Kerr-McGee Corporation v. Maranatha Faith Center, Inc. ( 2002 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CA-00046-SCT
KERR-McGEE CORPORATION AND KERR-McGEE
CHEMICAL LLC
v.
MARANATHA FAITH CENTER, INC. AND
SANDERSON PLUMBING PRODUCTS, INC.
DATE OF JUDGMENT: 12/6/2002
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: SCOTT FULLER SINGLEY
MARC DARREN AMOS
J.GORDON FLOWERS
WILLIAM LAWRENCE DEAS
JOHN M. JOHNSON
JACKSON R. SHARMAN, III
CHRISTOPHER A. SHAPLEY
WILLIAM ‘TREY’ JONES
JOHN EDWARD MILLER
ROBERT L. GIBBS
BARBARA H. JOHNSON
LANA KAY ALCORN
ATTORNEYS FOR APPELLEE: BENNIE L. TURNER
JEFFREY JOHNSON TURNAGE
TAYLOR B. SMITH
RICHARD H. SPANN
NATURE OF THE CASE: CIVIL - PROPERTY DAMAGE
DISPOSITION: AFFIRMED - 05/13/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, P.J., COBB, P.J., AND GRAVES, J.
GRAVES, JUSTICE, FOR THE COURT:
¶1. This is an appeal from a summary judgment granted in favor of Sanderson Plumbing Products, Inc.
(“Sanderson”). The judgment dismissed all claims against Sanderson, including cross-claims against
Sanderson filed by co-defendants in the action. Kerr-McGee Corporation and Kerr-McGee Chemical,
LLC (“Kerr-McGee”) were co-defendants with Sanderson in a suit for damages brought by a neighboring
property owner, Maranatha Faith Center, Inc. (“Maranatha”). Maranatha sued claiming its property was
contaminated by the release of hazardous materials by Kerr-McGee.
¶2. On February 18, 2000, Maranatha filed its complaint in the Chancery Court of the First Judicial
District of Hinds County, Mississippi, against Kerr-McGee, Sanderson and other defendants. The case
was removed to the United States District Court for the Southern District of Mississippi, remanded back
to the Chancery Court of Hinds County, then transferred to the Circuit Court of Lowndes County, where
it is currently pending.
¶3. On April 24, 2001, Sanderson filed cross-claims against Kerr-McGee and all other private party
defendants seeking indemnity and/or contribution. Kerr-McGee filed cross-claims against Sanderson in
response.
¶4. On July 12, 2002, Sanderson filed a motion for summary judgment on all claims and cross-claims.
Maranatha did not oppose the motion, and as a result, the motion was subsequently granted by the court.
Pursuant to M.R.C.P. 54 (b), the court entered a final judgment in favor of Sanderson on December 6,
2002 . It is from this judgment that Kerr-McGee appeals and submits the following issue on appeal:
WHETHER THE TRIAL COURT ERRED IN GRANTING SANDERSON’S SUMMARY
JUDGMENT ON KERR-McGEE’S CROSS CLAIMS.
FACTS
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¶5. Maranatha Faith Center is a ministry in Columbus, Mississippi. In 1999, an oily substance, which
was confirmed as creosote and other contaminants, was found on the church property. Kerr-McGee is
located in an area of Columbus that includes a mixture of industrial and residential properties. Sanderson’s
facility, which manufactures toilet seats and related products, is located immediately to the south of Kerr-
McGee’s plant. Maranatha owns property that is located slightly to the southeast of the Kerr-McGee and
Sanderson facilities.
¶6. Maranatha contends that its property has been contaminated through the air, soil and/or
groundwater. In its complaint, Maranatha alleged that the contaminants from Kerr-McGee flowed through
various ditches and spread to Maranatha’s property. Maranatha also alleged that there were two
contaminated ground plumes consisting of hazardous creosote beyond the premises of Kerr-McGee and
that one plume allegedly runs along the western side of Kerr-McGee’s facility and travels through land
owned by Sanderson. Maranatha further alleged that another ditch runs along the eastern side of the Kerr-
McGee facility and eventually travels into a ditch going to Maranatha’s property.
