v. Regent Development Corp., 470 So.2d 149 (La. App. 5th Cir. 1985). In Gabler,


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“[b]oth rains [far] exceeded all expectations of a storm with a return frequency of 100 years (100

year flood).” These cases illustrate instances where flooding resulted from “acts of God,”

occurrences which must be taken into account when assessing liability.” Beham v. Groike, 1999

U.S. Dist. LEXIS 255. The flood of May 2010 was an unprecedented flooding event for the

Corinth, Mississippi area. Even Krewson admitted that he “accepted the fact that it was, in your

words, [an] act of God, or a unique and rare event, as opposed to the two-year storm or five-year

storm….” Deposition of Krewson, Ex. 9 at 233. He also agreed that the flooding occurred

throughout the City of Corinth and was not limited to the area around the Kmart and Kroger

shopping center. Id. at 247.

The Act of God “defense applies where an injury is attributable solely to natural cause.”

Biloxi Yacht Club, Inc. v. Grand Casinos of Miss., Inc., No. 1:07CV888-LG-RHW, 2009 U.S.

Dist. LEXIS 25862 (S.D. Miss. March 23, 2009) citing Shields v. Easterling, 676 So.2d 293, 296

(Miss. 1996). Correspondence from Plaintiff’s own employees highlights the suddenness of the

flooding that occurred in May 2010 and the employee’s inability to prevent it. See KM-01639-

40, KM-01674-77, KM 01680-1684, KM 01720-22, attached hereto as Collective Exhibit 16. As

such, the “Act of God” defense bars Plaintiff’s claims for damages stemming from the May 2010

flood.

CONCLUSION

Because there is no cause of action stemming from the issuance of the LOMR; because

Plaintiff failed to bring any claims against Defendant E&A prior to December 2010; because the

Kroger building is not in a floodway; because the Kroger building did not cause any damage to

the Kmart store; and because the flood of May 2010 was “An act of God,” Defendant E&A’s

motion for summary judgment should be granted.


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Date: October 8, 2013

Respectfully submitted,

E&A SOUTHEAST LIMITED PARTNERSHIP

BY:

/s/ Mary Clift Abdalla MARY CLIFT ABDALLA (Miss. Bar No. 102734)

WALTER GARNER WATKINS, III (Miss. Bar No. 100314)

WALTER GARNER WATKINS, JR. (Miss. Bar No. 6988)

Forman Perry Watkins Krutz & Tardy LLP

200 South Lamar Street, Suite 100

Jackson, MS 39201

Telephone: (601) 973-5967

CERTIFICATE OF SERVICE

I, the undersigned Mary Clift Abdalla, one of the attorneys for E & A, hereby certify that

I have this day served electronically using the ECF system, a true and correct copy of the

foregoing document to the following:

Ryan O. Lumainis

James M. Garner

John T. Balhoff, II

SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC

909 Poydras Street, 28th Floor

New Orleans, LA 70112

Email: [email protected]

Edley H. Jones III

David A. Norris

Stephen F. Schelver

McGLINCHEY STAFFORD, PLLC

City Center South, Suite 1100

200 South Lamar Street (Zip - 39201)

Post Office Drawer 22949

Jackson, Mississippi 39225-2949


18

Telephone: (769) 524-2300

Facsimile: (769) 524-2333

Email: [email protected]; [email protected]

[email protected]

Gerald Haggart Jacks

JACKS, ADAMS & NORQUIST, P.A.

P. O. Box 1209

Cleveland, MS 38732-1209


Jamie Ferguson Jacks

JACKS, ADAMS & NORQUIST, P.A.

P. O. Box 1209

Cleveland, MS 38732-1209


Charles E. Ross

WISE, CARTER, CHILD & CARAWAY

P. O. Box 651

Jackson, MS 39205-0651


Terry Dwayne Little

DANIEL, COKER, HORTON & BELL - Oxford

P.O. Box 1396

Oxford, MS 38655


Wilton V. Byars , III

DANIEL, COKER, HORTON & BELL

P.O. Box 1396

Oxford, MS 38655


Linda F. Cooper

WISE CARTER CHILD & CARAWAY, P.A.

P.O. Box 651

Jackson, MS 39205-0651

THIS, the 8th day of October 2013.

/s/ Mary Clift Abdalla

Mary Clift Abdalla


mailto:[email protected]



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268 memoinsupportmotionforsummaryjudgement e&a kmart

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