Peterson v. City of Abbeville

• Decision Date: 20 June 2008
• Docket Number: 1051802.
• Citation: 1 So.3d 38
• Parties: Billy Frank PETERSON and Jim E. Ellis, Jr. v. CITY OF ABBEVILLE, a municipal corporation.
• Court: Alabama Supreme Court

1 So.3d 38

Billy Frank PETERSON and Jim E. Ellis, Jr. v. CITY OF ABBEVILLE, a municipal corporation.

1051802.

Supreme Court of Alabama.

June 20, 2008.

John E. Byrd, Dothan, for appellants.

Steadman S. Shealy, Jr., of Shealy, Crum & Pike, P.A., Dothan, for appellee.

BOLIN, Justice.

The City of Abbeville ("the City") sued Billy Frank Peterson and Jim E. Ellis, Jr. (collectively referred to as "the defendants"), on September 19, 2003, alleging that the defendants had placed a mobile home on certain real property owned by Peterson in such a way that violated § 91.3A2 of Art. IX of the Code of Ordinances of the City of Abbeville, entitled "Special Provisions for Zoning and Subdivision." The City sought an order requiring the defendants to relocate the mobile home on the property so as to comply with § 91.3A2.

On October 21, 2003, the defendants filed a motion to dismiss the complaint against them, alleging that the complaint failed to state a claim upon which relief could be granted. See Rule 12(b)(6), Ala. R. Civ. P. The City responded, and on March 24, 2004, the trial court entered an order denying the defendants' motion to dismiss.

The defendants answered the complaint on April 28, 2004. On May 5, 2004, the defendants amended their answer and filed counterclaims alleging breach of an agreement, fraud, negligence and/or wantonness, interference with a contractual relationship, trespass, defamation, invasion of privacy, and negligence of the City's agent.

On June 16, 2004, the City moved pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss the counterclaims against it. On June 29, 2004, the trial court entered an order denying the City's motion to dismiss the counterclaims.

On June 29, 2005, the defendants moved for a summary judgment. On August 3, 2005, the City responded to the defendants' motion for a summary judgment. The trial court, on December 14, 2005, entered an order denying the defendants' motion for a summary judgment.¹

On June 1, 2006, the City moved for a summary judgment. On June 27, 2006, the defendants filed their response in opposition to the City's motion for a summary judgment. Following a hearing, the trial court, on August 17, 2006, entered an order granting the City's motion for a summary judgment and ordering the defendants to relocate the mobile home on Peterson's lot so as to comply with § 91.3A2 of Art. IX of the Code of Ordinances of the City of Abbeville. The trial court also summarily dismissed the defendants' counterclaims against the City with prejudice. The defendants appeal.

Standard of Review

In reviewing the disposition of a motion for a summary judgment, we apply the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

Facts

On November 5, 2002, a tornado struck the City, causing widespread and extensive damage. The tornado destroyed Peterson's house, which was located on two contiguous lots at 374 Hickory Grove Road. Peterson's daughter and his son-in-law, Ellis, resided in the house with him. Following the destruction of the house, Peterson, his daughter, and Ellis relied on friends for housing.

In December 2002, Ellis purchased a double-wide mobile home to place on Peterson's property. Section 91.3A2 of Art. IX of the City's Code of Ordinances addresses mobile homes and provides:

"The mobile unit shall be oriented with the long axis parallel to the street on which the lot fronts and in no case shall the unit be located within twenty (20) feet of any permanent type of building. The unit shall not be located closer than ten (10) feet of any lot line and must be a minimum of twenty-five (25) feet from the street."

