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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2012-2013

1110439

Town o f Gurley

M

M

v.

& N Materials, Inc.

1110507

& N Materials, Inc.

v.

Stan Simpson, individually and as mayor o f th e Town o f

Gurley, and

Town o f Gurley

Appeals from Madison Circuit Court

(CV-05-731)

1110439, 1110507

PARKER, Justice.

In

case

no. 1110439,

th e Town

o f Gurley

("the Town")

appeals

the trial

court's judgment

i n favor

of

M

&

N

Materials,

Inc . ("M

& N") , on M & N's

inverse-condemnation

claim against th e Town. We reverse th e tria l court's judgment

and

render a judgment fo r th e Town.

I n case no. 1110507, M &

N cross-appeals the trial court's judgment i n favor of the

Town and Stan Simpson on other claims .

We

affirm .

I. Facts and Procedural History

This i s not the first

time these parties have been before

this Court.

In Ex parte Simpson, 36 So. 3d 15

(Ala. 2009)

("Simpson I " ) , this Court considered petitions

for th e writ o f

mandamus filed

b y th e partie s based on th e same facts

that

create the basis fo r the present appeals.

We se t forth the

following pertinent facts i n Simpson I :

"M & N was formed i n 2003. A t that time, M & N

o f mountain property t o be used

of

purchased

approximately

unincorporated area fo r use i n connection with the

t o the 269

acres as 'the property.' The property was locate d approximately one mile from the residence o f Stan

Simpson.

th e

as

Madison County. By June 2004, i t had

acquired 160 acres

a

rock

quarry

109

i n an unincorporated

additional

we will

acres

refer

area

i n

quarry. For convenience,

2

1110439, 1110507

before hi s

election

o f resident s o f th e Town

('the

CBG'). Between July 2003 and November 23, 2004, th e

a rock quarry

th e M & N property. On July 17, 2003, th e Town

council adopted Resolution no. 216, which stated, i n

on

CBG activel y opposed th e operatio n o f

known as th e Citizens

Town, Simpson became th e

chairperson

"In

July

as mayor o f th e

2003,

more than

a

year

o f a group

fo r a Better Gurley

pertinent part:

o f th e

Town o f Gurley has obtained informatio n

Department of

Environmental Management that a corporation

Incorporated, has

by

& N,

rock

of the

quarry near the corporate limits

"'WHEREAS, th e Town

the

Alabama

o f M

Counci l

from

th e name

applied fo r a permit

t o operate

a

Town o f Gurley, and

"'WHEREAS,

th e

Town

Counci l has

serious concerns regarding th e effects such

(1) ai r

quality, (2) damage from blastin g t o homes

o f

traffic on Gurley Pike (the main service road for Madison County Elementary School),

heav y

trucks

and (5) damage t o th e Town's water

storage tank located on Gurley Pike,

a rock quarry

and businesses,

(4)

would have

(3)

large

on

volumes

b y

damage t o existin g

street s

"'NOW, THEREFORE, be i t resolve d tha t the Town o f Gurley opposes th e locatio n o f a rock quarry near the corporate limits of the Town.'

"Simpson spoke ofte n a t Town counci l meetings i n oppositio n t o th e quarry. Also , th e CBG contacted State Senator Lowell Barron and State Representative Albert Hall t o enlist their ai d i n opposing the quarry. Simpson and Representative Hall collaborated on House Bil l 170, a bil l that Representative Hall introduced i n the Alabama Legislature during the

3

1110439, 1110507

2004 legislativ e session. The bill , which became la w

26, 2004, see Ac t No. 2004-19, Ala. Acts

property

on February

2004, authorize d th e Town t o annex M & N's

on

th e basis

o f

a

majority

vote

o f th e Town's

residents

i n

a

special

annexation

referendum.

According t o

was t o give

property. The referendum was conducted on Apri l 13,

Simpson, the purpose of the annexation

th e us e o f th e

th e Town contro l over

2004, and th e annexation

proposal passed by 191

votes

t o 23 votes.

"On Apri l 21 , 2004, M & N applie d t o th e Town for a business license. The application was denied. On May 4, 2004, th e Town imposed 'an immediate moratorium on the acceptance of applications for use permits, building permits, right-of-way permits, zoning classification, variances, special exceptions or business licenses relating to' the property.[ 1 ]

"In approximately April 2004, Simpson began a

campaign fo r th e office of mayor of Gurley. During

his campaign, he pledged

quarry.' He was elected on August 24, 2004, and assumed th e duties o f th e office on October 4, 2004,

things, a votin g member o f

t o 'fight against the rock

serving as , among other the Town council .

into

an agreement with Vulcan Lands, Inc . ('Vulcan

Lands'), whereby Vulcan Lands acquired an option t o purchase th e property fo r $3.75 million. The option

Lands

"Meanwhile, on July 12, 2004, M & N entered

was t o expire on November 15, 2004. Vulcan

failed to exercise it s option, according

to M & N,

th e

applications fo ruse permits, building permits, right-of-way permits, zoning classification, variances, special exceptions,

or business

days and was t o allow th e Town time t o conduct a study t o determine the best use fo r the land. At the expiration of 90 days, on August 3, 2004, th e Town extended th e moratorium fo r

an additional 90 days.

license s relating t o M & N's property was fo r 90

1 The

Town's moratorium

on

th e acceptance

o f

4

1110439, 1110507

because

o f M & N's failure

t o acquire a business

license from th e Town. Nevertheless, on November 23, 2004, M & N sold th e property t o Vulcan Lands.

