Filed: May 21, 1997
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 96-8116 _ D. C. Docket No. 1:95-CV-2669 ARTHUR L. CROWE, JR., EDITH CROWE INGRAM, ELEANOR INGRAM KIEFLING, Plaintiffs-Appellants, versus DANIEL COLEMAN, CROWN CENTRAL PETROLEUM CORPORATION, CROWN STATIONS, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (May 21, 1997) Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge. EDMONDSON, Circuit
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 96-8116 _ D. C. Docket No. 1:95-CV-2669 ARTHUR L. CROWE, JR., EDITH CROWE INGRAM, ELEANOR INGRAM KIEFLING, Plaintiffs-Appellants, versus DANIEL COLEMAN, CROWN CENTRAL PETROLEUM CORPORATION, CROWN STATIONS, INC., Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Georgia _ (May 21, 1997) Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge. EDMONDSON, Circuit J..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________
No. 96-8116
_____________________________________
D. C. Docket No. 1:95-CV-2669
ARTHUR L. CROWE, JR., EDITH CROWE INGRAM,
ELEANOR INGRAM KIEFLING,
Plaintiffs-Appellants,
versus
DANIEL COLEMAN, CROWN CENTRAL PETROLEUM
CORPORATION, CROWN STATIONS, INC.,
Defendants-Appellees.
______________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________________________
(May 21, 1997)
Before EDMONDSON and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.
EDMONDSON, Circuit Judge:
Plaintiffs-Appellants appeal from the district
court's denial of their motion for remand to the
Superior Court of Cobb County, Georgia and
from the grant of summary judgment for
Defendant Daniel Coleman. Because the district
court erred in concluding that Plaintiffs could
maintain no possible cause of action against
Georgia-resident Defendant Coleman, we
reverse the district court's denial of Plaintiff's
motion for remand. Because the case must be
returned to state court, we vacate the award of
summary judgment.
I. Background
Plaintiffs are Arthur Crowe, Jr., Edith Crowe
and Eleanor Ingram Kiefling. Together they own
a parcel of land in Georgia. Plaintiffs filed suit
in the Superior Court of Cobb County against
Defendants Crown Stations, Inc. ("Crown"), a
subsidiary of Crown Central Petroleum
Corporation, and Daniel Coleman. Jurisdiction
in state court was based on Coleman, who is a
Georgia resident. See O.C.G.A. § 9-10-30. In
their complaint, Plaintiffs alleged that Coleman,
2
as the current owner of the land adjoining
Plaintiffs' property, and Crown, as the former
owner, were liable for damages caused to
Plaintiffs by the escape of gasoline from
Defendants' property onto Plaintiffs' property.
Defendant Coleman was served with a copy of
the complaint on September 29, 1995.
On October 20, Defendants filed a notice of
removal of the case to the District Court for the
Northern District of Georgia; Defendants alleged
that Georgia-resident Defendant Coleman had
been fraudulently joined to defeat diversity
jurisdiction. On November 13, Defendant
Coleman submitted a motion for summary
judgment, claiming that he did not cause
Plaintiffs' harm. In support of this motion,
Coleman submitted his own affidavit and the
affidavit of a Crown engineer. These affidavits
said that, although Crown formerly operated a
3
service station on the land adjacent to Plaintiffs'
property and stored petroleum in underground
storage tanks (USTs), those USTs were removed
from the ground before Coleman became the
owner of the property. Coleman swore in his
affidavit that, during his ownership, he "never
caused the release of any petroleum products at
the S. Atlanta Rd. property [that is, his own
land]."
Also on November 13, Plaintiffs moved for
remand to state court, arguing that they stated
a valid claim for continuing nuisance against
Coleman under Georgia law. Defendants
responded by contending that Plaintiffs'
complaint only alleged a cause of action for
trespass and, if a nuisance had been alleged,
that Plaintiffs could succeed on no nuisance
claim against Coleman. On November 30,
Plaintiffs moved to amend their complaint to
4
state expressly a cause of action for nuisance.
