United States Court of Appeals,

Eleventh Circuit.

No. 94-7139.

COLONIAL PROPERTIES, INC., a corporation, Inverness Family

Medical Center Partners, Ltd., a limited partnership, PlaintiffsAppellees,

v.

VOGUE CLEANERS, INC., a corporation, Edward N. Burg, DefendantsAppellants,

Edward N. Burg, Jr., Margaret A. Burg, Defendants,

Richard S. Burg, Defendant-Appellant.

March 8, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. 92-Ar-2325-S), William M. Acker, Jr.,

Judge.

Before EDMONDSON, DUBINA and BARKETT, Circuit Judges.

DUBINA, Circuit Judge:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA PURSUANT TO

RULE 18 OF THE ALABAMA RULES OF APPELLATE PROCEDURE.

TO THE SUPREME COURT OF ALABAMA AND THE HONORABLE JUSTICES

THEREOF:

In this environmental law case, the district court granted

partial summary judgment against Defendant-Appellant Vogue

Cleaners, Inc. with respect to the request for attorneys' fees by

Plaintiffs-Appellees Colonial Properties, Inc. and Inverness Family

Medical Center Partners, Inc. (collectively "Landlords"). The

district court also granted partial summary judgment with respect

to the issue of liability on the Landlords' claim of trespass

against Defendants-Appellants Vogue Cleaners, Edward N. Burg, and

Richard S. Burg (collectively "Tenants"). On appeal, the Tenants
urge us to reverse the district court's grant of partial summary

judgment and to enter judgment as a matter of law in their favor on

both the request for attorneys' fees and the trespass claim.

In light of the notice provisions contained in the lease, we

conclude that Vogue Cleaners did not default on the lease.

Accordingly, the district court erred in awarding the Landlords

attorneys' fees, and we now reverse that part of the district

court's judgment.

Our holding with respect to attorneys' fees does not, however,

dispose of this case. We must still address the Tenants'

contention that the district court erred in granting partial

summary judgment in favor of the Landlords on the trespass claim.

Unfortunately, we have been unable to find, and the parties have

not drawn our attention to, any authoritative decision by the

Alabama Supreme Court or Court of Appeals that directly answers the

question presented by the trespass claim, viz., whether Alabama law

allows a landlord to bring an action for trespass against a tenant

for damage to a common area. We therefore defer our decision on

the trespass claim pending certification of this question to the

Alabama Supreme Court.

I. STYLE OF THE CASE

The style of the case is as follows: Colonial Properties,

Inc., a corporation, Inverness Family Medical Center Partners,

Ltd., a limited partnership, Plaintiffs-Appellees v. Vogue

Cleaners, Inc., a corporation, Edward N. Burg, DefendantsAppellants, Edward N. Burg, Jr., Margaret A. Burg, Defendants,

Richard S. Burg, Defendant-Appellant (D.C. Docket No. CV 92-AR-
2325-S). This case is assigned number 94-7139 in the United States

Court of Appeals for the Eleventh Circuit, on appeal from the

United States District Court for the Northern District of Alabama.

II. STATEMENT OF THE CASE

A. Factual History.

This case arose out of the Tenants' practice of pouring toxic

material onto a curb adjacent to their dry cleaning business.

Beginning in July of 1983, Vogue Cleaners rented a store located in

the Heatherbrooke Shopping Center in Shelby County, Alabama, from

the Landlords. Edward N. Burg, Sr., the chief executive officer of

Vogue Cleaners, managed the Heatherbrooke store from 1983 until his

retirement in 1987. Richard S. Burg, his son, took over the

management of the Heatherbrooke store after his father's

retirement. Richard S. Burg is also the company's vice-president.

Vogue Cleaners is a dry cleaning operation. One of the

machines used in its operation—the Permac machine—uses a hazardous

substance known as perchloroethylene, or "perc." As part of the

dry cleaning process, perc is injected with steam to purify it for

later reuse. The perc-filled steam is then condensed into a liquid

solution of perc and water. Once in liquid form the higher-density

perc drops to the bottom of the container, and the water is drained

from the top through a hose and into a five gallon jug.

During its operation, Vogue Cleaners employed either Safety

Kleen or Clean Way Corporation to dispose of the hazardous waste

products generated by the Permac machine at its Heatherbrooke

location. However, the disposal companies carried away only two of

the three waste products generated by the Permac machine. In spite
of the fact that the disposal companies provided Vogue Cleaners

with barrels in which to place the perc-contaminated water, Vogue

Cleaners instructed its employees to pour this waste product onto

the curb behind the Vogue Cleaners facility.

On two occasions, workers were burned by perc-contaminated

water that collected in holes they had dug to gain access to the

sprinkler systems located about the Heatherbrooke store. The first

incident involved Richard Grimes, the superintendent of maintenance

employed by one of the Landlords. The second incident occurred on

October 2, 1990. On that occasion, the perc-contaminated water

burned the plumbers' hands and arms and induced nausea and

dizziness. It is this latter incident which eventually led to the

filing of the suit sub judice.

The Emergency Response Management and Training Corporation and

the Alabama Department of Environmental Management ("ADEM") were

called to the scene to secure the area where the accident occurred.

An investigation followed, and ADEM concluded that the plumbers'

injuries were caused by exposure to perc. ADEM also concluded that

the perc contamination had reached the groundwater under the site.

