Antoine v. Oxmoor Preservation/One, LLC

• Decision Date: 10 May 2013
• Docket Number: 2100839 and 2110139.
• Citation: 130 So.3d 1204
• Parties: Lisa ANTOINE v. OXMOOR PRESERVATION/ONE, LLC; Johnson Realty Company, Inc.; and Hager Company, Inc.
• Court: Alabama Court of Civil Appeals

130 So.3d 1204

Lisa ANTOINE

v.OXMOOR PRESERVATION/ONE, LLC; Johnson Realty Company, Inc.; and Hager Company, Inc.

2100839 and 2110139.

Court of Civil Appeals of Alabama.

July 20, 2012.

Rehearing Applications Denied Sept. 14, 2012.

Certiorari Denied May 10, 2013

Alabama Supreme Court 1120015.

Kenneth J. Lay of Wooten Hood & Lay, LLC, Birmingham, for appellant.

Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellees Oxmoor Preservation/One, LLC, and Hager Company, Inc.

THOMAS, Judge.

Lisa Antoine and her husband, Ronald Glenn, purchased Lot 35 in the Highland Manor at Oxmoor Landing subdivision (“the subdivision”) in November 2007. Antoine and Glenn built a house on Lot 35. After they built the house, Antoine and Glenn began experiencing problems with flooding in their yard caused by the overflow of water from neighboring lots and with an influx of mud and sediment that overflowed from neighboring Lot 40. Oxmoor Preservation/One, LLC (“Oxmoor”), is the owner of Lots 36, 37, 38, and 39 (“the Oxmoor lots”) in Oxmoor Landing. Johnson Realty Company, Inc. (“Johnson”), was the developer of the subdivision and, at one time, owned Lot 40. Hager Company, Inc. (“HCI”), was the engineering company used by Johnson in designing the subdivision.

Antoine and Glenn sued Oxmoor, Johnson, and HCI, among other defendants who were later dismissed from the action, alleging trespass to property, injury to real property, and nuisance. Oxmoor counterclaimed, asserting a trespass and a negligence claim against Antoine and Glenn, based upon its allegation that Antoine and Glenn had elevated the rear portion of their lot when they built their house, which had resulted in an obstruction of the natural flow of surface waters from the Oxmoor lots. After a trial in December 2010, the trial court entered a detailed judgment in March 2011, finding against Antoine and Glenn on their claims for relief and in favor of Oxmoor on its counterclaims. The March 2011 judgment reads, in part:

“1. [Antoine and Glenn's] claims for relief are denied as the Court finds that they have failed to meet their burden to reasonably satisfy the Court of the truthfulness of their claims.

“2. Judgment is entered in favor of ... Oxmoor ... and HCI ... on their Counterclaims and against [Antoine and Glenn] in the amount of $35,000.00 compensatory damages.¹

“3. [Antoine and Glenn] are permanently enjoined from obstructing the free flow of surface waters draining from Oxmoor's upper land, being Lots 36, 37, 38 and 39, over [their] land, being Lot 35, to Oxmoor's lower land, being Lot 34, all such lots being part of Highland Manor at Oxmoor Landing Phase One, Sector One, Map Book 216, Page 13, in the Probate Court of Jefferson County, Alabama, Bessemer Division.

“4. [Antoine and Glenn] are ordered to abate the obstruction from such drain way by constructing and permanently maintaining a drain way (whether ditch or other facility) on Lot 35 along an appropriate course, and of a sufficient size and structure, to drain all surface waters that may reasonably be expected to drain from Oxmoor's upper land, and to conduct them through Lot 35 to Lot 34. Such work shall be performed according to sound engineer[ing] principles and at [Antoine and Glenn's] expense.

“5. [Antoine and Glenn] and [Oxmoor and HCI] are to, within thirty days after this Order is non-appealable to a high Court, meet together and [Antoine and Glenn] [are] to share their plans on how to effectuate the mandates of Paragraph 4 above regarding the construction of the drain way. Should [Oxmoor and HCI] have objection regarding the same, the issue of how the drain way is to be constructed shall be submitted to binding arbitration by a neutral to be mutually agreed upon by the parties, and if there be no agreement, selection of the arbitrator by the Court. The costs of such arbitration shall be borne by [Antoine and Glenn]. [Oxmoor and HCI] shall inform [Antoine and Glenn] in writing the date that they consider this Order to be non-appealable which is generally, but not always, the 43rd day after the date this Order is entered if there are no post-trial motions filed; or the 43rd day after the date any post-trial motions are denied.

“6. The construction of the drain way shall be completed within four months after the day the parties meet and agree on [Antoine and Glenn's] plan of action in accord with paragraph 5 above or within four months after the arbitrator issues his decision regarding how the drain way is to be constructed.

