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02/17/95 WHITLYNN BATTLE v. CITY BIRMINGHAM AND

February 17, 1995

WHITLYNN BATTLE
v.
CITY OF BIRMINGHAM AND BROWNING FERRIS INDUSTRIES OF ALABAMA, INC.



Appeal from Jefferson Circuit Court. (CV-93-6975). Marvin C. Cherner, Trial Judge.

Ingram, Almon, Houston, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

Browning Ferris Industries of Alabama, Inc. ("BFI"), sued the City of Birmingham ("City"), seeking an order enjoining the City from withholding from BFI a certificate of occupancy, which would permit BFI to operate a garbage transfer facility, or, in the alternative, seeking damages for the costs and expenses incurred by BFI in building the garbage transfer facility. Whitlynn Battle intervened to protect any interest she had in a separate action. BFI and the City entered into mediation, and, as a result, a consent judgment was entered. The trial court denied Battle's motion to alter or amend the judgment and denied her motion for attorney fees. Battle appealed.

In January 1991, BFI obtained property in the Titusville community of Birmingham to build a garbage transfer facility. The director of the Department of Urban Planning ruled that prior approval of the construction and operation of the garbage transfer facility was not required from the Birmingham Planning Commission and the Birmingham City Council. In a separate action (referred to in the record of this case as the Horn case), six citizens, including Battle, had appealed a ruling of the Birmingham Zoning Board of Adjustment holding that prior approval was not required. BFI was allowed to intervene in the Horn case because it owned the property at issue. A consent judgment was later entered in the Horn case; that judgment required that the matter be returned to the City Planning Commission and the City Council for further consideration.

Several days before the consent judgment was entered in the Horn case, BFI filed the present action, seeking an order compelling the City of Birmingham to issue an occupancy permit for the completed facility, or, in the alternative, seeking damages of $17 million for the costs and expenses incurred by BFI in building the garbage transfer facility. Battle was later allowed to intervene in the present action, for the limited purpose of protecting any interest she had in the Horn judgment. In February 1994, BFI and the City of Birmingham agreed to mediation of their dispute. As a result of the mediation, they agreed to the entry of a consent judgment; that consent judgment called for the City to purchase the garbage transfer facility from BFI. Battle filed a motion to alter or amend the judgment. The trial court, in a comprehensive and detailed order, denied the motion, stating as follows:

"During the February 9, 1994, hearing on the Motion to Intervene, counsel for Battle expressly agreed to this limited intervention as evidenced by the following exchange between the Court and counsel for Battle:

"'THE COURT: And I will enter an order granting the motion to intervene for the limited purpose of protecting [Battle's] rights under the [Horn ] judgment. Is that --

"'MR. SULLIVAN: I'll accept that terminology.

"'THE COURT: All right.'

"The above exchange clearly sets forth this Court's ruling on Battle's Motion to Intervene and since counsel for Battle agreed to this ruling, there is no basis now to complain....

"....

"... Counsel for Battle agreed to this limited intervention and Battle is therefore bound by the agreement made by her attorney in open court. To the extent that Battle now seeks to assert rights or claims beyond those agreed to by her counsel, the Court finds that such claims should be disallowed.

"The Horn judgment on its face required only that the issue of whether a garbage transfer station was a permissible use for the subject property be returned to the Planning Commission of the City of Birmingham and the City Council of the City of Birmingham 'for further consideration.' Significantly, Battle sought to amend her Complaint in Horn to enjoin [the] City from purchasing the transfer station property from BFI. However, the Horn court never ruled on Battle's motion. The Horn judgment ...


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