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MEMORANDUM IN SUPPORT OF RESPONSE TO FULTON IMPROVEMENTS, LLC’S MOTION FOR SUMMARY JUDGMENT May It Please the Court: Plaintiff, Kmart Corporation, submits this Response to Fulton Improvements, LLC’s Motion for Summary Judgment. Fulton’s motion should be denied because material issues of fact exist regarding the effect of the Kroger store’s presence on Kmart’s flooding; regarding Fulton’s knowledge of Kroger’s presence in a flood-prone area; regarding issues of alleged estoppel; regarding causation; and regarding whether the flood event at issue is an Act of God as defined by jurisprudence. Issues of contractual interpretation also preclude summary judgment in favor of Fulton. In support of its Motion, Kmart submits the following: •

Exhibit “1" - Excerpts to Deposition of Donna Earnhardt, corporate representative of Fulton Improvements, LLC;

Exhibit “2" - Excerpts to Deposition of Robert B. Eley;

Exhibit “3" - Excerpts to Deposition of John R. Krewson;

Exhibit “4" - Excerpts to Deposition of James N. Monohan;

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Exhibit “5” - Bridge, Phillips, Elam Drainage District News, dated September 26, 2010; and

Exhibit “6” - Excerpts to Deposition of Dale Menendez, corporate representative of Kmart Corporation.

Accordingly, Kmart respectfully requests that this Court deny Fulton’s Motion for Summary Judgment. This the 30th day of October, 2013.

Respectfully submitted,

/s/ Ryan O. Luminais __________________________________________ JAMES M. GARNER (La. Bar. No. 19589) JOHN T. BALHOFF, II (La. Bar. No. 24288) RYAN O. LUMINAIS (Miss. Bar. No. 101871) SHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C. 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana 70112 Telephone: (504) 299-2100 Facsimile: (504) 299-2300 ATTORNEYS FOR KMART CORPORATION

CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing has been served on all known counsel of record with the Clerk of Court using the CM/ECF system which will automatically send-email notification to all known counsel of record, this 30th day of October, 2013. /s/ Ryan O. Luminais __________________________________________ RYAN O. LUMINAIS 2

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Bridge, Phillips, Elam Drainage District News From the desk of Milton Sandy Jr


September 26, 2010


Vol 2010-11

This newsletter is directed to friends and supporters of our efforts to get something done about the repetitive flooding in Corinth and Alcorn County which on May 2, 2010, caused loss of life, public and private property and threatened public health and safety by the massive release of raw sewage into flood waters. If you have news, questions or comments, please fire away.

ADOPT-A-STREAM, Corinth High School Science Club

Tuesday, September 21, 2010

What a day! with Ms. Amy Burks and Ms. Debra Veeder and 20 members of the Corinth High School Science Club- it was a blast. I couldn't fit all the pictures in so I made a collage which kind of expresses the energy and enthusiasm which these bright young people bring to a project. The Adopt-A-Stream Mississippi program is a chemical water quality assessment using test kits supplied by the Mississippi Wildlife Federation and the Mississippi Department of Environmental Quality. The test kits allow measurement of: Temperature, PH, Turbidity and Dissolved oxygen (DO). Test results are to be uploaded monthly to a website maintained by the MWF/MDEQ for the test sites established on Bridge, Phillips and Elam Canals. Although there is no provision for bacteriological testing, we hope to introduce this at some time in the future.