"On

that

day , M & N

executed

two documents

o f th e property. One

document was a general warranty deed by which M & N

sold th e property t o Vulcan Lands for an

amount. I n an interrogatory answer, M & N stated:

undisclosed

relating t o th e disposition

'Vulcan backed out [of the option price] because of

This reason

[ i s the ] sol e reaso n [tha t was ] quoted

no City o f Gurley [business] license.

from

Vulca n

warranty deed contained no reservations o f rights o r ownership.

a s t o why Vulca n woul d no t close. ' The

"That

same day , M & N entered

into

a

royalty

agreement

('the

agreement')

with

'Vulcan

Construction Materials LP, a Delaware Limited Partnership, by and through it s Southern & Gulf Coast Division' ('Vulcan Materials'). The agreement provided, i n pertinent part:

"'WHEREAS, contemporaneously wit h th e execution and delivery o f this Agreement, Vulcan [Materials] (or it s affiliates) and

[M & N] ar e executing

other

agreements

whereby,

among

other

understandings,

[Vulcan

Lands] will

acquire

title

t o

approximately 269 acres o f real property near [the Town] i n Madison County, Alabama,

heretofore

Property");

N ] ("th e

by

owned

[M

&

"'WHEREAS,

Vulcan

[Materials ]

i s

engaged i n the business o f mining, crushing, producing, distributing, transporting, and marketing of crushed stone products used i n th e construction industry ("Quarrying Operations");

5

1110439, 1110507

"'WHEREAS, Vulcan [Materials] intends to enter into a lease arrangement with Vulcan [Lands] that wil l allow Vulcan [Materials] t o conduct Quarrying Operations on th e Property; and

"'WHEREAS, th e partie s desire t o se t

concerning

payment o f royalties t o [M & N] and other

terms

[Materials] of crushed stone construction aggregates ("Stone") recovered from th e Property.

by Vulcan

forth

their

understanding

t o

th e

sale

related

i n

consideration of the mutual execution of

this

conditions contained herein, and other good and valuable consideration, the receipt and

hereby

acknowledged, th e parties hereto do agree as follows '

sufficiency

and

"'NOW,

THEREFORE,

fo r

an d

Agreement

and th e covenants

which

i s

o f

"(Emphasis added.)

"Under th e agreement, Vulcan Materials was t o

pay M & N 'earned royalties,' which were 'equivalent

o f Stone

th e Property (th e

"Earned Royalty(ies)") during each Contract Year o f the Term.' The agreement provided fo r a 'minimum royalty payment' i n th e following terms:

to 5% o f th e Averag e Annua l Sales quarried, sold and removed from

Pric e

"'If

the total

o f al l Earned

Royalties

payable by Vulcan [Materials] by the end of

a Contract Year i s less than Fifty Thousand

Dollars ($50,000) (th e "Minimum"), Vulcan

[Materials] shall pay [M & N] an additional

th e

difference between th e Earned

with respect t o that Contract year and

i s hereinafter

amount

royalty

$50,000,

payment

which

equivalent

t o

Royalties

6

1110439, 1110507

referenced

Shortfall."'

as

the

"Earned

Royalty

"According t o M & N, the consideration fo r the sale of th e property was actually $1 million, plus th e royalty payments and obligations due under the agreement.

had

"The agreement als o state d tha t Vulcan Material s 'no obligatio n t o mine':

"'[M

Vulcan

[Materials] shall have the right, bu t not

&

N]

acknowledges

tha t

the obligation,

t o

conduct

Quarrying

e

Operation s

on th e Propert y

durin g th

Term, i t being

the Earne d Royalt y Shortfal l

consideration paid by Vulcan [Materials] a t

the time

an d

agreed that th e payment o f

o f conveyance o f th e Property i s

made i n lieu o f any such

obligation.'

"(Emphasis added.)

"Finally, the agreement provided that Vulc can

Materials would be 'relieved from the obligation

'by

Quarrying

In particular, i t

stated: 'Vulcan [Materials'] obligations t o perform

th e perio d i t i s s o

prevented from conducting Quarrying Operations.

shall

determine what action (i f any) shall be undertaken to litigate, oppose or otherwise challenge an event

Vulcan

to

make any payments

t o

[M & N] ' i f prevented

operation of law' from 'conducting

Operations

shal l

on the Property.'

b e suspende d

durin g

[Materials], i n it s sole discretion,

constituting Operation o f Law.' (Emphasis added.)

condemnation, the

exercise of the right o f eminent domain, and zoning

that

connection, the agreement further provided:

or such other land-use

'Operation

of

law' included

restrictions.

I n

"'In

Propert y

th e event

,

of a

Taking

of the

t o

[M & N ] hereb y

assign s

7

1110439, 1110507

Vulcan [Materials] it s claim, interest, or righ t (i f any) i n any award that may be

made i n such proceeding. Further,

agrees that Vulcan [Materials] shall have

seek

compensation and retain damages caused by the Taking.'

[M & N]

the

sole

right

and obligation t o

"(Emphasis added.)

applie d

to th e Town fo r a licens e t o operate th e business o f 'Quarrying and Processing Construction Aggregates'

th e Town counci l

adopted Ordinance no. 2004-284, which designated the

property as an agricultural zone. Simpson, as mayor, subsequently sent Vulcan Materials a letter denying the application, stating, i n pertinent part:

'"Quarrying and Processing Construction Aggregates" is not a use permitted under the Agricultural [zoning] classificatio n now applicabl e t o th e property i n question.' Simpson admits that he was directly involved i n the decision t o deny the license application of Vulcan Materials. As a consequence of the denial of permission t o operate

Vulcan Materials has paid M & N no

"On Januar y 18 , 2005, Vulca n Material s

That same night,

on th e property.

the rock quarry, royalties.

Also

(1)

"Subsequently, M & N sued th e Town and Simpson. named as defendants i n M & N's complaint were

Vulca n

Lands ,

(2) Vulca n Materials ,

an d (3)

Vulcan Materials Company (hereinafter referred t o collectivel y as 'the Vulcan entities') . The

complaint alleged that a t al l times relevant to the claims against him 'Simpson was acting i n hi s individual capacity and/or hi s representative

against

Simpson included interference with business or contractual relations and negligence and/or wantonness and sought declaratory and/or injunctive relief . The claims against th e Town included inverse

capacity on behalf

o f th e Town.' The claims

8

1110439, 1110507

condemnation[ 2 ] and negligence[ 3 ] and also sought declaratory and/or injunctive relief.

'by virtu e o f

the provisions o f Ala. Code § 6-6-227 (1975), which

persons shal l be made partie s who

have or claim any interest which would be affected

by th e declaration.' The Vulcan entitie s have file d

a 'motion t o be excused from participation a t

trial.' In that motion, they 'agree[d] t o be bound

by any judgment entered

declaratory judgment claim.'

