DOWNS v. LYLES

• Decision Date: 18 December 2009
• Docket Number: 2080599.
• Citation: 41 So.3d 86
• Parties: Marilyn Kaye DOWNS and Gary Dudley v. Cecilia LYLES and John Burke.
• Court: Alabama Court of Civil Appeals

41 So.3d 86

Marilyn Kaye DOWNS and Gary Dudley v. Cecilia LYLES and John Burke.

2080599.

Court of Civil Appeals of Alabama.

October 9, 2009.

Rehearing Denied December 18, 2009.

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COPYRIGHT MATERIAL OMITTED.

James R. Foley, Huntsville, for appellants.

Scott A. Rogers of Perry & Rogers, LLC, Huntsville, for appellees.

THOMAS, Judge.

Cecilia Lyles and John Burke reside at a house in Huntsville. Lyles has owned the residence since 1998; Burke began residing there with Lyles in 2002. Marilyn Kaye Downs lived in the neighboring house when she was a child; her mother, Thelma Franklin, still owned and resided in the house when, in 2003, Downs moved in with Franklin to care for her because of Franklin's advanced age. Franklin later transferred ownership of the property to Downs. Lyles, Franklin, and Downs had a positive neighborly relationship.

In the fall of 2003, Downs began dating Gary Dudley. He moved in with Downs and Franklin in either late fall 2003 or early 2004. According to Lyles and Burke, Dudley brought home "junk" automobiles and would work on them in the backyard. Lyles testified that she did not like looking at the automobiles and that she did not enjoy being in her backyard as much because of the reduction in her privacy.

The fence between the two properties was quite old and was made of cedar posts and wire, and it afforded no privacy to either backyard.

Lyles and Burke discussed putting up a wooden privacy fence to give them additional privacy in the backyard. In October and November 2004, Burke took down the old fence and began putting up a privacy fence, using the same postholes. According to Burke, the only comments made to him by Downs or Dudley were positive ones regarding the appearance of the new fence. According to both Burke and Lyles, neither Downs nor Dudley ever objected to the tearing down of the old wire fence or the erection of the new privacy fence.

In the spring of 2004, Lyles was considering additional projects in her front yard, and, during a neighborly visit in Lyles's yard, Downs told Lyles that she and Dudley were considering adding a pool and a two-car garage to their home. When Lyles mentioned this to Burke, they both became concerned about possible issues with drainage that might be caused by the proposed construction. Burke said that he consulted the city ordinances because he was concerned about the position of the driveway Dudley was planning to construct in relation to the property line. Burke said that he took copies of the ordinances over to Dudley and told Dudley that he might want to be aware of the requirements. According to Lyles, Dudley had a "meltdown" over Burke's comments. Dudley admitted that he and Burke discussed where the driveway would be placed; however, Dudley did not testify that he and Burke had an argument over the matter.

The relationship between the neighbors began to deteriorate quickly. Issues arose over the branches of a pecan tree; the tree grew on Lyles's property, but some branches hung over the fence and caused debris to fall into Downs's yard and onto the roof of her house. Downs and Dudley sought permission to trim the branches, but Lyles declined to give her permission. Concerned over the possibility that Downs and Dudley might try to trim the tree anyway, Lyles and Burke installed security cameras to monitor access into their yard. Downs and Dudley were irritated by the use of the cameras, and they eventually built a higher privacy fence that extended to their driveway to block them from view of a camera overlooking the side yard of Lyles's home, which also overlooked the new driveway of Downs's home.

By this time, Downs and Dudley were claiming that the old wire fence had been built by Downs's father on Downs's property; Downs specifically argued that that fence did not, as Lyles contended, connect without interruption to Lyles's house. Lyles contended that that fence extended from her house to the corner of the yard and then down the length of the backyard property line. Downs contended that the length of fence between the corner and Lyles's house was not part of the original wire fence and instead was connected to a post that "butted up against" the original fence corner.

