Old Canton Road Apartments, Ltd. v. Topvalco, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION OLD CANTON ROAD APARTMENTS, LTD. PLAINTIFF V. CIVIL ACTION NO. 3:20-CV-797-DPJ-FKB TOPVALCO, INC., ET AL. DEFENDANTS ORDER Plaintiff Old Canton Road Apartments, Ltd. (OCRA) claims that Defendants altered the natural drainage patterns on their property, thereby flooding OCRA’s adjacent apartment complex. The parties have filed dueling summary-judgment motions and motions to exclude expert testimony, and Defendants filed a motion to strike an additional expert’s affidavit. As explained below, the Court takes the Motion to Strike [199] under advisement; Defendants’ Motion to Exclude Opinions of Charles Smithers [150] is denied; Plaintiff’s Motion to Exclude Testimony of Powell Ogletree [184] is granted in part and denied in part; and both summary- judgment motions [148, 186] are denied. I. Factual Background and Procedural History Since 1992, OCRA has owned and operated the Canton Manor apartment complex located on Old Canton Road in Jackson, Mississippi. Since 2016, Defendant Topvalco, Inc., has owned all but a small portion of the Jacksonian Plaza Shopping Center in Jackson, Mississippi.1 Jacksonian Plaza houses a grocery store operated by Defendant The Kroger Co., as well as other retail businesses including Books-A-Million and Goodwill. The two properties are adjacent to one another, with Canton Manor lying to the east of Jacksonian Plaza; a fence runs north-and- 1 The portion of the parcel Topvalco does not own is not relevant to the parties’ dispute. south along the line where the two properties meet. Hanging Moss Creek abuts the north end of both properties: a a as □□ 7 7 | mt a iD 2 > ae ce | A pee = USSMSRAN is ao age oT □ sey BIRR | □□ "5 vie ss □□□ □ TRIRRL RT ee 2 | □□□ □□ Butler Report [148-3] at 3. Generally speaking, Jacksonian Plaza sits at a slightly higher overall elevation than Canton Manor, with a low area existing at and on both sides of the property line that is “larger and deeper on the apartment complex side.” /d. at 10. Before the properties were developed, “[a] tributary or meander of Hanging Moss Creek [existed] at or near the same location as the area of lowest elevation within the apartment complex property . . . near the common property boundary of the two developments.” /d. at 3. That meander can be seen on a 1963 topographic map: i \ [= E: APPX LOCATION COMMON PROPERTY BOUNDARY aoe i 1 if fGecing Veo, he ly ey Fil ei 2 /