"The

Vulca n entitie s were named

requires that al l

with regard

t o [M & N's]

"Simpson and th e Town each moved fo r a summary judgment. Simpson argued, among other things, that

2 M & N initially brought it s inverse-condemnation claim under both th e Fifth Amendment t o th e United States

Constitution and th e Alabama Constitution .

relianc e upon th e Fift h Amendment th e Town removed th e case t o the United States District Court fo r the Northern District of

In

it s Fifth Amendment

claim and filed an amended complaint i n the trial court making

Instead, M & N alleged I , § 23, Ala . Const. 1901, an d § 18-1A-1 e t

1901,

seq., Ala. Code 1975.

Based on M & N's

Alabama

based

upon

federal-question

jurisdiction.

response, M & N voluntarily dismissed

no reference t o th e Fifth Amendment.

that th e Town's actions violate d Art.

Art . XII , § 235, Ala . Const.

3 On November 27, 2006, th e Town file d a motion t o dismiss several o f M & N's claims against th e Town. The Town argued that th e followin g claims o f M & N's against th e Town were due to be dismissed: the wrongful-interference-with-contractual- or-business-relations claim; al l wantonness claims; and the negligent hiring, retention, and supervision claim. M & N filed a response.

court granted th e Town's

N's

following claims against th e Town: wrongful interference with contractual or business relations; negligent hiring,

retention, and supervision; and al l wantonness claims.

On March

16, 2007, th e tria l

i n part,

motion

t o dismiss

thereby dismissing

M

&

9

1110439, 1110507

he was entitled t o absolute immunity fo r any actions

he took relating t o the property, either before or

afte r he became mayor. The Town challenged M & N's standing t o brin g th e action . The Town als o adopted

Simpson's

support o f the motion. I n opposition t o the motions,

evidence

indicating that Simpson had, many years ago, pleaded guilty t o two misdemeanor criminal charges i n Tennessee. On April 16, 2009, th e tria l court denied the motions.

M &

summary-judgment motion and brief i n

N

presented,

among other things,

"Simpson file d hi s petitio n on May 8, 2009, i n

case no. 1080981; th e Town file d it s petitio n on May

11,

2009,

i n case

no. 1081027.

Both

petition s

challenge M & N's standing t o prosecute th e

underlying action. Also, th e Town's petition asserts the defense o f absolute immunity against the claim based on Simpson's alleged negligence. Similarly, Simpson's petition asserts the defense o f absolute immunity against the claims alleging against him interference with business or contractual relations and negligence and/or wantonness. Each petition

th e tria l denying

Simpson's and th e Town's summary-judgment motions, and (2 ) ordering i t t o enter a judgment i n favor o f the movant."

seeks

a wri t

o f mandamus

(1 ) directin g

court t o vacate

it s order o f April 16, 2009,

Simpson I , 36 So. 3d a t 19-22.

We concluded

i n Simpson I that M & N had standing t o sue

the Town and Simpson based on events

that ha d occurred

both

before and after

th e sale o f the 269 acres

owned by M & N

("the property") t o Vulcan Lands.

I n determining

that M & N

had standing t o sue th e Town and Simpson based on pre-sal e and

post-sal e events, we als o noted

10

that M & N may no t be th e real

1110439, 1110507

party

i n interest pursuant

t o Rule

17, Ala . R.

Civ . P. 4

However, we refused

t o make a determination

on that

issue

because neither th e Town

no r Simpson ha d raise d that argument.

Simpson I , 36 So. 3d a t 25.

Concerning the issue o f immunity, we concluded that

"the Noerr-Pennington doctrine[ 5 ] affords

Simpson

absolute

immunity

fo r hi s pre-election

conduct

opposing the rock quarry. Also, Simpson i s entitled

to

absolute

legislative

immunity

fo r hi s

4 Rule 17 provides, i n pertinent part:

be

"(a) Real Party i n Interest. Every action shall

i n

prosecuted

i n th e name

o f th e real

party

interest.

An executor,

administrator,

guardian,

with

whom o r i n whose name a contract ha s been made fo r

authorized by

sue i n that person's own name without

fo r whose benefit th e action i s

brought. No action shall be dismissed on the ground

i t i s no t prosecuted i n th e name o f th e real

party i n interest until a reasonable time has been

bailee, trustee of an express trust,

a party

the

benefit of another,

or a party

statute may

joining th e party

that

allowed

after

fo r ratification

of

commencement

o f

objection th e action

by,

o r joinder

o r

substitution of , the real party i n interest; and such ratification, joinder, o r substitution shall

have

th e same

effec t

as i f

th e action

ha d been

commenced

i n

th e

name

o f

th e

rea l

party

i n

interest."

5 As explained i n Simpson I , th e Noerr-Pennington doctrine, under which private citizens ar e afforded immunity under

certain

circumstances,

i s se t forth

i n Eastern

Railroad

Presidents Conference v. Noerr Motor Freight, Inc. , 365 U.S.

127

(1961), an d United Mine Workers v. Pennington, 381

U.S.

657

(1965) .

11

1110439, 1110507

post-election participation i n the passage of zoning

t o these immunity bases judgment, th e petitions

e

of Simpson and th e Town ar e grante d and writ s ar

Ordinance no. 2004-284. As

for

th e entry o f a summary

issued.

t o

legislative immunity fo r hi s role i n denying Vulcan

Materials' application fo r a business license. To

o f Simpson and th e Town

fo r the

entry o f a summary judgment against M & N on it s claim arising out of the denial of Vulcan Materials'

license application, the petitions are denied."

assert legislative immunity

"Simpson

i s

not,

however,

entitled

[the]

exten t th e petition s

as the basis

Simpson I , 36 So. 3d a t 31.

Followin g Simpson I , th e Town and Simpson sought t o

amend

their answers t o assert th e affirmative defense that M & N was

not the real party i n interest under Rule 17.

M & N filed a

motion t o strike th e Town's and Simpson's amended answers; M

&

N

argued

that

th e

Town

and Simpson

had

waived th e

affirmative defense of real party i n interest based

on the

fact that the case had been pending fo r over four years before

the Town and Simpson sought t o rais e th e defense.

