K & D Auto., Inc. v. City of Montgomery

• Decision Date: 28 February 2014
• Docket Number: 1121344.
• Citation: 150 So.3d 752
• Court: Alabama Supreme Court
• Parties: K & D AUTOMOTIVE, INC., and Calvin S. Kendrick v. The CITY OF MONTGOMERY et al.

150 So.3d 752

K & D AUTOMOTIVE, INC., and Calvin S. Kendrick

v.The CITY OF MONTGOMERY et al.

1121344.

Supreme Court of Alabama.

Feb. 28, 2014.

George B. Azar and Elizabeth C. Wible of Azar & Azar, LLC, Montgomery, for appellants.

Stacy Lott Reed of City of Montgomery Attorney's Office, Montgomery, for the City of Montgomery, Eddie Hill, Jr., Nathaniel Bracy, and Scott Adams.

Jeffrey W. Smith and Brannan W. Reaves of Jackson, Anderson & Patty, P.C., Montgomery, for Tony's Automotive, L.L.C., Tony D. Brooks, and Ellen F. Brooks.

Opinion

STUART, Justice.

K & D Automotive, Inc. (“K & D”), and Calvin S. Kendrick, its owner and president, appeal the summary judgment entered in favor of the City of Montgomery (“the City”); the City's employees Eddie Hill, Jr., Nathaniel Bracy, and Scott Adams (hereinafter referred to collectively with the City as “the City defendants”); Tony's Automotive, L.L.C. (“Tony's Automotive”); and Tony's Automotive's owner Tony D. Brooks and manager Ellen F. Brooks (hereinafter referred to collectively with Tony's Automotive as “the Tony's Automotive defendants”). We affirm in part and reverse in part.

I.

Since 1991, K & D has operated an automobile-repair business known as K & D Automotive on leased premises at 3310 Biltmore Avenue in Montgomery; an automobile-repair business, not always K & D Automotive, has existed at that location since 1974. Beginning some time in 2005 or 2006, inspectors for the City, including Bracy and Adams, began coming to K & D Automotive and telling Kendrick that some of the vehicles parked on-site were considered junk vehicles under municipal ordinance no. 28–2002 (“the City nuisance ordinance”). The City nuisance ordinance provides: “It shall be unlawful and is declared a nuisance for any owner, occupant or person in control of any property with the City to allow the accumulation of litter, trash, [or] junk....” As amended by ordinance no. 46–2004 in June 2004, “junk” is defined in the City nuisance ordinance as:

“All vehicle parts, rubber tires, appliances, dilapidated furniture, machinery equipment, building material or other items which are either in a wholly or partially rusted, wrecked, junked, dismantled or inoperative condition. A motor vehicle will be considered inoperative for the purposes of this section if it cannot be safely operated or if it is incapable of being moved under its own power or if it may not be legally operated due to lack of any legal requirement including an expired license plate. ”¹

(Emphasis added.) Kendrick asserts in an affidavit filed with the trial court that he told the inspectors that he was operating an automobile-repair business and that, for that reason, there were and would continue to be inoperable vehicles on the property. When the inspectors requested to see work orders for the vehicles at K & D Automotive, Kendrick declined to produce them, stating that they contained private information that he could not disclose without his customers' consent.

Kendrick further states in his affidavit that, at all times relevant to this action, a rotating group of approximately 25 to 35 vehicles that were in need of service were parked at K & D Automotive. Kendrick acknowledges that some of those vehicles were in need of major repair and were inoperable and that some of those vehicles lacked current license plates for a variety of reasons—some of the vehicles were owned by licensed vehicle dealers, some of the vehicles had been repossessed by banks and/or credit unions, some of the vehicles had recently been purchased by their owners, and some of the vehicle owners had removed the license plates when they dropped off their vehicles for repair.

On March 29, 2007, Bracy sent a form letter to K & D Automotive notifying the “occupant” that the condition of its property constituted a public nuisance in violation of the City nuisance ordinance. A check mark was placed next to “junk vehicle(s)” in the list of nuisance conditions, and the “notes” section included a typed note stating: “Junk vehicle—all vehicles must be operable, have current tag, and inflated tires.” Although Bracy had specifically identified six vehicles in his notes that he deemed to be junk vehicles because they did not have license plates, the letter sent to K & D Automotive did not specifically identify any vehicles that were alleged to be junk vehicles.² The letter also apprised the property owner that it had until April 8, 2007, to abate the nuisance or the city council would consider a resolution formally declaring the nuisance to be a public nuisance and authorizing the City to take action to abate the nuisance at a cost to be passed on to the property owner. Moreover, the letter stated that if the nuisance was not abated by April 8, the property owner would be assessed a $150 administrative fee regardless of whether the nuisance was ultimately abated by K & D or the City and its agents.

