334 replyinsupportmotionforsummaryjudgement e&a combine

Case: 1:11-cv-00103-GHD-DAS Doc #: 334 Filed: 11/15/13 1 of 14 PageID #: 6387

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

DEFENDANT E&A SOUTHEAST LIMITED PARTNERSHIP’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

COMES NOW, Defendant E&A Southeast Limited Partnership (“E&A”), by and through its attorneys, and respectfully submits this reply in support of its Motion for Summary Judgment.

As set forth in E&A’s motion for summary judgment [Doc. 267] and memorandum in support [Doc. 268], E&A is entitled to summary judgment 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 within the applicable statute of limitations; because the Kroger building is not in a floodway; because Plaintiff cannot show that the Kroger building caused any damage to the Kmart store; and because the flood of May 2010 was an “Act of God.” Plaintiff’s reply attempts to construct facts in order to avoid summary judgment.

However, this attempt lacks merit, offers new allegations which are untimely, and misconstrues facts in evidence. As such, Defendant E&A will only address the issues that warrant clarification in this reply.

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.

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1. Plaintiff’s “evidence” of impropriety is insufficient, and its claim for negligence is not properly before this Court.

Plaintiff alleges that “evidence of impropriety of E&A came to light during discovery.”

Doc 310 at 3. Plaintiff argues that the circumstances surrounding the issuance of the LOMR “are fishy” despite this Court’s previous ruling that “allegations challenging the issuance of the LOMR fall squarely within the ambit of the NFIA.” Doc 208 at 7, citations omitted. As support for this argument, Plaintiff relies on an affidavit of John Krewson.

Krewson’s affidavit states that the “approximate base flood elevation” for the area near the location of the Kroger building, pursuant to the Existing Conditions plan, is 428.5 feet.

However, the drawing relied on by Krewson does not show base flood elevations but rather existing ground elevations prior to construction of the building. Doc 309-3. Assuming that Krewson meant to refer to the “existing ground elevation,” his theory that the “elevations near the Kroger building had to be altered by the placement of fill or dirt during the construction” of the building is erroneous.

A more complete examination of the existing conditions diagram shows that the vast majority of the Kroger building site was well above the elevation of 433 feet and actually varied between a high point of approximately 435 feet down to a low of 429 feet. According to Robert Eley, a licensed civil engineer with approximately 36 years experience, “[i]t appears that the site was simply graded to provide a level site for the building, which resulted in a finished floor elevation of 433 feet.” See Affidavit of Robert Eley, attached hereto as Exhibit 1. Mr. Eley opined that no fill would have been brought to the site, but rather the material was shifted in the process of leveling the building site. Id. Moreover, “E&A did not simply [tell] FEMA that the Kroger store was 4.5 feet higher than its construction plans.” Doc 310 at 4. Rather, E&A provided an elevation certificate 2

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prepared by Scott Engineering, the same engineering firm hired by Plaintiff to survey the building, showing that the base floor elevation of the building was 433 feet and above the 100 year flood level. See Doc 267-8. Thus, the record is devoid of any evidence of impropriety in the course of obtaining the LOMR. Plaintiff also argues that “E&A can be negligent if it knew that this property was in a flood-prone area yet took inadequate measures to protect Kmart against the risk of flooding.”

Doc 310 at 4. Plaintiff’s complaint lacks any allegations of negligence relating to E&A’s knowledge of Kroger’s presence in an allegedly flood-prone area or any allegation of inadequate measures relating to the protection of Kmart against floods. Any and all allegations as to Defendant E&A stem from the Kroger’s alleged presence in a floodway. See Doc 1, ¶¶ 29-35.

“A claim which is not raised in the complaint but, rather, is raised only in response to a motion for summary judgment is not properly before the court.” Caldarera v. Tenn. Log & Timber Homes, Inc., 2013 U.S. Dist. LEXIS 157611, *30 (S.D. Miss. Nov. 4, 2013), citing Cutrera v.

Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005). See also Carter v.