On February

3, 2010, following

a hearing, the trial

court granted the

Town's and Simpson's motions fo r leave t o amend their answers;

the trial

[Simpson

court entered it s judgment "[a]fter

review of

I ] , a review o f al l relevant and applicable law, th e

12

1110439, 1110507

file and the record i n it s entirety, and having considered the

arguments and representations made by counsel."

The

cas e proceede d t o a jur y tria l beginnin g

o n Februar y

14,

2011 .

The Town an d Simpson file d motion s fo r a judgmen t

as

a matter o f la w ("JML") pursuant t o Rule 50, Ala . R. Civ .

P., a t th e clos e o f M & N's evidence .

The Town argued, among

other

things,

that Art.

I , § 23, Ala. Const.

1901, di d not

apply

and that

M

&

N

could

not maintain

it s inverse-

condemnation claim based on the administrative and regulatory

actions taken b y th e Town because such a regulatory "takings"

claim i s unsustainable

under § 235, Ala . Const.

1901.

The

Town and Simpson renewed thei r motions fo

r a JML a t th e close

of

al l th e evidence.

The tria l

court granted th e Town's

renewed motion fo r a JML i n part

and Simpson's motion fo r a

JML

i n part ; th e tria l

court

submitte d

t o th e jur y M & N's

inverse-condemnation clai m based upon § 235, Ala . Const. 1901 ,

against

th e Town

and M

& N's

contractual-or-business-relations

Before

th e matter was submitted

wrongful-interference-with-

claim

against

Simpson.

t o th e jury,

however, th e

parties and th e tria l court discussed whether M & N's inverse-

13

1110439, 1110507

condemnation claim was maintainable under § 235. The Town's

counsel entered the following objection:

t o any jur y charges

relating t o inverse condemnation, the recovery, the

"And

th e Town o f Gurle y objects

damages,

any

jury

charge

related

t o

inverse

condemnation.

Because,

as

the Court

correctly

states , we don' t thin k tha t

[§] 23 5 o r th e Stat e o f

a regulatory

that

Alabama -- law o f Alabama recognizes

taking,

they are making i n this

which

i s what

[M & N] has contended case.

regulatory taking i s calle d fo r under th e

any

claims related t o th e Fifth Amendment and Fourteenth Amendment o f th e U.S. Constitution.

U.S. Constitution ,

"Any

[bu t M

& N has] dismissed

"There has been no physical taking or injury t o the property as defined under Alabama law that would

 

allow an

inverse condemnation claim t o go t o the

jury."

The

Town als o

reasserte d

it s objectio n

t o th e tria l

court's

inverse-condemnation jury charge after th e jury had been

charged.

On

February 22, 2011, the jury

favor

o f M

&

N

and against

th e Town

returned

on M

a verdict i n

& N's

inverse -

condemnation

claim; the jury awarded

M & N damages i n the

amount o f $2,750,000,

plus

6% interest .

The jury

also

returned

a verdict i n favor o f Simpson and against M & N on M

& N's claim o f wrongful interference

with

contractual o r

business relations against Simpson.

14

1110439, 1110507

On August 5, 2011, th e trial court entered a judgment on

the

jury's verdict ; th e tria l

court amended it s judgment on

August 11, 2011. The tria l court's amended judgment provides,

in pertinent part:

"On Februar y

14 ,

2011 ,

th e

tria l

o f

th e

afore-referenced

cause

commenced. Prior

t

o

th e

commencement o f sai d trial , th e partie s consented t o

the issue o f

expenses due t o [M & N] i n the event [M

& N] prevailed on it s inverse condemnation claim. On

litigation

permit

this Court

t o hear and decide

February 22, 2011, the jury found i n [M & N's] favor

assessed

damages

o f

on

the inverse condemnation claim and

against

th e [Town]

i n

th e

amount

$2,750,000.00, plus 6% interest.

"Subsequent thereto, a hearing was held on [M &

Having carefully

reviewed al l briefs, supplements thereto and al l caselaw cited by the parties, relevant or otherwise, this Court hereby awards [M & N ] litigation expenses in th e amount o f $1,200,169.20 (consistin g o f $1,158,969.00 fo r attorneys' fees and $41,200.26 [sic] fo r expenses).

N's] claim fo r litigation expenses.

"

"Therefore, i t i s ORDERED, ADJUDGED an d DECREED by the Court as follows:

been made i n

open court, judgment be and i s hereby entered i n

M & N Materials, Inc., and

against th e defendant, The Town o f Gurley, Alabama, in th e amount o f $2,750,000.00, plus 6% interest

o f

$966,493.15 totaling $3,716,493.15 and th e court

fo r which

favor of the plaintiff,

"1. The verdic t o f th e jur y having

beginning

April

14,

2005,

i n

th e

amount

costs associated with these proceedings, execution may issue.

15

1110439, 1110507

Inc. , i s

hereby awarded litigation expenses i n the amount of $1,200,169.20 , fo r whic h executio n may issue .

"2.

The

plaintiff ,

M & N Materials ,

"3.

The verdic t of the jur y havin g been made

i n

open court, judgment

be

and

i s hereby entered

i n

favor of the defendant, Mayor Stan Simpson, all claims against him.

as

to

"4. The claim s fo r declarator y relie f ar e hereb y

dismissed without prejudice i n view

(Capitalizatio n i n original. ) The tria l

of the verdict."

cour t di d not rul e on

M

& N's

reques t fo r injunctiv e

relief .

On August

19, 2011,

the Town file d a renewed

motion fo r

a JML pursuan t t o Rule 50(b) , Ala . R.

Civ . P.

I n that same

motion, the Town requeste d alternativ e postjudgment

relie f

pursuant t o Rule 59(e), Ala . R. Civ . P.

On November 17, 2011,

pursuan t t

o Rul e 59.1, Ala . R. Civ . P.,

th e partie s consente d

to

extend the

90-day period

fo r ruling

on

the Town's

postjudgment motion, and the tria l

court entered an order

retaining jurisdictio n to rule on the Town's postjudgment

motion unti l

December 19, 2011.

