Barber v. State

Decision Date27 June 1997
Citation703 So.2d 314
PartiesNorman BARBER, et al. v. STATE of Alabama, et al. Ben JERNIGAN v. STATE of Alabama, et al. 1952062, 1952094.
CourtAlabama Supreme Court

John W. Parker and Herndon Inge III, Mobile, for appellants.

Jerry L. Weidler and R. Mitchell Alton III, Counsel, State of Alabama Highway Department, for State.

Carroll H. Sullivan and Jannea S. Rogers of Clark, Scott & Sullivan, P.C., Mobile, for P & H Construction Company.

Tabor R. Novak, Jr. and E. Hamilton Wilson, Jr. of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellees.

HOUSTON, Justice.

The plaintiffs, Norman Barber, Brenda Barber, Wharfhouse Restaurant and Oyster Bar, Inc., and Ben Jernigan, appeal from a summary judgment for the defendants, the Alabama Department of Transportation ("the State") and McInnis Corporation ("McInnis"), in two consolidated actions for damages brought pursuant to Article I, § 23, and Article III, § 235, of the Alabama Constitution for a taking of, injury to, or destruction of private property for public use and for damages for tortious conduct. (One action was filed by Norman Barber, Brenda Barber, and Wharfhouse Restaurant and Oyster Bar, Inc.; the other action was filed by Ben Jernigan.) We affirm in part, reverse in part, and remand.

On a motion for a summary judgment, the burden is initially on the movant to make a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law. In order to defeat a movant's properly supported summary judgment motion, the nonmovant must present sufficient evidence to create a factual issue for resolution by the factfinder. On review of a summary judgment, this Court reviews the record in a light most favorable to the nonmovant and resolves all reasonable doubts against the movant. Blackburn v. State Farm Auto. Ins. Co., 652 So.2d 1140 (Ala.1994).

On February 27, 1987, Brenda Barber purchased the Wharfhouse Restaurant and Oyster Bar ("the restaurant") and the land on which it is located. This waterfront restaurant, located in Mobile County, is primarily a wooden structure, supported by piles driven deep into the sandy soil. Brenda Barber's husband, Norman Barber, contributed funds toward the purchase of the property, and he joined his wife as a plaintiff; however, the record indicates that Brenda Barber was the sole purchaser.

On August 4, 1987, Brenda Barber transferred her ownership interest in the property to Wharfhouse Restaurant and Oyster Bar, Inc. ("the corporation"), which had been formed to assume the liabilities and operation of the restaurant. In March 1992, after Brenda Barber had learned that the State was planning to build a bridge on property adjacent to the restaurant property, the corporation leased the property to Ben Jernigan. Jernigan, who was also given an option to purchase the property, was aware when he entered into the lease that the construction of a bridge nearby was a possibility, although he believed, based on erroneous information he had received from a representative of the State, that construction would not begin soon. In fact, plans for construction were underway. The State ultimately contracted with McInnis to build the bridge. McInnis contracted with P & H Construction Company, Inc. ("the subcontractor"), to perform the initial pile-driving operations to form the footings for the placement of the bridge structure. The State required that the pile-driving operations conform to the project's plans and specifications. Construction of the bridge, including the installation of test piles, got underway in late 1992. The pile-driving operations subjected the restaurant to extensive vibration. Other construction activities also significantly hindered Jernigan's ability to operate the restaurant. By September 1994, Jernigan was forced to close the restaurant, and it has been vacant since.

The construction of the bridge, according to the plaintiffs, caused physical damage to the restaurant, the destruction of the restaurant as a viable business, and the diminution of the value of the property as a whole. The plaintiffs' claims against the State were based in part on allegations that the State had to compensate them under § 23 and § 235 of the Alabama Constitution for the "taking" of their respective property interests, and in part on allegations that the State was liable in damages for negligence or wantonness in connection with the construction of the bridge and on allegations that the State was liable for willful injury to their property interests. 1 The plaintiffs' claims against McInnis were based on allegations of negligent, wanton, or willful injury to the property. The plaintiffs requested a jury trial on each of their claims. The dispositive issue is whether there are any factual questions that must be resolved by a jury.