On January 11, 1996, the district court issued an
order (1) denying Plaintiffs' motion to remand to
state court, concluding there was no possibility
Plaintiffs could establish a cause of action
against Coleman; (2) denying Plaintiffs' motion
to amend the complaint as futile; and (3)
granting Defendant Coleman's motion for
summary judgment.
II. Discussion
A. The Law of Remand
In a removal case alleging fraudulent
joinder, the removing party has the burden of
proving that either: (1) there is no possibility
the plaintiff can establish a cause of action
against the resident defendant; or (2) the
5
plaintiff has fraudulently pled jurisdictional facts
to bring the resident defendant into state court.
Cabalceta v. Standard Fruit Co., 883 F.2d 1553,
1561 (11th Cir. 1989). The burden of the
removing party is a "heavy one." B, Inc. v.
Miller Brewing Co.,
663 F.2d 545, 549 (5th Cir.
Unit A 1981).
To determine whether the case should be
remanded, the district court must evaluate the
factual allegations in the light most favorable to
the plaintiff and must resolve any uncertainties
about state substantive law in favor of the
plaintiff. Id. at 549. The federal court makes
these determinations based on the plaintiff's
pleadings at the time of removal; but the court
may consider affidavits and deposition
transcripts submitted by the parties.
Id.
While "the proceeding appropriate for
resolving a claim of fraudulent joinder is similar
6
to that used for ruling on a motion for summary
judgment under Fed. R. Civ. P. 56(b)," id. at n.9,
the jurisdictional inquiry "must not subsume
substantive determination."
Id. at 550. Over
and over again, we stress that "the trial court
must be certain of its jurisdiction before
embarking upon a safari in search of a judgment
on the merits."
Id. at 548-49. When considering
a motion for remand, federal courts are not to
weigh the merits of a plaintiff's claim beyond
determining whether it is an arguable one under
state law. See Id.. "If there is even a possibility
that a state court would find that the complaint
states a cause of action against any one of the
resident defendants, the federal court must find
that joinder was proper and remand the case to
state court." Coker v. Amoco Oil Co.,
709 F.2d
1433, 1440-41 (11th Cir. 1983), superseded by
statute on other grounds as stated in
7
Georgetown Manor, Inc. v. Ethan Allen, Inc., 991
F.2d 1533 (11th Cir. 1993).
This consequence makes sense given the
law that "absent fraudulent joinder, plaintiff has
the right to select the forum, to elect whether to
sue joint tortfeasors and to prosecute his own
suit in his own way to a final determination."
Parks v. The New York Times Co., 308 F.2d 474,
478 (5th Cir. 1962). The strict construction of
removal statutes also prevents "exposing the
plaintiff to the possibility that he will win a final
judgment in federal court, only to have it
determined that the court lacked jurisdiction on
removal," see Cowart Iron Works, Inc. v.
Phillips Constr. Co., Inc.,
507 F. Supp. 740, 744
(S.D. Ga. 1981) (quoting 14A C. Wright & A.
Miller, Federal Practice and Procedure § 3721),
a result that is costly not just for the plaintiff,
8
but for all the parties and for society when the
case must be relitigated.
B. The Parties’ Arguments
Plaintiffs argue that removal of this case
was improper and that remand is required,
because Plaintiffs have stated a valid nuisance
claim against Defendant Coleman.1 Defendants
make two arguments challenging Plaintiffs'
nuisance claim. First, Defendants argue that
Plaintiffs' complaint at the time of removal only
stated a claim for trespass and did not
expressly state a claim for nuisance. Second,
Although Plaintiffs' complaint alleged a
trespass claim
against all Defendants, including Coleman,
Plaintiffs acknowledge
that they have no trespass claim against
Coleman under Georgia law because Coleman
did not cause the petroleum to be released onto
his property. So, Plaintiffs' argument for
remand relies solely on the nuisance claim.
