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City of Daphne v. Fannon

Supreme Court of Alabama

December 6, 2019

City of Daphne
v.
David Fannon and Sarah Fannon

          Appeal from Baldwin Circuit Court (CV-15-900239)

          WISE, JUSTICE.

         The City of Daphne ("the City"), the defendant below, appeals from a judgment entered by the Baldwin Circuit Court in favor of David Fannon and Sarah Fannon, the plaintiffs below, in an action seeking damages pursuant to § 235, Ala. Const. 1901, for the taking of, injury to, or destruction of the Fannons' property for public use. The City also challenges the judgment as a matter of law for the Fannons on its counterclaims. We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         In 1990, the Fannons purchased an unimproved lot on Lovett Lane in Daphne and constructed a house on that lot. To the north of, and parallel to, their lot was a 30-foot right-of-way that was owned by the City and that extended from Mobile Bay east up a slope past Lovett Lane to Captain O'Neal Drive. A streambed that was approximately three feet wide meandered along the right-of-way, partially onto the Fannons' lot, and back into the right-of-way and then into Mobile Bay. Also, the right-of-way was wooded and heavily covered with vegetation.

         Within one year after purchasing the lot, the Fannons built a two-story house on the lot. As they were preparing the foundation, they placed an 18-inch-diameter PVC pipe under the foundation and along the path of the streambed where it meandered onto their lot so that the water would continue to flow into Mobile Bay. They constructed concrete head walls around both ends of the pipe and used riprap on both ends to hold the pipe in place. For the next few years, the Fannons saw consistent seepage of water from underground into the right-of-way, but they testified that it was never more than an inch or two. During rain events, the Fannons sometimes saw approximately five or six inches of rain in the streambed; they testified that that water flowed through their 18-inch pipe and then back onto the right-of-way to the Mobile Bay.

         David testified that, during the mid 1990s, the City took out all the vegetation that was on the right-of-way between Captain O'Neal Drive and Lovett Lane and covered the area, which was a sand bed, with riprap. He also testified that the vegetation started growing back within one year and that the changes did not seem to affect the way water flowed in the area. The Fannons testified that, in 1997, Hurricane Denny stalled over Mobile Bay for some time and brought approximately 20 inches of rain but that that large amount of water did not damage their property or the right-of-way. They further testified that their property did not suffer any water damage as a result of Hurricane Ivan in 2004 or Hurricane Katrina in 2005.

         David testified that, in late 2005, city workers removed the riprap from the right-of-way between Captain O'Neal Drive and Lovett Lane. The workers then installed a 48-inch-diameter pipe that dumped into the streambed near the edge of the Fannons' property. They also put down about 15 feet of riprap downstream from the outflow of the pipe. David testified that he notified the City about concerns that the work would change the water flow around his property and indicated that he would hold the City responsible for any damage but that the City did not respond.

         David testified that, after the changes, the streambed washed out and eroded when it rained. As a result, in late 2006, he installed a 60-foot swale, which is basically a manmade ditch, in the right-of-way adjacent to the Fannons' property. It was 2 to 2½ feet deep and about 5 feet wide, and he used railroad ties on both sides and put down heavy cloth and riprap to slow the water.

         David testified that, in March 2010, he was still concerned about the additional water flowing onto his property. As a result, he wrote a letter to the mayor of the City explaining the work that had been done in 2005 and that nothing had been done afterward to finish piping the water into Mobile Bay. David testified that he once again advised the City that he would hold it responsible for anything that happened to their property when and if a big rain came. He stated that he never received a response from the City.

         The Fannons testified that, on April 29 and 30, 2014, the area received about 30 inches of rainfall. David testified that the swale was nearly destroyed, that only about 7 feet of the 60-foot swale was still there, that the remaining cloth and riprap were washed away or buried under sand, and that a lot of sand was washed out from around tree roots. David stated that, as a result of the sand being washed out and uncovering the roots of trees, seven or eight tall trees that were in the right-of-way along the side of the swale fell onto the Fannons' house. He also stated that the limbs from the trees "scour[ed] some shingles and hit some things" and scratched a good bit of the stucco on the outside of the house.

         David testified that he contacted the City about removing the trees from the Fannons' house and property to prevent further damage. The Fannons both testified that, during a conversation with Ashley Campbell, the environmental-programs manager for the City, Campbell told David to "do what you have to do to protect your property" while the City attempted to confirm the boundaries of the City's property. As a result, the Fannons hired someone to remove the trees from their house. David then had 80 feet of 30-inch pipe installed in the City's right-of-way near their house in an effort to prevent further erosion.

         Avalisha Fisher, a civil engineer and FEMA certified floodplain manager, was hired by the Fannons to determine whether the City's installation of the 48-inch pipe caused the Fannons to have more water dumped onto their property and also whether the pipe caused an increase in the velocity of storm water coming onto the Fannons' property. She testified that some of her calculations showed that the pipe could have increased the velocity of the water by five times the previous rate and that that increase could have had impacts at the outlet of the pipe and up and down the streambed from there. She also testified that the pipe and the riprap and other materials at the outlet had not been installed in such a way as to slow down the water and take some of the energy out of it farther down the pipe and even past the end of the pipe; as a result, she said, erosion was evident at the outflow point. Fisher testified that, because the trajectory of the pipe was different from the normal water flow in the right-of-way streambed, she "would predict some unpredictable results and probably some erosion [that] might not have been anticipated." She further testified that, but for the installation of the 48-inch pipe by the City, she did not know how the erosion that caused the trees to fall onto the Fannons' house would have occurred.