Contact: Milton Sandy Jr 662-286-6087 - Fax 287-4187 - E-mail



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Ms. Debra Veeder of the MWF shared her time and experience in biology as she discussed and presented information about stream biology monitoring as well. Students were given exposure to an incredible array of real life topics including macroinvertabrates, topography, geography, watershed mapping, history, physics, chemistry, mathematics and obviously with the number of pictures being taken, photography, journalism and multimedia. The pictures here are just a fraction of what were made so if you would like to see more, I would recommend a visit to the Corinth High School website: You can't plan these kind of things but as we were finishing our last water sample test site at Bridge Canal where it crosses CR402, I received a call from Dennis Turner with WREG Channel 3 news out of Memphis who was covering another story in Corinth and wanted an interview about flooding before he left town. I told him to meet me in 5 minutes in front of Corinth High School where we were headed and he could meet the CHS Science Club as well. Mr. Turner was very impressive to me since I have never before been interviewed where the reporter seemed to know ALL the right questions AND knew what my answers were going to be before I opened my mouth. Turns out Mr. Turner had a couple of trade secrets he shared with me. First, he had covered flooding in Horn Lake, Mississippi, about 2 years ago and recognized similarities between the situation here and there. Second, I asked him how he knew about my involvement in flooding issues and he said that he had read the story in the Daily Corinthian a couple of months ago by Lee Ann Story who had attended the Rotary Club meeting as a guest of Mr. Reece Terry. Mr. Turner routinely reads the newspapers in the counties he covers and clips well written stories for follow-up. His preparation shows in the finished product he delivers to his viewers. Earlier in the day, Ms. Burks, Ms. Veeder and I were interviewed for a student produced video at the Elam Canal water testing site. The interviewer had been CHS student Ms. Abby Noyes. When Mr. Turner with WREG asked for a student representative to interview, I asked Ms. Noyes to be that representative since I had observed her earlier in the day doing our interview. Dennis Turner didn't need to interview me at all! Ms. Noyes impressed everyone who has seen this video with her poise, clarity and polished assessment of our objectives. And, speaking of Lee Ann Story, I want to give her a special thanks for not only covering the Corinth news so well, but also for being a great sport while helping out Stephanie with grilling the hot dogs to feed the hungry crowd of student water quality monitors. Stephanie had done a great job of planning and preparing and everything went smoothly when the students arrived at our office for lunch and a quick tour of what flood damage does to businesses and property owners. We were pleased to have Ms. BJ Nunley, Ms. Kim Jobe and Principal Elam join us for parts of the day. Thanks to Scotty and Amanda Little for use of their chairs and tables and to Coca-Cola of Corinth for the

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much appreciated water and soft drinks. Thanks to my mother and sister, Suzanne, for the desert. If you did not see the Channel News 3 spot, they did have it posted on their web site at:,0,2490004.story Sometimes these links change or get pulled so you should check it out promptly if interested.

ALABAMA WATER CERTIFICATION (and other adventures)

Saturday, September 18, 2010

A quick trip south to Mobile, Alabama took me to an interesting area that I have not visited often in my lifetime to attend a training session where Stephanie and I became certified water monitors under the Alabama Water Watch program. The AWW program is a statewide program dedicated to developing citizen volunteer monitoring of Alabama's lakes, streams, and coasts. The program began in 1992, and has involved over 260 citizen groups. Monitors have sampled about 2,100 sites on 700 water bodies and submitted over 45,000 water chemistry and 10,000 bacteriological data forms. This water information has had positive impacts on education, restoration and local-to-state water policy and provides an important baseline for future monitoring efforts. Our instructor was an experienced water monitor, Mr. Homer Singleton, who has been conducting workshops for almost 9 years. We met at a kayak launch area in the Graham Creek Nature Preserve in Foley, Alabama, a part of the Wolf Bay Watershed near Gulf Shores, Alabama- in a pitcher plant bog. I was quite surprised to learn about these rare carnivorous plants which trap and consume insects for nutrients and are found in these near coastal marshlands of Alabama. Our training included an explanation of the program's goals and how to monitor and evaluate physical and chemical features of water Instructor Homer Singleton including: PH, Temperature, Total Alkalinity, Total Hardness, Dissolved Oxygen, and Turbidity. The other section of the training session included bacteriological testing for E.coli and other coliforms and water quality standards. I was pleased that the testing involved the same test kits and procedures that I had been using so I was able to validate my prior experience while learning with a more experienced instructor. After a hard day of classes, we took advantage of a couple of local attractions. I was surprised to find what I thought was a Missouri exclusive located in Foley, Alabama. I must report that the “throwed rolls� at this Alabama branch are just as good as the ones in Missouri. We then proceeded to another South Alabama attractionBellingrath Gardens about 30 miles South of Mobile. I didn't know whether the gardens would be a disappointment this time of year but we were pleasantly surprised. Bellingrath is the

