Kendall v. Thaxton Road LLC et al
Filing
225
ORDER denying 204 Motion for Summary Judgment or Alternative Motion for Partial Summary Judgment; denying 211 Motion for Partial Summary Judgment. Signed by Judge Thomas W. Thrash, Jr on 1/18/2013. (ss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ALVIN L. KENDALL,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:09-CV-3520-TWT
THAXTON ROAD LLC, et al.,
Defendants.
ORDER
This is an action under the Clean Water Act. It is before the Court on the
Defendants Thaxton Road, LLC and Hathaway Construction Company, Inc.’s Motion
for Summary Judgment or Alternative Motion for Partial Summary Judgment [Doc.
204] and the Plaintiff’s Motion for Partial Summary Judgment [Doc. 211]. For the
reasons set forth below, Defendants Thaxton Road, LLC and Hathaway Construction
Company, Inc.’s Motion for Summary Judgment or Alternative Motion for Partial
Summary Judgment [Doc. 204] is DENIED and the Plaintiff’s Motion for Partial
Summary Judgment [Doc. 211] is DENIED.
I. Background
Plaintiff Alvin Kendall brought suit against Defendants Thaxton Road, LLC
(“Thaxton”), Hathaway Construction Company, Inc. (“Hathaway”), and Elite
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
Engineering, P.C. (“Elite”), pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1376
(the “CWA”). The Plaintiff also brought state law claims for trespass, nuisance,
negligence, negligence per se, punitive damages, injunctive relief, and legal fees.
Kendall alleges that the Defendants’ development, Bedford Estates, damaged
the property at 3810 Thaxton Road, Atlanta, Fulton County, Georgia (the “Kendall
Property”), which is occupied by the Plaintiff and located south of Bedford Estates.
The Defendants initially submitted the plans for Bedford Estates to the Fulton County
Department of Environmental and Community Development in March 2006. In July
2006, Fulton County issued Thaxton and Hathaway a land disturbance permit. In
2009, the Defendants sent Notices of Intent for Coverage Under the National Pollutant
Discharge Elimination System (“NDPES”) General Permit to Discharge Storm Water
Associated With Construction Activity as a Primary Permittee to the Georgia
Department of Natural Resources, Environmental Protection Division (“EPD”), and
subsequently made revisions to the notices pursuant to the EPD’s instructions.
Kendall began complaining to the Defendants and to Fulton County in January
2007 about storm water runoff, mud, sedimentation, and debris flowing from Bedford
Estates to the Kendall Property and then to a feeder creek ultimately leading to the
Chattahoochee River. Apparently in response to Kendall’s complaints concerning the
development’s runoff, the Magistrate Court of Fulton County, Georgia, issued eight
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-2-
environmental citations to Thaxton and to David Hathaway, respectively, on June 17,
2009.1 The court directed Thaxton and Hathaway to fund an engineering analysis of
Bedford Estates through Fulton County’s engineering inspection program. The
Defendants hired United Consulting Company to inspect the Kendall Property. On
July 30, 2009, United Consulting Company engineers accompanied Kendall in an
examination of the Kendall Property. United Consulting ultimately released two
reports largely concluding that runoff from Bedford Estates did not damage the
Kendall Property’s basement and did not cause any erosion. (See Waters Aff. Exs.
3 and 4). The Plaintiff contends that United Consulting was not an independent
engineering firm and that the inspection was largely a farce. (See Pl.’s Resp. to Defs.’
Mot. for Summ. J., at 7-8). After the inspections, there were hearings in Fulton
County in which the Plaintiff participated. After Thaxton entered nolo contendre
pleas coupled with notations of compliance, the Magistrate Court fined Thaxton
$3,000, determined that the development was in compliance, and closed the case along
with all outstanding environmental citations. (See Hathaway Aff. Exs. 2 and 5).