¶7. Sanderson denied any liability and filed a cross-claim for indemnity claiming that if it could be liable
for the contamination by Kerr-McGee, then Kerr-McGee should indemnify it since the pollution originated
at Kerr-McGee, according to the complaint. Kerr-McGee then alleged that Sanderson owed it indemnity.
¶8. Sanderson’s motion for summary judgment was supported by an affidavit of Dan Foss, an expert
in environmental science and a properly certified hydro-geologist. In the affidavit, Foss based his opinions
upon materials produced by the parties during discovery as well as tests conducted by the Mississippi
Department of Environmental Quality and by experts retained by Kerr-McGee and Maranatha. Foss also
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based his affidavit upon his own testing and reviews. Foss’s testing showed only one possible contaminant
detected on Sanderson property, but this contaminant was not present on the Maranatha property.
¶9. Foss also included tests in his affidavit that were based on samples taken by the Mississippi
Department of Environmental Quality and Maranatha’s experts. The tests revealed that a high
concentration of contaminants found in the ditch that ran along Kerr-McGee’s property were also found
on Maranatha’s property; however, none of the compounds detected on Maranatha’s property were
detected in the ditch running through Sanderson’s property. Foss concluded in his affidavit that the alleged
contamination on Maranatha’s property did not result from the migration of contamination across
Sanderson’s property. Foss’s affidavit was not contradicted, and the circuit court found it sufficient to grant
summary judgment to Sanderson.
ANALYSIS
WHETHER THE TRIAL COURT ERRED IN GRANTING SANDERSON
SUMMARY JUDGMENT ON KERR-McGEE’S CROSS-CLAIMS.
A. Whether the circuit court’s ruling on Kerr-McGee’s cross-claims
for contribution was premature.
¶10. Kerr-McGee claims that the circuit court’s ruling on its cross-claims for contribution was
premature. It avers that its claims for contribution against Sanderson will not arise and become ripe unless
and until Maranatha obtains a judgment against Kerr-McGee. Kerr-McGee further avers that at the time
of the circuit court’s ruling, the expert designation deadline had not expired. Under U.R.C.C.C. 4.04 A,
Kerr-McGee claims that it was not required to designate expert witnesses and submit expert proof until
60 days prior to trial. The court granted summary judgment on December 6, 2002, and the trial was
scheduled for May 19, 2003. Therefore, Kerr-McGee argues that the ruling was premature because it was
made five months before the trial. Kerr-McGee contends that it has now had an opportunity to submit
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expert proof, and there is sufficient evidence to establish that Sanderson is a contributor to any
contamination in the area.
¶11. Kerr-McGee relies on Griffin v. Delta Democrat Times Publishing Co., 815 So. 2d 1246
(Miss. Ct. App. 2002), where the Court of Appeals held that summary judgment was premature where
the defendant refused to answer discovery and instead responded to Griffin’s request for discovery by filing
a motion for summary judgment. Id. at 1247. The Court of Appeals stated that “before the trial judge
examined this issue, he should have addressed the more introductory matter of whether summary judgment
was premature because of the lack of discovery.” Id. at 1249. However, Griffin is unpersuasive and
distinguishable because here there is nothing in the record to support the contention that Sanderson did not
comply in answering discovery.
¶12. Kerr-McGee should have used the procedure set forth in Rule 56(f) of the Mississippi Rules of
Civil Procedure to seek additional time to respond to summary judgment motions. Rule 56 (f) states:
Should it appear from the affidavits of a party opposing the motion that he cannot for
reasons stated present by affidavit facts essential to justify his position, the court may refuse
the application for judgment or may order a continuance to permit affidavits to be obtained
or depositions to be taken or discovery to be had or may make such order as is just.
