Furin v. City of Huntsville

• Decision Date: 22 August 2008
• Docket Number: 2070322.
• Parties: Stephen FURIN et al. v. CITY OF HUNTSVILLE.
• Court: Alabama Court of Civil Appeals

3 So.3d 256

Stephen FURIN et al. v. CITY OF HUNTSVILLE.

2070322.

Court of Civil Appeals of Alabama.

August 22, 2008.

M. Clay Ragsdale of Ragsdale, LLC, Birmingham, for appellants.

Michael L. Fees, Allen L. Anderson, and Stacy L. Moon of Fees & Burgess, P.C., Huntsville, for appellee.

THOMPSON, Presiding Judge.

Aldridge Creek, located in the City of Huntsville ("the City"), drains an area of approximately 21.7 square miles. In the early morning hours of June 28, 1999, the Aldridge Creek area experienced extraordinarily heavy rainfall totaling approximately six and one-half inches in just six hours. The rain overwhelmed the Aldridge Creek drainage system, and many locations near Aldridge Creek flooded. Stephen Furin, Jeannie Furin, Charles Morgan Drake, Jose Jorge Gonzalez-Tablada, and Ileana Caridad Gonzalez-Tablada (collectively "the plaintiffs") live in a neighborhood near Aldridge Creek. Their homes were flooded in the June 28, 1999, rainfall event ("the flood").

On December 22, 1999, the plaintiffs submitted claims to the City for damages resulting from the flood. See § 11-47-23, Ala.Code 1975. On July 28, 2000, the plaintiffs, individually and on behalf of a purported class, filed a complaint against the City and seven other defendants in the Madison Circuit Court asserting claims of trespass, negligence, nuisance, and inverse condemnation.¹ In September 2000, the City filed a motion for a summary judgment as to the plaintiffs' claims on behalf of a purported class. In November 2000, the plaintiffs asked the trial court to set a scheduling conference for the purpose of establishing a schedule for discovery on class-certification issues. The trial court did not immediately issue a scheduling order or rule on the City's motion.

On February 1, 2001, pursuant to another motion by the City, the trial court limited the plaintiffs' claims for damages against the City to $100,000 per injured person and to an aggregate of $300,000 for all injured persons. See § 11-47-190, Ala. Code 1975. On June 28, 2001, the plaintiffs amended their complaint to add claims against four additional defendants; three of those defendants were never served. In November 2001, the plaintiffs asked the trial court to continue its scheduled hearing on the class-certification issue on the ground that they had not completed discovery. The trial court granted their motion.

Although the trial court granted the plaintiffs additional time to engage in discovery, it is undisputed that they never conducted any discovery. In fact, it is undisputed that during the seven years this action was pending in the trial court, the plaintiffs never sought discovery from any of the defendants; the defendants' employees, agents, or representatives; the defendants' expert witnesses; or the plaintiffs' own expert witnesses. On appeal, the plaintiffs note that the record does not show that the City ever sought discovery from them.

In October 2003 and November 2004, with the plaintiffs' consent, the trial court entered summary judgments as to two of the defendants. On November 23, 2004, the trial court entered a summary judgment in favor of the remaining defendants on the plaintiffs' claims on behalf of a purported class. The trial court certified its November 23, 2004, order as final pursuant to Rule 54(b), Ala. R. Civ. P.; the plaintiffs never appealed that order. On February 4, 2005, again with the plaintiffs' consent, the trial court entered a summary judgment in favor of a third defendant. In September 2005, pursuant to a trial court order, the remaining parties mediated their dispute, albeit unsuccessfully.

In October 2005, the plaintiffs filed a motion to consolidate their action with another action pending in the Madison Circuit Court, Bailey et al. v. City of Huntsville et al., CV-01-1371, which the plaintiffs alleged was also related to the flood. The defendants opposed the motion to consolidate. The record does not show that the trial court ever ruled on that motion, and the plaintiffs never requested a hearing on it.

Between May and August 2006, each of the remaining six defendants filed motions for a summary judgment. In support of their motions, the defendants jointly submitted numerous documents and affidavits, including the affidavit of an expert witness, Byron Hinchey, a professional engineer who practiced in the field of storm-water management. Additionally, the defendants separately submitted affidavits from their own representatives and expert witnesses. The City submitted affidavits from three of its employees and its own expert witness, Andrew Reese, a professional hydrologist and engineer practicing in the field of storm-water consulting. Notably, one defendant submitted excerpts from a deposition of an expert witness, John Curry, that had been taken in another action, Lane et al. v. City of Huntsville, CV-01-1318 ("the Lane action"). Those excerpts of Curry's deposition testimony related only to the defendant who submitted them and did not mention the City.