Ridge, 255 Fed. Appx. 826, 831 FN 4 (5th Cir. 2007) (not published) (“Carter’s federal complaint does not allege a ‘regarded as’ disabled claim. This claim was raised only in Carter’s opposition to the Agency’s motion for summary judgment, and thus was not properly before the district court.”).

This Court has already instructed that “Plaintiff is not entitled to offer evidence to prove the allegations concerning the issuance of the LOMR.” Doc 208 at 7. Plaintiff’s arguments constitute its latest attempt to circumvent this ruling. As such Plaintiff’s “evidence of impropriety” is not only without merit but also erroneous. Furthermore, Plaintiff’s attempt to

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manufacture an allegation regarding knowledge of the Kmart in a “flood-prone area” is not properly before this Court and should be stricken.

2. The statute of limitations has run on all claims against Defendant E&A. The allegations as to Defendant E&A pertain solely to its period of ownership. 1 As such, the claims 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 proscribes 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.

Plaintiff attempts to evade the statute of limitations by arguing that its injury did not occur until the May 2, 2010 flood. Doc 310 at 5. As set forth in its Complaint and according to Kmart’s corporate representative’s deposition testimony, the injuries Plaintiff alleges against E&A occurred during E&A’s period of ownership. Kmart’s corporate representative agreed that the complaint makes no mention of anything after the 2005 LOMR issuance that E&A did with respect to the property in Corinth and the flood. See Deposition of Kmart at 238, attached hereto as Exhibit 2. Mr. Mendez, in fact, testified that there was “an ongoing loss because of E&A’s failure to act” beginning in 2005 regarding the issuance of the LOMR and the allegation that the Kroger building should have been razed. Id. (emphasis added).

Mississippi has long followed the general rule that “a tortious act gives rise to but a single cause of action.” McDonald v. Southeastern Fidelity Ins. Co., 606 So.2d 1061, 1064 (Miss.

1992). As evidenced by Mr. Mendez’s testimony, Plaintiff’s theory is that the issuance of the

1

Kmart’s corporate representative testified that E&A did not have a contractual relationship with Plaintiff in 2010 when the flood occurred. Deposition of Kmart, 232.

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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LOMR and failure to raze the Kroger building constituted the allegedly tortious action that injured Kmart and contributed to an ongoing loss. The case cited by Plaintiff states that “under Miss. Code Ann. § 15-1-49, a claim accrues when a plaintiff ‘discovers, or by reasonable diligence should have discovered, the injury.’” Matter of Wheeler, 137 F.3d 299, 301 (5th Cir. 1998). The “discovery rule”, however, does not preserve Plaintiff’s claims. Plaintiff’s attempt to argue that its injury did not occur until the 2010 flood misapplies the law.

In an opinion based upon similar facts, the Fifth Circuit affirmed the lower court’s dismissal of a product liability action under Mississippi’s statute of limitations. Kemp v. Searle, 1997 U.S. App. LEXIS 12989 (5th Cir. 1997). Noting that both alleged injuries were “the product of the same chain of causality”, the Court affirmed the district court’s determination that the statute of limitations began running when plaintiff knew of her injury and its cause, not when she later discovered all of its consequences and complications. Id. at 15. As the evidence presented in E&A’s motion for summary judgment and memorandum in support demonstrates, Plaintiff knew or should have known of any alleged wrongdoing at the very latest in 2005 3, not when the 2010 flood occurred merely because the consequences were greater. 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.

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

E&A’s motion for summary judgment and memorandum in support conclusively establish that the Kroger building is not located within a floodway. As demonstrated by the LOMR issued by FEMA in 2005 and the revalidation letter dated September 18, 2010, the 3

In fact, Kmart’s corporate representative testified that prior to the May 2010 flood, “Kmart knew it was in a floodplain maybe. I won’t say I know for a fact who specifically within the corporation knew because there were some minor incidents that occurred before that. There was some flooding occurring. Why it was all of a sudden occurring, I think there was some question. . . . But people did know that there was some flooding occurring.”

Exhibit 2 at 59-60.

