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 ...