Davis v. Hanson Aggregates Southeast, Inc.
| Decision Date | 09 June 2006 |
| Docket Number | 1040945.,1040857.,1040940. |
| Citation | 952 So.2d 330 |
| Parties | Mike DAVIS et al. v. HANSON AGGREGATES SOUTHEAST, INC., et al. Hanson Aggregates Southeast, Inc. v. City of Opelika et al. Oldcastle Materials Southeast, Inc. v. City of Opelika et al. |
| Court | Alabama Supreme Court |
Charles E. Vercelli, Jr., of Vercelli & Associates, P.C., Montgomery; and James B. Sprayberry, Auburn, for Mike Davis et al.
Guy F. Gunter III of Melton, Gunter & Melton, Opelika, for City of Opelika and City of Opelika Utilities Board.
Stanley A. Martin, Opelika, for Lee County.
James A. Byram, Jr., and Paul A. Clark of Balch & and Bingham, LLP, Montgomery; and H. Wayne Phears of Phears & Moldovan, Norcross, Georgia, for Hanson Aggregates Southeast, Inc.
Phillip E. Adams, Jr., and Patrick C. Davidson of Adams, Umbach, Davidson & White, LLP, Opelika, for Oldcastle Materials Southeast, Inc.
W.F. Horsley and Joshua J. Jackson of Samford & Denson, LLP, Opelika, for the Young and Gilmer defendants.
These three appeals are from two judgments—one entered on a jury verdict, the other a summary judgment. In case no. 1040857, we affirm in part, reverse in part, and remand. In cases no. 1040940 and no. 1040945, the cross-appeals from the judgment entered on the jury verdict, we affirm.
Hanson Aggregates Southeast, Inc. ("Hanson"), operated, and Oldcastle Materials Southeast, Inc. ("Oldcastle"), now operates, a quarry in Lee County.1 The plaintiffs include approximately 70 residents of Lee County, as well as the City of Opelika ("the City"), the City of Opelika Utilities Board ("the Utilities Board"), and the Beauregard Water Authority. In addition to Hanson and Oldcastle, the defendants at trial included members of the Gilmer and Young families, who owned the land on which the quarry is located. The Gilmer and Young defendants have since been dismissed from the action, and the plaintiffs do not challenge the dismissal.
The quarry allegedly damaged the plaintiffs and their property by emitting noise, dust, vibration, and pollution; dewatering the subsoil; and causing sinkholes to form in the area. The plaintiffs sued on theories of public and private nuisance, trespass, negligence, and wantonness. They also sought a permanent injunction to prevent the defendants from continuing to operate the quarry.
Because of the number of plaintiffs and the complexity of the case, the parties and the trial court sought to break the action into separate trials pursuant to Rule 42(b), Ala. R. Civ. P. The two sides submitted competing trial plans, each of which recommended separating the plaintiffs into groups and holding a separate trial for each group.
The first group of plaintiffs tried their claims to a jury in August and September 2004. This group included the City, the Utilities Board, and 18 individual plaintiffs (collectively "the trial plaintiffs"). In relevant part, the jury found that 1) the quarry was not a nuisance; 2) Hanson and Oldcastle had operated the quarry negligently; and 3) Oldcastle had committed a trespass. The jury returned a verdict awarding damages to 5 of the 18 individual plaintiffs. The jury also returned a verdict stating that the City and the Utilities Board had met their burden of proof with respect to both Hanson and Oldcastle, but awarding those plaintiffs no damages. Finally, the trial court concluded that the verdict for the defense on the nuisance claim precluded it from considering the plaintiffs' request for an injunction.
Hanson and Oldcastle then moved for a judgment as a matter of law or for a remittitur of the damages award; the plaintiffs moved for a new trial or an additur. On February 1, 2005, the trial court denied both motions and entered a judgment on the jury's verdict.
The second trial was scheduled for April 2005. Before that trial took place, however, Hanson and Oldcastle moved for a summary judgment. They argued that because the jury in the first trial found that the quarry was not a nuisance, the nuisance claims of the remaining plaintiffs and injunctive relief as to the remaining plaintiffs were barred by the doctrines of res judicata and collateral estoppel.
