City of Mobile v. Lester

• Decision Date: 01 June 2001
• Citation: 804 So.2d 220
• Parties: CITY OF MOBILE v. F. Martin LESTER and Frances Lester. City of Mobile v. Juanita Patterson. City of Mobile v. James C. Van Antwerp and Elizabeth Van Antwerp. City of Mobile v. Stanley Thurston, Jr., and Ann Thurston.
• Court: Alabama Court of Civil Appeals

804 So.2d 220

CITY OF MOBILE v. F. Martin LESTER and Frances Lester.

City of Mobile v. Juanita Patterson.

City of Mobile v. James C. Van Antwerp and Elizabeth Van Antwerp.

City of Mobile v. Stanley Thurston, Jr., and Ann Thurston.

2990672, 2990673, 2978.

Court of Civil Appeals of Alabama.

June 1, 2001.

Charles S. Willoughby of Peters, Redditt, Willoughby, Zoghby & Carbo, Mobile, for appellant.

Steven L. Nicholas and Steve Olen of Olen, Nicholas & Copeland, P.C., Mobile, for appellees S. Martin Lester and Frances Lester.

YATES, Presiding Judge.

These four appeals, each with a cross-appeal, arise from claims brought by the plaintiffs, Martin Lester and Frances Lester, Juanita Patterson, James C. Van Antwerp and Elizabeth Van Antwerp, and Stanley Thurston, Jr., and Ann Thurston, against the City of Mobile, after their homes were damaged because of settling. The plaintiffs alleged that the settling damage was caused by repairs the defendant City of Mobile made to Dauphin Street.

Following a trial, the court submitted two verdict forms allowing the jury to award damages based on the plaintiffs' claims of negligence or, in the alternative, on their claims of inverse-condemnation. The jury rejected the plaintiffs' inverse-condemnation claims and rendered a verdict, based on negligence. It awarded the Lesters $150,000 in property damage and awarded Frances Lester $15,000 for mental anguish; it awarded Mrs. Patterson $142,000 for property damage and $15,000 for mental anguish; $150,000 to the Van Antwerps for property damage and $10,000 to Elizabeth Van Antwerp for mental anguish; and $165,000 to the Thurstons for property damage and $10,000 to Ann Thurston for mental anguish.

The plaintiffs filed a joint postjudgment motion seeking an amendment of the judgment based on their claims of inverse condemnation. The plaintiffs also sought costs and attorney fees, based on inverse condemnation, pursuant to § 18-1A-32, Ala.Code 1975. The trial court denied the motion. The City filed a postjudgment motion, renewing its motion for a judgment as a matter of law ("JML"), or, in the alternative, seeking a new trial. The court denied the motion. The City also filed a postjudgment motion seeking a remittitur of the plaintiffs' property-damage awards, based on § 11-93-2, Ala.Code 1975, which limits damages against a governmental entity to $100,000. The court granted the motion to limit each of the plaintiffs' property-damage awards to $100,000.

The City appealed, arguing that it was entitled to a JML or, in the alternative, that the trial court erred in allowing the plaintiffs to recover damages for mental anguish. The plaintiffs cross-appealed, arguing that the trial court had erred in submitting their claims of negligence and inverse condemnation as alternate theories. The plaintiffs also argued that the trial court erred in reducing the property-damage award, because, they contend, inverse condemnation was the proper claim. All parties appealed to the supreme court, which transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

The plaintiffs are neighbors, living on Claridge Road. The Thurstons, Mrs. Patterson, and the Van Antwerps all live on the north side of Claridge Road North, and the rear of their properties abuts Dauphin Street. The Lesters live on the south side of Claridge Road North, across from the Van Antwerps. In 1994, the pavement on Dauphin Street near McGregor Avenue began to sink, creating what someone described as a "roller-coaster" effect on the road.

Originally, the City believed that dirt seeping into an open joint on an abandoned sewer line underneath the road was causing the road to settle and creating the roller-coaster effect. After excavating the road, the construction company hired by the City to complete the repairs discovered an abandoned French drain under the roadbed. The French drain was 6 inches in diameter, made of cement, and ran the length of the excavation area. The depth of the drain varied, with the east end of the French drain 6 to 8 feet below ground surface and the west end of the drain 22 feet below ground surface. The drain had open joints that had been connected with tar paper, and the joints had been surrounded by gravel. The tar paper had deteriorated. The material surrounding the French drain was clay sand excavated from the area when the drain was installed.

