McRae v. Perry et al
Filing
179
ORDER denying Plaintiff's 119 , 128 and 129 Motions for Summary Judgment and all claims against Defendants Glynn County, SSI Development and Scott Cochran are dismissed; granting SSI Development, Scott Cochran, and Edward Ostervald's 122 Motion for Summary Judgment as to Defendants SSI Development and Cochran only; granting Glynn County's 123 Motion for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 11/28/2012. (ca)
3n the Znittb Atata Jttrttt Court
for the bouthtm Ai0trtet of Qeorgia
tuntuttk Atbtoton
MARGIE MCRAE,
Plaintiff,
VS.
MICHAEL B. PERRY; SSI
DEVELOPMENT, LLC; SCOTT
COCHRAN; EDWARD OSTERVALD;
GLYNN COUNTY, GEORGIA; AND
DOES 1-30,
Defendants.
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CV 211-193
ORDER
Presently before the Court are cross motions for summary
judgment filed by the remaining parties in this case. See Dkt.
Nos. 119, 122, 123, 128, 129. For the reasons stated below,
Glynn County's Motion for Summary Judgment, Dkt. No. 123, is
GRANTED.
SSI Development, Scott Cochran, and Edward Ostervald's
Motion for Summary Judgment, Dkt. No. 122, is also GRANTED as to
Defendants SSI Development and Cochran only. Plaintiff's
motions, Dkt. Nos. 119, 128, 129, are DENIED and all claims
against Defendants Glynn County, SSI Development, and Cochran
are DISMISSED.
1
AO 72A
(Rev. 8/82)
Around June 2000, Plaintiff, Dr. Margie McRae, purchased
property on St. Simons Island, Georgia. SSI Development,
through its two principals, Scott Cochran and Edward Ostervald,
purchased land next door to Dr. McRae's property and built a
real estate development called Compass Point. Dkt. No. 122, Ex.
A 115.
In 2002, Dr. McRae filed a quiet title action in the
Superior Court of Glynn County against Glynn County and SSI
Development. See Dkt. No. 122, Ex. C. The quiet title action
concerned the ownership of Gordon Retreat Road, which bordered
Dr. McRae's property and the Compass Point neighborhood. See
Dkt. No. 122, Ex. C. Dr. McRae lost the superior court action
and then appealed to the Supreme Court of Georgia, which
unanimously affirmed judgment in favor of SSI Development. See
McRae v. SSI Dev., LLC, 656 S.E.2d 138 (Ga. 2008).
In 2011, Dr. McRae filed this action in federal court
asserting various state law claims against SSI Development,
Cochran, Ostervald, and Glynn County stemming from damage they
had allegedly caused to one of Dr. McRae's pipes.
1
See Dkt. No.
1. Dr. McRae discovered the pipe damage in late 2009. See Dkt.
1
In the present suit, Dr. McRae also asserted a claim of legal
malpractice against the lawyer who represented her in the superior
court litigation. See Dkt. No. 5. This Court granted summary
judgment on that claim. See Dkt. No. 166.
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(Rev. 8/82)
No. 147 ¶ 4. Dr. McRae arranged to have the pipe excavated in
order to determine the extent of the problem. See Dkt. No. 119.
Dr. McRae videotaped that excavation, which occurred on April
19, 2012, and submitted the DVD of that recording as evidence.
See Dkt. No. 119, Ex. 1. The excavation revealed two points of
damage to Dr. McRae's pipe. See Dkt. No. 119. There is both a
hole in the pipe, and, further down, the pipe's end is crushed.
See Dkt. No. 119.
Dr. McRae, appearing pro Se, filed three motions for
summary judgment. See Dkt. Nos. 119, 128, 129. SSI
Development, Cochran, Ostervald, and Glynn County responded and
filed their own motions for summary judgment. See Dkt. Nos.