¶13. Kerr-McGee did not seek any additional time to respond to the summary judgment motion. The
record reflects that Kerr-McGee only submitted a response in opposition to the motion for summary
judgment, which was not accompanied by any affidavits or other substantive evidence. The response
simply stated that Sanderson was not entitled to summary judgment as a matter of law and did not raise any
issue of the need for additional time to gather discovery. Therefore, because Kerr-McGee did not utilize
Rule 56(f) to request additional time for discovery, the circuit court’s ruling on Kerr-McGee’s cross-claims
was not premature.
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B. Whether the order granting Sanderson summary judgment
wrongfully prohibits Kerr-McGee from seeking an allocation of
fault to Sanderson at trial.
¶14. Kerr-McGee argues that the circuit court’s order wrongfully operates to prohibit it from seeking
an allocation of fault to Sanderson at trial. Kerr-McGee refers to Miss. Code
Ann. § 85-5-7(7), which states: “In actions involving joint tort-feasors, the trier of fact shall determine the
percentage of fault of each party alleged to be at fault.” Kerr-McGee claims that Maranatha has utilized
a “loophole” in § 85-5-7(7) and wrongfully usurped Kerr-McGee’s rights to make allegations of fault at
trial with respect to Sanderson. Kerr-McGee alleges that Maranatha attempted to undermine Kerr-
McGee’s rights to allocate fault at trial by including Sanderson in this suit and then completely failing to
prosecute the claim. Kerr-McGee further alleges that Maranatha made no effort to mount any opposition
to Sanderson’s motion for summary judgment, which led to the award of summary judgment to Sanderson.
This ruling will prevent an allocation of fault to Sanderson at trial. Kerr-McGee’s argument on this issue
is without merit.
¶15. Kerr-McGee failed to “go forward” in the face of an affidavit proving that Sanderson was not
responsible for the contamination found on Maranatha’s property. Additionally, Kerr-McGee made no
effort to contradict Sanderson’s affidavit or to prove that Maranatha or Kerr-McGee had a supportable
claim against Sanderson. It simply submitted a response in opposition to the motion for summary
judgment stating that Sanderson has not demonstrated that it was entitled to judgment as a matter of law.
Furthermore, Kerr-McGee did not submit any affidavits, depositions, or answers to interrogatories
demonstrating that any contaminants on Maranatha’s property passed through Sanderson’s property. In
order to avoid entry of summary judgment, a party must be diligent and not rest upon allegations or denials
in the pleading. A party must set forth “specific facts” showing that there are indeed genuine issues for trial.
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See Moore v. Mem’l Hosp. of Gulfport, 825 So. 2d 658, 663 (Miss. 2002) (citing additional
authorities).
¶16. In Cothern v. Vickers, Inc., 759 So. 2d 1241, 1245 (Miss. 2000), this Court stated that in order
“to defeat a motion for summary judgment, the nonmoving party must make a showing sufficient to establish
the existence of elements essential to his case.” The Court went on to state that the nonmovant must
present affirmative evidence that a genuine issue of material fact exists. Id. Here, Kerr-McGee did not
present any evidence supporting its claim. Therefore, because Kerr-McGee did not make a showing
sufficient to establish the elements of its case, the circuit court did not err in granting summary judgment.
¶17. Additionally, Kerr-McGee’s argument that it now has sufficient evidence to create a disputed issue
of fact is without merit. Kerr-McGee seems to be suggesting that this Court reverse and “see” if something
may develop later. Any desire by Kerr-McGee to withhold or reverse summary judgment because it
“might” show something at trial has previously been rejected by the courts. Golden Oil Co. v. Exxon
Co., USA, 543 F.2d 548, 551 (5th Cir. 1976). Accordingly, the circuit court was correct in granting
Sanderson summary judgment. Kerr-McGee had its day in court but chose to “remain mute.”
CONCLUSION
¶18. For these reasons, the circuit court did not err in granting Sanderson summary judgment on Kerr-
McGee’s cross-claims. Therefore, we affirm the circuit court’s judgment.
¶19. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.
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