A new drain was installed; it was an 8-inch polyvinyl chloride ("PVC") perforated pipe. Rather than keeping the clay sand around the new pipe, the area around the new pipe was excavated and surrounded by gravel, in order to keep the clay sand from entering the pipe and to allow more water to drain from the soil into the pipe. The new drain was two feet higher on the west end than the old drain was, so that it could capture as much underground water as possible. The new drain was perforated in order to allow more water into the pipe. Following the repair, Dauphin Street stopped settling.

All of the plaintiffs testified as to damage to their homes caused by settling that had occurred since the repair to Dauphin Street in 1995. The plaintiffs filed claims with the City. The City hired Geotechnical Engineering and Testing to evaluate the plaintiffs' claim that the repair to Dauphin Street had caused damage to their property. Hank Oakes testified on behalf of Geotechnical Engineering. Oakes is an engineer and specializes in geotechnical engineering, which is commonly referred to as "soils engineering." Oakes confirmed that the plaintiffs had recently had significant damage to their homes due to significant settling, including misaligned doors, separation of cabinets from ceilings, and cracking and differential settlement of exterior brick siding and patios. Oakes concluded that the damage was caused by a lowering of the groundwater, but he testified that he could not determine what caused the lowering of the groundwater. He opined that ordinarily all four of the houses would not start to settle at or near the same time, especially 25 to 30 years after construction, without the introduction of an outside factor, and that a lowering of the groundwater had caused the damage. However, Oakes testified that he could not connect the Dauphin Street repair with the lowering of the groundwater around the plaintiffs' homes.

Robert Thomas Wood, a geologist with an expertise in hydrology, testified concerning the groundwater around the plaintiffs' homes. Hydrology concerns the properties, distribution, and circulation of water on the surface of the land and in the soil. Wood took soil samples from the plaintiffs' property and from Dauphin Street where the repair was done, took groundwater measurements, checked the annual rainfall information and seismic activity, and examined the historical nature of the development in and around the plaintiffs' homes. Wood also used various maps and photographs from the City and the United States Geological Survey in forming his opinion. The geological maps contained historical information on the hydrology of the area. The City maps were topographic maps showing the natural and man-made features in the area. The photographs were a series of aerial photographs of the area dating back to 1940. Wood concluded that the area where the City had placed the new drain was the area that had replenished the groundwater under the plaintiffs' homes.

Wood further testified regarding the effect the new pipe had on the groundwater underneath the plaintiffs' homes. He testified that the perforations in the new 8-inch PVC pipe had caused more water to be drained from the soil. He testified that the 8-inch pipe had twice the area of the older 6-inch pipe, which meant that the pipe could hold and drain more water. Wood also testified that the biggest difference in the amount of water drained from the soil by the old pipe as compared to the amount drained off from the new pipe was that the City placed a very porous material around the new pipe and that material allowed more water to be drained from the soil. In contrast, the old pipe was backfilled with a clay sand that had been excavated from the area, which was a very poor conductor of water and allowed very little water to be drained from the soil. Wood referred to the new drain as a "super drain" in comparison with the old drain, based on the conductivity of the porous material surrounding the new drain.

Dr. Joseph Olsen, a professor and chairman of the Civil Engineering Department at the University of South Alabama, examined the plaintiffs' homes. Olsen testified that, based on the damage he had observed and on his knowledge of soil mechanics, he thought the plaintiffs' homes settled as a result of a lowering of the groundwater beneath their homes. He testified, based on the depositions from those persons involved in the repair work to Dauphin Street, that while the repair stabilized Dauphin Street, it also intercepted groundwater that, had it been left the way it was, would have replenished the groundwater underneath the plaintiffs' homes. He further opined that the settlement of the homes was not due to decomposition of organic matter underneath the homes.

Dr. James Laier, an engineer specializing in soils engineering, testified for the City. He stated that he used information gathered by Hank Oakes to make his conclusions. Dr. Laier testified that soil samples taken over a two-month period after the repair work had been done, indicated a seasonal variation in the groundwater level. He stated that the new drain would not have affected the groundwater and that the plaintiffs' homes were too far from Dauphin Street to have been affected. Dr. Laier stated that if the construction work had affected the groundwater, it would have affected the water level of a lake, which was closer to the construction project than the plaintiffs' homes were.

On cross-examination, Dr. Laier admitted that when originally deposed, he had said he...