Petition for Writ of Certiorari — Mathis v. Velsicol Chemical Corp.

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Gupreme Court, v.8.

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941406 FEB 6 19%

~ NO.

THE SUPREME COURT OF THE

UNITED STATES

OCTOBER 1994 TERM

MOSE MATHIS AND

SIDNEY MATHIS,

PETITIONERS

PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT

OF APPEALS FOR THE

ELEVENTH CIRCUIT

VELSICOL CHEMICAL

CORPORATION,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

MOSE MATHIS, PRO SE

792 SOUTHERN ROAD

CHISKAMAUGA, GA 30707

(706 )539-2406

SIDNEY MATHIS, PRO SE

3782 KENSINGTON ROAD

CHICKAMAUGA, GA 30707

(706 )539-2253

QUESTIONS PRESENTED FOR REVIEW

I.

WHETHER OR NOT THE GEORGIA SUPREME

COURT RULING, THAT THE DISCOVERY RULE IS

INAPPLICABLE TO PROPERTY DAMAGE CASES,

VIOLATES THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

Il.

WHETHER OR NOT THE GEORGIA SUPREME

COURT RULING, THAT THE DISCOVERY RULE IS

INAPPLICABLE TO PROPERTY DAMAGE CASES,

VIOLATES THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF NO REPORTS

GROUNDS OF JURISDICTION

CONSTITUTIONAL PROVISIONS

STATEMENT OF THE CASE

BASIS OF JURISDICTION IN TRIAL COURT

ARGUMENT

Issue No. I

Issue No. II

APPENDIX

Order being reviewed

Trial Court Order

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TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS

Fifth Amendment to U.S. Constitution

Fourteenth Amendment to U.S.

Constitution

STATUTES

U.S.

42 U.S.C. §9658

0.C.G.A. 9-3-30

SUPREME COURT CASES

Charles Wolff Packing Co. v. Court

of Industrial Relations of

Kansas, 45 S. Ct. 441, 267

U.S. 552, 69 L. Fd. 785

Duke Power Co. v. Caroline Environ-

mental Study Group, Inc., 438

U.S. 59 (1978)

Lindsley v. National Carbonic Gas

Co., 220 U.S. 61 (191)

Logan V. Zimmerman Brush Co., Ill.

102 S. Ct. 1148, 455 U.S. 422,

71 L. Ed. 265

McGowan V. Maryland, 366 U.S. 420

U.S. Railroad Retirement Board v.

Fritz, 449 U.S. 166 (1980)

Page

12

pm |

Ta ae a ES ES Rs AS ST aa RE ee

OTHER FEDERAL CASES

Corp. of Mercer Univ. v. National

Gypsum Co., 877 F2d 35, llth

Circuit (1989)

Dreher v. Sielaff, C.A. Ill. 636

F2d 1141 °

Gillespie v. Civiletti, C.A. Wash.

629 F2d 637

Mitchum v. Purvis,C.A. Ala. 650

F2d 647

Silver v. Cormier, C.A. Colo., 529

F2d 161

Boling v. National Zinc Co., D.C.

Ok1l. 435 F. Supp. 18

Page

a2

13

Doe v. Schneider, D.C. Kan., 443 F. 15

Supp. 780

STATE CASE

Mercer Univ. v. National Gypsum Co

ee aes

258 Ga. 365 (366), 368 S. E.

24 732 (733)

14

STATEMENT OF NO REPORTS

There have been no reports of any opinion

delivered in this case by any Court or Admin-

istrative agency.

GROUNDS OF JURISDICTION

1. The date of the entry of the judgment

sought to be reviewed is November 9, 1994.

2. There have been no rehearings or ex-

tensions of time in this case.

3. The statutory provision believed to

confer jurisdiction on this Court is 28 U.S.C.

§1254(1), which reads as follows:

"Cases in the Courts of Appeals may

reviewed by the Supreme Court by

the following methods: (1) By Writ

of Certiorari granted upon the petition

of any party to any civil or criminal

case, before or after rendition if

judgment or decree."

CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the United States

Constitution reads as follows in pertinent

part:

"No person Shall ..-eeeeeeeeeeeeeeces

nor be deprived of life, liberty,

or property, without due process of

The Fourteenth Amendment to the United

States Constitution reads as follows in perti-

nent part:

Soesdeeeeaverevs nor shall any State

deprive any person of life, liberty,

or property, without due process of

STATEMENT OF THE CASE

On the eighth day of February, 1991,

plaintiffs, Mose Mathis and Sidney Mathis,

brought a diversity suit against defendant,

Velsicol Chemical Corporation. The Mathises

alleged that Velsicol, pursuant to a

contractual agreement, delivered many drums

to plaintiffs for disposal on the

plaintiffs' land in Walker County, Georgia.