9
Defendants argue that, even if Plaintiffs'
complaint otherwise stated a cause of action for
nuisance, no possibility exists that Plaintiffs can
establish a nuisance claim against Coleman
under Georgia law.
1. Adequacy of Plaintiffs' Pleading for
Nuisance Claim
Plaintiffs' complaint in this case was a
verified one, that is, under oath in respect to the
facts. The complaint says, among other things:
8.
The defendants have allowed the
escape of
gasoline from their property onto the
property
of the plaintiffs.
9.
The actions of the defendants in
allowing gasoline
10
to escape from their property and to
travel onto
the property of the plaintiffs is a
trespass for
which damages may be awarded and
which
should be permanently enjoined.
...
12.
The plaintiffs have made demands
upon the
defendants to remove from the
property of the
defendants the gasoline that they
have allowed
to trespass and contaminate the
plaintiffs'
property and which continues to do
so. The
defendants' failure to so remove the
gasoline
and accompanying contamination
prevents the
property of the plaintiffs from being
salable.
(emphasis added).
When multiple defendants are named in a
complaint, the allegations can be and usually
are to be read in such a way that each defendant
is having the allegation made about him
11
individually. We also note that, under the liberal
requirements of notice pleading, "[n]o technical
forms of pleading . . . are required." See Fed. R.
Civ. P. 8(a); O.C.G.A. § 9-11-8(a)(2)(A).
The word "trespass," although it can mean
a specific form of tort action, can also mean "a
wrongful entry upon the lands of another" or an
"encroachment or intrusion." The Random
House Dictionary of the English Language 2016
(2d ed. 1987). So, although Plaintiffs'
unamended complaint -- including paragraph 12
-- might be capable of more than one meaning,
the complaint can easily be read to be a sworn
statement that Coleman has allowed gasoline
from his land to intrude wrongfully (and to
continue to intrude) on Plaintiffs' property and
to contaminate Plaintiffs' land. Once more, a
plaintiff seeking to have his case remanded to
12
state court is to be given the benefit of every
reasonable inference in his favor.
2. Nuisance Claim Under Georgia Law
We now must decide whether the facts
alleged in Plaintiffs' complaint state even an
arguable cause of action under Georgia law.
The answer is "yes."
Defendants contend that Georgia law
creates no cause of action against a landowner
for the failure to abate a continuing nuisance
caused by his property where the landowner did
not create the nuisance: again, no one claims
that Coleman caused gasoline to spill onto his
land. And, Georgia case law may be in conflict
on this issue. But, at this point in the
procedural history of the case -- that is, on a
13
motion for remand, our analysis (as well as the
district court's) must be limited to determining
whether Plaintiffs have even an arguable claim.
So, any ambiguity or doubt about the
substantive state law favors remand to state
court.
Section 41-1-5(a) of the Georgia Code
provides: "The alienee of a person owning
property injured may maintain an action for
continuance of the nuisance for which the
alienee of the property causing the nuisance is
responsible." The statute provides no guidance
about whether an alienee, such as Coleman,
may be held responsible for a nuisance where
he engaged in no act -- in this case, the storage
of petroleum -- which initially caused the
nuisance if he, after notice, refuses to abate the
continuing nuisance: in this case, petroleum
seeping from his land onto adjoining land. The
14
parties point to no Georgia Supreme Court case
that has decided the issue.2
Each party relies on a Georgia Court of
Appeals case to support its argument.
Defendants point to C&S Trust Co. v. Phillips
Petroleum Co., 385 S.E.2d 426, 428 (Ga. App.
1989), where the court rejected the plaintiffs'
nuisance claim against the subsequent owner of
adjoining property when that adjoining property
was already contaminated and its subsequent
owner did not contribute to the contamination.