1
Specifically, David Hathaway, a member of Defendant Thaxton, was issued
Environmental Citations numbered 8334, 8336-1, 8338-1, 8340-1, 8342, 8344, 8346,
and 8348. Thaxton Road, LLC, was issued Environmental Citations numbered 83351, 8337-1, 8339-1, 8341-1, 8343, 8345, 8347, and 8349. (See Hathaway Aff. Exs. 1
and 2).
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-3-
Separately, in April 2010, the EPD and Thaxton entered into a consent order
concerning the Bedford Estates development (the “Consent Order”). (See Hathaway
Aff. Ex. 6). Thaxton paid a fine of $7500 but did not admit violations and the EPD
did not waive further enforcement action. (Id.) The Consent Order required Thaxton
to “immediately stop all Construction Activity at the Project other than the installation
and maintenance of Best Management Practices for Erosion Control until authorized
in writing by the EPD to resume.” (Id. at 7). Thaxton and Hathaway sent the EPD
Notices of Termination as to the Bedford Estates Subdivision and the Bedford Estates
Phase 2 on July 9, 2009, and August 9, 2010, respectively. (Second Hathaway Aff.
Ex. 2). Apparently, no further development of the property has occurred.
Kendall notified the Defendants of his intent to sue on June 17, 2009, and filed
the instant suit on December 15, 2009. The complaint included claims against
Thaxton, Hathaway, Elite Engineering, Atlantic Southern Bank, Flag Bank, Bobby
Smith, and Dick Wilcox. This Court dismissed the Plaintiff’s complaint without
prejudice after a hearing on September 16, 2010. [Doc. 141]. On September 7, 2011,
the Eleventh Circuit affirmed the dismissal of the claims against Defendants Atlantic
Southern Bank, Flag Bank, Bobby Smith, and Dick Wilcox but remanded the
Plaintiff’s claims against Thaxton, Elite, and Hathaway. [Doc. 167]. Defendants
Thaxton and Hathaway have filed a motion for summary judgment or in the
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-4-
alternative partial summary judgment and the Plaintiff has filed a motion for partial
summary judgment. These motions are the subject of this Order.
II. Motion for Summary Judgment Standard
Summary judgment is appropriate only when the pleadings, depositions, and
affidavits submitted by the parties show that no genuine issue of material fact exists
and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).
The court should view the evidence and any inferences that may be drawn in the light
most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59
(1970). The party seeking summary judgment must first identify grounds that show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986). The burden then shifts to the nonmovant, who must go beyond
the pleadings and present affirmative evidence to show that a genuine issue of material
fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
III. Discussion
A. The Defendants’ Motion for Summary Judgment
The Defendants argue that the Plaintiff’s citizen suit under the CWA is
precluded because Fulton County, Georgia, has diligently prosecuted the claims
against the Defendants under Georgia laws, because the State remedial action has
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-5-
resulted in substantial compliance, and because Georgia’s statutory scheme is
substantially comparable to the CWA. The Defendants further argue that the Plaintiff
has not shown his alleged damages were caused by the Defendants because the report
from United Consulting shows that Bedford Estates did not cause the runoff to the
Kendall Property. (See Defs.’ Mot. for Summ J. or Partial Summ. J., generally).
The Plaintiff counters that the action taken by Fulton County does not preclude
a citizen suit because Georgia’s statutory scheme is not comparable to the CWA. The
Plaintiff further argues that rainfall consistently leads to water damage to the Kendall
Property and that the Defendants cannot rely on a three-year old engineering report
to disprove causation. The Plaintiff also contends that United Consulting, the firm
that conducted the assessment, had done all of the preliminary engineering for
Bedford Estates and was therefore conflicted. The Plaintiff claims that the engineer
who conducted the study only briefly visited the Kendall Property and did not perform
any tests or ask the Plaintiff any questions. (See Pl.’s Resp. in Opp. to Defs.’ Mot. for
Summ. J. or Partial Summ. J., generally).
“The CWA generally authorizes a citizen to commence a civil action in federal
court against any person who is alleged to be in violation of an effluent standard or
limitation.” McAbee v. City of Fort Payne, 318 F.3d 1248, 1251 (11th Cir. 2003).