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Kroger property was inadvertently included in the floodway and was subsequently removed with the issuance of the LOMR. Plaintiff relies on Mr. Krewson’s October 11, 2013 amended report to argue that despite the issuance of the LOMR and despite this Court’s ruling that the issuance of the LOMR falls within the ambit of the NFIA, the Kroger is still located within the floodway. This argument is meritless and relies on an amended report, the admissibility of which this Court has yet to determine. Plaintiff additionally misconstrues the testimony of Defendants’ expert, Robert Eley, in a futile attempt to argue there is a factual dispute regarding whether or not the property was ever located in a floodway. However, it could not be reasonable disputed that Mr. Eley testified that it was his position that the FEMA map had an incorrect depiction of the boundaries of the floodway. See Eley Deposition at 73, attached hereto as Exhibit 3.

Plaintiff argues that “E&A can be negligent if it knew that this property was in a floodprone area and yet took inadequate measures to protect Kmart against the risk of flooding.” Doc 310 at 10. As discussed previously, Plaintiff cannot now assert a new claim against Defendant E&A. The sole allegations as to Defendant E&A stem from the Kroger’s alleged location within a floodway, which is not true and thus Plaintiff cannot prove. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial” and “mandates the entry of summary judgment.”).

Moreover, admissibility of evidence at summary judgment stage “is subject to the same standards and rules that govern admissibility of evidence at trial.” Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 650 n.3 (5th Cir. 1992). Plaintiff’s reliance on David Huwe’s alleged statement to Mr. Krewson is impermissible because those statements constitute hearsay

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that is not “the sort reasonably relied upon in the experts’ field.” See Factory Mutual Insurance Co. v. Alon USA L.P., 705 F.3d 518, 523 (5th Cir. 2013), citing Loeffel Steel Prods., Inc. v. Delta Brands, Inc., 387 F.Supp.2d 794, 808 (N.D. Ill. 2005) (“Rule 703 ‘was not intended to abolish the hearsay rule and to allow a witness, under the guise of giving expert testimony, to in effect become the mouthpiece of the witnesses on whose statements or opinions the expert purports to base his opinion.”). Furthermore, Plaintiff relies upon an unauthenticated newsletter and newspaper article as evidence of prior flooding in Corinth. 4 “Newspaper articles, however, are not proper summary judgment evidence to prove the truth of the facts that they report because they are inadmissible hearsay.” James v. Tex. Collin County, 535 F.3d 365, 374, 378 (5th Cir. 2008). As such, this evidence is not admissible to refute a motion for summary judgment.

Plaintiff cannot show that the Kroger property is in a floodway and Plaintiff failed to timely raise a claim regarding the alleged “flood-prone area.” Therefore, there is no basis on which the finder of fact could find that the presence of the Kroger in a floodway caused damage to the Kmart facility as set forth in Plaintiff’s complaint.

4. Plaintiff cannot show that the presence of the Kroger building caused any damage to the Kmart store during the May 2010 flood.

Plaintiff’s only evidence that the Kroger building caused damage to the Kmart store during the May 2010 flood is incorrect and thus unreliable. In its attempt to argue that it has produced competent evidence that the Kroger building caused flood damage to the Kmart store, Kmart incorrectly states that “this Court issued an order allowing Mr. Krewson to amend his report to correct these errors.” Doc 310 at 13. However, this Court has not issued any order regarding whether or not Mr. Krewson will be allowed to amend his report. Rather, this Court’s order plainly states, “the Court will consider an amendment of mathematical errors only.” Doc 4

See also Dodson v. Hillcrest Securities, Corp., 1996 WL 459770 (5th Cir. 1996)(holding a newspaper article cannot serve as constructive notice.

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243. Thus, any facts from the October 11, 2013 report submitted by Plaintiff remain unreliable.

See Monsanto Co. v. Scruggs, 342 F.Supp.2d 568, 573 (N.D. Miss. 2004) (“To defend against a proper summary judgment motion, one may not rely on mere denial of materials facts nor on unsworn allegations in the pleadings or arguments or assertions in brief or legal memoranda.”).