On April 9, 2007, Bracy returned to K & D Automotive and determined that the nuisance had not been abated. This time, Bracy photographed the six vehicles he had previously noted as being junk vehicles, as well as an additional vehicle, the license plate on which was expired. On April 10, 2007, Bracy sent another letter to K & D Automotive noting that a nuisance still existed and notifying the property owner that the city council would consider the matter at its meeting on April 17, 2007, at which time a representative of the property could appear and state any objections. Like the earlier letter, this letter provided no information specifying which of the vehicles at K & D Automotive were alleged to be junk vehicles.

In an affidavit, Kendrick asserts that he retained an attorney the day before the scheduled city council meeting, that that attorney subsequently appeared at the meeting and requested more time to become familiar with the situation, and that the city council responded to her request by directing her to speak with Hill, who was also present at the meeting. Ultimately, however, the city council subsequently approved at the meeting resolution no. 103–2007, which formally declared the nuisances identified on an attached list of 55 properties to be public nuisances and ordered the abatement of the same. K & D Automotive was included on the list; its violation was stated as being “junk vehicle(s).” It appears that there was no evidence considered by the city council regarding the particular nuisances alleged to exist on any of the properties, including K & D Automotive, other than the list that was prepared by Hill listing each property and its alleged violation or violations. Certainly, no evidence was considered regarding the condition of any particular vehicles parked at K & D Automotive.

The City subsequently selected Tony's Automotive from its list of registered nuisance-abatement agents to abate the nuisances at K & D Automotive. On April 20, 2007, a city employee made a “vehicle abatement” list that was subsequently delivered to Tony's Automotive, which included 12 cars either without a license plate or with an expired license plate to be removed from the premises of K & D Automotive. Only 1 of those 12 vehicles had previously been identified by Bracy before he sent the March 29 or April 10 letters, and 2 of the vehicles on the list had in fact been brought to K & D Automotive after the April 17 city council meeting. On April 22, 2007, Tony's Automotive towed 10 of the vehicles on the list.³ On April 23, 2007, the vehicles were released to K & D after it paid Tony's Automotive a storage fee of $30 per vehicle. Tony's Automotive subsequently billed the City $600 for the tows, and, on May 9, 2007, the City sent K & D Automotive's landlord a bill of $750 for the nuisance abatement—$600 for the towing charges and a $150 administrative charge. Under the terms of its lease, K & D was ultimately responsible for, and did pay, that bill.

After the April 2007 tows, Kendrick and K & D retained a new attorney who sent Hill a letter objecting to the City's application of the City nuisance ordinance with regard to K & D's automobile-repair business. Nevertheless, on July 27, 2007, Adams sent K & D Automotive another nuisance-abatement letter, substantially identical to the March 29 letter, identifying the accumulation of “litter, junk, [and] trash” and “junk vehicles” at K & D Automotive as a public nuisance. The notes section on this letter stated: “Junk vehicles, auto parts, trash, debris, open storage. All autos on premises must have tags and work orders to remain on property.” K & D Automotive was given until August 6, 2007, to abate the nuisance without having any fees imposed; however, after the condition was not remedied by that time, Adams sent K & D Automotive another letter on August 17, 2007, informing it that the city council would consider the matter at its September 4, 2007, meeting. No vehicles specifically identified as junk were listed in either letter.

Kendrick attended the September 4 city council meeting and spoke with city council president Charles Jinright. Kendrick asserts in an affidavit that he explained to Jinright that he could not produce work orders for the vehicles at K & D Automotive because of a privacy policy printed on the work orders, and, Kendrick further asserts, Jinright responded by telling him that the City would not take any further action until “getting back with [him].” Nevertheless, during the course of the meeting the city council approved resolution no. 233–2007, formally declaring the nuisances identified on an attached list of 95 properties to be public nuisances and ordering their abatement. K & D Automotive was included on the list; its violation was stated as being “litter, junk, trash; junk vehicle(s).” No further specific evidence of the alleged nuisances at K & D Automotive was adduced at the meeting.

Thereafter, a city inspector went to K & D Automotive and compiled a list of 27 vehicles to be towed to abate the nuisances on the property; 24...