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-6-
Citizen suits, however, are subject to the Act’s limitations on actions. See 33 U.S.C.
§ 1319(g)(6)(A). These limitations are as follows:
[A]ny violation ... (ii) with respect to which a State has commenced and
is diligently prosecuting an action under a State law comparable to this
subsection, or (iii) for which the Administrator, the Secretary, or the
State has issued a final order not subject to further judicial review and
the violator has paid a penalty assessed under this subsection, or such
comparable State law, as the case may be, shall not be the subject of a
civil penalty action...
33 U.S.C. § 1319(g)(6)(A). A further limitation is contained in section 1365(b)(1)(B),
which states that “[n]o action may be commenced [under the section on citizen suits]
if the Administrator or State has commenced and is diligently prosecuting a civil or
criminal action in a court of the United States, or a State to require compliance with
the standard, limitation, or order...” 33 U.S.C. § 1365(b)(1)(B). The Defendants
contend that each of these provisions provides a separate ground for dismissing this
action.
1.
33 U.S.C. §§ 1319(g)(6)(A)(ii) and (iii)
The Defendants entered into a Consent Order with the Georgia Environmental
Protection Division settling claims for violation of Georgia law. The Defendants
argue that this precludes a citizen action suit. The limitations of
33 U.S.C. §§
1319(g)(6)(A)(ii) and (iii) require that the State take action pursuant to a state
statutory regime sufficiently comparable to the CWA. In McAbee v. City of Fort
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-7-
Payne, 318 F.3d 1248 (11th Cir.
2003), the Eleventh Circuit laid out the
“comparability” analysis for determining if a state statutory regime is sufficiently
similar to the CWA regime to warrant precluding a citizen suit. The court noted that
the text of the act requires courts to compare three classes of provisions from the state
and federal regimes: the penalty-assessment provisions, the public-participation
provisions, and the judicial-review provisions. Id. at 1255. The court instructed that
“for state law to be ‘comparable,’ each class of state-law provisions must be roughly
comparable to the corresponding class of federal provisions.” Id. The court
ultimately concluded that Alabama’s public-participation provisions were more
limited than the analogous federal provisions and thus insufficiently comparable to the
federal scheme. Accordingly, the court held that the actions taken by Alabama did not
preclude a citizen suit under the CWA. Id. at 1257.
In Leakey v. Corridor Materials, LLC, 839 F. Supp. 2d 1340 (M.D. Ga. 2012),
the defendants argued that Georgia enforcement actions, including entering into a
consent order and issuing fines, precluded the plaintiff’s suit under the CWA. The
defendants contended that the governing Georgia statutes were comparable to the
federal scheme. The court applied the standard from McAbee to the Georgia scheme
and concluded the state and federal laws were not roughly comparable. Comparing
the public participation provisions, the court noted that the CWA grants “interested
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-8-
persons” the right to public notice, an opportunity to comment, the right to present
evidence upon a hearing, and the right to seek a hearing. Id. Conversely, the court
noted, the Georgia Water Quality Control Act (“GWQCA”) only grants participation
rights to members of the public who are adversely affected by an action or order.
Id. (citing O.C.G.A. § 12-5-43(a)). The court also noted that there is nothing in the
GWQCA providing for public notice or an opportunity to comment. Id. The Leakey
court further concluded that the Georgia Administrative Procedure Act, Open
Meetings Act, and Open Records Act, along with a regulation associated with the
EPD, do not provide opportunities for participation comparable with the CWA. Id. at
1348-49 and n.7 (citing O.C.G.A. §§ 50-13-2(2), 50-14-1, 50-18-70; Ga. Comp. R.
& Regs. § 391-1-3-01(2)). The court concluded that the “Georgia statutes do not
contain analogous public participation provisions.” Id. at 1348.
The Defendants do not ask this Court to make a holding contrary to the one in
Leakey. Rather, the Defendants argue that the facts of this case show that the Plaintiff
was provided with ample opportunity for public participation during the hearings on
the citations issued by Fulton County. They argue that “[t]he public participation
requirements have been met by Plaintiff’s actual appearance and testimony in Court
to state his case and his participation in the Court ordered inspection by United
Consulting of the property in question.” (Defs.’ Reply in Supp. of Defs.’ Mot. for
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-9-
Summ. J., at 7). However, the Defendants do not identify any caselaw suggesting that
the comparability analysis should be an analysis of actual participation. The analyses
in both McAbee and Leakey focused on the statutes themselves.2 The fact that the
Plaintiff has had ample participation in the Fulton County proceedings in this suit
simply does not change the fact that the Georgia and federal statutory schemes have
different public participation provisions.
While the Defendants cite out of circuit cases counseling against the overindulgence
of citizen suits, the Defendants have not demonstrated that a factual policy analysis
is appropriate for determining rough comparability. Accordingly, because the public
participation provisions of the CWA are not comparable to the relevant Georgia
regimes, the Defendants cannot utilize 33 U.S.C. §§ 1319(g)(6)(A)(ii) or (iii) to
preclude a citizen suit. See Leakey, 839 F. Supp. 2d at 1348.
2.
33 U.S.C. § 1365(b)(1)(B)
2
The language in Leakey is instructive. The court in that case explained that the
defendants did not argue that “the [plaintiff] or the public generally had any ‘interests’
at stake that would have allowed intervention.” Leakey, 839 F. Supp. 2d at 1349. The
court also stated that the defendants did not explain how a party like the plaintiffs had
“the right, or even the opportunity, to intervene.” Id. The references to the “public”
or “a party like the plaintiff” indicate that the comparability analysis should focus on
public participation generally, not the participation allowed in a specific case.
See McAbee, 318 F.3d at 1256-57 (applying the comparability standard without
discussing the facts of the case before the court).
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-10-
The Defendants also argue that 33 U.S.C. § 1365(b)(1)(B) prohibits the citizen
suit here. That section provides that “[n]o action may be commenced [under the
section on citizen suits] if the Administrator or State has commenced and is diligently
prosecuting a civil or criminal action in a court of the United States, or a State to
require compliance with the standard, limitation, or order...”
33 U.S.C. §
1365(b)(1)(B). The Defendants argue that the enforcement actions taken by Fulton
County suffice to satisfy this statute. The Defendants specifically argue that Fulton
County is a “State” within the Clean Water Act definition.
In New Manchester Resort & Golf, LLC v. Douglasville Dev., LLC, 734 F.
Supp. 2d 1326 (N.D. Ga. 2010), the defendants argued that the actions taken by the
Douglasville-Douglas County WSA constituted the actions of a State capable of
satisfying 33 U.S.C. § 1365(b)(1)(B). The court disagreed and noted that “[t]he Clean
Water Act defines ‘State’ as ‘a State, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, and the Trust Territory of the Pacific Islands.’” New
Manchester, 734 F. Supp. 2d at 1340 (quoting 33 U.S.C. § 1362(3)). Further, the
court noted, the CWA defines “‘municipality’ as a ‘city, town, borough, county,
parish, district, association, or other public body created by or pursuant to State law
and having jurisdiction over disposal of sewage, industrial wastes, or other wastes.’”
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-11-
Id. (quoting 33 U.S.C. § 1362(3)). The court concluded that the Douglasville-Douglas
County WSA was not a State as defined by the CWA. Id.
Here, the Defendants argue that in Georgia “counties” are “local, legal, political
subdivisions of the state, created out of its territory, and are arms of the state, created,
organized and existing for civil and political purposes.” (Defs.’ Br. in Supp. of Defs.’
Mot. for Summ. J., at 10-11); Troup County Electric Membership Corp. v. Georgia
Power Co., 229 Ga. 348, 352 (1972). The Defendants do not explain how a “county”
could be considered a “state” under the CWA when counties are specifically defined
as municipalities and not states. See 33 U.S.C. § 1362(3). Indeed, the Defendants’
proffered definition of a Georgia county corresponds with the Clean Water Act’s
definition of a municipality in that both definitions say that the State creates the
county. Further, the Defendants have not provided a single case where a county was
considered a State for the purposes of the CWA. But see Ohio Public Interest
Research Group v. Laidlaw Envtl. Servs., 963 F. Supp. 635, 639 (S.D. Ohio 1996)
(holding that the civil action by two cities in Ohio was not an enforcement action by
a State); Illinois Public Interest Research Group v. PMC, Inc., 835 F. Supp. 1070,
1074 (N.D. Ill. 1993) (“Several decisions in fact conclude that action by a local
governmental body is not action by a ‘State,’ within the meaning of the [CWA].”);
New York Public Interest Research Group v. Limco Mfg. Corp., 697 F. Supp. 608,
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-12-
610-611 (E.D.N.Y. 1987) (“To permit a municipality or any state agency not
specifically authorized to bring an action to enforce the Act’s standards to substitute
for the Administrator and the State would seriously impair the role that Congress
designed for citizens.”). Accordingly, Fulton County is not a State for the purposes
of the CWA.
The Defendants also argue that the actions of the Georgia EPD suffice to satisfy
section 1365(b)(1)(B) and preclude the citizen suit here. The EPD entered into a
Consent Order with Thaxton on April 16, 2010. (See Hathaway Aff. Ex. 6).
Assuming the EPD is a State under the CWA definition and assuming that the Consent
Order constitutes diligent prosecution, the action of the EPD still cannot satisfy
section 1365(b)(1)(B) because there is no indication in the facts that the EPD
commenced an action in court. As no civil or criminal action has been filed by the
EPD against any Defendant in a court, section 1365(b)(1)(B) does not preclude the
citizen suit here. See Black Warrior Riverkeeper, Inc. v. Birmingham Airport Auth.,
561 F. Supp. 2d 1250, 1254 (N.D. Ala. 2008) (concluding that § 1365(b)(1)(B) did not
bar the citizen suit because the state environmental agency had not filed a civil or
criminal action in a court).
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-13-
Because the Defendants have not shown that 33 U.S.C. §§ 1319(g)(6)(A)(ii) or
(iii) or 1365(b)(1)(B) should preclude the Plaintiff’s citizen suit, the Defendants’
motion for summary judgment should be denied in that respect.
3.
Causation
The Defendants separately argue that summary judgment is appropriate because
the Plaintiff cannot prove that the Bedford Estates development caused damage to the
Kendall Property. The Defendants argue that the two engineering reports done by
United Consulting in 2009 establish that water from Bedford Estates did not damage
the Kendall Property. The Plaintiff argues that he seeks ongoing damages to his
property because soil erosion, excess water, and sedimentation damage his property
every time it rains and that an over three year-old engineering report cannot establish
what the damages are today. The Plaintiff contends United Consulting was conflicted
and never engaged in serious testing of the Kendall Property.
Importantly, the Plaintiff has provided evidence undermining the Defendants’
contentions. The Plaintiff has offered an email sent by the Fulton County lead
engineer, Dick Wilcox, after the United Consulting inspection, stating that Defendant
Elite Engineering had not properly provided a downstream capacity analysis. (Pl.’s
Resp. in Opp. to Defs.’ Mot. for Summ. J., Ex. F). Elite responded that a complete
downstream analysis would require more studies, including taking field surveys of
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-14-
each area. (Id. Ex. G). Further, Elite stated that water from Pond B – the water that
the Plaintiff complains flows onto the Kendall Property – does not directly flow to a
creek but rather becomes a “shallow concentrate flow on the adjacent properties to the
south.” (Id.)
This evidence, combined with the narrow scope of the United Consulting
reports, is sufficient to create an issue of fact with respect to causation. The first
United Consulting report’s conclusion was limited to water damage in the basement:
From our examination, United Consulting’s opinion is that it does not
appear that runoff from the Bedford Estates site was the cause of the
water infiltration into the basement. Review of the basement did not
identify any structural damage. We do not believe that there is a
structural problem in this area of the house that could have been caused
by the reported leak.
