Bailey v. City of Leeds, 031320 ALCIV, 2180720

Docket Nº2180720
Opinion JudgeEDWARDS, JUDGE.
Party NameLeeAnn Bailey; Charlotte Cali; Candy Chhoeun; Stephanie Simpkins, individually and as next friend of T.S., a minor; Jennifer Friedman; Robert Friedman; Teresa Jones; and Kevin Muir v. City of Leeds
Judge PanelMoore, Donaldson, and Hanson, JJ., concur. Thompson, P.J., concurs in the result, without writing.
Case DateMarch 13, 2020
CourtAlabama Court of Civil Appeals

LeeAnn Bailey; Charlotte Cali; Candy Chhoeun; Stephanie Simpkins, individually and as next friend of T.S., a minor; Jennifer Friedman; Robert Friedman; Teresa Jones; and Kevin Muir


City of Leeds

No. 2180720

Alabama Court of Civil Appeals

March 13, 2020

Appeal from St. Clair Circuit Court (CV-18-36)


LeeAnn Bailey; Charlotte Cali; Candy Chhoeun; Stephanie Simpkins, individually and as next friend of T.S., a minor; Jennifer Friedman; Robert Friedman; Teresa Jones; and Kevin Muir (hereinafter collectively referred to as "the plaintiffs") have relatives who are buried in the Cedar Grove Cemetery ("the cemetery"), which is owned and operated by the City of Leeds ("the City"). The plaintiffs appeal from an order entered by the St. Clair Circuit Court ("the trial court") granting the City's motion for a summary judgment regarding the plaintiffs' claims that the City's employees wrongly entered onto the cemetery plots containing the graves of the plaintiffs' relatives ("the cemetery plots") and wrongly removed and wrongly damaged various personal-property items ("the adornments") that had been placed on the cemetery plots of those relatives.1 The deceased relatives at issue are, in relation to the plaintiffs: Bailey's mother (died in 2014), father (died in 2000), and sister (died in 1985); Cali's mother (died in 2012); Chhoeun's daughter (died in 2005); Jennifer Friedman, Robert Friedman, and Simpkins's mother (died a few years before 2017), who also is T.S.'s grandmother (Simpkins is T.S.'s mother); Jones's mother (died in 2010) and father (died in 1996); and Muir's grandmother (died in 2015) and grandfather (died in 2001) (hereinafter collectively referred to as "the respective relatives"). The type of adornments at issue differed among the cemetery plots and collectively included items such as concrete benches, some of which had been personalized with small plaques or other similar sentimental items or decorations; a wooden cross that was eventually replaced by a headstone; concrete or ceramic angels, statutes, or planters placed on a headstone or near a headstone or footstone; glass or transparent angels or crosses that illuminated and were hung from "sticks"; "shepherd's hooks" on which were hung items such as birdhouses, baskets containing silk flowers, or wind chimes; and small vases, either freestanding or that had been placed on a headstone.

It is undisputed that the cemetery originally belonged to the Cedar Grove Baptist Church, that the cemetery was eventually expanded and transferred to the City in the 1950's or 1960's, and that the City thereafter owned and operated the cemetery. Also, based on the deposition-testimony excerpts from the respective depositions of the plaintiffs, certain of the plaintiffs purchased a cemetery plot for burying a respective relative and those plaintiffs received a corresponding deed from the City to such plot; other of the plaintiffs are purportedly interested next of kin of one of the respective relatives, but did not purchase the cemetery plot where the respective relative is buried.[2]

On December 4, 2017, the plaintiffs filed a complaint in the trial court against the City and David Miller, in his individual capacity; Miller was the City's mayor when the events purportedly giving rise to the plaintiffs' claims occurred. The plaintiffs later voluntarily dismissed their claims against Miller, which the trial court acknowledged in its final order issued on May 13, 2019. Regarding the plaintiffs' claims against the City, the complaint alleged that, on March 6, 2017, the City Council of Leeds ("the city council") passed a resolution regarding the cemetery ("the 2017 resolution") and that, on or about March 17, 2017, 3 the City's employees entered the cemetery and (1) trespassed on the graves of the respective relatives without proper notice to the plaintiffs and without the plaintiffs' consent; (2) desecrated those graves "by removing irreplaceable items such as benches, monuments, and other decorative and symbolic markers," i.e., the adornments, see note 1, supra; and (3) negligently removed and "carelessly dumped" the adornments into a lot owned by the City, resulting in damage to, destruction of, or loss of those adornments. The plaintiffs' complaint included counts of negligence and trespass against the City, and the plaintiffs' sought compensatory damages in an unspecified amount for alleged "physical pain, emotional distress, mental anguish, loss of irreplaceable personal property, and the loss of solace in visiting the graves." The plaintiffs also sought punitive damages, injunctive relief, and other "just and proper" relief.

