Hobbs v. Mobile County., 1100004.

• Decision Date: 22 April 2011
• Docket Number: 1100004.
• Citation: 72 So.3d 12
• Parties: Clinton HOBBS and Wanda Hobbsv.MOBILE COUNTY.
• Court: Alabama Supreme Court

72 So.3d 12

Clinton HOBBS and Wanda Hobbs

v.MOBILE COUNTY.

1100004.

Supreme Court of Alabama.

April 22, 2011.

Charles J. Potts of Briskman & Binion, P.C., Mobile, for appellants.Jay M. Ross and R. Jason Crane of Ross, Jordan & Gray, P.C., Mobile, for appellee.

WISE, Justice.

Clinton Hobbs and Wanda Hobbs appeal from a judgment of the Mobile Circuit Court, granting a motion to dismiss in favor of defendant Mobile County (“the County”). We affirm in part, reverse in part, and remand.

Facts and Procedural History

The Hobbses filed a complaint against the County, Thompson Engineering, Inc., and Hosea O. Weaver & Sons, Inc. (“the defendants”). They alleged the following facts in their complaint:

“In June 2001, [the Hobbses] purchased that certain real property generally described _ _ _ _ at Celeste Court, Saraland, Alabama. Subsequent to the purchase of their homestead property, [the Hobbses] spent substantial time and money making improvements to same including the construction of a pond located on their property which is comprised of five (5) acres more or less.

“... On information and belief, beginning sometime in 2008, at or near the [Hobbses'] homestead, Defendants undertook a project denominated as ‘MCR 2000–007 Celeste Road’ whereby certain road and storm water drainage system work was performed by Hosea O. Weaver & Sons under contract with Mobile County and/or Thompson Engineering. Thompson Engineering designed the modifications to the existing County roadway (Celeste Road) and also designed modifications to the storm water capture and drainage system in the area. Thompson Engineering performed this work pursuant to a contract it had with Mobile County. Mobile County assumed a duty and is under a responsibility under the law to design, maintain and construct adequate and reasonable storm water drainage and flood control measures for this area of the County....

“... As a result of the faulty design, construction and maintenance of the afore described road work and storm water management system, vast amounts of storm water now flow onto [the Hobbses'] property, depositing silt, dirt, mud and other debris, where such events did not occur before the construction project. The [Hobbses'] home and real property, including the pond referenced above, has, within the past two (2) years, sustained damage, diminution of value, and the [Hobbses'] right to the peaceful use and enjoyment of their property, including, but not limited to, use as a church retreat, has been interfered with.

“... The first flooding event (subsequent to and as a result of the Defendants' work on this project) which damaged [the Hobbses'] property occurred in July 2008; further flooding events have occurred on numerous, subsequent occasions preceding the filing of this suit. Plaintiff, Pastor Clinton Hobbs, has exhausted all efforts to have Mobile County and/or the Defendants remediate the flooding problems caused by the faulty design, construction and maintenance of the roadway and storm water system. These efforts have proved utterly fruitless in that flooding onto and damage to the [Hobbses'] property is continuing to the present. [The Hobbses] aver that each flooding event is a separate occurrence and injury.”

In count I of their complaint, the Hobbses asserted a claim for damages against the defendants as a result of alleged negligence and/or wantonness in the design, construction, and/or maintenance of the drainage system. In count II of their complaint, they asserted a claim for damages based on nuisance and trespass as a result of the alleged negligent design, construction, and/or maintenance of the roadway and drainage system. Finally, in count III of their complaint, the Hobbses asserted a claim for injunctive relief. The County filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief could be granted and a brief in support of that motion, arguing that it was entitled to a dismissal of the Hobbses' action against it based on the Hobbses' failure to give notice of their claims before filing their complaint, pursuant to § 6–5–20 and § 11–12–8, Ala.Code 1975. The Hobbses filed a response to the motion to dismiss, and the County replied to their response.

