Fort Morgan Civic Ass'n, Inc. v. City of Gulf Shores, 1101440.

Decision Date17 August 2012
Docket Number1101440.
Citation100 So.3d 1042
PartiesFORT MORGAN CIVIC ASSOCIATION, INC., and Charles A. Browdy v. CITY OF GULF SHORES et al.
CourtAlabama Supreme Court

OPINION TEXT STARTS HERE

Taylor D. Wilkins, Jr., Kenneth R. Raines, and Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette, for appellants.

Andrew J. Rutens and Alicia M. Jacob of Galloway, Wettermark, Everest, Rutens & Gaillard, LLP, Mobile, for appellees.

PER CURIAM.

The Fort Morgan Civic Association, Inc. (“the Association”), and Charles A. Browdy, a resident of the unincorporated Fort Morgan area of Baldwin County and a member of the Association (hereinafter referred to collectively as “the FMCA”), sued the City of Gulf Shores and its mayor and city council (hereinafter referred to collectively as “the City”) in the Baldwin Circuit Court seeking a court order declaring the City's annexation of a 19.3–mile segment of the land on which Fort Morgan Road is located and the adjacent land (“the Fort Morgan annexation”) to be invalid.1 Following a nonjury trial, the trial court held that the FMCA had failed to establish that the Fort Morgan annexation was invalid; it accordingly entered a judgment in favor of the City. The FMCA appeals. We reverse and remand.

I.

Sometime in late 2002 or early 2003, Noel Hand, a surveyor for Volkert & Associates, Inc., an engineering firm, contacted David Bodenhamer, then mayor of Gulf Shores, on behalf of Volkert's client, real-estate developer David Head, to discuss the possibility of Gulf Shores annexing property to its west and extending its city limits further down the Fort Morgan peninsula. Presumably, Hand and Head were interested in pursuing this annexation because property annexed into the City of Gulf Shores would have access to city services and be subject to Gulf Shores' zoning requirements as opposed to the more restrictive zoning requirements Baldwin County had adopted for the Fort Morgan area. Gulf Shores had considered the possibility of expanding westward on previous occasions; however, it was apparently after meeting with Hand and Head that Gulf Shores decided to pursue the specific expansion plan now being challenged—the annexation of a piece of property 19.3 miles long and 330 feet wide extending from the western limit of the municipal limits of Gulf Shores to the eastern edge of the Fort Morgan historic site. The predominant characteristic of this property was Fort Morgan Road and its approximately 80–foot–wide right-of-way; however, the annexed property also included unimproved property adjacent to Fort Morgan Road, as well as sidewalks and several public-recreation areas. Once the Fort Morgan annexation was completed, it was expected that other property on the Fort Morgan peninsula contiguous to the annexed property would also seek to be annexed into Gulf Shores.2

The record is unclear as to the exact circumstances that followed Gulf Shores' decision to pursue the Fort Morgan annexation; however, under the belief that the subject property was owned by the State, Gulf Shores apparently communicated its interest in annexing the property to state government officials. On March 25, 2003, Bob Riley, then governor of Alabama, and Barnett Lawley, then commissioner of the Alabama Department of Conservation and Natural Resources, submitted a petition on behalf of the State of Alabama formally requesting that the property be annexed into Gulf Shores pursuant to § 11–42–21, Ala.Code 1975. On April 14, 2003, the city council of Gulf Shores adopted an ordinance approving the annexation request, which ordinance was subsequently signed by the mayor and published into law.

Following the completion of the Fort Morgan annexation, residents of the Fort Morgan peninsula began protesting the fact that there had been no public hearing on the annexation petition and voicing their general displeasure with the annexation. Entreaties were apparently made to state and local government officials, and, in response, Governor Riley thereafter asked Mayor Bodenhamer to deannex the recently annexed property. Bradley Byrne and Steve McMillan, state legislators from Baldwin County, also made similar requests to city officials of Gulf Shores. However, believing the Fort Morgan annexation to be beneficial to Gulf Shores, Mayor Bodenhamer and the city council refused the requests. On May 13, 2003, the FMCA sued the City, seeking a court order declaring void the Fort Morgan annexation and all subsequent annexations by Gulf Shores of property contiguous to the annexed property.

Over the succeeding years, the FMCA and the City filed various motions, e.g., motions to dismiss and motions requesting a summary judgment, all of which were denied. At one point in November 2007, the FMCA and the City appeared to have reached a settlement that would have ended the dispute; however, the general membership of the Association subsequently rejected that proposed settlement when it was put to a vote. A two-day nonjury trial was finally conducted on April 27–28, 2011, and, on July 22, 2011, the trial court entered a judgment in favor of the City. The FMCA now appeals.

II.

“Because the trial court heard ore tenus evidence during the bench trial, the ore tenus standard of review applies. Our ore tenus standard of review is well settled. “When a judge in a nonjury case hears oral testimony, a judgment based on findings of fact based on that testimony will be presumed correct and will not be disturbed on appeal except for a plain and palpable error.” Smith v. Muchia, 854 So.2d 85, 92 (Ala.2003) (quoting Allstate Ins. Co. v. Skelton, 675 So.2d 377, 379 (Ala.1996)).

“ ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.” Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala.1995). The ore tenus standard of review, succinctly stated, is as follows:

[W]here the evidence has been [presented] ore tenus, a presumption of correctness attends the trial court's conclusion on issues of fact, and this Court will not disturb the trial court's conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.”

Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). However, ‘that presumption [of correctness] has no applicationwhen the trial court is shown to have improperly applied the law to the facts.’ Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415, 417 (Ala.1994).”

Kennedy v. Boles Invs., Inc., 53 So.3d 60, 67–68 (Ala.2010).

III.

On appeal, the FMCA makes essentially two arguments: (1) that the Fort Morgan annexation constitutes a “long-lasso” annexation, a method of annexation prohibited since this Court's decision in City of Fultondale v. City of Birmingham, 507 So.2d 489, 490–91 (Ala.1987); and (2) that the Fort Morgan annexation is invalid because the State did not own all the annexed property, contrary to the State's claim in the petition for annexation. We consider these arguments in turn.

Because the annexed property consists of a 19.3–mile strip of land essentially tracking Fort Morgan Road, the FMCA argues that the annexation is a prohibited long-lasso annexation. In City of Spanish Fort v. City of Daphne, 774 So.2d 567, 574–75 (Ala.2000), we described long-lasso annexations as follows:

“Under [the long-lasso] method, a city would purport to annex a public roadway of some length in an effort to create contiguity with an outlying parcel of property that would not otherwise be contiguous with the existing municipal limits. City of Fultondale v. City of Birmingham, 507 So.2d 489, 491 (Ala.1987). In City of Fultondale, this Court explicitly overruled City of Tuskegee v. Lacey, 486 So.2d 393 (Ala.1985). In City of Tuskegee, the City of Tuskegee had annexed 14 miles of a public roadway, without annexing any property lying along that roadway, in order to create contiguity with an outlying parcel of property. Although this Court upheld that annexation in City of Tuskegee, this Court overruled that decision in City of Fultondale. In City of Fultondale, this Court explained its reasons for rejecting the long-lasso method of annexation:

‘Although Alabama law does not require that municipal boundaries form a regular shape, the legal and popular idea of a municipality in this country is “that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants—that is, a body of people collected or gathered in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places.” 56 Am.Jur.2d Municipal Corporations § 69 at 125 (1971); City of Dothan [ v. Board of Comm'rs of Dale Cnty., 295 Ala. 131, 324 So.2d 772 (1975) ].’

507 So.2d at 491.”

Although acknowledging that the annexed property contains a public roadway, the City argues that the Fort Morgan annexation was not a long-lasso annexation because the strip of annexed property was approximately 330 feet wide and the public right-of-way accounted for only approximately 80 feet of that width, the rest being made up of unimproved property, sidewalks, and recreational areas. In support of its argument, the City cites City of Prattville v. City of Millbrook, 621 So.2d 267 (Ala.1993), in which this Court upheld the City of Millbrook's annexation of a county-owned abandoned railroad bed varying from 75 to 100 feet wide and containing a county road in the center. In doing so, we explicitly adopted the order of the trial...

To continue reading

Request your trial
10 cases
  • M.C. v. Tallassee Rehab., P.C. (Ex parte Vanderwall.)
    • United States
    • Supreme Court of Alabama
    • September 30, 2015
    ...Bankers Ins. Co. of Florida v. Tellis, 192 So.3d 386, 392 n. 3 (Ala.2015) ; Fort Morgan Civic Ass'n, Inc. v. City of Gulf Shores, 100 So.3d 1042, 1047 n. 7 (Ala.2012) ; Clay Kilgore Constr. Co. v. Buchalter/Grant, L.L.C., 949 So.2d 893, 898 (Ala.2006) (also cited in the dissent); Ex parte A......
  • Grimes v. Alfa Mut. Ins. Co., 1150041.
    • United States
    • Supreme Court of Alabama
    • January 27, 2017
    ...trial, this Court's review of a declaratory judgment is ordinarily governed by the ore tenus standard. Fort Morgan Civic Ass'n, Inc. v. City of Gulf Shores, 100 So.3d 1042 (Ala. 2012). " ‘However, the ore tenus rule does not extend to cloak a trial judge's conclusions of law, or incorrect a......
  • Spuhl v. Spuhl
    • United States
    • Alabama Court of Civil Appeals
    • January 17, 2014
    ...those conclusions unless they are clearly erroneous and against the great weight of the evidence. See Fort Morgan Civic Ass'n v. City of Gulf Shores, 100 So.3d 1042, 1045 (Ala.2012). I believe the conclusions the trial court reached as the basis for its award to the wife of periodic alimony......
  • Nettles v. Rumberger, Kirk & Caldwell, P.C.
    • United States
    • Supreme Court of Alabama
    • August 31, 2018
    ...... Robinson v. Computer Servicenters, Inc. , 360 So. 2d 299, 302 (Ala. 1978). 'A ruling ...City of Scottsboro , 286 Ala. 315, 317, 239 So. 2d ...2d 914, 926 (Ala. 2002)). See Fort Morgan Civic Ass'n, Inc. v. City of Gulf Shores , ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT