City of Birmingham v. Leberte

• Decision Date: 21 April 2000
• Citation: 773 So.2d 440
• Parties: CITY OF BIRMINGHAM v. Christopher A. LEBERTE et al.
• Court: Alabama Supreme Court

773 So.2d 440

CITY OF BIRMINGHAM v. Christopher A. LEBERTE et al.

1981172.

Supreme Court of Alabama.

April 21, 2000.

Demetrius C. Newton, city atty., and Michael M. Fliegel, asst. city atty., City of Birmingham, for appellant.

M. Clay Ragsdale and M. Stan Herring of Law Offices of M. Clay Ragsdale, Birmingham, for appellees.

COOK, Justice.

The City of Birmingham (the "City") appeals from a judgment entered on a jury verdict against it and in favor of the owners of seven parcels of residential property (collectively "the owners"). The judgment awarded damages for harm caused by floods the owners said were caused by negligence on the part of the City. We affirm.

The present action was commenced on December 13, 1996, against the City by 11 plaintiffs, namely, Christopher Leberte and Sandra Leberte; Larry Teston and Carrie Teston; Henry Sutherland and Ollie Sutherland; Albert Speed; Esther Hogeland and O.B. Hogeland; and Victor Coleman and Faye Coleman. The complaint contained the following pertinent allegations:

"6. The City of Birmingham has assumed the duty and is under a responsibility under the law to design, maintain, and construct adequate and reasonable stormwater drainage and flood control measures for the Community.

"7. As a result of the channelization of water onto plaintiffs' property and the inadequate and insufficient drainage and flood control systems for the Community, the plaintiffs' homes and real property [have], within the past two years, sustained damage and plaintiffs' right to the peaceful use and enjoyment of their property has been interfered with. Flooding events have occurred on at least six occasions during the six month period preceding the filing of this suit and despite knowledge in the past of the City, no repairs have been performed to the system. The flooding is continuing in nature. Plaintiff's aver that each flooding event is a separate occurrence and injury.

". . . .

"9. Plaintiffs aver that the City ... negligently breached [its] duty to the plaintiffs by failing to design, maintain, or construct a reasonable and adequate drainage system in the Community. Said defendant[] breached [its] duty to plaintiffs by negligently or wantonly failing to exercise reasonable care in conducting such activities [which breach combined and] contributed to cause the flooding conditions and the diversion of surface water, mud, and debris onto plaintiffs' property."

(Emphasis added.) The complaint contained four counts, namely, (1) a count alleging negligence, (2) a count alleging nuisance and trespass, (3) a count seeking damages for inverse condemnation, and (4) a count seeking injunctive relief. The plaintiffs sought compensation for "diminution in the value of their real property, physical damage to their land and structures, mental anguish, embarrassment, and damage to ... personalty." On January 9, 1997, the plaintiffs amended their complaint to add as an additional plaintiff Joseph Hardmond, who "assert[ed] all claims as set forth in the original complaint."

The City moved to dismiss the action on various grounds, including the ground that the claims of a number of the plaintiffs had already been adjudicated in Leberte v. City of Birmingham (Jefferson Circuit Court, CV-95-2946, April 26, 1995) ("Leberte I"). The trial court denied this motion. Subsequently, the City answered the complaint, raising a defense based on the statute of limitations. Still later, the City filed an amended answer, again asserting that the plaintiffs' claims were barred by "all applicable statutes of limitations."

On July 14, 1998, the City moved for a summary judgment; in its motion, it renewed its argument that the claims of some of the plaintiffs, namely, those of the Lebertes, the Testons, and the Sutherlands, had been adjudicated in Leberte I. On September 17, 1998, the trial court granted in part the City's summary-judgment motion. In this connection, the trial court's order stated, in part:

"A number of plaintiffs filed this present action of December 13, 1996, against the City of Birmingham and fictitious defendants. An almost identical action, [Leberte I], had resulted in a judgment in favor of the plaintiffs for property damage and mental anguish, all of which aggregated $90,000.00. These judgments were in favor of Christopher A. and Sandra Leberte, Larry and Carrie K. Teston, and Henry and Ollie Sutherland against the City of Birmingham. The Lebertes, the Testons and the Sutherlands had previously been compensated for a cause of action which was a `single occurrence' within the meaning of Sec. 11-93-2, Code of Alabama. The defendant cited Carson v. City of Prichard, 709 So.2d 1199 [ (Ala.1998) ], which held that the `occurrence' that triggered liability in this case was the overall failure of the Board to remedy the problems stemming from its sewage system and, although there were numerous incidents of sewage overflow, the failure of the Board to remedy the overflow was a single `occurrence' within the meaning of Sec. 11-93-2. In Home Indemnity Co. v. Anders, 459 So.2d 836 [(Ala.1984)], the Court held that, `... for the purpose of Sec. 11-93-2, all injuries that stem from one proximate cause are the result of a single "occurrence."' ... Inasmuch as the causes of action are virtually the same as pleaded, this court holds that there is a single occurrence and summary judgment is granted to the defendant, the City of Birmingham and against Christopher A. and Sandra Leberte, Larry and Carrie K. Teston, and Henry and Ollie Sutherland."

(Emphasis added.)

The Lebertes, the Testons, and the Sutherlands moved for a "reconsideration" of the partial summary judgment. On October 21, 1998, the court granted their motion. It entered an order vacating the summary judgment in favor of the City, reasoning that "events that take place at separate times are not a single occurrence."

During the trial of the cause, the City renewed its contentions (1) that the claims of all the plaintiffs were barred by the statute of limitations and (2) that the claims of the Lebertes, the Testons, and the Sutherlands were barred by their recovery in Leberte I. The trial court overruled the City's motions for a judgment as a matter of law and submitted the claims to the jury, with the following pertinent instructions:

"[I]f the plaintiff reasonably satisfied you by the evidence that the defendant undertook to maintain a drainage system, or operate a drainage system and control the drainage of surface water affecting [the] plaintiffs' propert[ies], [it] would have the duty to maintain or operate that drainage system with reasonable care. If the plaintiff reasonably satisfied you by the evidence that the defendant negligently maintained or operated the drainage system, then defendant would be liable for any damage proximately caused by assessing negligence."

(Reporter's Transcript, at 687-88.) The jury returned a verdict in favor of all 12 plaintiffs.

The trial court overruled the City's post-trial motion for a judgment as a matter of law or for a new trial. The City appealed, reiterating its statute-of-limitations and res judicata arguments. More specifically, it contends that all the plaintiffs' claims are barred by two statutes, namely, Ala.Code 1975, § 11-47-23 and § 11-93-2, either separately or in interaction. Those sections provide in pertinent part:

Section 11-47-23:

"Claims [against a municipality] for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred."

Section 11-93-2:

"The recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for bodily injury or death for one person in any single occurrence. ... Recovery of damages under any judgment against a governmental entity shall be limited to $100,000.00 for damage or loss of property arising out of any single occurrence."

(Emphasis added.)

The City also contends that the jury's verdict in favor of two of the plaintiffs, namely, Esther and O.B. Hogeland, was not supported by the evidence. We first address the City's arguments based on the statutes.

I. Statutory Bar

It is undisputed that all the plaintiffs in this case suffered flooding to their property that occurred more than six months before the plaintiffs commenced this action. The plaintiffs contend, however, that they also suffered flooding that occurred within that six-month period. No evidence in the record indicates that the plaintiffs gave the City notice of their claims other than through the filing of the complaint initiating this action and the complaint initiating the action in Leberte I, and the plaintiffs do not contend that they did. The plaintiffs concede that § 11-47-23 bars their recovery for instances of flooding that occurred more than six months before they commenced this action. Brief of Appellees, at 12. Indeed, the City requested, and received, the following jury instructions:

"The defendant contends that the plaintiffs are not entitled to recover in this case for damages which occurred prior to June 13, 1996, because any claim for damages occurring before that date are barred by the statute of limitations. The burden is on the plaintiffs to reasonably satisfy you by the evidence that the damages claimed occurred after June 13, 1996."

No party contends that the jury failed to follow these instructions.

The syllogism of the City's argument is as follows: (1) The multiple instances of flooding of which each plaintiff complains constituted but one "occurrence" within the meaning of § 11-93-2; (2) the multiple instances of flooding resulted from a single proximate cause, namely, the City's failure to "design, maintain, and construct adequate and reasonable stormwater drainage and flood control measures for the Community"; (3) the multiple instances of flooding arose out of a single cause of action; (4) each plaintiff's cause of action accrued on the date of the first instance of...