Unknown to plaintiffs, many of the drums

contained toxic substances, according to the

complaint. Plaintiffs alleged they had

discovered the existence of the toxic

material within four years of bringing their

suit. Velsicol denied any wrongdoing, and

defended on the ground of the statute of

limitations, among other defenses. Velsicol

also counterclaimed for CERCLA contribution,

based upon response costs they had incurred.

After discovery was completed, Velsicol

moved for Summary Judgment based upon the

defense of the four-year statute of

limitations under Georgia law for damage to

property. (0.C.G.A. 9-3-30). Mose and

Sidney Mathis defended on the ground that

the Georgia case law disallowing the

"discovery rule" was unconstitutional under

the Fourteenth Amendment of the United

States Constitution. The District Court of

the Northern District of Georgia, Rome

Division, held for Velsicol and dismissed

the plaintiffs' complaint. After Velsicol

voluntarily dismissed its counterclaim, this

appeal was taken to the United States Court

of Appeals for the Eleventh Circuit.

The United States Court of Appeals for

the Eleventh Circuit, after argument,

dismissed the appeal of the Mathises without

opinion.

rT

BASIS OF JURISDICTION IN TRIAL COURT

The basis for jurisdiction in the District

Court for the Northern District of Georgia,

cere me

? %

Rome Division, was diversity of citizenship

under 28 U.S.C. §1332 (a)(1).

ee eo

ARGUMENT

ISSUE NO. I

DID THE GEORGIA SUPREME COURT

RULING, THAT THE DISCOVERY RULE

IS INAPPLICABLE TO PROPERTY

DAMAGE CASES, VIOLATE THE DUE

PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT OF THE UNITED STATES

CONSTITUTION?

Corp. of Mercer University v. National

Gypsum Co., 877 F.2 35, (11th Circuit 1989)

involved a case in which Mercer University

was suing for damages to its buildings

brought long after the four-year statute of

limitations of 0.C.G.A. 9-3-30 had run.

Mercer reasoned that since the damage was

discovered within four years of suit, they

were protected from the running of the

statute of limitations by the "discovery

11

teins

rule." The United States Court of Appeals

for the Eleventh Circuit certified the

matter to the Georgia Supreme Court. In

Corporation of Mercer University v. National

Gypsum Co., 258 Ga. 366, 368 S.E. 2d 733,

the Georgia Supreme Court held that the.

discovery rule only applies in cases of

personal injury. The United States Court of

Appeals for the Eleventh Circuit accepted

the Georgia Supreme Court ruling as binding.

Constitutional issues were not raised in

either of the cited cases.

The 14th Amendment to the United States

Constitution provides in pertinent part that

without the due process of law." Duke Power

Co. v. Caroline Environmental Study Group,

Inc., 438 U.S. 59 (1978) held a law is in

violation of the due process clause if it is

"demonstrably arbitrary or irrational." The

12

Mercer cases in effect hold that if a

tortfeasor is successfully surreptitious

about his wrongdoing, he can hide bundne the

statute of limitations, despite the fact

that the injured party knows of no wrong

having been committed. The law, as an

institution, is respected because it

punishes the guilty and protects the

innocent. The Mercer decision does exactly

the opposite and violates due process of

law.

The due process clause of the Fifth and

Fourteenth Amendments to the United States

Constitution assure that no person will be

denied the right to present to the courts

allegations concerning fundamental

constitutional rights. Mitchum v. Purvis,

C.A. Ala., 650 F2d 647;Dreher v. Sielaff,

C.A. Ill. 636 f2d 1141; Gillespie v.

Civiletti, C.A. Wash., 629 F2d 637; and

72

Silver v. Cormier, C.A. Colo., 529 F2d 161.

This applies to state courts as well as

Federal Courts. Boling v. National Zinc

Co., D.C. Okl. 435 F. Supp. 18.

A person cannot be deprived of the

right to access to the courts unless the

balance of the state and private interests

favors the government. Logan v. Zimmerman

Brush Co., Ill. 102 S. Ct. 1148; 455 U.S.

422, 71 L. BA. 265. .

There has been no governmental goal or

interest of the State of Georgia articulated

by the Georgia Supreme Court in its decision

which abolished any discovery rule for all

plaintiffs other than personal injury

plaintiffs who have injuries which developed

over a period of time. Mercer Univ. v.

National Gypsum Co., 258 Ga. 365, S.E. 24

732.

As it is customary to articulate

14

. sere armen ne

reasons for legal rules promulgated by court

decision, this omission alone would lead one

to suspect that there is none.