The trial court agreed. On March 7, 2005, it entered a partial summary judgment for Hanson and Oldcastle:
(Emphasis in original.) The trial court certified both the judgment entered on the jury's verdict in the first trial and the summary judgment as final under Rule 54(b), Ala. R. Civ. P. The plaintiffs appealed, and Hanson and Oldcastle cross-appealed.2
On appeal, the plaintiffs challenge both the jury verdict and the summary judgment. First, the trial plaintiffs argue that part of the jury's verdict was contrary to the evidence; we afford that verdict the typical presumption of correctness. SouthTrust Bank v. Donely, 925 So.2d 934, 943 (Ala.2005). The second issue—the trial court's decision to exclude certain evidence—we review only to determine if in excluding the evidence the trial court exceeded its discretion. Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala.2001). The remaining issues are questions of law, which we review de novo. E.g., Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).
The jury found that Hanson and Oldcastle were not liable to any of the individual plaintiffs except the members of the Parker family and the Schwieker family, comprising 5 individuals. The remaining 13 individual plaintiffs argue that these findings were inconsistent and contrary to the great weight of the evidence.
This Court will not disturb a jury's verdict unless "the evidence against the verdict is so much more credible and convincing to the mind than the evidence supporting the verdict that it clearly indicates that the jury's verdict was wrong and unjust." Campbell v. Burns, 512 So.2d 1341, 1343 (Ala.1987). Moreover, "`denial of a motion for a new trial strengthens the presumption of correctness afforded to a jury verdict.'" Keibler-Thompson Corp. v. Steading, 907 So.2d 435, 440 (Ala.2005)(quoting Bowers, 827 So.2d at 73).
The plaintiffs have failed to show that the jury's verdict as to these remaining 13 plaintiffs should be set aside. A reasonable jury could have concluded from the evidence that the Parkers and the Schwiekers were damaged by Hanson and Oldcastle's actions, but that the other 13 individual plaintiffs were not.3 The verdict as to these remaining 13 plaintiffs was not plainly wrong or unjust, and it must stand.
With respect to the City and the Utilities Board, the jury found Hanson and Oldcastle liable for negligence but awarded no damages. The City and the Utilities Board argue that this verdict is inconsistent and requires a new trial. We agree.
Damages are an essential element of the tort of negligence. "`"[P]roof of damage [is] an essential part of the plaintiff's case."'" Ex parte Stonebrook Dev., L.L.C., 854 So.2d 584, 589 (Ala.2003)(quoting Matthews Bros. Constr. Co. v. Stonebrook Dev., L.L.C., 854 So.2d 573, 578 (Ala. Civ.App.2001), quoting in turn William C. Prosser, Handbook of the Law of Torts § 30 (4th ed.1971)). As a result, a finding that a defendant is liable to a plaintiff for negligence is inconsistent with an award of no damages.
Stinson v. Acme Propane Gas Co., 391 So.2d 659, 661 (Ala.1980); accord Thompson v. Cooper, 551 So.2d 1030, 1030 (Ala. 1989); Moore v. Clark, 548 So.2d 1352 (Ala.1989); and Clements v. Lanley Heat Processing Equip., 548 So.2d 1345 (Ala. 1989).
Hanson and Oldcastle do not concede that the verdict for the City and the Utilities Board was inconsistent. However, they fail to present any substantial argument that this Court should not apply the Alabama rule on inconsistent verdicts in this case. Instead, in their argument they assume an inconsistent verdict but maintain that the inconsistency does not require reversal. The focus of Hanson and Oldcastle's argument that the verdict does not require a reversal is that the City and the Utilities Board either 1) invited the error of an inconsistent verdict, 2) consented to the inconsistent verdict, or 3) waived their right to challenge the verdict.
Immediately following the verdict, the trial court noted the possibility that the verdict was inconsistent. The parties and the court then discussed how the verdict could be corrected. This began with the following exchange:
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