Plaintiffs point to Hoffman v. Atlanta Gas Light
In their brief, Defendants cite the Georgia
Supreme Court case of Cox v. Cambridge
Square Towne Houses Inc., 239 Ga. 127 (1977),
for the proposition that "a defendant must
engage in some act or operation which
continues a nuisance in order to be liable." In
Cox, the plaintiff sued the owner of adjoining
property; the defendant had installed the storm
sewer that was the subject of the nuisance
claim. Cox did not involve a suit against an
alienee who owned property after the creation of
the nuisance; so the court did not decide the
issue.
15
Co., 426 S.E.2d 387, 391 (Ga. App. 1992), where
the court permitted a nuisance claim where the
defendant did not cause the initial
contamination of the defendant's land, but
where the preexisting contamination of the
defendant's land continued to migrate onto the
plaintiffs' property.
On the face of these opinions, there appears
to be a conflict on this issue in the Georgia
appellate decisions. Defendants, and Judge
Roney in his dissent, point to factors which
might distinguish this case from Hoffman.3 If
this case were properly before the district court
We do not reject the proposed distinctions.
We accept that they may possibly be
appropriate; but, more important, we do not see
them as doubtlessly correct either. For
example, Hoffman never seems to reply
completely on some contract concept to
support the cause of action allowed in that
case: a nuisance claim against the property
owner who created no contamination, but
whose property was the source of the
contamination of his neighbors’ -- the plaintiffs
-- land.
16
(and this court) under original diversity
jurisdiction, we would be obligated to predict
how the Georgia Supreme Court would rule on
this issue or to certify the question to the
Georgia Supreme Court. For purposes of
determining whether this case should be
remanded to state court, however, the inquiry
by federal judges must not go so far:
This is an Erie problem in part, but only
part. In
the usual diversity situation a Federal
Court, no
matter how difficult the task, must
ascertain (and
then apply) what the state law is. . . . But
here the
question is whether there is arguably a
reasonable
basis for predicting that the state law
might impose
liability on the facts involved. If that
possibility
exists, a good faith assertion of such an
expectancy
in a state court is not a sham, is not
colorable and
is not fraudulent in fact or in law.
17
Bobby Jones Garden Apartments v. Suleski, 391
F.2d 172, 176-77 (5th Cir. 1968) (citations
omitted). In this case, the arguable confusion in
Georgia law itself supports remanding this case
to state court. See
Parks, 308 F.2d at 477
(noting in fraudulent joinder case that, "doubtful
issues of law due to absence of definite
pronouncements by the state supreme court are
to be tried in the court having original
jurisdiction of the case and are not to be
determined in a removal proceeding.").
In the present case, neither the words of
Plaintiffs' verified complaint nor -- as we will
discuss more -- the remainder of the record
before the district court forecloses the
possibility that petroleum, which had already
leaked onto Defendants' property from the
removed tanks, has continued to seep onto
Plaintiffs' property during Coleman's ownership
18
of the former service station site. Unlike the
complaint, Defendant Coleman's answer is not
under oath; but he denies wrongdoing. His
denial, of course, does nothing to undercut the
fact that plaintiffs have set out an arguable
nuisance claim against him; the answer, at
most, shows a controversy that needs to be
resolved.
3. Defendants' Affidavits
Defendants also submitted affidavits which
say that -- before Coleman's ownership of the
former service station site -- the USTs were
removed from the ground, and no petroleum
products have been since stored or sold at the
property. In addition, Coleman specifically says
in his affidavit: "I have never caused the
release of any petroleum products at
[Defendants'] property." (emphasis added).
19
Coleman submitted the affidavits in support
of his motion for summary judgment before the
district court ruled on Plaintiffs' motion for
remand. Although submitted in support of a
motion for summary judgment, Defendants'
affidavits were probably properly considered by
the district court on the question of remand;
and we too will take them into account in
deciding the limited question of whether a
possibility exists that Plaintiffs have stated a
nuisance cause of action against Coleman. See
Cabalceta, 883 F.2d at 1561.