Before Downs and Dudley built their extended privacy fence, the security camera overlooking the side of Lyles's home caught numerous images of Dudley clearing debris of various nature off of his driveway by use of a leaf blower or a garden hose; the debris fell onto Lyles's side yard. At one point, Dudley cleaned a substance off his driveway and then placed shovels full of dirt over the substance along the edge of the driveway. The camera also captured images of Dudley entering the space between the two privacy fences on numerous occasions, at least one time while carrying a bottle with an attached sprayer that Burke identified as a container of Round-Up, a weed killer. The backyard camera caught someone tearing a plastic door off the area between the privacy fences, someone peering through the fence built by Burke for a period, and someone spraying a liquid substance through that fence.

In December 2004, Lyles and Burke woke one morning to discover several inches of water standing in the backyard. According to Burke, the water remained in the yard for three days. As a result of the flooding, Burke testified, the duct work under the house was filled with water and the insulation on the pipes underneath the house became saturated and fell off of the pipes. Burke testified that he had spent $100 replacing the insulation; however, he explained that he and Lyles did not have the money to have the duct work repaired or replaced. Lyles and Burke contended that the flooding resulted from the installation of the driveway and a sidewalk in Downs's backyard and the placement of a door, a tailgate, and other items along the fence line by Downs and Dudley; Dudley contended that Burke's construction of the privacy fence had resulted in Burke's forming a dam along the bottom of the privacy fence, keeping the water confined in Lyles's backyard.

Lyles and Burke sued Downs and Dudley in September 2005, alleging three claims: that Downs and Dudley had trespassed on the property by disturbing their possession; that, in constructing the driveway, Dudley and Downs had negligently excavated the site and had violated the right to lateral support owed to Lyles and Burke; and "suggesting" a boundary-line dispute based on Downs and Dudley's claim that the fence built by Burke was located on Downs's property. Downs and Dudley answered the complaint and later asserted three counterclaims: invasion of privacy by intrusion upon seclusion, assault, and trespass based on the removal of the old wire fence.

After numerous continuances and reassignments of the case to other judges, the case was finally tried to a jury on November 3, 2008. At the close of Lyles and Burke's case and again at the close of all the evidence, Dudley and Downs moved for a judgment as a matter of law on each of the claims in the complaint; the trial court denied both motions. In addition, the counterclaims alleging assault and trespass were dismissed by agreement of the parties. The parties further stipulated that the boundary line between the properties was the fence line of the fence built by Burke. The following claims were submitted to the jury for its determination: Lyles and Burke's claims of trespass and negligent excavation/violation of the right of lateral support and Downs and Dudley's counterclaim of invasion of privacy. The jury returned a verdict in favor of Lyles and Burke on their trespass claim and awarded them damages of $1,100 each, returned a verdict in favor of Lyles and Burke on their negligent-excavation/violation-of-the-right-of-lateral-support claim and awarded them damages of $50 each, and returned a verdict in favor of Lyles and Burke on Downs and Dudley's invasion-of-privacy counterclaim. The jury was requested to determine whether Lyles or Downs owned the privacy fence built by Burke. The jury specifically determined that Lyles owned that privacy fence. The trial court entered judgment on the jury's verdict on November 13, 2008. After their postjudgment motion for a judgment as a matter of law and, in the alternative, for a new trial was denied by operation of law, Downs and Dudley appealed.

On appeal, Downs and Dudley raise three issues. Downs and Dudley first argue that the judgment entered on the jury verdict on Lyles and Burke's trespass claim should be reversed because the damages awarded were based on speculation and conjecture. Secondly, Downs and Dudley argue that the evidence was insufficient to support a verdict in favor of Lyles and Burke on their negligent-excavation/violation-of-the-right-of-lateral-support claim and that the trial court erred in denying their preverdict and postverdict motions for a judgment as a matter of law regarding that claim, because, they assert, the doctrine is inapplicable to the circumstances of this case. Finally, Downs and Dudley argue that Lyles did not establish adverse possession of the old wire fence a that the jury could not have properly concluded that Lyles owned the privacy fence built by Burke.

Standards of Review

"A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Crown Life Insurance Co. v. Smith, 657 So.2d 821 (Ala.1994). In addition, a judgment based upon a jury verdict and sustained by the denial of a postjudgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. National Security Ins. Co. v. Donaldson, 664 So.2d 871 (Ala. 1995). Because the jury returned a verdict for [Lyles and Burke], any disputed questions of fact must be resolved in their favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. ...