(Waters Aff. Ex. 3, at 2). In other words, the engineering firm opined that water in the
Kendall Property basement did not cause any structural damage and did not appear to
have come from the Bedford Estates site. The second report stated:
From our examination, United Consulting believes that runoff from the
Bedford Estates site has not caused erosion damage of any significance,
if any at all. The water flows gently to the bottom area with the sewage
right-of-way. Some of the fill associated with the burial of the sewage
piping may have settled, but that is not due to water from adjacent
construction.
(Waters Aff. Ex. 4, at 2). Again, this report only states that United Consulting did not
believe there was erosion damage from Bedford Estates runoff in 2009. However,
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-15-
even assuming these reports are sufficiently probative, the Plaintiff is seeking
damages for more than just erosion damage and structural damage to his basement.
In his deposition, the Plaintiff noted he had replaced several lawnmowers due to the
presence of water and that water had damaged his personal property. (See Kendall
Dep. at 47-55). United Consulting’s reports are not broad enough to establish that the
water that damaged the Plaintiff’s lawnmowers did not come from the Bedford Estates
site. Indeed, the first report recognized that runoff from Bedford Estates “appears to
flow to the west and east around the residential structure.” (Waters Aff. Ex. 3, at 2).3
Finally, the letter from Elite Engineering stating that water flows from Pond B and
settles on the adjacent properties undermines any contention the Defendants can make
that the United Consulting reports establish that no harmful water came from Bedford
Estates.
3
The deposition of Timothy Beck, who participated in United Consulting’s
inspection of the Kendall Property, shows how uncertain the scope of the United
Consulting reports is. For instance, Beck states his understanding was that United
Consulting was only investigating water running into the basement of the Kendall
Property. (See Beck Dep. at 8-9). But then Beck later states that United Consulting
was also investigating the drainage “around the house.” (See id. at 9-11). And later
Beck confirms that he observed the water flowing from the detention pond at Bedford
Estates and into the creek. (See id. at 18-20). This statement is directly contrary to
the report from Elite Engineering stating that water from Pond B of Bedford Estates
does not enter a creek but rather becomes a “shallow concentrate flow on the adjacent
properties to the south.” (Pl.’s Resp. in Opp. to Defs.’ Mot. for Summ. J., Ex. G).
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-16-
The Defendants argue that these facts are analogous to the facts in Walls v.
Moreland Altobelli Assocs., 290 Ga. App. 199 (2008), where the court affirmed a
directed verdict in favor of the defendants with respect to causation. The plaintiff
there had filed tort claims arguing he was injured by standing water and improper
draining following the development of adjacent property. The court affirmed the
directed verdict because the plaintiff had provided no evidence that the defendant’s
project caused the water problem and because the plaintiff’s wife testified she did not
know when the water problem started and who caused it. Further, the defendant
provided evidence that its construction activities had sloped and graded the area for
proper drainage. The defendant further showed that both a utility company and the
county had completed projects after the defendant’s project that altered the grade of
the drainage system. See id. at 200-01.
Here, in contrast, the Plaintiff has provided evidence that at some point the
downstream analysis related to the Bedford Estates development was incomplete
along with evidence from Defendant Elite Engineering stating that the water flow
toward the Kendall Property could be problematic. Indeed, the statement from Elite
Engineering directly contradicts the deposition testimony of Timothy Beck, who
participated in the United Consulting inspection, and undermines United Consulting’s
conclusions concerning the water flow from Pond B at Bedford Estates. This
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-17-
evidence is more than the total lack of evidence provided by the plaintiff in Walls.
Additionally, the Defendants here, unlike in Walls, have not shown that other
activities unrelated to Bedford Estates have led to drainage issues on the Kendall
Property. Accordingly, the Plaintiff has shown there is a genuine issue of material
fact with respect to the cause of the damages he is seeking, and summary judgment
should be denied in that respect.
