Court: Court of Appeals for the Eleventh Circuit; March 7, 1996; Federal Appellate Court
Partial summary judgment was granted by the district court against Vogue Cleaners, Inc. concerning attorneys’ fees requested by Colonial Properties, Inc. and Inverness Family Medical Center Partners, Ltd. (the Landlords). The court also granted partial summary judgment on the Landlords’ trespass claim against Vogue Cleaners and its operators, Edward N. Burg and Richard S. Burg (the Tenants). On appeal, the Tenants sought to reverse this decision regarding both attorneys’ fees and the trespass claim. The appellate court found that Vogue Cleaners did not default on the lease according to its notice provisions, thus reversing the award of attorneys’ fees to the Landlords. However, the court deferred its ruling on the trespass claim due to the absence of authoritative Alabama case law addressing whether a landlord can sue a tenant for trespass concerning a common area. The case originated from the Tenants’ improper disposal of hazardous waste from their dry cleaning operations, specifically the pouring of toxic materials onto a curb adjacent to their business. Vogue Cleaners had been renting the premises since July 1983, with management transitions between Edward N. Burg, Sr. and his son, Richard S. Burg. The dry cleaning process involved the use of perchloroethylene (perc), and while waste disposal was partially managed by external companies, hazardous waste was improperly discarded by the company itself. The case is styled as Colonial Properties, Inc. and Inverness Family Medical Center Partners, Ltd. v. Vogue Cleaners, Inc., et al., and is assigned case number 94-7139 in the Eleventh Circuit.
Workers were burned by perc-contaminated water while accessing sprinkler systems at the Heatherbrooke store on two occasions. The first incident involved Richard Grimes, the maintenance superintendent for one of the Landlords, while the second, more severe incident occurred on October 2, 1990, resulting in burns, nausea, and dizziness for several plumbers. This latter incident prompted the filing of the current lawsuit. The Emergency Response Management and Training Corporation and the Alabama Department of Environmental Management (ADEM) responded to the scene, determining that the plumbers’ injuries stemmed from exposure to perc, which had contaminated the groundwater. ADEM issued a Notice of Violation and required Vogue Cleaners to report on the extent of the contamination.
In the procedural history, on October 1, 1992, the Landlords filed a suit in federal court against the Tenants under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and common law tort and contract theories. The district court dismissed the Landlords’ state claims for intentional misconduct and negligence, while declaring liability for CERCLA and trespassing against all Tenants, and breach of lease and indemnification liability specifically against Vogue Cleaners. The court awarded the Landlords $9,815 in damages related to the CERCLA claim, with the jury later finding a $100,000 diminution in property value and awarding $75,000 in attorneys' fees.
A critical question addressed is whether a landlord can sue a tenant for trespass to common areas under Alabama law. The Tenants reference the case Borland v. Sanders Lead Company, which outlines the elements of trespass, asserting that the Landlords lack exclusive possession of the common areas and thus cannot claim trespass. Conversely, the Landlords argue that the Borland precedent does not apply in this context.
Borland does not address disputes between landlords and tenants. The Landlords assert they maintain sufficient possession and control over common areas to pursue a trespass claim against Tenants' invitees, citing Motchan v. STL Cablevision, Inc., which supports this position. However, L.D.L. v. Florida presents a conflicting view, stating that a landlord lacks the necessary possessory interest to bring such claims against a tenant’s invitee. The district court found Motchan's reasoning persuasive, predicting that Alabama courts would adopt it if faced with this issue. Yet, this case represents a matter of first impression under Alabama law. Rather than speculate on how Alabama courts might rule, the district court opts to certify the question to the Alabama Supreme Court, emphasizing that federal courts should seek state court clarification when state law application is uncertain. The certified question asks whether Alabama law permits landlords to sue tenants for trespass involving common areas. The phrasing allows the Alabama Supreme Court discretion in its analysis. The entire case record and party briefs will be sent to assist in their review. The district court's decision is partially reversed, and the question is certified. At oral argument, Landlords’ counsel acknowledged the absence of controlling Alabama case law on this issue.