On

December 13, 2011,

the

tria l cour t denie d the Town's postjudgment motion .

The Town

appealed.

On

January 24, 2012,

M

&

N

file d

a

cross-appeal,

naming the Town and Simpson as appellees.

16

1110439, 1110507

On February

13, 2012, upon motion

of the parties,

this

Court entered an order i n both the appeal and the cross-appeal

statin g

tha t th e tria l

court' s order appealed

from was

not a

final

judgment i n that i t failed to dispose of the claim fo r

injunctive relief.

As a result,

trial

court

for i t "to enter

injunctive relief. "

On February

we

remanded the case to the

a ruling

on

15, 2012,

the claim for

the tria l

court

entered an order, as follows:

o f

Alabama remanded this matter to allow this Court an

Inc.'s

otherwis e

2012 ,

"On Februar y

13 ,

th e Suprem e

Cour t

opportunity to dispose

('M

& N' )

of M & N Materials,

relie f

clai m fo r injunctiv e

o r

the jury's verdict

make the judgment on

hearing on thi s matter was hel d on February 15,

final .

A

2012. I t i s hereby ORDERED, ADJUDGED and DECREED by

the Court

hereby

&

that i n light

of the jury's verdict, M

relie f

ar e

N's

claim s

fo r injunctiv e

dismissed without prejudice. In light

dismissal of the declaratory and injunctive relief,

Material s Company,

it i s further ordered that Vulcan

of

the

Vulcan

Lands, Inc . are hereby dismissed without prejudice as parties to this action."

Vulcan

Construction Materials, L.P.,

and

(Capitalization i n original.)

II. Standard of Review

Different standards of review apply i n our determination

of

the claims before us.

In addressing the Town's appeal,

which challenges the trial court's denial of it s motion fo r a

17

1110439, 1110507

JML on th e inverse-condemnatio n claim , we appl y th e followin g

standard of review:

"In

American National Fire Insurance Co. v.

Hughes, 624 So. 2d 1362 (Ala. 1993), this Court se t

out

review of a trial JML:

fo r a

t o the appellate

the standard that

applies

court's ruling on a motion

"'The standar d o f revie w

applicabl e t o

a rulin g on a motion fo r JNOV [now referre d

JML] i s

identical t o the standard used by the trial court i n granting or denying a motion fo r

t o as a

to

as

a

renewed

motion

fo r a

directe d verdic t

[now referre d

motion

fo r a JML]. Thus, i n reviewing th e

trial

review

court's

ruling on the motion,

the evidence

i n

light

we

most

favorable

t o

a th e nonmovant,

and

we

determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.'

"624

So. 2 d a t 1366 (citation s omitted) . Further, i n

682 So. 2d 17

Cessna Aircraf t Co. v. Trzcinski,

(Ala.

1996), thi s Court held :

"'The

motion

fo r a

J.N.O.V.

[now

referred t o as a is a procedural

the

the jury's verdict. See, Rule 50(b), [Ala.]

renewed motion fo r a JML] device used t o challenge

sufficiency of the evidence t o support

R.

Civ . P.; Luker v . Cit y o f Brantley , 520

So.

2d 517

(Ala . 1987).

Ordinarily , th e

denia l o f a directe d verdic t

[now referre d

to

as a JML] o r a J.N.O.V. i s proper where

the

nonmoving

party

has

produced

substantial

element o f hi s claim. However, i f punitive

damages

directe d verdic t

fo r a

each

evidence

t o

support

ar e a t issue

i n a motion

o r a J.N.O.V., then th e

18

1110439, 1110507

"clea r and convincing" standard

applies .

 

Senn

v. Alabam a Gas

Corp. , 619

So.

2d

1320

(Ala.

1993).'

"682

So.

2d at 19

(footnote omitted) . '[S]ubstantia l

evidence i s evidence of such weight and qualit y that

exercise of impartia l

fair-minded persons i n the

judgment can reasonably

infe r the existence

of

the

fact sought to be

proved.' West v.

Life

Assuranc e Co.,

547

So.

2d

870,

871

Founders (Ala . 1989) .

See

§ 12-21-12(d), Ala. Code 1975."

Cheshir e

v.

Putman , 54

So.

3d

336,

340

(Ala . 2010) .

 

In it s cross-appeal,

M

&

N

argues that

the

tria l

court

erre d by

grantin g the

Town's and

Simpson' s motion s fo r a

JML

as

to certai n claims

and

by

grantin g the

Town's motion

to

dismis s

certai n of M

& N's

claim s

agains t

it ,

see

supr a

not e

3. Concernin g M & N's

argument s tha t the tria l cour t erre d

by

grantin g the Town's and

Simpson's motions fo r a JML,

we

apply

the standar d

of revie w

se t

fort h above .

Concernin g M

&

N's

argument that the tria l court's judgment granting i n part

the

Town's motion to dismiss, we apply the following standard

of

review:

a

presumptio n of correctness . The appropriat e standar d

"'On

appeal,

a dismissa l i s not

entitle d to

of review under Rule 12(b)(6)[, Ala. R.

Civ. P.], i s

whether, when the allegations of the complaint

are

viewed most

strongly

i n

the

pleader's

favor,

i t

appears that the pleader

could prove

any

set

of

circumstances

that would entitl e

[him]

to relief .

In

making this determination,

 

this

Court does

not

19

1110439, 1110507

consider

whether

the plaintiff

will

ultimately

prevail , bu t only whether [he] may possibl y prevail .

We

12(b)(6) dismissal i s proper

only when i t appears beyond doubt that th e plaintif f

i n support of the claim

can

that would entitle the plaintiff t o relief.'"

note that

a Rule

prove no se t of facts

C.B. v. Bobo, 659 So. 2d 98, 104 (Ala. 1995) (quoting Nance v.

Matthews, 622 So. 2d 297, 299 (Ala. 1993)).

III.

Discussion

A. Case No. 1110439

First , th e Town argues that M & N's inverse-condemnation

claim, based upon administrative and/or regulatory

actions

taken

by th e Town,

i s no t maintainable

under

§ 235, Ala .