In addition, Plaintiff is misguided in its reliance on Wal-Mart Stores, Inc. v. Qore, Inc., 2009 U.S. Dist. LEXIS 6145 (N.D. Miss. 2009) to argue that experts can make mistakes. In Qore, it was undisputed that even though Plaintiff’s expert made a mistake that he later corrected, this error was unimportant. Id. at *10. Even the defendant in Qore admitted the error was unimportant. Id. Plaintiff cannot concede that the errors made by Mr. Krewson were unimportant. In fact, Plaintiff’s Memorandum in Support of Motion for Leave to File Amended Report of John R. Krewson clearly states that the mistake made by Mr. Krewson “affected the conclusions in his report.” Doc. 177 at 1. As such, the reasoning by the Court in Qore regarding “minor errors” made by an expert does not address the fatal flaw made by Plaintiff’s expert in this case. 5 Plaintiff further cites deposition testimony from David Huwe as factual evidence that at the time of the construction of the Kroger building, nothing was done to determine whether or not there would be a significant rise of the water as a result of the construction. Doc. 310, page 17-16. However, this evidence is not probative. Mr. Huwe was not employed by the City of Corinth at the time the building was constructed and would not have personal knowledge as to whether or not any variance or certification occurred in conjunction with the construction of the building. Moreover, the line of questioning pertaining to the no-rise certification pertained to the City’s current procedures and not procedures in the past. Plaintiff’s reliance of Mr. Huwe’s 5

It must also be noted that Plaintiff relies on Qore without knowledge of how the expert’s error came to light and without the timeframe of the correction of this error. These issues are highly pertinent in regards to Defendants’ position that amendment of Mr. Krewson’s report should be denied.

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testimony bears no probative value and is a mere attempt to color the issues. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2510 (1986) (“If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.”). As such, E&A is entitled to summary judgment.

5. 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.” Despite the facts and testimony showing that the May 2010 flood was an unprecedented storm, Plaintiff improperly seeks to shift the burden of proof to Defendant E&A, arguing that “E&A must prove that the flood could not have been prevented, no matter what actions were taken, which necessarily raises an issue of fact.” Doc 310 at 17. Plaintiff’s argument fails for each of the following reasons.

First, Plaintiff’s argument regarding a failure to install flood prevention measures is not only unsubstantiated but also inapplicable to its allegations related to Defendant E&A. 6 Plaintiff’s sole allegations against E&A stem from the alleged location of the Kroger store. See Doc 1. Plaintiff’s complaint asserts no allegation against Defendant E&A regarding a failure to take necessary steps to protect the Kmart store from flood damages. Therefore, these claims must be dismissed.

Second, “when an ‘act of God’ combines or concurs with the negligence of a defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligence conduct or omission.” Sears v. City of Shreveport, 2012 U.S. Dist. LEXIS 8614, *146

The only fact that Plaintiff relies on to support this argument is the testimony of Kmart’s corporate representative who testified that Fulton should have installed some type of flood gate on the property. However, Kmart’s representative also testified that he had never actually seen any type of floodgates installed on Kmart or any other retail building. Depo at 254-255. Kmart’s corporate representative also acknowledged that the May 2010 flood was a “pretty major rain and flood event.” Id. at 259.

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15 (W.D. La. 2012), citing Gabler v. Regent Dev. Corp., 470 So.2d 149, 152 (La. App. 5th Cir. 1985). Plaintiff’s own expert testified that he could not say that “but for” the presence of the Kroger building, the Kmart store would have flooded. 7 As such, Plaintiff has presented no evidence that “but for” the presence of the Kroger, the Kmart store would not have flooded.

Furthermore, Plaintiff continues to assert that “there are disputed issues of fact as to whether E&A was negligent in maintaining the Kroger building in a floodway and whether that negligence contributed to Kmart’s damages.” Doc 310 at 20. As previously discussed, the Kroger building is not in a floodway and this allegation is meritless.