On August 29, 2007, more than one year after the city had filed its motion for a summary judgment and more than seven years after the plaintiffs had filed their complaint, the City filed a motion to dismiss the action for want of prosecution. The City based its motion to dismiss, in part, on the plaintiffs' seven-year failure to conduct discovery and the plaintiffs' failure to respond to the City's motion for a summary judgment. The City also filed an alternative request for a hearing on its summary-judgment motion. The other remaining defendants joined the City's motion to dismiss. The trial court set all dispositive motions for a hearing on September 13, 2007. Two days before the hearing, on September 11, 2007, the plaintiffs responded to the defendants' summary-judgment motions. To support their response, the plaintiffs submitted an affidavit of Don Strietzel, a resident of the plaintiffs' neighborhood and a purported expert witness; an affidavit of plaintiff Jose Gonzalez-Tablada; a deposition transcript of John Curry taken in 2003 in the Lane action; a deposition transcript of Charles Ming taken in 2003 in the Lane action; and an affidavit of the defendants' expert, Byron Hinchey, that had been submitted into evidence by the City in the Lane action in 2003.

On September 12, 2007, the City filed a motion to strike the Strietzel affidavit to the extent that it offered expert opinions. The City argued that Strietzel was not qualified to testify as an expert witness. The City also filed a motion to strike the Curry and Ming deposition transcripts and the Hinchey affidavit from the Lane action. The City argued that the evidence from the Lane action was inadmissible hearsay under Rules 802 and 804, Ala. R. Evid.

The trial court heard the parties' arguments regarding the pending motions on September 13, 2007. On September 25, 2007, the trial court granted the City's motion to strike the purported expert opinions included in the Strietzel affidavit. The trial court also granted the City's motion to strike the Curry deposition transcript, the Ming deposition transcript, and the Hinchey affidavit from the Lane action. With the plaintiffs' consent, the trial court entered a summary judgment as to one of the defendants. Finally, the trial court granted a summary judgment in favor of the remaining five defendants.

Because it disposed of all remaining claims and defendants, the trial court's September 25, 2007, summary judgment was final and appealable. See, e.g., Ex parte Harris, 506 So.2d 1003, 1004 (Ala. Civ.App.1987). Forty-two days later, the plaintiffs filed a notice of appeal to our supreme court. See Rule 4, Ala. R.App. P. (a timely notice of appeal must be filed within 42 days of the judgment). The plaintiffs appealed the trial court's judgment only as to their claims alleging trespass, negligence, and nuisance against the City. The appeal was transferred to this court by the supreme court pursuant to § 12-2-7(6), Ala.Code 1975.

The plaintiffs raise several issues on appeal. We will consider their arguments regarding the trial court's evidentiary rulings first. Our supreme court has stated the standard of appellate review of a trial court's evidentiary rulings as follows:

"The standard applicable to a review of a trial court's rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence. ... The second principle `is that a judgment cannot be reversed on appeal for an error unless ... it should appear that the error complained of has probably injuriously affected substantial rights of the parties.' Atkins[ v. Lee,] 603 So.2d [937,] 941 [(Ala.1992)]."

Wal-Mart Stores, Inc. v. Thompson, 726 So.2d 651, 655 (Ala.1998)(holding that the trial court did not err in excluding evidence).

The plaintiffs argue on appeal that the trial court erred in striking portions of the affidavit of Don Strietzel. Strietzel's affidavit includes statements of fact and opinion; the trial court struck the affidavit to the extent that it offers expert opinions. Our supreme court has specifically recognized that a trial court is vested with discretion to determine whether to admit or exclude expert testimony.

"The standard of review applicable to whether an expert should be permitted to testify is well settled. The matter is `largely discretionary with the trial court, and that court's judgment will not be disturbed absent an abuse of discretion.' Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 850 (Ala.2002). We now refer to that standard as a trial court's `exceeding its discretion.' ... However, the standard itself has not changed."

Kyser v. Harrison, 908 So.2d 914, 918 (Ala.2005); see also Martin v. Dyas, 896 So.2d 436, 440 (Ala.2004).

Our supreme court has explained that "a witness must be qualified as an expert before he can give an opinion as an expert." Townsend v. General...