Const. 1901, because, i t says, Alabama does not recognize as

compensable a regulatory "taking."

M & N does not dispute

that it s inverse-condemnation claim i s based upon th e Town's

administrative and/or regulatory actions and argues that it s

claim i s maintainable under § 235.

Section 235, entitled "Taking of property fo rpublic use

by municipal and other corporations," provides, i n pertinent

part:

and

individuals invested with the privilege of taking

just

compensation, t o be ascertaine d as may be provided

or

"Municipal

fo r

and

other

use ,

corporations

shal l

make

property

by

law,

publi c

fo r the

property

taken,

injured,

20

1110439, 1110507

destroyed by the construction or enlargement of it s

works, highways, o r improvements, which compensation

injury, or

destruction.

shall

be

paid

before

such

taking,

The partie s have no t directe d thi s Court' s attentio n t o

any precedent i n which an inverse-condemnation claim based

upon a regulatory

"taking" by a municipal

corporation was

brought invoking § 235. The Town argues that, under th e plai n

language

o f

§

235

--

that

th e property

must

be

"taken,

injured, or destroyed by the construction or enlargement of

i t s works, highways, o r improvements

" (emphasis added) -¬

an

inverse-condemnation

claim

based

upon

a

municipal

corporation's

regulatory

"taking"

of property

i s not

sustainable.

essentially

The Town argues that under

§ 235 there ar e

two requirements that

must be met i n order

t o

maintain

an inverse-condemnation claim: The party allegin g

that

it s property

has been

taken pursuant

t o

inverse

condemnation must prove, first, that the property has been

"taken, injured, o r destroyed" and, second, that th e property

has been physicall y disturbed.

The

Mobile,

Town direct s ou r attentio n t o Thompson v . Cit y o f

240

Ala . 523,

199

So.

862

(1941), among

other

authorities,

i n support

of it s argument

that

an actual

21

1110439, 1110507

physical disturbance or invasion of the property must occur i n

order to support an inverse-condemnation claim under § 235.

This Court stated i n Thompson:

"In our recent case of Alabama Power Company v.

332,

Cit y

339,

many authoritie s as t o what constituted a taking,

o f Guntersville , 235 Ala . 136,

177

So.

114 A.L.R. 181 [(1937)], afte r a ful l review o f

injuring

or destroying

of property

within

the

meaning of the constitutional provisions

which

require

that

jus t compensation shall be firs t

made

to

the

owner

fo r

such

taking,

injuring

or

destroying,

we

adopted

the following

rule

of

liability , viz : 'That jus t compensation must be made by municipal corporations and other corporations and

individuals invested with the privilege of taking property fo r publi c use, when, by the construction

or

improvement, there wil l be occasioned some direc t

either public or

with

additional

he has t o hi s general

or

enlargement

of

"its " works,

of a right,

highways,

physical disturbance

private, which the owner enjoys i n connection

his

property,

and which

gives

i t an

value, and that by reason of such disturbance sustained some specia l damage with respect

property

i n excess of that sustained by the

public.'"

240 Ala . a t 527, 199 So. a t 865

(final emphasis added).

See

also Jefferson Cnty. v. Southern Natural

Gas Co., 621 So. 2d

1282,

1286-87

(Ala .

1993)

(holding tha t a jur y may

resolv e a

§ 235 claim

only "where there

i s evidence

o f some

direc t

physical injury to the property");

City of Tuscaloosa

v.

Patterson,

534 So. 2d 283, 285-86 (Ala. 1988) (noting that, i n

a claim brought pursuant to § 235, there must be proof that a

22

1110439, 1110507

government project "causes a direct physical disturbance of a

right,

either public or

private, that

enjoys i n connection

with hi s property") ;

the

property

owner

and Alabama Power

Co.

v.

Cit y of Guntersville , 235

Ala .

136,

143,

177

So.

332,

339

(1937 )

("We

thin k

th e

prope r

rul e

is , tha t

jus t

compensation must be made by municipal corporations and other

corporations and individual s invested with the privileg e of

taking property

for publi c use,

when, by the construction

or

enlargement of 'its 'works, highways, or improvement, there

wil l

be

occasioned some direc t physica l disturbance

of

a

right, either public or private, which the

owner enjoys

i n

connection with his property

") .

We find the Town's argument persuasive.

 

As

this

Court

state d

i n Jefferso n

Count y v.

Weissman ,

69

So.

3d

827,

834

(Ala. 2011):

"We

are cognizant

that the long-settle d

and

fundamental rule binding this Court in construing provisions

of the constitutio n i s adherence

to the

plai n meaning of

the

text. "

Withi n

the plai n meanin g

of

it s text , § 235

doe s

not

make compensable regulatory "takings" by an entit y or person

vested with the privileg e of taking property

for publi c

use.

As

set

fort h

i n

our

long-standing

precedent, the

taking,

23

1110439, 1110507

injury, or destruction of property must be through a physical

invasion or disturbance of the property, specifically "by the

construction

or enlargement

of

[a municipal

or

other

corporations'] works, highways, or improvements," not merely

through administrative or regulatory acts.

M & N encourages us t o look t o federal caselaw concerning

regulatory

"takings" under the final clause

of the

Fifth

Amendment t o the United States Constitution, often referred t o

as the "Just Compensation Clause,"

i n interpreting § 235.

However, the language used i n the Just Compensation Clause i s

not similar

t o th e language i n § 235.

The Just Compensation

Clause provides that "private property

[shall not] be taken

for public use without just compensation."

Therefore, the

precedent interpreting the Just Compensation Clause does not

aid our interpretation of the substantially different § 235.

We also note that M & N could have asserted it s inverse-

condemnation claim, which i s based upon the administrative and

regulatory

actions

Compensation Clause.

Tahoe Reg'l Planning

o f

th e

Town,

pursuant

t o

th e

Just

See Tahoe-Sierra Pres. Council, Inc . v.

Agency, 535 U.S.

302, 306 n.1

(2002)

("[The Just Compensation Clause] applies t o th e States as wel l

24

1110439, 1110507

as th e Federal Government.

Chicago, B. & Q.R.

