OXFORD, Miss. (WTVA) -- Attorneys for Kroger have filed a motion in a federal court hearing to have the company dismissed from a lawsuit filed over flooding.
Kmart is suing Kroger, Fulton Improvements, LLC, Kansas City Southern Railway, E & A Southeast Limited Partnership, and the city of Corinth over damages to the Corinth store in 2010 and 2011.
The lawsuit claims the Kroger store is built in the floodway of Elam Creek, and should have been torn down.
In 2005, FEMA issued a Letter of Map Revision saying Kroger was not in the floodway.
Kmart claims Kroger's location, a city dirt landfill, and the railroad's failure to keep a nearby underpass clear lead to flooding that kept its Corinth store closed for several months.
The company also sites the same problems in flooding in April of 2011, and is asking for millions in damages.
On Wednesday, Kroger attorneys stated in the motion to have the company dismissed that Kroger was not the original tenant of the building and did not own the property when it was built.
They claim Kroger was only a tenant when it moved into the shopping center.
Documents show E & A Southeast Limited Partnership owned the building at the time it was built.
When the flooding occured, the building was owned by Fulton Improvements, LLC.
Kroger claims because of those fact, Kmart has no right of recovery against the grocery store.
The trial is set to get underway February 24, 2014 in Aberdeen.