At some point after Ellis purchased the mobile home, Patricia Jones, Peterson's neighbor, contacted James Giganti, the city clerk, and informed him of the defendants' intentions of placing a mobile home on the Peterson property. In his capacity as city clerk, Giganti was the individual with the authority to make decisions regarding the placement of mobile homes within the municipal limits of the City. Jones contacted Giganti a second time to inform him that the defendants had poured a concrete slab perpendicular to Hickory Grove Road and in close proximity to her property line. Giganti then attempted to contact the defendants by telephone to discuss the placement of the mobile home but was unsuccessful in doing so because the defendants were staying with friends. Giganti did not visit Peterson's property at this time to investigate Jones's complaint because he was in the "middle of everything else" in the aftermath of the tornado.

Subsequently, on December 18, 2002, Jones contacted Giganti's office a third time complaining about the placement of the mobile home on Peterson's property. Giganti's secretary, knowing a permit had not been issued for a mobile home in that location, sent a police officer to Peterson's property to stop the installation of the mobile home. The defendants were told that they needed to contact the city clerk's office. At the time the installation of the mobile home was stopped, the defendants had dug a septic tank and had installed field lines, had poured a concrete pad, and had installed half of the mobile home perpendicular to Hickory Grove Road and approximately six to eight feet from Jones's property line. The defendants did not inquire into the applicable zoning requirements before beginning the installation of the mobile home and were unaware that a permit was required before a mobile home could be placed within the municipal limits of the City.

The defendants contacted the city clerk's office as requested and met with Giganti on December 18, 2002. Also present at this meeting was Rhett Taylor, a city councilman. During this meeting Giganti informed the defendants of the zoning requirements of § 91.3A2. Ellis represented to Giganti that the Peterson property was approximately 100 feet wide and that the mobile home they were installing was 80 feet long. Ellis told Giganti that the debris from the destroyed house remained on the lots, in the location of the original house, i.e., in the center of the property; that a new septic tank and field lines were in place; and that there was no other way the mobile home could be positioned on the lot other than the way it was being positioned. Ellis further informed Giganti that the concrete pad and half of the mobile home had already been installed on the property. Giganti determined that based on the length of the mobile home and the width of the lot as represented to him by Ellis, the mobile home could not be positioned on the lot in a manner that complied with § 91.3A2 of the City's Code of Ordinances. However, Giganti gave the defendants permission to complete the installation of the mobile home in the nonconforming position—perpendicular to Hickory Grove Road and approximately six to eight feet from Jones's property line—because half of the mobile home had already been installed, the defendants were homeless and facing an emergency situation, and he did not believe, based on Ellis's representations regarding the width of the property, that the mobile home could be positioned on the property in a manner that would comply with § 91.3A2. Ellis testified that if Giganti had not granted the defendants permission to complete the installation of the mobile home on the Peterson property, he would have returned it to the seller. Giganti testified in his deposition that he informed the defendants that the City would investigate the matter at a later date and that it would handle any problems that arise at that time. Ellis denied in his deposition that Giganti told him that the City would investigate the matter at a later date.

Giganti's subsequent investigation revealed the actual dimensions of the two contiguous lots and the mobile home. The mobile home measured 75 feet, 11 inches in length. The front of the two Peterson lots that border Hickory Grove Road had a combined width of 105 feet. The two lots are 210 feet deep and widen from front to back; the rear width of the combined lots is 154 feet.² The width of the lots at the approximate center from front to rear is 125 feet. The City determined that the Peterson property was of sufficient size to allow the mobile home to be placed on the property in a manner that would comply with § 91.3A2.³

After the mobile home had been placed on the lots, the City was presented with a petition signed by surrounding property owners requesting that the City enforce § 91.3A2 of the Code of Ordinances. The City ordered the defendants to relocate the mobile home on the lot so that its placement would comply with § 91.3A2. The City offered to pay the expenses associated with relocating the mobile home, including moving the septic tank and the field lines. The defendants, however, refused to relocate the mobile home because, they said, their warranty on the mobile home would be voided if they moved it, they would lose their financing, and the move could potentially damage the mobile home.⁴ Giganti testified that in the wake of the tornado the City continued to issue permits to...