268 memoinsupportmotionforsummaryjudgement e&a kmart

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

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 1

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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 4

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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 2223.

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: 7

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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. 11

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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.

A.

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?

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 14

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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 12hour, 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, 15

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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-0163940, 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: rluminais@shergarner.com 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 17

Case: 1:11-cv-00103-GHD-DAS Doc #: 268 Filed: 10/08/13 18 of 19 PageID #: 3427

Telephone: (769) 524-2300 Facsimile: (769) 524-2333 Email: ejones@mcglinchey.com; dnorris@mcglinchey.com sschelver@mcglinchey.com Gerald Haggart Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: gjacks@jacksadamsnorquist.com Jamie Ferguson Jacks JACKS, ADAMS & NORQUIST, P.A. P. O. Box 1209 Cleveland, MS 38732-1209 Email: jjacks@jacksadamsnorquist.com Charles E. Ross WISE, CARTER, CHILD & CARAWAY P. O. Box 651 Jackson, MS 39205-0651 Email: cer@wisecarter.com Terry Dwayne Little DANIEL, COKER, HORTON & BELL - Oxford P.O. Box 1396 Oxford, MS 38655 Email: tlittle@danielcoker.com Wilton V. Byars , III DANIEL, COKER, HORTON & BELL P.O. Box 1396 Oxford, MS 38655 Email: wbyars@danielcoker.com 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

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Case: 1:11-cv-00103-GHD-DAS Doc #: 268 Filed: 10/08/13 19 of 19 PageID #: 3428

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