         John Curry, an expert for the City in the field of civil engineering in hydraulics and hydrology, examined the property in April 2015, almost one year after the damage to the Fannons' house, to determine what could have caused erosion in the right-of-way adjacent to the house. He testified that he believed that Fisher's calculations as to the velocity of the water through the pipe were too high. Curry stated that the 18-inch pipe that was installed under the foundation of the Fannons' house was not large enough to handle all the water coming from the City-installed 48-inch pipe during the April 2014 storm; that water could have pooled between the 18-inch pipe and 48-inch pipe and partially backed up into the 48-inch pipe; and that that pool would have slowed down the water coming from the 48-inch pipe and avoided some erosion in that area closer to the 48-inch-pipe outlet. Although he did not believe that the 48-inch pipe led to the damage to the Fannons' house, he also stated that, because of the storm and the natural layout of the land, he nonetheless would have anticipated significant erosion on the slope behind the house. Curry further stated that, when designing storm-water systems, it is important to consider conditions that already exist downstream and how a system will affect those conditions. Finally, he stated that, if the condition downstream is undersized or not adequate to accept the flow, there could be overflows, erosion, and other problems.

         On February 24, 2015, the Fannons sued the City and Richard D. Johnson, the acting director of public works for the City, in the Mobile Circuit Court. The complaint stated claims alleging negligent drainage design and maintenance (Count I), [1] trespass (Count V), and inverse condemnation (Count VI) against the City. It stated a claim of wantonness (Count III) against Johnson. Finally, it stated claims of negligence (Count II) and abuse of process (Count IV) against both the City and Johnson.

         On April 13, 2015, Johnson filed a motion to dismiss the complaint against him pursuant to Rule 12(b)(1) and (b)(6), Ala. R. Civ. P. On April 15, 2015, the City filed a motion to dismiss Counts II and IV of the complaint against it pursuant to Rule 12(b)(1) and (b)(6), Ala. R. Civ. P. Ultimately, the motions to dismiss were denied.

         On March 17, 2016, the City filed an answer to the complaint and included multiple affirmative defenses. It also filed counterclaims against the Fannons alleging negligence and trespass in connection with the installation of the 80 feet of 30-inch pipe in the right-of-way in 2014. The City alleged that, because the construction was not done in the proper manner, the Army Corps of Engineers had cited the City for violating the Clean Water Act and that the City would be required to take action to correct the violation that was created by the Fannons.

         On March 17, 2016, Johnson filed an answer to the complaint and included several affirmative defenses. He later amended his answer.

         On July 14, 2017, Johnson filed a motion for a summary judgment and a memorandum in support of that motion. On July 17, 2017, the City filed a motion for a partial summary judgment. On September 15, 2017, the Fannons filed responses to Johnson's and the City's motions. On September 19, 2017, the trial court entered a summary judgment in favor of Johnson and a partial summary judgment in favor of the City on Counts II and IV. The City also moved for a summary judgment as to the Fannons' claims for damages resulting from mental anguish (see note 1 supra), and the trial court granted that motion.

         On July 20, 2018, the Fannons filed an answer to the City's counterclaims. They included several affirmative defenses in their answer. On June 6, 2018, the City moved to voluntarily dismiss its counterclaims against Sarah, and the trial court granted that motion to dismiss.

         The case was tried before a jury on August 6-10, 2018. At the close of the Fannons' case, the City filed a motion for a judgment as a matter of law, arguing, in part, that the Fannons had failed to prove that the damages were ascertainable at the time the City installed the 48-inch pipe; the trial court denied that motion. At the close of all the evidence, the City filed a motion for a judgment as a matter of law, again arguing, in part, that the Fannons had failed to prove that the damages were ascertainable at the time the City installed the 48-inch pipe.[2] David made an oral motion for a judgment as a matter of law on the City's counterclaims alleging negligence and trespass, which the trial court granted. The trial court denied the City's motion for a judgment as a matter of law, and the jury returned a verdict in favor of the Fannons on their inverse-condemnation claim and awarded compensatory damages in the amount of $450, 000. The City filed multiple posttrial motions, again arguing that the Fannons had failed to prove as part of their inverse-condemnation claim that the damages were ascertainable at the time the City installed the 48-inch pipe; the trial court denied those motions. This appeal followed.

         Standard of Review

"'"When reviewing a ruling on a motion for a [judgment as a matter of law], this Court uses the same standard the trial court used initially in granting or denying the motion. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala. 1997). Regarding questions of fact, the ultimate issue is whether the nonmovant has presented sufficient evidence to allow the case or issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala. 1992).... A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a [judgment as a matter of law], this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been ...

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