Rights of property protected by the due

process clause cannot be interfered with by

state action which is arbitrary or without

reasonable relationship to some purpose

within the competency of the state to

effect. Charles Wolff Packing Co. v. Court

of Industrial Relations of Kansas, 45 S. Ct.

441, 267 U.S. 552, 69 L. Ed. 785.

The burdens placed upon one group of

litigants should be no greater nor less than

those placed upon others. Doe v. Schneider,

D.C. Kan., 443 F. Supp. 780.

15

ries b

ISSUE NO. II

DID THE GEORGIA SUPREME COURT

RULING, THAT THE DISCOVERY RULE

IS INAPPLICABLE TO PROPERTY

DAMAGE CASES, VIOLATE THE EQUAL

PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT OF THE

UNITED STATES CONSTITUTION?

The Fourteenth Amendment to the United

States Constitution provides that "no state

a oe deny to any person within its |

jurisdiction the equal protection of the

laws." It is wrong to reward a knowing

concealer of a cause of action as against

the victim of the wrong who has no knowledge

of the wrong. But in addition these code

sections, as construed by the Mercer cases,

prefer one type of plaintiff over others,

16

for no articulable reason. The Georgia

Supreme Court has stated that the discovery

rule applies only to personal injuries which

develop over a period of time. To apply

such an egregious rule as that espoused in

-the Mercer case to selected plaintiffs is a

violation of equal protection. No

reasonable state of facts can be conceived

to justify such a classification, which is

"Snsidious", "wholly arbitrary", and

"capricious." See Lindsley v. National

Carbonic Gas Co., 220 U.S. 61 (1911);

McGowan v. Maryland, 366 U.S. 420 (1961);

and U.S. Railroad Retirement Board v. Fritz,

449 U.S. 166 (1980).

The Mercer rule arbitrarily disting-

uishes between personal injury cases and

property damage cases. Are not property

rights fundamental rights specifically

17

mentioned by the Fifth and Fourteenth

Amendments to the United States

Constitution? What rational reason can be

given for such a distinction? Also, the

Mercer decision draws a distinction between

those who know of their damage and those who

do not know of their damage, through no

fault of their own. What is the rational

justification for that?

The obliteration of the discovery rule

impacts upon plaintiffs who are wronged by

all types of defendants; i.e. - willful,

negligent, grossly negligent and defendants

subject to strict liability. The

culpability of the defendant is not the

issue. The only criteria for a defendant

receiving the windfall of no discovery rule

is that the plaintiff is not personally

injured over a period of time. The

18

important point is that the plaintiff

effectively has no ability to seek redress

sn Court because of ignorance, whether

caused by defendant or not.

The instant case is conceptually

indistinguishable from a personal injury

victim which has damages which develop over

a period of time. For example, a person

exposed to asbestos would have microscopic

injuries to his lungs upon exposure but

would probably not develop clinical symptoms

until years later. The minute Mose Mathis

and Sidney Mathis buried containers of waste

(unknown to them to be hazardous) on their

land, a nominal amount of injury to the land

would take place. With the progression of

time, more and more seepage into the ground

water would take place with resulting injury

to the land. Eventually the contamination

19

would become apparent. Unfortunately for

the Mathis brothers, their ignorance does

not toll the statute of limitations.

Fortunately for the asbestos victim, his

ignorance does toll the statute of

limitations. There is no rational basis for

distinguishing betwen these cases, but

Georgia does. In the process, the Equal

Protection Clause of the 14th Amendment is

violated.

Georgia is out of step with the rest of

the Country in obliterating the discovery

rule. It is even out of step with 42 U.S.C.

§ 9658 which creates a discovery rule in the

CERCLA context. Georgia has excepted a

certain class of personal injury plaintifs,

for no articulable reason. Georgia has

wronged almost everyone in the state.

20

CONCLUSION

The Summary Judgment dismissal of

plaintiff's Complaint should be reversed and

a trial granted.

Respectfully submitted,

on

fu bash

idney Mathis

3782 Kensington Road

Chickamauga, GA 30707

Ano fy gta

Mose Mathis

792 Southern Road

Chickamauga, GA 30707

21

DO NOT PUBLISH

IN THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

No. 93-9513

D.C. DOCKET NO. 4:91-00024-CV-HLM

MOSE MATHIS; SIDNEY MATHIS

Plaintiffs, Counter-

Defendants-Appellants,

versus

VELSICOL CHEMICAL CORPORATION

Defendant, Counter-

Claimant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

November 9, 1994

Before BIRCH and DUBINA, Circuit Judges, and

Johnson, Senior Circuit Judge.