Seemingly on the basis of Defendants'
affidavits4, the district court found and
Based on the docket entries, we suppose
that a hearing at which the parties were allowed
to argue was held on the motions in the district
court. We know that when motions are orally
argued (even when the pertinent hearing is for
argument only and not one for the presentation
of evidence), important things sometimes
happen which impact on the factual record -- for
example, the judge while interrogating the
lawyers obtains stipulations, concessions, and
20
concluded it to be undisputed that: "Since at
least May 14, 1991, there have been . . . no
petroleum releases from the site" (emphasis
added). If "release," as used by the district
court, means no seepage or leakage onto
Plaintiffs' land,5 we cannot see how that fact can
be said to be undisputed from the paper record
before the district court and us. Coleman's
so on. But in this case, no one has said the oral
argument in district court amended the paper
record. And the transcript of the hearing in the
district court is not part of the appellate record.
So, we believe we are looking at the same
factual record that was before the district court.
The district court might have used "release"
to mean no release of gasoline onto the
Defendants' own land. This fact is undisputed.
The district court may then have gone on to
conclude that Georgia law allows no cause of
action against Coleman even if gasoline, which
had been released into the soil at the service
station site before Coleman owned it, had
seeped
onto Plaintiffs' land after Coleman bought the
former service station site. This approach
would be erroneous, because it would entail a
decision about Georgia law when the state's
precedents are not plainly consistent.
21
affidavit and Plaintiffs' sworn complaint seem to
leave open -- as completely disputed -- whether
gasoline from Coleman's land (after he became
the landowner) has intruded, and continues to
intrude, onto Plaintiffs' land. By the way, we
note that Plaintiffs -- before the district court
ruled on the summary judgment motion -- filed,
pursuant to the district court's local rules, a
"Statement of Material Facts to Which There
Remains a Genuine Issue to Be Tried," which
included this statement: "Gasoline continues to
leak from the contaminated property owned by
Coleman onto the property of the Plaintiffs."
In the light of the ostensible dispute of fact
appearing in the documents in the record --
including those under oath -- summary
judgment for defendant Coleman was very
possibly erroneous. But, as a reviewing court,
we need not go so far as to say summary
22
judgment was wrongfully entered. We can just
say (and we do say with more certainty) that the
motion for remand was improperly denied.
In terms of this circuit's law, the main point
for us is this one: For a Plaintiff to present an
arguable claim against an in-state defendant
and, therefore, to require a case removed to
federal court to be remanded to state court, the
plaintiff need not show that he could survive in
the district court a motion for summary
judgment filed by that in-state defendant. For a
remand, the plaintiff's burden is much lighter
than that: after drawing all reasonable
inferences from the record in the plaintiff's favor
and then resolving all contested issues of fact
in favor of the plaintiff, there need only be "a
reasonable basis for predicting that the state
law might impose liability on the facts
involved." B., Inc., 663 F.2d at 550 (quoting
23
Bobby Jones Garden Apartments, 391 F.2d at
177) (emphasis added). Because the
procedures are similar while the substantive
standards are very different, district courts must
exercise extraordinary care to avoid jumbling up
motions for remand and motions for summary
judgment that come before them.
In the remand context, the district court's
authority to look into the ultimate merit of the
plaintiff's claims must be limited to checking for
obviously fraudulent or frivolous claims.
Although we have said that district courts may
look beyond the face of the complaint, we
emphasize that the district court is to stop short
of adjudicating the merits of cases that do not
appear readily to be frivolous or fraudulent.
Applying these principals to this case, we
conclude that the district court -- given the
record before it -- should have remanded the
24
case to state court and should have never
addressed the motion for summary judgment.