B. The Plaintiff’s Motion for Partial Summary Judgment
In his motion for partial summary judgment, the Plaintiff argues there is no
issue of material fact with respect to his claims for violations of the CWA, nuisance,
trespass, negligence, negligence per se, and for injunctive relief. The Plaintiff
contends that the Defendants admitted in their briefs that the Fulton County and State
of Georgia Environment Protection Department (“EPD”) actions remedied CWA
violations and that this admission suffices to establish liability with respect to the
CWA counts. Likewise, the Plaintiff argues that the Defendants have admitted to
polluting the Kendall Property with mud, sedimentation, cellar dirt, garbage, and
excessive water thereby establishing liability for nuisance, trespass, negligence, and
negligence per se. (See Pl.’s Mot. for Partial Summ. J., generally).
The Defendants in turn argue that there has been no admission or adjudication
that they have violated the CWA or any related state law or ordinance. Indeed, the
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-18-
Defendants argue, the Fulton County court ruled that Thaxton was in compliance with
relevant laws and closed the case on April 20, 2010. Likewise, when Thaxton entered
into the Consent Order with the Georgia EPD it did not admit to any violations. The
Defendants further argue that their nolo contendere pleas to the Magistrate Court and
any related statements are inadmissible. (See Defs.’ Resp. to Pl.’s Mot. for Partial
Summ. J., generally).
Even assuming the documents and statements the Plaintiff points to as
conceding that the Defendants violated the CWA and caused the water damage are
admissible, they do not establish the Defendants’ liability. The Plaintiff argues that
the Defendants’ statements in their briefs that Georgia’s enforcement actions for CWA
and related violations preclude a citizen suit indicates that the Defendants have
conceded liability. However, the statements the Plaintiff refers to simply do not
indicate that the Defendants have conceded liability. For instance, the Plaintiff
contends the statement in the Defendants’ Motion for Summary Judgment that Fulton
County has “taken substantial action in a Court which resulted in remedial action of
the claimed violations” is a concession of liability. (See Pl.’s Mot. for Partial Summ.
J., at 19). The Defendants’ statement only recognizes that Fulton County itself had
alleged violations. Indeed, the statement appears to be crafted precisely to avoid
admitting to the alleged violations. Likewise, the Plaintiff argues that the Defendants’
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-19-
remedial actions in response to the environmental citations issued by Fulton County
were admissions of liability. The Plaintiff offers no details as to how the Defendants’
response to state issued environmental citations engenders an admission to violating
a wholly different federal statute.
The Plaintiff also points to the Consent Order that Thaxton entered into with the
EPD as an admission of liability. This contention cannot stand in the face of the
express language of the Consent Order which states:
This Order is executed and entered into solely for the purpose of
resolving and disposing of the allegations set forth herein and does not
constitute a finding, adjudication, or evidence of a violation of any law,
rule, or regulation by Respondent [Thaxton], and, by consenting to this
Order, Respondent does not admit to any factual allegation contained
herein or to any violations of State laws. In addition, this Order is not
intended to create and it shall not be construed or otherwise deemed to
recognize or create any claim, right, liability, estoppel, or waiver of
rights in favor of any third-party or parties.
(Hathaway Aff. Ex. 6, at 8). Overall, the Plaintiff’s arguments as to the Defendants’
admissions of liability are unconvincing.
Accordingly, the Plaintiff has not
established that the Defendants have admitted to CWA violations or have admitted
liability with respect to the state law claims. Summary judgment should therefore be
denied.
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-20-
IV. Conclusion
For the reasons set forth above, Defendants Thaxton Road, LLC and Hathaway
Construction Company, Inc.’s Motion for Summary Judgment or Alternative Motion
for Partial Summary Judgment [Doc. 204] is DENIED and the Plaintiff’s Motion for
Partial Summary Judgment [Doc. 211] is DENIED.
SO ORDERED, this 18 day of January, 2013.
/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge
T:\ORDERS\Closed\2009\Kendall\msjtwt.wpd
-21-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?