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East Central Baldwin County Water v. Town of Summerdale

Alabama Court of Civil Appeals

February 27, 2015

East Central Baldwin County Water, Sewer and Fire Protection Authority
v.
Town of Summerdale et al.

Appeal from Baldwin Circuit Court (CV-09-901240)

MOORE, Judge.

The East Central Baldwin County Water, Sewer and Fire Protection Authority ("ECBC") appeals from a partial summary judgment entered by the Baldwin Circuit Court ("the trial court") on March 11, 2014, in favor of the Town of Summerdale ("Summerdale"), the City of Robertsdale ("Robertsdale"), and Baldwin County Sewer Services ("BCSS") and the denial of its summary-judgment motion. We dismiss the appeal.

Procedural History

On October 20, 2009, Summerdale filed a complaint seeking a judgment against ECBC and the Baldwin County Commission ("the county commission") declaring "that the amendment to the articles of incorporation of ECBC, which was approved on or about February 19, 2002, and filed for record in the Office of the Judge of Probate of Baldwin County, Alabama, at Instrument No. 650808, on March 28, 2002, is null and void and of no effect"; that the "amendment to [ECBC's] articles of incorporation recorded on October 9, 2008, in the Office of the Judge of Probate of Baldwin County, Alabama, at Instrument No. 1143281, which authorized ECBC to provide sewer service in its service area" is "null and void and of no effect"; "that ECBC breached the franchise agreement with [Summerdale] and has no authority to service the Shadyfield Estates Subdivision or surrounding area"; and that ECBC does not have any authority regarding sewer services in its service area. Robertsdale and BCSS filed complaints containing the same allegations, except they did not allege a breach of the franchise agreement regarding the Shadyfield Estates subdivision.[1]

All parties moved for a summary judgment on the claim regarding the validity of the 2002 amendment to ECBC's articles of incorporation ("the 2002 amendment"), which expanded the geographical service area of ECBC, and the claim regarding the 2008 amendment to ECBC's articles of incorporation ("the 2008 amendment"), which expanded the services that ECBC had authority over in its service area to include sewer services. ECBC argued in its summary-judgment motion, among other things, that Robertsdale, Summerdale, and BCSS lacked standing to challenge the 2002 amendment and the 2008 amendment. Robertsdale, Summerdale, and BCSS asserted (1) that the 2002 amendment was invalid because other public-water systems were adequate to provide water services to the portion of ECBC's service area that was added pursuant to that amendment ("the ECBC 2002 expanded service area") and (2) that the 2008 amendment was invalid because other public-sewer systems were adequate to provide sewer services in ECBC's service area and because ECBC did not actually propose to render sewer services. On June 22, 2012, the trial court entered an order stating:

"Based on the application made by Defendant, ECBC, to the [county commission] containing geographic areas in Robertsdale, Alabama community that were already being served by the City of Robertsdale, the application contained incorrect information. The Court is not in a position to 'carve out' corrections to the application and approval. Therefore, the [county commission's] approval of ECBC's application should be set aside and by this Order is deemed set aside."

After a motion to certify that order as final pursuant to Rule 54(b), Ala. R. Civ. P., and a motion to reconsider was filed by ECBC, the trial court entered another order on September 24, 2012, stating:

"The Court has reviewed the exhibits filed with the parties' motions and responses, including the following:
"1. Paragraph 2 of ECBC 2002 Amendment to Certification of Incorporation states '... to include certain additional territory that is not served currently by any existing public water system....'
"2. Paragraph 3 of ECBC 2002 Amendment to Certification of Incorporation states '... February 19, 2002, the governing body of Baldwin County, Alabama adopted a resolution in which it declared that it had reviewed the contents of said Application and had found and determined as a matter of fact that the statements contained in said application were true.'
"3. [Section] 11-88-5[, Ala. Code 1975, ] states[, in pertinent part]:
"'(c) After the adoption by the board of a resolution proposing an amendment to the certificate of incorporation of the authority, the board shall file a written application with the governing body of each county in which any part of the authority's then existing service area lies and with the governing body of each county in which any part of the proposed new territory lies. Such application shall:
"'(1) State, in the event that it is proposed to make provision for the operation of a system or facility not then provided for in the certificate of incorporation of the authority, that the authority proposes to render service from such a system or facility (which shall be named), contain a concise legal description of the area or areas in which the authority proposes to render the service provided for by such system or facility and state that there is no public water system, public sewer system, or public fire protection facility, as the case may be, adequate to serve any area in which it is proposed that the authority will render such service;
"'....
"'(4) Request each governing body with which the application is filed to adopt a resolution declaring that it has reviewed the contents of the application and has found and determined as a matter of fact that the statements contained in the application are true.
"'(d) As promptly as may be practicable after the filing of the said application with any governing body pursuant to the foregoing provisions of subsection (c) of this section, that governing body shall review the said application and shall find and determine whether the statements in the said application are true.'
"4. ECBC has represented to the Court that the Application was the 2002 amendment in proposed form and upon approval, the Amendment was taken to the Judge of Probate for recording.
"5. ECBC has conceded in court that a small number of citizens that were included in the territory covered by the 2002 Amendment were, in fact, at the time actually being served by City of Robertsdale's water system.
"6. Given that the Application to the County was simply the Amendment in proposed form, the Court previously determined that the Application included facts that were not true. As a result, the [county commission] approved an application for expansion of the ECBC territory, based on facts that were not true.
"Based on the evidence and law presented, this Court found in the Summary Judgment that the governing body (Baldwin County) acted upon the assumption that the statements in the application were true when in fact the 2002 application contained statements that were not true and therefore, the approval was not valid. After review of the case and arguments of the attorneys, the Court finds nothing to change its original ruling.
"The Motion to Reconsider the Summary Judgment is DENIED.
"The parties stipulated that this order would apply to Plaintiffs, Town of Summerdale and Baldwin County Sewer Service as well. Therefore, Summary Judgment is GRANTED as to those plaintiffs on the same grounds as stated in the Court's previous Summary Judgment Order as well as set out in this Order.
"Pursuant to [Ala. R. Civ. P., Rule] 54(b), the Court finds that there is no just reason for delay and expressly directs that the entry of a final judgment be entered in favor of Plaintiffs."

On October 31, 2012, ECBC filed its notice of appeal to this court. This court transferred the appeal to the supreme court for lack of appellate jurisdiction; that court transferred the appeal back to ...


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