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ELECTRONICALLY FILED 12/10/2013 3:54 PM 47-CV-2005-000731.00 CIRCUIT COURT OF MADISON COUNTY, ALABAMA JANE C.

SMITH, CLERK

IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA M&N MATERIALS, INC., Plaintiff, v. THE TOWN OF GURLEY, ALABAMA, et al., Defendants. MOTION TO REINSTATE CERTAIN CLAIMS AGAINST GURLEY IN VIEW OF REVERSAL OF JURY AWARD COMES NOW Plaintiff M&N Materials, Inc. (M&N) and, pursuant to A.R.C.P. 60, respectfully requests the Court modify its Amended Judgment entered August 11, 2011 to reinstate M&Ns claims contained in Count V (Declaratory Judgment) and Count VI (Injunction) that were dismissed without prejudice in view of the verdict. (Amended Judgment, Exhibit A). As grounds for this motion, M&N states: 1. Rule 60(b) provides, [o]n motion and upon such terms as are just, the CIVIL ACTION NO.: CV-05-731

court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated. . . Ala. R. Civ. P. 60(b). (emphasis added). 2. The Alabama Supreme Court reversed and rendered the jury verdict

reasoning that M&Ns claims for declaratory relief were dismissed without prejudice after the jury returned its verdict and thus may be reinstated following the Town of Gurleys appeal. (Slip Op., p. 46, Chief Justice Moore concurring specially; Exhibit B).

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Justice Moore states, [t]he injury done to M&N was done through zoning and annexation of land, not through eminent domain under 23.

Id.

Justice Moore

concludes his analysis by encouraging M&N to reinstate its claim for declaratory and injunctive relief for what appeared to him to be a case of spot zoning, or at least arbitrary and capricious zoning . . . Id. at 59. 3. remedy. Justice Parker, author of the Courts opinion, states, M&N is not without a M&N appropriately challenged the constitutionality of the exercise of the

police power by the Town of Gurley in passing the at-issue zoning ordinance. He goes on to note that M&Ns constitutional challenge was dismissed without prejudice. . . (Slip. Op., p. 61, Justice Parker concurring specially; Exhibit B). 4. Justice Parker concludes that Counts V and VI were not ripe for

adjudication in light of the jury verdict. Under his interpretation of the law, there are two ways to challenge the constitutionality of a citys actions in regard to private property, (1) challenge as unconstitutional the use of its police power, or (2) a challenge to its conferred power of eminent domain. Id. at 77. Justice Parker states that if private property is damaged while a city is engaged in the construction or enlargement of its works, highways or improvements, the city is liable in damages for a violation of Ala. Const. 235. If private property is however damaged by the use of police powers in an arbitrary or corrupt manner, or by an abuse of power, then a ruling striking down the offending actions would be proper. Id. at 77-81. Justice Parker notes that the Opinion relies on a finding by the majority that Gurley did not exercise its conferred power of eminent domain by construction of its works, highways or

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improvements, but instead exercised its police power in enacting the at-issue zoning ordinance. Id. at 80. As a result, M&N is free to refile its constitutional challenge to the at-issue zoning ordinance. Id. at 81. 5. The Alabama Supreme Court Opinion reversing the jury verdict was clearly

premised on the assumption that this Court would amend its Judgment to reinstate the declaratory and injunctive relief sought by M&N in Counts V and VI of the Amended Complaint. (Amended Complaint, Exhibit C). 6. Following the jurys verdict, Gurley requested that this Court rule on the

declaratory and injunctive relief sought by M&N in Counts V and VI. (Trial Transcript, p. 1410; Exhibit D). The Court advised at that time it was inclined to allow the

remaining claims to stay viable, in the event you [Plaintiff] choose for them to remain viable, pending the outcome of any appellate decision, that is my inclination, okay. Id. at 1411. 7. This Court later entertained oral argument regarding whether M&Ns

claims for equitable and/or injunctive relief would be dismissed with or without prejudice before the Court entered the Amended Judgment on August 11, 2011. Considering the issue again, this Court stayed with its initial inclination and determined that the claims were moot based on the jury verdict overruling Gurleys arguments that they were due to be dismissed, with prejudice. (Trial Transcript, p. 1478; Exhibit E). WHEREFORE, in view of the Alabama Supreme Court Opinion that reversed and rendered the jury verdict, M&N respectfully requests the Court modify its Amended

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Judgment dated August 11, 2011 to reinstate the declaratory and injunctive relief requested in the Complaint, as amended. Respectfully submitted, /s/ Michael A. Vercher Michael A. Vercher (ASB-4976-H32M) Attorney for Plaintiff M&N Materials, Inc. OF COUNSEL: CHRISTIAN & SMALL LLP 505 20th Street North Suite 1800 Birmingham, AL 35203 Telephone: (205) 795-6588 Facsimile: (205) 328-7234 mavercher@csattorneys.com and /s/ Rebekah K. McKinney Rebekah K. McKinney (KEI011) Attorney for Plaintiff M&N Materials, Inc. OF COUNSEL: WATSON MCKINNEY, LLP 203 Greene Street SE Huntsville, AL 35801 Telephone: (256) 536-7423 Facsimile: (256) 536-2689 mckinney@watsonmckinney.com

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CERTIFICATE OF SERVICE I hereby certify that on December 10, 2013 a copy of the foregoing was electronically filed with the Clerk of the Court using the AlaFile System which sends notification of such filing to counsel of record in this cause, and those not registered with AlaFile for electronic notification have been served at their regular mailing address via U.S. mail, postage prepaid. /s/ Michael A. Vercher OF COUNSEL

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