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NORBERT KEPPNER AND MICHAEL L. SHULAR v. GULF SHORES

JANUARY 16, 1985

NORBERT KEPPNER AND MICHAEL L. SHULAR
v.
GULF SHORES, INC. AND WEN COAST-WENDELTA, INC.



EN BANC

PRATHER, JUSTICE, FOR THE COURT

This appeal involves the ownership and use of a sewage disposal system, a joint venture of three business corporations. The original joint venturers were Gulf Shores, Inc., Wen Coast-Wendelta, Inc. (Wendy's) and the Omelette Shoppe. After the Omelette Shoppe's bankruptcy, Michael Shular, who owned the Gulfport Sheraton Inn (Sheraton), bought the realty owned by the Omelette Shoppe upon which the sewage disposal system was located. Gulf Shores and Wendy's sought and secured a permanent injunction in the Chancery Court of Harrison County permanently enjoining Michael Shular, Sheraton owner, and Norbert Keppner, Sheraton manager, from discharging sewage from the Sheraton Inn into a sewage lift station constructed and utilized by Gulf Shores, Inc. and Wen Coast-Wendelta, Inc.

A second suit is combined in this appeal for a contempt citation against Shular's manager of the Sheraton, Keppner, for non-compliance with the injunction.

 Shular and Keppner appeal from the issuance of the injunction and contempt order assigning as error:

 (1) That the court erred in holding that Shular purchased the property upon which the sewage treatment station is located subject to the terms of a joint venture agreement between the Omelette Shoppe, Wendy's and Gulf Shores.

 (2) That the court erred in admitting parole evidence to supplement the written joint venture agreement between the Omelette Shoppe, Wendy's and Gulf Shores.

 (3) That the court erred in holding that Shular and Keppner committed trespass.

 (4) That the court erred in holding Keppner in contempt of its order.

 I.

 Sometime prior to November 11, 1979, the Omelette Shoppe, Inc., Wen Coast-Wendelta, Inc., and Gulf Shores, Inc., owned properties contigious to one another which properties were located on the west side of U. S. Highway 49 in Gulfport. The Omelette Shoppe, Inc., and Wen Coast-Wendelta, Inc. (Wendy's) each planned to build and operate a fast food restaurant, and Gulf Shores, Inc., planned to build and operate a 150 room motel, restaurant, lounge, swimming pool and related facilities under a franchise from Holiday Inns of America.

 The parties were aware that sewage collection and disposal would be required for the operations of their respective facilities, and jointly agreed to build such facility which consisted of collection lines from each of their properties to a lift station with all necessary pumps, electrical circuits and controls, and a discharge line from such lift station to a sewage collection system which had been jointly built by the City of Gulfport and Harrison County in an unincorporated area located north of the city.

 The parties also agreed to construct and operate a water main from such system built by Gulfport and Harrison County which would serve each of their properties.

 This agreement was incorporated into a document dated November 11, 1979, and provided inter alia, that the parties would construct a 4 inch water and force main along with a lift station according to plans drawn by T. L. Reynolds at a cost of $50,425.00. The water was to be separately metered, and all maintenance costs of the system were to be divided equally by the original owners and any subsequent users.

 Though it appears that the lift station was located on the property of Omelette, Gulf Shores, Inc., granted to Wendy's and Omelette an easement on Gulf Shores, Inc., property for location of a portion of the force main in consideration of Omelette granting to Gulf Shores, Inc., the right to connect to the lift station.

 The uncontradicted evidence is that the facility was originally designed to accomodate the requirements of the

 three parties, and that the T. L. Reynolds design would be sufficient to handle a peak flow of 46.96 gallons per minute. Wendy's built its restaurant and connected into the system in 1980. Gulf Shores, Inc. started construction of its Holiday Inn in September of 1981. The Omelette Shoppe was not built, and this corporation went into bankruptcy in the year 1981.

 Appellant, Michael Shular (Shular), owns the Sheraton Inn which adjoins the Omelette Shoppe property. This motel consists of 170 rooms, meeting rooms, a restaurant, lounge and swimming pool. When acquired by Shular, the motel was discharging its sewage into its own package sewage treatment plant, and also permitted another fast food restaurant, the Waffle House, to discharge its sewage into the plant. Sometime around September of 1981, Shular purchased the Omelette Shoppe property from the Trustee in Bankruptcy for $70,000, which purchase included the Omelette Shoppe's easement across the property of Gulf Shores, Inc. At the time of the purchase, Shular was not aware of the terms of the agreement between the original parties, though he did believe that the lift station was on the Omelette Shoppe property which he acquired. His expressed reason for acquiring such property was for investment and expansion. Shular continued to use his package treatment plant until it became disabled around the first of November, 1981, and then, upon recommendation of an engineer, Shular caused a four inch plastic line to be attached to his pump at the treatment plant and ran such line across the surface of the Sheraton Inn property and the property acquired from Omelette Shoppe and discharged the raw sewage into the top of the lift station.

 Such method of discharging sewage into the lift station was considered to be temporary as it did not meet the standards of the Mississippi Bureau of Pollution Control or regulations of the City of Gulfport and Harrison County. Though Harrison County had originally granted a permit to the original parties to the system, it did not permit this temporary solution adopted by Shular. Neither did the Bureau of Pollution Control.

 Mr. Sherwood Bailey (Bailey), Vice President of Gulf Shores, Inc., and one of the principals in this corporation, learned in early February that Shular was discharging sewage into the lift station without the permission of Wendy's or ...


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