122, 123.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(a), summary
judgment is appropriate "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The court must view
the evidence and draw all inferences in the light most favorable
to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157-59 (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, 322-24
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(Rev 8/82)
(1986). To discharge this burden, the movant must show the
court that there is an absence of evidence to support the
nonmoving party's case. Id. at 325. The burden then shifts to
the nonmovant to go beyond the pleadings and present affirmative
evidence to show that a genuine issue of fact does exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
DISCUSSION
I. Claims Against Glynn County
Sovereign immunity bars all Dr. McRae's claims against
Glynn County. Under O.C.G.A. § 36-1-4, "[a] county is not
liable to suit for any cause of action unless made so by
statute." With respect to the claims asserted by Dr. McRae, the
County's sovereign immunity has not been waived. The burden of
demonstrating waiver rested on McCrae as the party "seeking to
benefit from the waiver." See Effingham Cnty. v. Rhodes, 705
S.E.2d 856, 859 (Ga. Ct. App. 2010) (quoting Spalding Cnty. v.
Blanchard, 620 S.E.2d 659, 660 (Ga. Ct. App. 2005)) . Dr. McRae
has not pointed to any statute authorizing waiver, nor could
this Court find one that would arguably apply.
Additionally, summary judgment in favor of Glynn County is
appropriate in light of Dr. McRae's statements during the
September 19th motions hearing. At that hearing, Dr. McRae
stated that she no longer believed Glynn County was responsible
4
AO flA
(Rev. 8/82)
for the damage to her pipe. See Dkt. No. 174, 5:17-22, 34:4-12.
Thus, this Court grants Glynn County's Motion for Summary
Judgment.
II. Claims Against SSI Development, Cochran, and Osterva].d
Summary judgment is also appropriate for the claims brought
against SSI Development and Cochran. This Court, at the present
time, cannot rule on the pending motions as they relate to
Ostervald though. Ostervald has filed a Notice of Automatic
Stay of Litigation as a result of his pending bankruptcy
petition in the United States Bankruptcy Court for the Northern
District of Georgia. 2 See Dkt. Nos. 72, 168. Even an entry of
judgment in favor of Ostervald could violate this automatic
stay. See Ellis v. Consol. Diesel Elec. Corp., 894 F.2d 371,
373 (10th Cir. 1990) ("The operation of the stay should not
depend upon whether the district court finds for or against the
debtor.") (emphasis in original).
However, the automatic stay does not apply to SSI
Development or Cochran. In regards to those defendants, summary
judgment is appropriate because Dr. McRae has failed to meet her
2
AO 72A
(Rev. 8/82)
Dr. McRae argues that Ostervold should not be entitled to the
automatic stay because of 11 U.S.C. § 707(b). See Dkt. No. 172.
However, that provision concerns the power of a bankruptcy court to
dismiss a bankruptcy case for abuse of the bankruptcy process. It
does not give a district court the authority to avoid an automatic
stay. Moreover, Dr. McRae, in her later submissions, agreed "that
[11 U.S.C. §] 707(b) addresses dismissal of a debtor's bankruptcy
case by the court in which the case is pending." See Dkt. No. 178.
5
burden as the plaintiff to produce admissible evidence of
causation to permit a jury to find in her favor. To link SSI
Development and Cochran to the pipe damage, Dr. McRae submitted
the DVD of the pipe excavation. See Dkt.
No.
119, Ex. 1. Dr.
McRae insists that the DVD confirms that one of the Defendants
transected her pipe. See Dkt. No. 119. She argues the DVD is
"irrefutable evidence" of that. See Dkt.
No.
119.
While the DVD of the pipe excavation clearly shows that her
sewage pipe is not functioning, the DVD shows little else. The
only evidence linking SSI Development or Cochran to the pipe
damage is the mere fact that the damage occurred underneath land
that SSI Development had, at one point, developed. That
evidence alone is insufficient to allow a reasonable jury to
find in Dr. McRae's favor. Conclusory allegations, speculation,
and conjecture do not create an issue of material fact. See
Walker v. CSX Transp., Inc., 650 F.3d 1392, 1401-02 (11th Cir.
2011); Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th
Cir. 1996); Ferron v. West, F. Supp. 2d 1363, 1366 (S.D. Ga.
Furthermore, during the September 19th motions hearing, Dr.
McRae admitted several times that, when it comes to the pipe
damage, she knows very little. See Dkt.
No.
174, 5:16-17 ("I
could not know who had damaged the sewer line."); Dkt. No. 174,
AO 72A
(Rev. 8/82)
6:4-5 ("I had no way of knowing about this . . ."); Dkt. No.