Third, Plaintiff’s attempts to present additional evidence about the flood fail. Plaintiff cites to an unauthenticated newsletter and newspaper article as factual evidence that the May 2010 flood was not an Act of God. Plaintiff relies upon the article and newsletter as factual evidence that two similar storms occurred nine years prior to the May 2010 flood. “Newspaper articles, however, are not proper summary judgment evidence to prove the truth of the facts that they report because they are inadmissible hearsay.” James v. Tex. Collin County, 535 F.3d 365, 374, 378 (5th Cir. 2008) (“However comments in the local paper as to what Bilyeu said are not

7

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.

Doc 267-9 at 234:11-23.

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competent summary judgment evidence to prove that he made such statements because newspaper articles are hearsay if offered to prove the truth of the facts reported therein.”), citing Roberts v. City of Shreveport, 397 F.3d 287, 295 (5th Cir. 2005). Because the newsletter by Milton Sandy cites and relies upon the newspaper article, neither of these “facts” is evidence sufficient to overcome summary judgment. 8 Fourth, Plaintiff failed to produce sworn affidavit testimony from Mr. Sandy in accordance with Rule 56 of the Federal Rules of Civil Procedure. (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”). Therefore, Mr. Sandy’s statements cannot be considered for the purposes of summary judgment.

Despite Plaintiff’s failed attempts to prove the contrary, the flood of May 2010 was an unprecedented flooding event for the Corinth, Mississippi area. Even Plaintiff’s expert 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….” Doc 267-9 at 233. He also agreed that there was widespread flooding the in the City of Corinth and was not limited to the area around the Kmart. Id. at 247. The “facts” that Plaintiff now introduces to argue that this storm was not extraordinary are unreliable, inadmissible and fail to comply with the Rules of Civil Procedure and Evidence. Therefore, Plaintiff has not carried its burden, and Defendant E&A is entitled to judgment as a matter of law.

8

In addition, the actual content of the newspaper article constitutes double-hearsay by quoting “ a half-jokingly” police chief.

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CONCLUSION For the foregoing reasons, Defendant E&A respectfully asks this Court to enter an order granting summary judgment as a matter of law, and that Plaintiff’s claim against Defendant E&A be dismissed with prejudice.

Date: November 15, 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 12

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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 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 13

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WISE CARTER CHILD & CARAWAY, P.A. P.O. Box 651 Jackson, MS 39205-0651

THIS, the 15th day of November 2013. /s/ Mary Clift Abdalla Mary Clift Abdalla

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Page 1

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION KMART CORPORATION V.

PLAINTIFF CAUSE NO. 1:11CV103-D-D

THE KROGER CO., E&A SOUTHEAST LIMITED PARTNERSHIP, FULTON IMPROVEMENTS, LLC, KANSAS CITY SOUTHERN RAILWAY COMPANY, CITY OF CORINTH, THE UNITED STATES OF AMERICA, JOHN DOE, AND ABC CORPORATION

DEFENDANTS

30(b)(6) DEPOSITION OF KMART CORPORATION taken at the instance of the Defendants on Friday, July 19th, 2013, commencing at approximately 9:00 a.m. at the Law Offices of Wise Carter 600 Heritage Building 401 East Capitol Street Jackson, Mississippi

REPORTED BY:

BECKY LYNN LOGAN, RPR, CSR #1750 MERRILL LEGAL SOLUTIONS 4400 Old Canton Road, Suite 160 Jackson, MS 39211 (601) 366-9676 www.merrillcorp.com

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Page 238

1 2

Q.

That date at the very end and then before that,

whatever activity led up to --

3

A.

Yes.

4

Q.

-- the change in 2005, right?

5

A.

Okay, yes.

6

Q.

And then from that date forward, there's no

7

mention of anything that E&A did with respect to the

8

property in Corinth and this flood that occurred in May

9

of 2010, right?

10

A.

That's correct.

11

Q.

And so there's no complaint about what E&A did

12

in May of 2010 or for the seven years prior to the

13

events that we are here to talk about in May of 2010,

14

right?