ADEM issued a Notice of Violation and a proposed Administrative

Order requiring Vogue Cleaners to submit further reports to enable

ADEM to assess the full extent of the perc contamination of the

soil and groundwater.

B. Procedural History.

On October 1, 1992, the Landlords filed this suit against the

Tenants in federal district court seeking recovery under both the

Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9607, 9613(f), and common law

tort and contract theories. In a pre-trial order, the district

court dismissed with prejudice the Landlords' state claims of

intentional misconduct; negligence; negligent, wanton, and

reckless conduct; nuisance; and respondeat superior. In the same

order, the district court declared CERCLA and trespass liability

against all Tenants, declared breach of the lease agreement and

indemnification liability against Vogue Cleaners only, and left the

determination of damages to the jury. Furthermore, the district

court dismissed with prejudice the claims for attorneys' fees under

CERCLA and those claimed against any defendant other than Vogue

Cleaners. With respect to Vogue Cleaners, the district court

declared liability for attorneys' fees in favor of the Landlords as

part of Vogue Cleaners' liability under the breach of the lease

agreement and indemnification claims.

In the final judgment order, the district court granted

judgment as a matter of law with respect to damages of $9,815 on

the CERCLA claim. The district court submitted the remaining

damages claims to the jury on special interrogatories. The jury

found diminution in the fair market value of the property in the

amount of $100,000 and awarded attorneys' fees in favor of the

Landlords in the sum of $75,000.

III. DISCUSSION

The central question that must be decided in order to

determine whether the district court properly granted partial

summary judgment in favor of the Landlords on the trespass claim is

whether, under Alabama law, a landlord can bring an action for
trespass against a tenant for damage to a common area. The Tenants

draw our attention to Borland v. Sanders Lead Company, 369 So.2d

523 (Ala.1979), in which the Alabama Supreme Court listed the

elements of trespass as follows: "1) an invasion affecting an

interest in the exclusive possession of [the plaintiff's] property;

2) an intentional doing of the act which results in the invasion;

3) reasonable foreseeability that the act done could result in an

invasion of plaintiff's possessory interest; and 4) substantial

damage to the Res." Id. at 529. The Tenants claim that the

Landlords cannot maintain an action for trespass to the common

areas because the Landlords did not have exclusive possession of

those areas. According to the Tenants, the Landlords could not

have excluded them entirely from the common areas, and therefore

the Landlords have no exclusive possessory interest against them.

The Landlords, on the other hand, contend that Borland is not

controlling. They note, correctly, that Borland did not involve a

dispute between a landlord and a tenant. According to the

Landlords, they retained, vis-à-vis the Tenants, sufficient

possession and control of the common areas to maintain an action

for trespass. In support of their argument, they cite a Missouri

Court of Appeals case which held that a landlord retains sufficient

control of the common areas to support an action for trespass

against invitees of a tenant. See Motchan v. STL Cablevision,

Inc., 796 S.W.2d 896, 900 (Mo.Ct.App.1990). But see L.D.L. v.

Florida, 569 So.2d 1310 (Fla.Dist.Ct.App.1990) (landlord does not

have possessory interest in common areas sufficient to maintain an

action for criminal trespass against a tenant's invitee). The
 1

At oral argument, counsel for the Landlords admitted that

there is no case from the Alabama courts that directly controls

the resolution of the issue presented here. 

 2Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938). 

district court found the reasoning of the Motchan court persuasive

and concluded that the Alabama courts would follow the reasoning of

Motchan if they were ever confronted with the issue.

 While the district court may have been entirely correct in

its prediction that the Alabama courts would follow the reasoning

of Motchan if confronted with the issue, the fact remains that this

is a case of first impression under Alabama law.1 Rather than

speculating about how the Alabama courts would answer this

question, we prefer to certify the issue for resolution by the

Alabama Supreme Court. As we have recently said, "Where there is

any doubt as to the application of state law, a federal court

should certify the question to the state supreme court to avoid

making unnecessary Erie2

 "guesses' and to offer the state court the

opportunity to interpret or change existing law." Mosher v.

Speedstar Div. of AMCA Int'l, Inc., 52 F.3d 913, 916-17 (11th

Cir.1995). If Alabama law recognizes a cause of action by a

landlord against his or her tenant for trespass to common areas,

then the district court's grant of partial summary judgment on the

issue of liability was correct. If not, then the district court's

grant of partial summary judgment should be reversed, and we should

enter judgment as a matter of law in favor of the Tenants with

respect to the issue of liability.

IV. QUESTION TO BE CERTIFIED TO THE ALABAMA SUPREME COURT
We certify the following question to the Alabama Supreme

Court:

Whether, under the facts of this case, Alabama law allows a

landlord to maintain a cause of action for trespass against a

tenant for damage to a common area.

Our statement of the question is not designed to limit the

inquiry of the Alabama Supreme Court. As we have said before, the

particular phrasing of a question we certify to a state's highest

court is not intended "to restrict [its] consideration of the

problems involved and the issues as [it] perceives them to be in

its analysis of the record certified in [the] case." Mosher, 52

F.3d at 917 (quoting Martinez v. Rodriguez, 394 F.2d 156, 159 n. 6

(5th Cir.1968)).

To assist the Alabama Supreme Court, we hereby order that the

entire record in this case, together with the briefs of the

parties, be transmitted herewith.

REVERSED in part and QUESTION CERTIFIED.