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former home of Walter and Bessie Bellingrath, who made a fortune in the Coca-Cola bottling business in Mobile after the turn of the last century. Originally a fishing camp, the home and gardens were developed as a get-away spot for their rest and relaxation and after the Bellingrath's death were donated to a non-profit foundation dedicated to the preservation of the gardens and home for the enjoyment of future visitors. We enjoyed the colorful gardens and can imagine a return trip in March for the spring where an estimated 250,000 azaleas bloom on the 65 acre estate. I have to mention two other special treats on this trip, totally unexpected. As we drove into Mobile on I-165 nearing downtown, I was really taken aback to smell something which brought back a lifetime of experiences in the lumber industry. On the interstate as you come into Mobile you can smell the distinct aroma of pine pitch, a distinct turpentine smell from freshly cut yellow pine lumber. As I looked down I could see a very large lumber mill which I correctly guessed and later identified was Gulf Lumber Company who my father and I did business with for well over 50 years. Gulf Lumber Company has now merged with Scotch Lumber Company and both were two of the oldest and most respected lumber manufacturers in the South known for the quality of their products and the integrity of their businesses. We conducted thousands of dollars of business over many years with nothing more than a verbal telephone conversation as a binding contract- a means of conducting business becoming increasingly rare these days. As we reached the end of I-165 and exited to downtown Mobile, I noticed a very striking building on the left and made a U-turn to go back and get a closer look. This magnificent Spanish Mission Revival architecture building turned out to be the headquarters of what was originally the M&O Railroad built to connect Mobile, Alabama with Cairo, Illinois. In 1861, this railroad was completed here in Corinth, MS by joining sections built south from Columbus, Kentucky, to another section built northward from Mobile, Alabama. The railroad junction here with the Memphis and Charleston became the objective of the Civil War battles of Shiloh and Corinth. In 1852, the first 30 miles of track had been laid between Mobile and Citronelle, Alabama. There, the railroad was constructed beside Chickasaw Creek. By staying close to the creek, the railroad avoided steep grades associated with the hilly terrain north of Mobile. When I learned this, it made perfect sense to me that the same engineers followed Elam Creek right through Corinth and Alcorn County for the very same reason. The M&O was physically and financially devastated by the Civil War and pretty much floundered until it was acquired by the Southern Railroad around 1901. The railroad prospered largely from the lumber industry in South Alabama until it was sold to the GM&N railroad around 1940 and became the GM&O. Completed in 1905, this building served as a passenger railroad terminal

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through the late 1950’s and since then has been an office building owned by the City of Mobile. The Gulf, Mobile, & Ohio (GM&O) Railroad Building is known as the most remarkable historic landmark in downtown Mobile and I feel is quite connected to Corinth, Mississippi. This reminded me that we once had a very attractive GM&O freight office building right here in Corinth at the foot of Cruise Street along with a freight dock extending about a block down to the GM&O rail tracks behind it and across the street from the Weaver Pants factory building. The GM&O freight office and docks were torn down here in Corinth and is the location of the Hiking and BikingTrailhead Park today. It was torn down sometime in the 1960's, I think, about the same time as the Rubel Building was demolishedin an era when “Urban Renewal” was the rage. Today many of the “Urban Renewal” areas are urban blights and restored and preserved historic properties are what are most valued for their uniqueness. Many years later after the GM&O building in Corinth was torn down, I was in Augusta, Georgia, and was surprised to find an Old GM&O Freight Office- foot of Cruse St identical railroad office building there (apparently the railroads had standard plans they used in multiple places) and had been saved and restored to make a 1,000 seat municipal auditorium, convention facility and restaurant downtown. As a young boy of 13 or 14, I remember going to this freight office to settle railroad freight bills for my father. There I would meet with a family friend who worked there, Mr. Walter Kemp. I remember he used a typewriter that to me seemed to date from when the GM&O first came to Corinth in 1861. I have never seen a more ancient typewriter and I remember Walter's proficiency with 2 fingers pounding the keys with amazing speed. It was years later before I was introduced to electric typewriters and then even later to computers. Finally, we drove over to Biloxi and visited the Beau Rivage Hotel and Casino which appears to be in full swing again. The buffet there was quite impressive and very good- I would highly recommend it. We toured familiar areas of Biloxi which were residential areas the last time we visited there in the late 1990's. It was astounding to us how total the devastation from Katrina was- entire neighborhoods no longer existed for 3 or 4 blocks back from the coastline. It was another pretty impressive reminder of the power of water when you are not prepared or expecting it.

BILL McPETERS, a resident creative genius Most anyone who was born in the last century in Corinth has some memories of McPeters Funeral Home now being demolished on Waldron Street. Most of the creativity that shaped the structure as it stood for the last 50 years or so was Mr. Bill McPeters. We should all thank Bill for the care and compassion that he has contributed to everyone who has come into contact with him during times of emotional stress and periods of personal loss of family members and loved ones. Page 5/7

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We should also take the opportunity to remember that Bill was himself almost a victim of flooding just a short period of time ago. His story is another illustration of why it is a matter of utmost urgency that we get something done about flooding in Corinth and how quickly we forget. Stephanie ran across this story recently from 2001. Since my friend, Jane Clark Summers, did such a great job reporting this story, I will repeat it here in her words:


December 1, 2001, Page B1


Alcorn County flooding closes businesses, schools, roads By Jane Clark Summers, Daily Journal Corinth Bureau

CORINTH — Flash Flood Part II might well be the name of Thursday's weather bashing in Corinth and Alcorn County. It was a repeat of what some called a 100-year flood recorded about six weeks ago.