15

A.

Other than those responsibilities that would

16

have had -- that were an ongoing loss because of their

17

failure to act.

18 19

Q.

What changed with regard to E&A's behavior

between 2005 and 2010?

20

A.

What's the question again?

21

Q.

What did E&A do different in 2010 than it did

22 23

in 2005?

A.

Well, one could look at it that it knew or

24

should have known that it was getting approval to

25

continue to occupy a building that should not have been

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Page 232

1

A.

I don't recall specific knowledge as to one

2

case.

I can tell you as a general practice, we gather

3

the facts.

4

responsibility by another party, another entity, some

5

other group, possibly insurance, then we start to

6

develop that and look further at it.

7

collimate to that, then they didn't.

8

BY MR. WATKINS:

If the facts start to show that there is

If those didn't

9

Q.

I represent, as I've told you, Edens and Avant,

10

E&A, okay?

11

A.

The original landlord.

12

Q.

The landlord from '98 through 2007.

13

right?

14

A.

(No response.)

15

Q.

It's right.

16

A.

Okay, thank you.

17

Q.

All right.

Is that

And E&A did not have a contractual

18

relationship with regard to this site, this Corinth

19

store, in 2010 when the flood hit, right?

20

A.

Okay.

21

Q.

Is that right?

22

A.

That's correct.

23 24 25

It was assigned in 2007, I

think you said.

Q.

And so whatever relationship existed was over

by the time this flood rolled around in 2010 between E&A

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Page 59

1

Q.

So Kmart wanted a grocery store like Kroger at

2

the site where Kmart was located in Corinth,

3

Mississippi?

4 5

MR. LUMINAIS: A.

Objection to form.

I think it would have liked a grocery and other

6

businesses around it to draw traffic to its business,

7

yes.

8

MR. ROSS:

9

(A short break was taken off the record at

10

Let's go off the record.

10:28 a.m.)

11

(Exhibit 8 marked for identification.)

12

(Deposition resumed on record at

13

10:30 a.m.)

14

BY MR. ROSS:

15 16

Q.

Exhibit 2, the lease, is dated, if you look at

the first page, December 17th, 1991; is that correct?

17

A.

Yes, sir.

18

Q.

Let me show you Exhibit 8, which is a document

19

that I'll represent to you is produced by Kmart.

20

Exhibit 8 to the deposition; not to the lease.

21

A.

Okay.

22

Q.

Okay, a document produced by Kmart.

It's

Do you

23

recognize that as a site plan for the Kmart store at

24

Corinth, Mississippi?

25

A.

I think it looks accurate.

Looks like it could

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be Kmart.

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Q.

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It's got the Kmart logo.

And that is a Kmart document; is that correct?

Look down at the right-hand corner.

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A.

I don't know about that.

This may be something

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that an architectural firm put on, on behalf of Kmart,

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to show that it was being presented to Kmart.

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don't know that it's something that we prepared -- that

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was prepared by Kmart.

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architectural firm that put it together from any source

So I

It could have been an

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- the landlord's, ours -- at our request or somebody

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else's.

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Q.

Exhibit 8, I'll represent to you, was produced

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by your counsel as part of your document production.

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That is a business record of Kmart; is that correct?

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A.

Well, if it was produced, it is one of our

business records.

Q.

Okay.

And down at the right-hand side it says

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"Proposed Kmart, Corinth, Mississippi;" is that

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correct?

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A.

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sir.

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1991.

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"Proposed Kmart, Corinth, Mississippi," yes,

"Drawn by Cato, date" -- wow, 1991 -- June 24th,

Q.

And it shows a food store at the site where

Kmart was to be located in Corinth; is that correct?

A.

Yes, that's what helped me identify it as

Case: 1:11-cv-00103-GHD-DAS Doc #: 334-3 Filed: 11/15/13 1 of 2 PageID #: 6409

Case: 1:11-cv-00103-GHD-DAS Doc #: 334-3 Filed: 11/15/13 2 of 2 PageID #: 6410