Co. v. Chicago,

166 U.S. 226, 239 (1897); Webb's Fabulous Pharmacies, Inc . v.

Beckwith,

449 U.S.

155, 160

(1980).").

M

&

N

initiall y

asserted it s claim as a federal constitutional claim, but i t

later voluntarily dismissed

that

case

i n the state

trial

court.

claim i n order

t o keep this

M

& N,

as master

of

it s

complaint,

chose

relie f

i t may

Constitution.

t o forgo,

have been

fo r strategical purposes, any

entitle d

t o

under

th e

federa l

Based

on ou r holding that § 235 does no t support M & N's

inverse-condemnation claim asserting a regulatory taking by

the Town, we reverse

th e tria l court's judgment i n favor o f M

& N on it s inverse-condemnation claim and render a judgment i n

favor o f th e Town. Our conclusion pretermits th e other issues

raise d b y th e Town i n case no. 1110439.

B. Case No. 1110507

First,

M

&

N

argues

that

the trial

court's

judgment

granting

i n part

th e Town's motion

fo r a JML

and thereby

dismissing M

& N's § 23, Ala . Const. 1901, claim was i n error.

The

tria l

court

determined

that, pursuant

t o Willi s

v.

25

1110439, 1110507

University o f North Alabama, 826 So. 2d 118 (Ala. 2002), § 23

was

no t applicabl e t o th e Town's actions .

Section 23, entitled "Eminent domain," provides:

o f eminent

domain shall never be abridged nor so construed as

to prevent th e legislature from taking

and franchises

of incorporated

th e property

companies, and

subjecting them t o publi c us e i n th e same manner i n

"That th e exercise

o f th e right

which the property and franchises of individuals are taken and subjected; but private property shall not

be taken for, o r applied t o publi c use,

compensation be firs t made therefor; no r shall private property be taken fo r private use, or fo r the use of corporations, other than municipal,

without th e consent o f th e owner; provided, however, the legislatur e may b y la w secure t o persons o r corporations th e right o f way over th e lands o f other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just

be firs t made t o

that th e right o f eminent

domain shall not be so construed as t o allow

taxation or forced subscription fo r the benefit of

other

unless jus t

compensation shall , i n al the owner; and, provided,

l cases,

railroads o r any other kind of corporations,

than municipal, o r for the benefit of any association."

or

individual

Further, this Court se t forth the following concerning the

power

o f eminent domain

and it s limitations

Stubbs, 682 So. 2d 430, 433-34

(Ala. 1996):

i n Gober

"The power o f eminent domain does no t originat e

in Article

in every sovereign state. Section 23 merely places

o f the power o f

inherent

I , § 23. Instead,

i t i s a power

certain

limits

on th e exercise

eminent domain. This

Court

stated

i n Steele

v.

26

v.

1110439, 1110507

County Commissioners, 83 Ala . 304,

305,

3 So.

761,

762

(1887):

 
 

"'The

righ t

of

eminent

domain

 
 

antedates constitutions , and i s an inciden t

of sovereignty, inherent in , and belonging

t o

ever y

sovereig n

State .

The

onl y

qualification of the [inherent] right is ,

 

tha t th e use

fo r whic h privat e propert y

may

be

take n

shal l

be

publi c

The

constitution

[of our

State] di d not

assume

 

to confer the power of eminent domain, but,

recognizing

it s

existence,

[further]

limited it s exercise by requiring that just compensation shall be made.'

"In order

for an

exercise of eminent domain to

be

vali d under § 23,

two

requirements

must be met.

See

Johnston v. Alabama Public Service Commission, 28 7

Ala .

417,

419,

252

So.

2d 75,

76

(1971). First ,

the

property must be taken

fo r a publi c use

and,

wit h

one exceptio n inapplicabl e here, i t cannot be

taken

for the privat e use

This first restriction i s no more than a

of individual s or

corporations.

restatement

of

a requirement

inherent

i n

a

sovereign's

very

righ t

t o exercis e eminen t domain.

See

Steele ,

83

Ala .

at

305,

3

So.

a t

762.

Second,

'jus t

compensation [must be paid] fo r any privat e property

taken. ' Johnston , 7 6."

a t

287

Ala .

a t

419,

252

So.

2d

(Footnotes

omitted.)

In Willis,

a property owner owned property across

the

street from a parking

lo t owned by

the Universit y of

North

Alabam a ("UNA").

UNA

buil t

a multileve l parkin g dec k on it s

parkin g

parking

lot ; i t was

assume d tha t

deck

reduced the

value

the

of

constructio n of

the

the

property

owner's

27

1110439, 1110507

property.

As a result, the property

owner "filed an inverse-

condemnation actio n against UNA, based on the allegatio n that

UNA

'took '

hi s propert y

withou t

'jus t compensation, '

i n

violatio n

of § 23

"

826 So. 2d a t 119.

This Cour t

hel d

tha t

even

though the propert y

owner's propert y was injured ,

"sinc e no portio n of Willis' s propert y

was

'taken,' o r applie d

t o

publi c

us e

by

UNA,

UNA

was

no t require d

t o

compensat e

Willi s under

the holdin g

§ 23."

826

i n Willi s was

So. 2d a t 121.

Als o

significan t t o

the overrulin g o f certai n

holding s

i n

Foreman v.

State ,

676

So. 2d 303

(Ala . 1995),

as follows :

"Foreman v. State ,

676

So. 2d 303

(Ala . 1995),

involved an inverse-condemnation action i n which

the

this

Court held that i n '"inverse condemnation actions, a governmental authority need only occupy or injure

the

305

Gas

Co.,

added i n Foreman). However, i n Jefferson County, the

Alabama

(emphasis

compensation

was

sought

under

§

23

o f

Constitution of Alabama of 1901. In Foreman,

propert y

i n question." '

676

So.

2d

a t

(quoting Jefferso n County v. Southern Natura l

621

So.

Cour t was Constitution,

2d 1282,

1287

(Ala . 1993))

applyin g

§

235

o f

th e

not § 23. As we

have already

noted,

235

does not apply

t o the State.

Finnel l v.

Pitts ,

222

Ala . 290,

132

So.

2

(1930). To th e extent

tha t

Foreman (and Barbe r v. State , 703 So.

