Appeal
from Baldwin Circuit Court (CV-13-901533)
PER
CURIAM
AFFIRMED.
NO OPINION.
Bolin,
Shaw, Bryan, Mendheim, and Stewart, JJ., concur.
Murdock, Special Justice, [1] concurs specially.
Parker, C.J., and Sellers and Mitchell, JJ., dissent.
Wise,
J., recuses herself.
MURDOCK, Special Justice (concurring specially).
D. Kay
Meador sued the City of Gulf Shores ("the City")
and two City employees seeking to hold the defendants liable
after she was forced to stop construction of a residence on
land she believed she owned in a subdivision known as Lagoon
Estates. Meador began construction of the residence in
reliance upon certain acts and omissions on the part of the
City. She subsequently was informed by the City that the City
itself actually owned the land in question and, for that
reason, was forced by the City to stop construction of the
residence.
The
land in question at one time constituted a right-of-way that,
as reflected in the Baldwin County probate records, the City
purported to vacate in 1956. Had this vacation been
effective, the predecessors to Meador in title would have
become owners of the land. A judgment entered in 1986 by the
Baldwin Circuit Court, however, held that the attempted
vacation had been ineffective. Evidence of the 1986 judgment
was never recorded in the probate records. Unaware of the
1986 judgment, Meador accepted delivery of a deed in 2010
purporting to convey title to the property to her.
Following
the entry of a summary judgment on other claims asserted by
Meador, she proceeded to trial only on a claim against the
City for negligence. The jury returned a verdict in favor of
Meador in the amount of $133, 000, a little less than the
construction costs Meador had incurred. The trial court
denied the City's renewed motion for a judgment as a
matter of law and entered a judgment based on the jury's
verdict.
A
majority of the Court votes today to affirm the trial
court's judgment. I join that vote and write to explain
my reason for doing so.
It
strikes me that this is a somewhat unique case. It is not a
case where title to the land is in some third party and,
thus, as between the City and the plaintiff, the plaintiff
ought to have had superior knowledge of this fact. The City
itself owns the land. If superior knowledge as to ownership
of the land is to be charged to the owner of that land, then
that charge in this case is to the City.
Despite
"winning" ownership of the land in the 1986 case,
the City chose for some reason not to record any evidence of
its ownership in the probate records so as to give
constructive notice of that fact to the world.[2] Although this
choice in and of itself breached no duty to Meador or her
predecessors in title, it is against the backdrop of this
omission that notice is taken of the maintenance in the
probate records of a plat of Lagoon Estates that contained a
handwritten notation referencing "the vacation of this
street" and the location within the probate records of
the City's 1956 vacation resolution. Furthermore, the
City maintained for public viewing, and provided to Meador,
zoning and street maps indicating that the property was
privately owned and suitable for residential construction,
made oral representations to Meador to similar effect, gave
Meador and her architect information regarding setback
requirements, and, ultimately, issued a building permit to
Meador authorizing her to construct a residence on the
property. In addition, representatives of the City visited
the site on multiple occasions, initially halting
construction over an environmental concern, then giving
Meador approval to resume construction.
Despite
this history, the City subsequently chose to invoke its own
title to the property and thereby to deprive Meador of the
benefit of the construction costs she had incurred in
reliance on the City's acts and omissions.
I
believe there was enough in the unique facts of this case to
allow the jury to find, under Alabama law, that the City had
assumed a duty to Meador, that the City breached that duty,
and that the City should compensate Meador for the moneys she
expended in reasonable reliance on the City's acts ...