As then, Thursday's flood resulted in the early closing of schools and businesses as well as streets, county roads and at least part of U.S. Highway 72 West and close calls for stranded motorists. Kroger, Big K-Mart, Cato's, the Dollar Tree and On-Cue were deluged for the second time in as many months. The last three businesses and city and county schools remained closed Friday. Most businesses, which were flooded on Oct. 13, fared better this time with the use of sandbags, experience and more time to react. Streets floodedCorinth Police Chief Fred Johnson said all of the barricades available at the street department were put to use on several streets and at underpasses. Fulton Drive underpass was still under about 10 feet of water Friday morning. The chief estimated that 10 inches of rain fell within a 24-hour period. Last month, the same area was inundated by what Johnson called a 100-year flood. “This time, we may have had a 200-year flood,” he said, only half-jokingly....

Close Call

As a funeral director and the son of one, Bill McPeters has been close to death most of his life. On Thursday, he came much closer. McPeters, 78, was on his way to Kroger in the brand new green Mustang that he just insured the day before. He saw the barricade on Cox Street but decided he could make it through. He was wrong. The car began floating and filling with water. McPeters tried the driver's door and the passenger's but neither would open because the car has electric door locks and windows. He tried kicking out the glass but that effort failed also. “Water was within six inches of my nose and I felt my hat was crushing against the ceiling," McPeters said. "I thought I was a goner. I decided to try the passenger door again and the Lord opened it. I swam out with my boots on."

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He walked the rest of the way to a house on Cox Street where one of the residents had watched him drive into the murky water. Teresa Pate saw McPeters' car go past her house. "I was looking out my front door and saw a car trying to go through the water," Pate said. "It looked like he tried to back up and I saw his flashers come on." She then called the police department and was advised by the dispatcher that it would be a while before an officer could respond because of the changing of shifts, Pate said. "As soon as I hung up, I looked out but I didn't see the lights any more. I think the car had gone under. "Luckily, he got out OK," Pate said. .

"He said the Lord was looking out after him. He was pretty upset. I told him I could carry him home." Chief Johnson said he was told that when Pate's call came in, the dispatcher thought it was a nonemergency. When an officer was dispatched he did not see the car perhaps because it was already under water and then he was pulled off on an alarm call, Johnson said. The department got a subsequent call that a car was in a ditch but that the driver had gotten out and gone home, Johnson said. Barricades are not put up to inconvenience the motoring public, he said. "They are put up to warn of danger; we do everything we can to warn motorists," he said. "I am glad that he got out OK and maybe others will learn from his experience."... We're all glad Bill got out OK and we are fortunate to have had him around adding some of his unique color and creativity to our town. I hope everyone will join me in wishing him well and sharing in his loss of a landmark of his creation that had meaning to a lot of people in Corinth. We also celebrate his close call from flooding on Elam Canal and hope we can prevent others from having such harrowing escapes in the future. After my sewer cover picture last week, our friend Wade Burcham, a hydrological engineer with Thompson Engineering, called my attention to several You-Tube videos of really worse case examples of what I was trying to show. If you want to take a look, check out: I'm told a proper engineering term for water pressure changes that push covers off is “hydraulic jump�. Some underground water lines carry storm water and are open to runoff. This is what was shown in this particular video. As I discussed last week, sanitary sewage lines are closed systems that should only have connections to sewer lines, not stormwater lines, and the covers for these should not be floating, suspended or blowing off even under flood conditions.

Next week Mr. Chad Borden has been hard at work this week finalizing legal documentation for the Bridge, Phillips and Elam Drainage Districts to be submitted to Chancery Court. We hope that this will lead to official recognition of these districts as soon as possible to allow us to be prepared to work with the City of Corinth and begin work on mitigating flood problems on the highest priority basis. I hope to get some analysis done on the stack of property owners questionnaires we've gotten back and I'll be reporting those results to you later. If you know of anyone who would like to be added to our email list or if you wish to be taken off, please let me know.

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295 responseinoppostiontofultonmotionforsummaryjudgement kmart combine  
295 responseinoppostiontofultonmotionforsummaryjudgement kmart combine