4. Oral Argument in the Appellate Court
This case, however, presents one more
question. In dissent, Judge Roney points out a
statement made at oral argument in this court
by Plaintiffs' counsel; Judge Roney concludes
from the statement that Plaintiffs cannot in fact
dispute that no gasoline has intruded onto
Plaintiffs' land from Coleman's land since
Coleman was the landowner. Therefore, we
must answer this question: If the district court
erred on the record before it, does this error
become harmless given Plaintiffs' counsel's
words to the appellate court?
25
The pertinent statement of Plaintiff-
Appellants' counsel occurred during the rebuttal
in the context of the following exchange:
Judge Roney: "Is [the district court
judge] correct or
incorrect when he says, 'The
following
facts are undisputed: There
have been
no petroleum releases from
the site
since May 14, 1991.'"
Counsel: "He is correct that there
has been
no -- that was the day the
tanks
were taken out. There could
have
been no new releases, but it is
undisputed that the gasoline
remains on . . . "
Judge Roney: "I'm not talking about
that. I'm talking
about whether any gasoline
flowed from
the property Mr. Coleman
owned after
he owned it?"6
At this point, Judge Roney may be asking a
question which is different from the one the
district court addressed when the district court
said, "[s]ince at least May 14, 1991 . . . there
26
Counsel: "We could not prove one
way or the other. So, I cannot
technically say that the new
flow since Coleman ran it is
disputed."
That concessions and admissions of
counsel at oral argument in appellate courts can
count against them is doubtlessly true. See,
e.g., Rozar v. Mullis, 85 F.3d 556, 563 (11th Cir.
1996); United States v. Gerber,
994 F.2d 1556,
1558 (11th Cir. 1993). But waivers and
concessions made in appellate oral arguments
need to be unambiguous before they are
allowed to change the outcome of an appeal
from a reversal to an affirmance. See Glick v.
White Motor Co.,
458 F.2d 1287, 1291 (3d Cir.
1971) ("[T]o be binding, judicial admissions
must be unequivocal.") In the context of the
entire oral argument in this case and of
Plaintiffs' briefs, we are unwilling to base the
have been no petroleum releases from the site."
See supra note 5.
27
outcome of this case on a few words uttered in
the last minute of Plaintiffs' counsel's rebuttal.
For example, earlier in the same oral
argument, the following exchange occurred
between Judge Roney and Appellants' counsel:
Judge Roney: "Where is the evidence
that there was
any continued leaking after
Coleman
got the property?"
Counsel: "There is evidence. It is
alleged in
the complaint . . ."
Judge Roney: "No. It is very diffuse."
Counsel: "Here is the confusion.
There is not
the leakage from the tanks.
The
tanks are gone. But, there is
gasoline on the adjoining
property
that, number one, continues
to leak
onto the . . . " [counsel was
interrupted]
28
At another point in the oral argument,
Appellants' counsel spoke these words:
Counsel: "[The defendants] did not
claim
or deny in the summary
judgment
that the gasoline continues to
be
there. Nobody denies that,
because
it is."
Judge Roney: "Continues to be
where?"
Counsel: "In the ground."
Judge Roney: "On your client's
property?"
Counsel: "On our client's property
and on
[the defendants'] property."
For other representations of plaintiff-
appellants on the timing of the seepage of
gasoline onto their land, see Appellant's Brief at
page 13 (characterizing the continuing nuisance
as "the exuding gasoline") and at page 15 ("the
pollutants currently obtruding Plaintiffs'
29
property represent the continuing nuisance").
See also Appellant's Reply Brief at page 6 ("The
cause of action against Coleman stems, not
from any involvement with the leaky USTs, but
rather, from his passive acquiescence of the
continuing exudation of contamination from his
property after failing his statutory duty to abate
it upon Appellants' request.") (emphasis in
original).
Taken as a whole, we cannot say that
Plaintiff-Appellants' counsel's statements about
when gasoline has seeped onto his clients’ land
were so consistent, plain and favorable to
Coleman as to make the district court's error, in
the light of the record before it, harmless in
reality. Again, if there is ambiguity about what
Plaintiffs' counsel has said, Plaintiffs are
entitled to the construction most favorable to
remand.