The City filed an answer to the plaintiffs' complaint, generally denying the pertinent allegations thereof and asserting various affirmative defenses, including municipal immunity pursuant to Ala. Code 1975, § 11-47-190.4 On April 11, 2019, the City filed a motion for a summary judgment. According to the City, no disputed material facts existed regarding the plaintiffs' claims. The City argued that the 2017 resolution reflected a proper exercise of the City's power to regulate cemeteries pursuant to Ala. Code 1975, § 11-47-40 et seq., that the city council had properly and unanimously passed the 2017 resolution, and that the city council did not have to comply with the "publication and notice requirements" governing ordinances, see Ala. Code 1975, § 11-45-8, when passing the 2017 resolution. Regarding the plaintiffs' negligence claims, the City argued that the plaintiffs had no evidence to support the conclusion that the City had breached any duty it might have owed to the plaintiffs and that, as a matter of law, the plaintiffs were not entitled to damages for mental anguish or emotional distress because they had suffered no physical injury and because they had not been placed in immediate risk of physical harm by the alleged wrongful conduct at issue. The City also argued that the plaintiffs could not establish a claim of trespass because, it said, they did not own the land on which the respective cemetery plots were located and because only some of plaintiffs -- Bailey, Cali, Chhoeun, and Jennifer Friedman -- held deeds to any of the cemetery plots. The City further argued that its employees had had a right to enter and maintain the cemetery plots and that its employees had not unlawfully entered those plots. Finally, the City argued that Ala. Code 1975, § 6-11-26, precluded the plaintiffs from recovering punitive damages against the City. In support of its motion for a summary judgment, the City submitted a copy of the 2017 resolution; a copy of a resolution purportedly passed by The Cemetery Advisory Board of the City of Leeds on March 10, 2011 ("the 2011 advisory-board resolution"); a copy of "Rules and Regulations of the Cemeteries of the City of Leeds" that were purportedly "Revised: March 10, 2011" ("the 2011 regulations"); an affidavit from Miller; and deposition-testimony excerpts from the depositions of the respective plaintiffs, Miller, and Bradley Watson, who was the zoning administrator for the City at all times pertinent to this case.

On May 2, 2019, the plaintiffs filed a response opposing the City's motion for a summary judgment. The plaintiffs argued that there was no evidence indicating that the 2011 regulations had been adopted by the city council before the passage of the 2017 resolution and that the 2017 resolution purporting to adopt the 2011 regulations was void ab initio because those regulations were in the nature of an ordinance and the city council had failed to satisfy the requirements for passing an ordinance when it passed the 2017 resolution. Specifically, the plaintiffs contended that the city council had failed to comply with the notice and publication requirements for enacting an ordinance under § 11-45-8. Accordingly, the plaintiffs argued, the City's employees had had no authority to remove or to damage the adornments. Further, the plaintiffs argued that, even if the 2017 resolution was properly enacted, genuine issues of material fact existed regarding the notice provided regarding the 2011 regulations and their implementation and enforcement, regarding whether the City's employees' actions were a proper enforcement of the 2011 regulations, and regarding whether the City's employees had authority "to lose and/or break [the adornments] belonging to [p]laintiffs" or had a duty to exercise due care in handling the items at issue. The plaintiffs also argued that damages for mental anguish were available to them because the City's employees had desecrated the graves of the respective relatives. Regarding the trespass claim, the plaintiffs further argued that they were not required to have deeds to the cemetery plots at issue in order to maintain that claim. The plaintiffs did not respond to the City's argument that punitive damages could not be awarded against...

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