3d DCA Watch -- Possible Groundwater Contamination Edition!

Hi kids, did you know there is a 3d DCA Historical Society?

No, it's not designed to pay tribute to certain retired but very active Senior Judges, but it's still a pretty good idea so go sign up here.

Let's jump right in:

Biscayne Park LLC v. Wal-Mart

This is a tale of two very different approaches to a case, and the question is which narrative do you prefer?

In Judge Lagoa's majority opinion, this is Wal-Mart trying to limit potential future money damages by sealing some remediation wells on an El Portal property after purchase negotiations fell through:
In October, 2007, Wal-Mart terminated the purchase agreement. The wells, however, remained on the property. Biscayne subsequently began negotiations with another potential buyer, Interra Development Corporation (“Interra”). As a result of the negotiations, Biscayne agreed to permit Interra to use the wells on the property to conduct its own due diligence. Wal-Mart, however, became concerned about its potential liability resulting from this use of the wells that it had previously installed. As a result, Wal-Mart commenced negotiations with Biscayne regarding an indemnification and release agreement, and proposed that Biscayne pay for Wal-Mart's costs related to the installation of the wells. Biscayne rejected Wal- Mart's proposal, and informed Wal-Mart that it considered the wells permanent fixtures attached to the property that belonged to Biscayne.

In November 2008, Wal-Mart filed a complaint against Biscayne for declaratory and injunctive relief, and a verified motion for temporary injunction. Wal-Mart's verified motion requested an order allowing entry onto the property for the purpose of filling and capping the wells. At the time, Biscayne was using the wells in its effort to remediate the property as required by a local environmental regulatory agency.

On December 15, 2008, the trial court entered an order granting Wal-Mart’s motion for a temporary injunction. The trial court gave Biscayne two options: 1) allow Wal-Mart to “abandon and seal” the wells; or 2) purchase a six-month insurance policy insuring Wal-Mart with respect to the wells in the amount of $20,000,000.
Judge Lagoa thinks Wal-Mart has not established irreparable injury or the unavailability of an adequate remedy at law:
Wal-Mart’s alleged injury was its possible monetary liability resulting from possible future contamination to groundwater through the wells. . . . in this case, the future event is the possible future contamination of the groundwater through the wells. Because the alleged injury is speculative, we conclude that it is insufficient to meet the irreparable injury standard. Additionally, in the event that such an alleged event were to occur, Wal-Mart would have an adequate remedy at law, i.e., a claim for money damages.
So in Judge Lagoa's opinion this case is all about speculative future monetary damages.

In Judge Gersten's dissent, however, it's far more than that:
After backing out of the contract, Wal-Mart notified Biscayne that it planned to abandon and discontinue the use of the monitoring wells, which if left unsealed are a safety or environmental hazard. Sealing the monitoring wells was the final part of due diligence and was required under Florida and local laws. See § 62.770.200(31), (41), Fla. Adm. Code (2006). Therefore, Wal-Mart requested access to the land to seal the abandoned monitoring wells, but Biscayne refused and instead continued to use Wal-Mart’s monitoring wells for groundwater sampling.
As to irreparable injury, Judge Lagoa sees speculative money damages but Judge Gersten doesn't see it that way:
On the first requirement, Wal-Mart demonstrated irreparable injury because third parties’ use of the open wells would exacerbate groundwater contamination of the land, making Wal-Mart liable for past and future contamination.
In other words, Judge Gersten sees the contamination as not speculative -- instead the continued use of the wells "would exacerbate groundwater contamination."

On unavailability of an adequate remedy at law, Judge Lagoa sees money damages flowing from the potential contamination but Judge Gersten sees money as unable to compensate for inevitable environmental damage:
Wal-Mart also demonstrated the unavailability of an adequate remedy at law because money does not compensate for contamination and spoliation of our natural resources. I note that this contamination adversely affects everyone in our community and our future generation’s children and children’s children.
Judge Gersten ends with a flourish:
Finally, and perhaps paramount, the temporary injunction serves the public interest. The injunction serves the public interest because it prevents further contamination through the monitoring wells.

Therefore, the trial court properly and responsibly granted the temporary injunction on legal, apparent environmental concerns. The trial court was well within its discretion in protecting Wal-Mart from liability for the environmental damage. Moreover, the trial court acted responsibly to protect against further damage to our over-indulged, over-taxed, and under-protected environment. In fact, I feel that a reversal in these circumstances is a slap in the face to a hardworking trial judge who was only doing his job . . . well.

Further, the need for the temporary injunction is no longer present. In January 2009, pursuant to the temporary injunction, Wal-Mart entered the property and sealed the monitoring wells. Thus, the need for the temporary injunction is moot because the parties are returned to the status quo ante-contract.

Accordingly, because Wal-Mart satisfied the requirements for the temporary injunction and the issue is now moot, I respectfully dissent. On an end note, I regret the expenditure of paper resources used in the writing of both the majority and dissent, but reiterate that I would affirm the order granting Wal-Mart’s verified motion for temporary injunction.
BTW, the "hardworking trial judge" who got " slapped in the face" for "doing his job...well" is Judge David C. Miller.

So what do you think?

Oh yeah, Judge Schwartz, specially concurring, has his own view:
A preliminary injunction must be based on four indispensable elements. See Wilson v. Sandstrom, 317 So. 2d 732, 736 (Fla. 1975). In my opinion, the one in this case is supported by none of them. Apart from that, it’s fine.
Just another day in the non-groundwater-contaminated bunker, kids.


  1. Judge Schwartz' opinion is flip and fails to engage the dissent on the merits.

    Apart from that, it's fine.

  2. The SHUMIE has SHUMIED.

  3. SFL, it must be Wal-Mart's luck. They opened a store about 30 minutes from us. It was a gigantic super-store and was the cornerstone to this new semi-strip-mall. And everything was going OK until... It was discovered that the land was on an old landfill and that the water was potentially contaminated. Wal-Mart didn't mess around or wait around for a resolution. They abandoned the store, cleaned it out and bailed on the property.

    Ah, the empty Wal-Mart store and sign looks so nice from the highway...


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