PER CURIAM: AFFIRMED. See llth Cir. R. 36-1.

Costs taxed against plaintiffs, counter-def-

endants-appellants.

Judgement Entered: November 9, 1994.

For the Court: Miguel J. Cortez

Clerk

By: Karleen McNabb, Deputy

Clerk

22

See °° °°» © —S--

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ROME DIVISION

MOSE MATHIS AND

SIDNEY MATHIS,

Plaintiffs

CIVIL ACTION

4:91-cv-24-HLM

Ve.

VELSICOL CHEMICAL

CORPORATION,

Defendant,

VELSICOL CHEMICAL

CORPORATION,

Counter-claimant

Vv.

MOSE MATHIS AND

SYDNEY MATHIS,

Counter-defendant

eee es es (ee ee eee ee ee i a 0 i ONE I OO OS OS

ORDER

This case is before the Court on

Defendant Velsicol's Motion for Summary

Judgment. Defendant claims that ail three

claims discernable from Plaintiffs'

complaint are barred by the applicable

23

statute of limitation. Plaintiffs argue

that abolition of the "discovery rule" in

injury to property cases is unconstitutional

and unfair. For the reasons stated below,

the court concludes that all of Plaintiffs'

claims are barred by the applicable statute

of limitations and that the only claims

which remain in this case are Defendant's

counterclaims for indemnification and

contribution.

PROCEDURAL HISTORY

The Court has issued several

substantive orders prior to the filing of

the instant motion for summary judgment

which simplified this case immensely.

First, the Court denied Defendant's motion

to dismiss stating that sufficient facts

were pled to allow a jury to conclude that

Defendant harmed Plaintiffs' land. Next,

Defendant filed a motion for judgment on the

24

i;

pleadings and a motion to strike which the

Court partially granted. This second order

paired away the irrelevant defenses to

Defendant's counterclaim and conclusively

determined that Plaintiff was a "liable

party" under CERCLA for any clean-up costs

Defendant may incur in the future for

cleaning up the Marble Top landfill. See

Mathis v. Velsicol, 786 F. Supp. 971 (N.D.

Ga. 1991). This order also allowed

Plaintiffs to amend their complaint to more

particularly plead their allegations of

fraud.

Plaintiffs amended their complaint and

attempted to define more specifically their

allegations of fraud; however, the amended

complaint did not meet the requirements of

Fed. R. Civ. P. 9(b) and the Court

ultimately granted Defendant's motion to

strike the fraud allegations. The Court

25

also considered and ruled on several

discovery motions which helped the parties

organize this case. With all the pre-trial

motions decided, the court notes that the

issues oe to the ruling on the

motion sub judice, are Plaintiffs' claims

for breach of contract, nuisance and

interference with enjoyment of property.

As noted above, Defendant still has two

claims remaining one for indemnification and

one for contribution. Both of these claims

relate to any costs Defendant may incur in

the possible future clean-up of the Marble

Top landfill.

\the Court notes that Plaintiffs do not

dispute, in their response brief, that these

are the only three theories under which they

seek relief.

26

SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of

Civil Procedure authorizes summary judgment

when "there is no genuine issue as to any

material fact and... . the moving party is

entitled to a judgment as a matter of law."

The moving party bears the heavy burden of

demonstrating that no dispute as to any

material fact exists. See Adickes v. S. H.

Kress & Co., 398 U.S. 144 (1970); Clark v.

Coats & Clark, Inc., 929 F.2d 604 (11th Cir.

1991). The District Court's duty is to view

the evidence and all factual inferences in

the light most favorable to the party

opposing the motion. See Bradbury v.

Wainwright, 718 F.2d 1538, 1543 (11th Cir.

1983). In deciding a motion for summary

judgment, it is not the Court's function to

decide issues of genuine material fact.

27

Rather, the Court's function is to determine

whether such an issue exists to be tried.

See Anderson v. Liberty Lobby, Inc., 477

U.S. 242 (1986); Warrior Tombigbee

Transportation Co. v. M/V Nan Fung, 695-F.2d

1294, 1296 (11th Cir. 1983). Facts which in

good faith are disputed, but which do not

resolve or affect the outcome of the suit

will not properly preclude the entry of

summary judgment. Anderson, 477 U.S. at

248.

Genuine disputes regarding facts are

those where the evidence is such that a

reasonable jury could return a verdict for

the nonmovant. Anderson, 477 U.S. at 248.

Moreover, for factual issues to be

"senuine", they must have a real basis in

the record. Matsushita, 475 U.S. at 587.