After conducting a hearing on the motion, the circuit court on September 17, 2010, entered an order granting the County's motion to dismiss without stating the grounds therefor. On September 29, 2010, the Hobbses filed a notice of appeal to this Court. Because the judgment appealed from did not appear to be a final judgment, this Court on February 4, 2011, remanded the case to the circuit court for that court (1) to certify the interlocutory order of September 17, 2010, as a final judgment under Rule 54(b), Ala. R. Civ. P.; (2) to adjudicate the remaining claims relating to Thompson Engineering, Inc., and Hosea O. Weaver & Sons, Inc., thereby making the interlocutory order final and appealable; or (3) to take no action, in which event the appeal would be dismissed as being from a nonfinal judgment. On February 8, 2011, the circuit court certified the interlocutory order of September 17, 2010, as a final judgment under Rule 54(b), Ala. R. Civ. P.

Standard of Review

“On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986).”Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

Issue

The Hobbses raise the following issue on appeal: Whether the circuit court erred in granting the County's Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss based upon the Hobbses' failure to present the County with timely claims pursuant to § 11–12–1 et seq. and § 6–5–20, Ala.Code 1975, when the relief the Hobbses seek is, in part, injunctive relief, which is historically equitable relief, and such equitable claims are not subject to the notice provisions of § 11–12–1 et seq. and § 6–5–20 by virtue of the holding in Ford v. Jefferson County, 774 So.2d 600 (Ala.Civ.App.2000).

Discussion

In its motion to dismiss the complaint for failure to state a claim pursuant to Rule 12(b)(6), Ala. R. Civ. P., and its brief in support of that motion and again in its brief to this Court, the County, citing § 6–5–20 and § 11–12–8, argues that it was entitled to a dismissal of the Hobbses' claims against it because the Hobbses had not presented notice of their claims against the County to the county commission within 12 months after the claims accrued. In their brief to this Court, the Hobbses concede that they did not provide notice of their claims to the County within that 12–month period. (Hobbses' brief, at p. 10.)

Section 6–5–20(a), Ala.Code 1975, provides:

“An action must not be commenced against a county until the claim has been presented to the county commission, disallowed or reduced by the commission and the reduction refused by the claimant.”

Section 11–12–8, Ala.Code 1975, provides:

“All claims against counties must be presented for allowance within 12 months after the time they accrue or become payable or the same are barred, unless it be a claim due to a minor or to a lunatic, who may present such claim within 12 months after the removal of such disability.”

This Court discussed the applicability of § 6–5–20 and § 11–12–8, Ala.Code 1975, to a similar situation in Wheeler v. George, 39 So.3d 1061, 1088 (Ala.2009), and stated:

“Section 11–1–2, Ala.Code 1975, provides: ‘Every county is a body corporate, with power to sue or be sued in any court of record.’ A county is not immune from suit, therefore, because it is a governmental entity. However, all claims against a county, whether in tort or in contract, must comply with the requirement of a presentment of an itemized, verified claim to the county commission. As this Court stated in Cook v. St. Clair County, 384 So.2d 1, 5 (Ala.1980):

“ ‘There is no restriction to the type of suit that may be brought against the county—tort or contract. The only requirements that must be met regarding a suit against a county are set out in §§ 6–5–20(a), 11–12–5, 11–12–6, and 11–12–8, Code 1975 requiring presentment of an itemized, verified claim, to the county commission within twelve months of accrual, and acted on within ninety days prior to commencement of the suit.’

“It is undisputed that neither [of the plaintiffs] presented a claim to the County Commission at any time. This failure to file the statutorily mandated claim acts as a procedural bar to all claims against the County and the County Commission. The summary judgment entered in their favor is due to be affirmed....”

Likewise, in this case, the Hobbses did not comply with the requirement of presentment of their claims to the county commission before filing suit. Consequently, they concede that their claims presented in counts I and II of the complaint alleging negligence and wantonness (count I) and trespass and nuisance (count II)...