174, 6:18-24 (stating that Dr. McRae "didn't see them do it" and
asking "[h]ow did [the hole] get there?"); Dkt. No. 174, 7:18-22
(admitting that Dr. McRae had "no understanding at all" as to
when the damage occurred and that "[a]il [she knew was] that
they were doing construction").
Dr. McRae argues that the doctrine of res ipsa loquitur
applies. If res ipsa loquitur applied, it would "fill[] the
evidentiary gap" discussed above and allow Dr. McRae to reach a
jury despite the lack of "evidence of consequence showing
negligence on the part of" SSI Development or Cochran. Kmart
Corp. v. Larsen, 522 S.E.2d 763, 765 (Ga. Ct. App. 1999).
Translated, res ipsa loquitur means "the transaction speaks for
itself." Parker v. Dailey, 177 S.E.2d 44, 46 (Ga. 1970). As a
rule of evidence, "[t]he doctrine authorizes, but does not
require, the jury to infer facts from the circumstances in which
the injury occurred." Kmart Corp., 522 S.E.2d at 765.
Unfortunately for Dr. McRae, the elements of res ipsa
loquitur are not satisfied.
Res ipsa loquitur requires that:
(1) the injury is of a kind which ordinarily does not occur in
the absence of someone's negligence; (2) the injury was caused
by an agency or instrumentality within the exclusive control of
the defendant; and (3) the injury must not have been due to any
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AO 72A
(Rev. 8/82)
voluntary action or contribution on the part of the plaintiff.
Id. The first and second elements are clearly not met in the
present case.
Many things other than negligence could have caused the
damage to the pipe. Tree roots, ground shifting, or simply old
age might have ruptured or crushed Dr. McRae's pipe. In fact,
the very shovels and other tools Dr. McRae used to dig up the
pipe could have created some of the damage. Pipe damage
commonly occurs in the absence of any negligence at all. Res
ipsa loquitir "does not apply when there is an intermediary
cause which could have produced the injury." Sams v. Wal-Mart
Stores, Inc., 491 S.E.2d 517, 519 (Ga. Ct. App. 1997).
The second required element is also lacking. Far from
being in SSI Development's exclusive control, numerous people
had access to the land above the pipe. To provide some context,
both the hole in the pipe and the crushed end were found in the
area around Compass Point's entrance gate. See Dkt. No. 122,
Ex. A ¶C11 12, 14. That area consists of some shrubbery, a fence,
and other landscaping elements. See Dkt. No. 119, Ex. 1. As
evidenced by the DVD of the pipe excavation, this area borders a
busy road with nothing preventing members of the public from
accessing the area. See Dkt. No. 119, Ex. 1. Because so many
different parties could access this location, SSI Development
AO 72A
(Rev. 8/82)
could not have had "exclusive control." This is not a case
warranting application of res ipsa loquitur.
In sum, because only speculation links SSI Development and
Cochran to the pipe damage, no reasonable jury could find in Dr.
McRae's favor. See Ferron, 10 F. Supp. 2d at 1366 ("[M]ere
inferences, conjecture, speculation or suspicion are
insufficient to establish a material fact upon which to base the
denial of summary judgment.") (internal citations omitted).
III. Preclusive Effect of the Superior Court Litigation
In many of her submissions to this Court, Dr. McRae
discussed the issues and facts concerning her quiet title action
in superior court. That information did pertain to Dr. McRae's
legal malpractice claim against her former attorney, Defendant
Perry; however, Dr. McRae did not specify whether those
allegations related solely to Defendant Perry. Out of caution,
Defendants SSI Development and Cochran asserted res judicata as
an affirmative defense. See Dkt. No. 122. That doctrine, which
encompasses both claim and issue preclusion, does not apply to
the present case however. See Taylor v. Sturgell, 553 U.S. 880,
892 (2008) (stating that claim preclusion and issue preclusion
"are collectively referred to as 'res judicata'"); Migra v.
Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n.1
AO 72A
(Rev. 8/82)
(1984) (describing the "evolution" in terminology over the years
for preclusion concepts).