30
III. Conclusion
If removal is doubtful, we remand the case.
Therefore, we send this case back to the district
court to remand it to state court.7 In doing so,
we express no view of the ultimate outcome on
the merits. Georgia's state courts -- which have
the final word on Georgia law -- will decide all
that.
SUMMARY JUDGMENT VACATED.
REVERSED and REMANDED.
RONEY, Senior Circuit Judge, dissenting:
I respectfully would affirm for the reasons
set forth in Judge Moye’s Order.
Because we decide that the district court
erred by denying Plaintiffs' motion for remand
based on the unamended complaint, we do not
address Plaintiffs' argument that the district
court erred by refusing to allow Plaintiffs to
amend their complaint.
31
The reversal is based on the fact that there
is “petroleum seeping from his [Coleman’s] land
onto adjoining land” and that “the preexisting
contamination of the defendant's land continued
to migrate onto the plaintiffs’ property.” The
majority opinion recites that “neither the words
of Plaintiffs’ complaint nor the remainder of the
record foreclose the possibility that petroleum
has continued to seep onto Plaintiffs’ property
during Coleman’s ownership.”
This is contrary to the record, the
understanding of Judge Moye, and the
admissions of counsel at oral argument. Judge
Moye recited as undisputed that since May
1991, prior to Coleman’s ownership: “There
have been no petroleum releases from the site.”
The parties do not dispute this fact on appeal.
When asked directly about the accuracy of this
statement at oral argument, counsel for
32
plaintiffs said: “We could not prove one way or
the other. So I cannot technically say that the
new flow since Coleman owned it is disputed.”
Therefore, the case presented to this Court is
based on this undisputed critical paragraph in
Judge Moye’s opinion:
Since at least May 14, 1991, there have
been no deliveries of petroleum
products to the former service station,
there have been no petroleum products
sold from the site, there have been no
petroleum products stored at the site,
and there have been no petroleum
releases from the site.
On these undisputed facts, Georgia law is
clear. If Coleman did not own the property or
the offending tanks that caused the
contamination, he cannot be held responsible
for the fact that the contaminants remain on the
plaintiffs’ property. Citizens & So. Trust v. Phillips
Petro., 385 S.E.2d 426, 428 (Ga. App. Ct. 1989)
(“That there was no reoccurrence of a leak from
the underground storage tanks after
33
[defendants] purchased the property and relined
the tanks is undisputed. . . . Accordingly, the
trial court did not err in granting summary
judgment in favor of the [defendants].”).
To the extent that plaintiffs seek to read
Hoffman v. Atlanta Gas Light Co., 426 S.E.2d 387 (Ga.
App. Ct. 1992), to the contrary, they overlook
the critical facts of that case. “Atlanta Gas Light
now holds and controls the easement and the
pipeline which are the physical source of the
contamination. . . . We will not hold that the
alienee of the easement and pipeline has no legal
duty to abate a continuing nuisance, particularly
under the easement agreement in effect between Atlanta Gas
Light and [the complaining landowners].”
Id. at 391.
(Emphasis added). In this case, Coleman never
held, controlled or owned the tanks that caused
the contamination, nor did he have any
34
contractual relation with the complaining
landowners.
Plaintiffs' argument is that they made a
demand of Coleman to remove the
contamination on their property and that his
refusal to do so amounts to a continuing
nuisance. There is no authority for the
proposition that by demanding the removal of a
nuisance by someone who has had nothing to
do with the source or maintenance of it, or the
things which caused it, can somehow create a
cause of action against them for a “continuing”
nuisance, which they have never had anything
to do with in the first place.
Under the undisputed facts as presented to
this Court on appeal, plaintiffs have no cause of
action against Coleman, and the district court
correctly so ruled.
I would affirm.
35
