Johnson v. the City of Prichard

• Decision Date: 11 February 2011
• Docket Number: Civil Action No. 08–0572–CG–M.
• Citation: 771 F.Supp.2d 1310
• Parties: Myrtice JOHNSON, Plaintiff,v.The CITY OF PRICHARD, et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

771 F.Supp.2d 1310

Myrtice JOHNSON, Plaintiff,

v.The CITY OF PRICHARD, et al., Defendants.

Civil Action No. 08–0572–CG–M.

United States District Court, S.D. Alabama, Southern Division.

Feb. 11, 2011.

Ricardo Andrew Woods, Burr & Forman, LLP, Mobile, AL, Sonya A. Ogletree–Bailey, The Ogletree Firm, Mobile, AL, for Plaintiff.Mark L. Redditt, Charles E. Tait, J. Marshall Gardner, Vickers, Riis, Murray and Curran, L.L.C., Mobile, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

CALLIE V.S. GRANADE, District Judge.

This matter is before the court on defendants' motion for summary judgment (Doc. 49), plaintiff's motion for summary judgment (Doc. 53), defendants' opposition to plaintiff's motion (Doc. 57), plaintiff's opposition to defendants' motion (Doc. 59), and defendants' reply (Doc. 60). For the reasons explained below, the court finds that summary judgment is due to be granted in defendants' favor on all of plaintiff's claims except her claim for trespass based on defendants' use of her property as a parking lot.

FACTS

Plaintiff filed this case on October 1, 2008, alleging that the defendants unlawfully entered upon her property and demolished her house located at 113 Phillips St., in the City of Prichard, Alabama (“the property”). Plaintiff's amended complaint asserts claims for 1) trespass; 2) fifth amendment taking; 3) due process violation; 4) fraud, misrepresentation and suppression; 5) negligence; 6) wantonness; and 7) failure to provide honest government. (Doc. 4).

The property in question was purchased by plaintiff in 1987 (Doc. 50–3, p. 4). The house on the property was occupied at times by plaintiff, her son, her daughter, her daughter's husband, and various tenants. (Doc. 50–3, pp. 4–12). The last occupant of the property was plaintiff's daughter, Marlene Bigelow, and Marlene's husband, Norman Bigelow, who vacated the property in or about September 2000. (Doc. 50–3, pp. 8–11).

In 2003, Pursuant to Alabama Code § 11–53B–1, the City of Prichard enacted Ordinance 1912, “An Ordinance to Abate Nuisances.” Ordinance 1912 “permits the City, after meeting certain notice requirements, to repair or demolish unsafe Buildings and to provide an effective means of collecting an Assessment lien on the property for the costs of the work involved in abating the nuisance.” (Doc. 50–5).

On or about December 2, 2004, following an inspection of the property, the Environmental Department of the City of Prichard mailed a “Notice of Hazard” to the address of the property. (Doc. 50–6). The notice stated that an inspection of the property had revealed an environmental hazard and that plaintiff is required to correct the conditions on or before December 17, 2004. (Doc. 50–7). On December 16, 2004, the Building and Inspection Department of the City of Prichard made a structural and unit inspection of the property. (Doc. 50–6). The inspection record states that the vacant property was structurally damaged and had a bad roof, bad electrical and bad plumbing system. (Doc. 50–9). Photographs were taken of the property at the time of the inspection. (Doc. 50–10). On or about December 16–17, 2004, the Building and Inspection Department of the City of Prichard issued a Notice to Repair or Demolish. (Doc. 50–6). This second notice stated that the dilapidated structure on the property has been found to be unsafe and is a public nuisance. (Doc. 50–8). The notice further stated the following:

YOU ARE ORDERED TO REMEDY THE ATTACHED UNSAFE CONDITION(S), OR TO DEMOLISH SUCH BUILDING OR STRUCTURE, WITHIN FORTY–FIVE (45) DAYS AFTER DATE OF THIS NOTICE, OTHERWISE

THE CITY OF PRICHARD WILL HAVE THE RIGHT BUT NOT THE DUTY TO DEMOLISH SUCH BUILDING OR STRUCTURE AND THE COST OF SUCH DEMOLITION ASSESSED AGAINST THE PROPERTY ON WHICH SUCH BUILDING OR STRUCTURE IS LOCATED IN ACCORDANCE WITH THE PROVISIONS OF THE CITY OF PRICHARD ORDINANCE 1912.

(Doc. 50–8). Plaintiff testified that she discovered the notice posted on the property sometime between the years 2005 and 2006. (Doc. 50–3, pp. 13–15). She did not recall if it was as far back as 2004 that she saw the notice. (Doc. 50–3, p. 14). After seeing the notice, plaintiff called the City of Prichard and spoke to Councilman Napoleon Bracy. (Doc. 50–3, p. 16). According to plaintiff, she requested time to restore the property and was told she should talk with the mayor. (Doc. 5–3, pp. 16–17). Plaintiff testified that she spoke with Mayor Ron Davis and told him that she intended to restore the property. (Doc. 50–3, p. 17). According to plaintiff, she also asked Mayor Davis what time span she would have and Davis replied that “it wasn't anytime soon.” (Doc. 50–3, pp. 17–18). Plaintiff also reports that she asked Davis if the City would contact her if the time was up to which Davis said that they would notify her. (Doc. 5–3, p. 18). Plaintiff did not have any further verbal or written communication with the City of Prichard until after the house was demolished. (Doc. 50–3, p. 21).

On September 26, 2006, the City of Prichard Public Works Department began demolition of the home located on the property. (Doc. 4, ¶ 8). Around the end of September or the beginning of October 2006, plaintiff took a contractor by the house to get an estimate and discovered it had been torn down. (Doc. 50–3, pp. 22–23). This is the first contractor she had contacted about restoring the house. (Doc. 50–3, p. 23).

Sometime after the demolition, the City of Prichard Police Department began using the property as a parking lot.¹ (Doc. 57–3, p. 2). The Mayor was unaware the property was being used for parking and when it was brought to the Mayor's attention, he immediately directed the police department to stop parking on the property. (Doc. 57–3, p. 2).

By letter dated, April 16, 2007, plaintiff was notified of a hearing to fix and assess the cost of the demolition and informed that she could appear and be heard if she had any objection. (Doc. 54–5). The notice of hearing, which was apparently sent to plaintiff's current address, stated that the house had been demolished and that “[t]he amount of $11,575.29 shall constitute a special assessment against the property.” (Doc. 54–5).

DISCUSSION

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted: “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The trial court's function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir.2002) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, at 249–250, 106 S.Ct. 2505. (internal citations omitted).

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251–252, 106 S.Ct. 2505. The moving party bears the burden of proving that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir.2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999). “If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment.” Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985)). Once the movant satisfies his initial burden under Rule 56(c), the non-moving party “must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial.” Howard v. BP Oil Company, 32 F.3d 520, 524 (11th Cir.1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Otherwise stated, the non-movant must “demonstrate that there is indeed a material issue of fact that precludes summary judgment.” See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The non-moving party “may not rest on the mere allegations or denials of the [non-moving] party's pleading, but .... must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e) “A mere ‘scintilla’ of evidence supporting the [non-moving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citation omitted). “[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole.” Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998 (11th Cir.1992). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 at 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation and citation omitted).

B. Plaintiff's Claims

Plaintiff's amended complaint asserts claims for 1)...