Initially, we note that the summary judgment for the State was proper as to the claims of Brenda and Norman Barber. An inverse condemnation action must be brought by the owner of the property affected or by someone with a property interest; in this case, that would have been the corporation (Wharfhouse Restaurant and Oyster Bar, Inc.) or Ben Jernigan. See State v. Woodham, 288 Ala. 608, 614, 264 So.2d 166, 171 (1972) ("The basic constitutional principle is that there must be an actual taking of property or property rights before compensation is required."); see, also, Ala.Code 1975, § 18-1A-3(6), part of the Alabama Eminent Domain Code (defining "condemnee" as "[a] person who has or claims an interest in property that is the subject of a prospective or pending condemnation action"). We also note that § 235 of the Alabama Constitution requires municipalities and other corporations "invested with the privilege of taking property for public use" to make "just compensation" for "property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements," where there is evidence of some direct physical damage to the property. Jefferson County v. Southern Natural Gas Co., 621 So.2d 1282 (Ala.1993). Section 235 does not apply to the State. Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930). The summary judgment with respect to the plaintiffs' § 235 claims was, therefore, proper, and, in fact, the plaintiffs concede this in their briefs. Finally, it is well established that tort claims against the State, such as those made here (based on allegations of negligence, wantonness, and willfulness), are barred by the sovereign immunity granted under Article I, § 14, of the Alabama Constitution. See Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 283 (1971) (noting that "[t]his Court, construing Section 14, has held almost every conceivable type of suit to be within the constitutional prohibition"). For exceptions to the sovereign immunity doctrine, including the exception made for inverse condemnation actions against the State, see Williams v. Hank's Ambulance Service, Inc., 699 So.2d 1230 (Ala.1997).

The principal argument of the plaintiffs (the corporation and Jernigan) is that they have valid claims against the State under § 23 of the Alabama Constitution. Section 23 provides in pertinent part that "private property shall not be taken for, or applied to public use, unless just compensation be first made therefor." In Foreman v. State, 676 So.2d 303 (Ala.1995), this Court rejected the State's argument that there can be no "taking" within the meaning of § 23 unless the State actually occupies or engages in construction activities on the affected property. This Court, quoting Jefferson County v. Southern Natural Gas, supra, at 1287, stated: "[I]n inverse condemnation actions, a governmental authority need only occupy or injure the property in question." 676 So.2d at 305. (Emphasis in Foreman.) The State contends that there is insufficient evidence in the record from which a jury could reasonably find that the construction of the bridge caused compensable damage to the plaintiffs' property interests. After reviewing the record, we must disagree.

Ben Jernigan testified by deposition as follows:

"The Affiant opened the Wharfhouse Restaurant under his lease on or about March 29, 1992, and for the months of March, April and May his restaurant stayed busy. In June of 1992, some grading work began on the construction site for the bridge replacement project although that grading work was far away from the restaurant at that time, resulting in no detrimental effect on the restaurant. The Affiant then constructed the walk-up bar and lower deck area and business remained relatively good until November 1992, at which time traffic on Dauphin Island Parkway was blocked and restricted to one (1) lane of traffic as the old road was removed, for the installation of sewage pipes or drainage for the new road and the new bridge. In November of 1992, heavy earth moving equipment began operation on the construction site in and around the area of the Wharfhouse Restaurant causing the building to sway during such earth movement. In November of 1992, State Department of Transportation trucks began parking on the Wharfhouse Restaurant parking areas. In January of 1993 there were power outages caused by the construction project and in January of 1993 the parking lot was flooded on one (1) or two (2) occasions due to the change in elevation of the new service road and diversion of waters from the bridge project onto the Wharfhouse Restaurant parking lot. In February of 1993, there was a broken water line which was caused during the construction of the new bridge. As a result, there was no water to the Affiant's restaurant from 4:00 p.m. to 10:00 p.m., on a Friday night, which is the busiest time of the week for the restaurant. On February 26, 1993, sewage pipes were deposited on the Affiant's restaurant parking area by the general contractor,...

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8 cases
  • Town of Gurley v. M&N Materials, Inc.
    • United States
    • Alabama Supreme Court
    • December 6, 2014
    ...noted, § 235 does not apply to the State. Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930). To the extent that Foreman (and Barber v. State, 703 So.2d 314 (Ala.1997), which relied on Foreman ), held that under § 23 ‘ “a governmental authority need only occupy or injure the property in quest......
  • Town of Gurley v. M & N Materials, Inc.
    • United States
    • Alabama Supreme Court
    • December 21, 2012
    ...§ 235 does not apply to the State. Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930). To the extent that Foreman (and Barber v. State, 703 So. 2d 314 (Ala. 1997), which relied on Foreman), held that under § 23 '"a governmental authority need only occupy or injure the property in question,"' ......
  • Asphalt Contractors, Inc. v. Ala. Dep't of Transp. & John R. Cooper (In re Ala. Dep't of Transp. & John R. Cooper)
    • United States
    • Alabama Supreme Court
    • December 6, 2013
    ...court in favor of UNA. In doing so, the Court overturned two previous cases—Foreman v. State, 676 So.2d 303 (Ala.1995), and Barber v. State, 703 So.2d 314 (Ala.1997)—which had “held that under § 23[, Ala. Const. 1901,] ‘ “a governmental authority need only occupy or injure the property in q......
  • Willis v. University of North Alabama
    • United States
    • Alabama Supreme Court
    • January 18, 2002
    ...noted, § 235 does not apply to the State. Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930). To the extent that Foreman (and Barber v. State, 703 So.2d 314 (Ala. 1997), which relied on Foreman), held that under § 23 "`a governmental authority need only occupy or injure the property in questi......
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