§

23 '"a governmental authorit y need only occupy or

those holdings

injure the property

1997), which relied on Foreman),

2d 314 (Ala .

held that under

i n question,"'

are incorrect and are hereby overruled."

28

1110439, 1110507

Therefore,

i t i s clear, under th e plain language o f § 23

and under Willis, that th e trial court properly held that § 23

does no t apply

i n this case.

I t i s undisputed that there was

not

an actual taking

i n this

case

and that

M

& N has

complained only o f administrative and/or regulatory actions

taken b y th e Town.

Willi s makes clear that § 23 applies when

a physical taking o f th e property i n question has occurred. 6

In th e present

case, M & N does no t allege that

there

was a

physical taking o f th e property i n question.

We affirm th e

o f

Transportation v. Land Energy, Ltd., 886 So. 2d 787 (Ala.

2004), which was based upon th e "la w o f th e case" doctrine, not upon an interpretation by this Court o f § 23 allowing for

i d . a t 796

) , 802 ("Given th e

particular procedural and evidentiary posture o f this case,

6 The

dissent

discusses

Alabama

Department

the recovery o f a regulator y "taking. " ("Under the governing 'law o f the case, '

See , e.g.,

and

instructions, we conclude that th e jury was entitled t o find that LE possessed an identifiable property-use interest before

the condemnation. I n that regard,

on th e jury, was th e instruction that i f i t

found t o it s reasonable satisfactio n that ADOT [the Alabama

Department o f Transportation] 'by acquiring th e surface above

the mineral

foreclosed th e

the case, binding

established by th e jury

given

th e 'law o f th e case'

one feature o f th e la w o f

estate

o f

[LE] improperly

possibilit y that [LE] could recover it s minerals,'

the

duty

o f th e jury

some o f th

standard

t o determine

i t would b e and 803

("Although there was testimony offere d b y ADOT contrary t o

e testimony recite d above, under th e applicabl e

o f review we must construe th e record i n favor o f LE

damages"),

and

look

t o see only

i f there

i s substantial evidence i n th e

record supporting the jury's findin g that a taking, as defined by th e jur y instructions , occurred.") (some emphasis added).

29

1110439, 1110507

tria l court's judgment granting th e Town's motion fo r a JML as

to

M & N's § 23 claim. 7

Next,

M

&

N

argues

that

the tria l

court

"erred i n

granting judgment

as a matter

o f la w on M & N's

negligence

claims." Although M & N cites general authority setting forth

the elements

establishin g

o f a negligence claim, M & N cites no authority

tha t

th e Town

o r Simpson

owed M

&

N

a

duty.

Instead, without citing any authority, M & N generally alleges

that th e Town and it s employees

qualifie d

an d t o properl y proces s an d issu e

a business license to M & N and t o Vulcan, to

prevent the adoption of arbitrary and capricious

moratoria targeting the property, to properly assign

(including overseeing a

proper land use study), and t o properly apply it s existing zoning ordinances."

"had

a duty t o ensure

tha t it s mayor was

to hol d offic e

zoning

t o the property

Then, without citing any facts, M & N generally alleges that

the Town "breached

those duties, which proximatel y

caused

damages

t o M & N."

M & N als o generall y argues,

without

citing any facts, that i t "presented substantial evidence from

7 We

note

that M

& N

also cites Blankenship

v. City o f

Decatur,

269 Ala . 670, 115 So. 2d 459 (1959), and Opinion o f

(1950), i n

support of it s argument regarding § 23. However, those cases

are distinguishable i n that both

involved a

the Justices No. 119, 254 Ala . 343, 48 So. 2d 757

o f those

cases

physical taking of property, unlike the present case.

30

1110439, 1110507

which the

jur y could have determined that

negligently

"

As set forth i n our standard-of-review

[the Town]

acted

section above, a

motio n fo r a JML

i s properl y denie d

when the nonmovin g

part y

has produced substantial evidence to support each element of

the party' s

claim .

See Cheshire , supra.

M

& N,

part y below and

the cross-appellan t here, has

the nonmoving

the burden

of

demonstrating that i t produced substantial evidence to support

every element of it s negligence claims.

M

& N has

faile d

to

cit e any

authorit y to support it s assertio n that the Town owed

M

&

N

a duty

and

has

faile d to indicat e which

fact s i n

the

record constitute substantial evidence supporting the elements

of

it s negligence

claims.

This

Court held

as

follows in

Universit y of South Alabama v. Progressive Insurance Co., 90 4

So.

2d

1242,

1247-48 (Ala . 2004):

"Rul e 28(a ) (10) , Ala . R. App.

P.,

require s tha t

arguments i n an appellant's (or cross-appellant's)

brief contain

'citations to the

cases,

statutes,

other

authorities , and

parts

of

the

record

relie d

a 28(a)(10) i s well established:

on.'

The

effec t of

failur e

t o

compl y wit h

Rul e

"'It

i s settled

that

a failure

with the requirements of Rule

to

comply

28(a)([10])

for

arguments provides the Court with a basis for disregarding those arguments:

requiring citation

of

authority

31

1110439, 1110507

"'"When an appellant

fail s

to

cit e

any

authorit y

fo r

an

argument on a particular issue,

may judgment as to that issue, for i t

thi s

th e

Cour t

affir m

is neither this Court's duty

nor

its

function

to

perform

an

appellant's legal research. Rule

2 8(a) ([10]);

Birmingha m Airpor t Authority , 613

Spradli n

v.

So.

2d

347

(Ala . 1993). "

"'City

of Birmingham v.

 

Business

Realty

Inv.

Co.,

722

So.

2d

747,

752

(Ala . 1998) .

See

als o

McLemor e v.

Fleming ,

604

So.

2d

353

(Ala .

1992) ;

Stove r

 

v. Alabam a

Farm

Burea u

Ins .

Co.,

467

So.

2d

251

(Ala .

1985) ;

and

Ex

part e

Riley , 464

So.

2d

92

(Ala.

1985).'

"Ex

part e

Showers , 812

So.

2d 277,

281

(Ala . 2001) .

'[W]e

cannot create

lega l

arguments

fo r