“7. Should [Antoine and Glenn] fail to construct the drain way pursuant this order within the above stated parameters and time frame, [Oxmoor and HCI] shall be authorized to enter upon [Antoine and Glenn's] property and construct the drain way in such a way as they deem to be in accordance with sound engineering principles.

“8. Should [Oxmoor and HCI] be required to build the drain way they shall be entitled to reimbursement from [Antoine and Glenn] for all costs related to the same. Should [Antoine and Glenn] fail to timely reimburse [Oxmoor and HCI] for such expenses, [Oxmoor and HCI] shall have access to all legal means available to a judgment creditor including but not limited to the entry of a monetary judgment against [Antoine and Glenn]; garnishment and contempt proceedings; and the filing of any appropriate lien.

“9. Costs of this action are taxed against [Antoine and Glenn].

“10. Any requested relief not granted herein shall be deemed denied.”

Both Antoine and Oxmoor and HCI filed postjudgment motions directed to the March 2011 judgment.² Antoine attached several documents that had not been introduced as evidence at trial to her postjudgment motion; Oxmoor and HCI successfully moved the trial court to strike those documents. After both postjudgment motions were denied, Antoine and Glenn appealed to this court. ³ The appeal was assigned case number 2100839 (“the nuisance appeal”).

In July 2011, while the nuisance appeal was pending, Antoine and Glenn sought leave from this court to file a Rule 60(b), Ala. R. Civ. P., motion directed to the March 2011 judgment. We granted Antoine and Glenn leave, and they filed a Rule 60(b) motion in the trial court on July 14, 2011. We stayed the nuisance appeal pending the resolution of the Rule 60(b) action. On September 15, 2011, Antoine filed in the trial court a suggestion of death regarding Glenn.⁴ The trial court denied the Rule 60(b) motion on October 21, 2011, and Antoine appealed that judgment. The appeal of the October 2011 judgment was assigned case number 2110139 (“the Rule 60(b) appeal”).⁵ Upon the request of the parties, we consolidated the nuisance appeal and the Rule 60(b) appeal.

The Nuisance Appeal

The testimony at trial established that Antoine had leveled Lot 35 to build her house and that, in doing so, she had redistributed dirt from one portion of the lot to fill in other areas of the lot. She testified that she had served as her own general contractor when she built the house. She also said that she understood that when building a house one must ensure that the water does not drain into the house and that one must not obstruct a natural drain way.

Karl Hager, a land surveyor and the president of HCI, testified that, as a land surveyor, he had designed several subdivisions. He said that he had walked the property that became the subdivision and that he had never noticed a wetland or swamp area on the property. He noted that had seen no signs of standing water, of water marks on trees, or of damage to trees that would have been caused by standing water. He stated that the trees in the area were not trees that commonly inhabit swampy or wetland areas, noting that most of the trees in the subdivision were oaks and hickories; he also commented that he had not observed any “marshy” plants, like cattails. According to Hager, the ground was firm and it “perked,” indicating that the soil was permeable.

During Hager's testimony, he discussed several maps. He stated that a map made by Jefferson County indicating that the area around the lots in question comprised wetlands was incorrect. Hager also testified that, based on his review, other maps, including the United States Quadrangle Map and the United States Geological Survey map, had indicated that the area in question was not a wetland.

Hager explained that a portion of Lot 35 served as a natural drain way for upper lots in the subdivision, including Lots 42, 41, 40, 39, 38, 37, and 36. He testified:

“Well, it was apparent to me, especially when you stand on lot 34, which is lower than the lowest point I could find on lot 38, downhill is from 38 through 35 to 34, and it's indisputable. It can be verified by me or anybody. And when you stand on 34 and then look back up towards 38, you are going to see a hump that has been created in Ms. Antoine's backyard. Nice pretty grass sod, but it's definitely been raised 24 inches plus.”

Hager also explained that he had been present when Jason Ayers, a geotechnical engineer hired by Oxmoor and HCI, measured the elevation on Lot 35 and dug test holes to determine whether Lot 35 had been elevated by the addition of dirt or other fill material. According to Hager, the test holes revealed that, at one point on Lot 35, at least 32 inches of topsoil and other dirt had been added to the lot to make it level; he noted that the test holes had included some construction debris, indicating that, at one time, the level at which the construction debris appeared was the natural surface level of the Lot 35. Hager also noted that his own elevation testing had revealed that portions of Lot 35 were higher than the natural low point on Lot 35 where surface water would drain. Based on this information, Hager testified that Lot 35 had been elevated by use of dirt or other fill and that, as a result, the natural drain way had been obstructed, which caused the ponding on the Oxmoor lots.

In her brief on appeal, Antoine...