Issue preclusion does not apply here because, as its name
suggests, issue preclusion prevents relitigation "of an issue of
fact or law actually litigated and resolved in a valid court
determination essential to [a] prior judgment." Taylor, 553
U.S. at 892. While issue preclusion would certainly apply if
this Court were asked to determine the ownership of Gordon
Retreat Road, that is not an issue raised by Dr. McRae's present
claims as this Court understands them.
Likewise, claim preclusion does not apply. "Claim
preclusion refers to the effect of a judgment in foreclosing
litigation of a matter that never has been litigated, because of
a determination that it should have been advanced in an earlier
suit." Migra, 465 U.S. at 77, n.1.
"[F]ederal courts give
preclusive effect to a state-court judgment whenever the courts
of the state from which the judgment emerged would do the same."
David Vincent, Inc. v. Broward Cnty., Fla., 200 F.3d 1325, 1331
(11th Cir. 2000)
Under Georgia law, "one must assert all claims for relief
concerning the same subject matter in one lawsuit and any claims
for relief concerning that same subject matter which are not
raised will be [barred]." Lawson v. Watkins, 401 S.E.2d 719,
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721 (Ga. 1991) (emphasis in original); see also Sorrells Const.
Co., Inc. v. Chandler Armentrout & Roebuck, P.C., 447 S.E.2d
101, 193 (Ga. Ct. App. 1994) ("[C]laim preclusion[} requires a
plaintiff to bring all his claims against a party . . . arising
out of a particular set of circumstances in one action.").
Here, while both the superior court litigation and the
present litigation, at the most general level, involve disputes
between SSI Development and Dr. McRae as neighboring landowners,
they do not involve the same subject matter or the same
particular set of circumstances. The litigation in superior
court concerned the ownership of Gordon Retreat Road and whether
that road was public or private, whereas this suit involves
damage to Dr. McRae's sewage pipe. Compare Lawson, 401 S.E.2d
at 721 (holding that res judicata did not bar a subsequent
action concerning title to a racetrack when the first suit
concerned a series of debt between the parties), with Doman v.
Banderas, 499 S.E.2d 98, 101 (Ga. Ct. App. 1998) (holding that a
claim based on defamatory letters about plaintiff's business was
barred by res judicata when prior suit involved a claim for
tortious interference with a business practice and plaintiff
"without question" could have amended his complaint to include
the defamation claim). Here, ownership of a road and damage to
a sewage pipe constitute distinct and separate subjects.
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(Rev. 8/82)
Therefore, claim preclusion does not bar Dr. McRae's current
action.
To the extent Dr. McRae may be attempting to revisit the
outcome of her superior-court quiet title action, this Court has
no cause to overturn that judgment. The Rooker-Feldman doctrine
precludes such relief. See generally Rooker v. Fid. Trust Co.,
263 U.S. 413 (1923); D.C. v. Feldman, 460 U.S. 462 (1983).
Although narrow, Rooker-Feldman "prevents . . . lower federal
courts from exercising jurisdiction over cases brought by
'state-court losers' challenging 'state-court judgments rendered
before the district court proceedings commenced.'" Brown v.
R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1339 (11th Cir. 2010)
(quoting Lance
V.
Dennis, 546 U.S. 459, 460 (2006)). While this
Court can issue a decision on the property damage, nuisance, and
conspiracy counts raised against Defendants in Dr. McRae's
complaint, the Rooker-Feldman doctrine squarely prohibits this
Court from reevaluating the outcome of the superior court
litigation. See Dkt. No. 5.
CONCLUSION
Based on the foregoing reasons, summary judgment in favor
of Defendants Glynn County, SSI Development, and Scott Cochran
is appropriate. Glynn County's Motion for Summary Judgment,
Dkt. No. 123, is GRANTED.
The Motion for Summary Judgment filed
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(Rev. 8/82)
on behalf of SSI Development, Scott Cochran, and Edward
Ostervald, Dkt. No. 122, is GRANTED as to SSI Development and
Scott Cochran only. As a result, all claims against Glynn
County, SSI Development, and Scott Cochran are DISMISSED and Dr.
McRae's Motions, Dkt. Nos. 119, 128, 129, are DENIED.
SO ORDERED, this 28th day of November, 2012.
LIS GODBEY WOO 1, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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