The nonmovant "must do more than simply show

that there is some metaphysical doubt as to

28

lien sane neesseertmininea

i tO)

the material facts. . . . Where the record

as a whole could not lead a rational trier

of fact to find for the nonmoving party,

there is no 'genuine issue for trial.'" Id.

at 586 (citations omitted. )

FACTS

The facts delineated below are not

disputed. Plaintiffs are joint owners of

land in Walker County, Georgia, known as the

Marble Top Landfill and Velsicol is a

chemical manufacturer with a plant located

in Chattanooga, Tennessee. Between 1973 and

1980 Plaintiffs contracted with Velsicol to

dispose of thousands of drums of industrial

waste. The last transportation of chemical

waste by Plaintiffs from Defendants' plant

to the Marble Top landfill occurred prior to

February 1980. Plaintiffs claim that the

contract between the parties stated that the

29

waste disposed of was to be non-hazardous

waste only, while Velsicol claims that

Plaintiffs knew that some of the waste

contained hazardous materials. Regardless

of the parties’ initial understanding, ~

Plaintiffs have subsequently learned that

the drums which are buried on Marble Top

Landfill actually contain hazardous

material, not non-hazardous material.

Consequently, after Plaintiffs discovered

the contents of the drums, they filed this

lawsuit in February 1991 against Velsicol.

The lawsuit commenced more than eleven years

after the last delivery of waste to Marble

Top, but only a few years after Plaintiffs

claim they discovered some of the waste

buried was actually hazardous waste.

STATUTE OF LIMITATIONS

Defendant moves for summary judgment on

all three of Plaintiffs' remaining claims

30

OS SR te ee ate

contending that all three claims are barred

by the applicable statute of limitations.

First, Defendant states that the statute of

limitation for breach of contract is six

years and that Plaintiffs’ contract claim is

barred because the last possible delivery of

hazardous waste in violation of the contract

occurred no later than January 1980 which is

longer than six years ago. Second,

Defendant asserts that both the nuisance and

interference with property claims are

governed by a four year statute of

limitations which bars both of these claims

because the last disposal of waste on the

land occurred more than four years ago.

Defendant finally states that the so-called

"discovery rvle" which tolls a statute of

limitations until the discovery of the

injury does not apply to claims involving

injuries to property; it only applies to

31

injuries to the body. Consequently, as

Plaintiffs have conceded that they Jo not

seek any damages for bodily injuries to

either Plaintiff, Plaintiffs cannot find

comfort in this outs for tolling the statute

of limitations. |

. Plaintiffs' response to Defendant's

motion is somewhat confusing. Plaintiffs

are apparently arguing that the "discovery

rule" should still be the law of the Land in

this case because the Georgia Supreme

Court's abrogation of the rule in injury to

property cases was "arbitrary" and

capricious and, therefore, the Supreme

Court's decision violated the Fourteenth

Amendment. With this argument, Plaintiffs

are basically asking that this Court to

either overrule or ignore binding precedent

rendered by a higher court because

Plaintiffs do not agree with the decision

32

rendered by the higher court. Although the

Court may sympathize with the harsh result

inflicted on Plaintiffs in this case, this

Court has neither the authority nor

inclination to accept Plaintiffs' invitation

to question the legitimacy of the higher

court's ruling.

In Corporation of Mercer Univ. v.

National Gypsum Co., 877 F.2d 35 (11th Cir.

1989), the Eleventh Circuit adopted the

Georgia Supreme Court's answer to a

certified question and held that "the

discovery rule applies to only cases

involving bodily injury", and does not apply

to cases involving injury to property. Id.

(citing Mercer Univ. v. National Gypsum Co.,

258 Ga. 365 (1988). Consequently, despite

Plaintiffs' protestations to the contrary

the discovery rule does not apply in this

bb

case. Therefore, as nuisance and

interference with land claims are governed

by a four year statute of limitations, see

0.C.G.A. § 9-3-30, and all breach of

contract claims aviekae from a written :.

contract are governed by a six year statute

of limitations, see 0.C.G.A. §9-3-24,

Plaintiffs' claims are barred because the

last possible act giving rise to any of

these claims must have occurred by February

1980 which is eleven years ago and clearly

outside the applicable statute of

limitations. See Rowe v. Steve Allen &

Assoe., Inc., 197 Ga. App. 452, 453 (1990);

Gamble v. Lovett School, 180 Ga. App. 708

(1986); McDonald v. Patton, 172 Ga. App. 491

(1984).

Accordingly, this Court GRANTS

Defendant's Motion for Summary Judgment.

34

IT IS SO ORDERED, this the (22nd) day

of June, 1993.

(HAROLD MURPHY)

UNITED STATES

DISTRICT JUDGE

35