Milner v. Water Works & Sewer Bd. of Anniston (Ex parte Water Works & Sewer Bd. of Anniston)
| Decision Date | 11 December 2020 |
| Docket Number | 1190436 |
| Citation | 328 So.3d 802 |
| Parties | EX PARTE The WATER WORKS AND SEWER BOARD OF the CITY OF ANNISTON (In re: Betty Milner and Teresa Holiday v. The Water Works and Sewer Board of the City of Anniston) |
| Court | Alabama Supreme Court |
C. David Stubbs of Stubbs, Sills & Frye, P.C., Anniston, for petitioner.
Donald W. Stewart and Edward McF. Johnson of Stewart & Stewart, P.C., Anniston, for respondents.
The Water Works and Sewer Board of the City of Anniston ("the Board") petitions this Court for a writ of mandamus directing the Calhoun Circuit Court ("the trial court") to vacate its order entering a partial summary judgment in favor of Betty Milner and Teresa Holiday (hereinafter referred to collectively as "the plaintiffs"). For the reasons set forth herein, we grant the petition.
On September 17, 2018, the plaintiffs sued the Board seeking compensatory and punitive damages based on claims of breach of contract, nuisance, continuing trespass, negligence, and wantonness. The plaintiffs alleged that in February 2016 they instructed the Board to cut off water supply to a house they owned; that the plaintiffs "returned to reopen" the house in February 2018 and discovered that the water supply to the house had not been completely cut off; and, that the Board's failure to properly cut off the water supply caused severe damage to the house. The Board filed an answer that included general denials of the plaintiffs' allegations and asserted a number of "affirmative defenses," including that the plaintiffs' injuries were the result of the "intervening and superseding" actions of an individual or entity other than the Board or anyone under its control.
Discovery began on November 1, 2018. On October 24, 2019, the plaintiffs, based on the Board's alleged spoliation of the evidence, filed a motion for a partial summary judgment as to the Board's liability or, in the alternative, to strike all of the Board's defenses to the plaintiffs' claims, alleging that the alleged spoliation prevented them from prosecuting their claims. In support of the motion, the plaintiffs presented evidence indicating that, at the plaintiffs' request, a service technician for the Board, Dale Bryant, placed a "cap and lock device on the cutoff valve attached to the water line which supplied water to the plaintiffs' home" on February 10, 2016. The record indicates that the house was not inhabited for two years after water service was terminated. Cam Stokes, chief executive officer of C. Stokes Construction, a contractor, went to the house on February 24, 2018, to investigate the existence of black mold at the house. Stokes saw the water meter and the cap and lock device, and determined that the water had not been properly cut off. Stokes put his findings in an e-mail dated February 25, 2018, in which he concluded that a continuous water leak was the source of the damage to the plaintiffs' house and that he "would assume that the water company would be at fault due to the failure to properly shut off [the] main water valve."1
On February 28, 2018, Milner reported the problem to Wanda Crow, a customer-service supervisor with the Board. Milner provided Crow a copy of Stokes's e-mail that detailed his conclusion that the Board was at fault for the damage to the plaintiffs' house, and, during her deposition, Crow stated that Milner "seemed to be claiming damages" against the Board. In response to Milner's report of water damage, Crow sent Bryant back to the plaintiffs' house to address the complaint the same day; Crow put a "note" in the Board's system that stated: Bryant stated that, when he returned to the plaintiffs' house in February 2018 he was not aware of an allegation that the plaintiffs' house had been damaged by any actions of the Board.
According to Bryant, there was no water going through the meter and into the pipes when he turned the water off in February 2016 but that there was "just a little" water going through the meter when he returned in February 2018. Bryant recorded in his field notes that the cap and lock device he had used in 2016 to shut off the water line to the plaintiffs' house had been "tampered with" and that "the cap and lock were hanging off [the] cutoff sideways." Bryant removed both the cap and lock device he had used in 2016 and the water meter at the plaintiffs' house and ensured that there was no water running to the plaintiffs' house. Bryant did not keep the cap and lock device or the meter that he removed from the plaintiffs' house. During his deposition in June 2019, Bryant stated that such equipment was either put into use at another residence or was "scrapped."
During Bryant's deposition, counsel for the plaintiffs asked the Board to locate the "meter and equipment" the Board used to shut off the water at the plaintiffs' house in 2016. Counsel for the plaintiffs again requested that the Board "locate" that equipment in a letter to counsel for the Board on July 11, 2019. Counsel for the Board responded that the Board no longer possessed the water meter removed from the house or the cap and lock device that Bryant said was damaged and was also removed from the house. Counsel for the Board informed the plaintiffs' counsel that older water meters contained lead and that the Board was required to follow certain regulations in disposing of those meters, but the Board offered to provide counsel with the same kind of cap and lock device that had been used on the plaintiffs' meter for their inspection.
In their October 2019 motion for a partial summary judgment, the plaintiffs argued that the Board was guilty of spoliation of evidence that was necessary to prosecute their claims against the Board. They alleged that the Board knew of a potential claim against the Board when Milner reported the water leak but that it failed to maintain possession of the water meter or the cap and lock device that had allegedly been tampered with by a third party. The plaintiffs argued that the Board's defense was based on an allegation that the cap and lock device had been tampered with by a third party, that it was this third party's action that caused the water to run to the plaintiffs' house, and that, because the plaintiffs could not inspect the cap and lock device or the water meter, the Board should be sanctioned for its failure to maintain possession of the evidence the plaintiffs needed to rebut the Board's defenses. The plaintiffs moved the trial court for a partial summary judgment finding the Board liable for the plaintiffs' claims or, in the alternative, an order striking all the defenses asserted by the Board.
The Board filed a response in opposition to the plaintiffs' motion, which included several attachments to support its argument that the plaintiffs had not demonstrated that it was guilty of spoliation. Included with the Board's opposition was the deposition testimony of Crow in which she stated that she was "sure" that she had not seen the e-mail report from Stokes before the date of her deposition in August 2019. However, Crow also testified that she was not disputing that Milner provided Stokes's e-mail to her on February 28, 2018, when Milner reported the water leak, she just did not recall seeing it when Milner first reported the water leak that day. The Board argued that, although the plaintiffs had filed this lawsuit on September 17, 2018, and although the parties had almost immediately engaged in discovery, the plaintiffs did not ask the Board for the meter or the cap and lock device until June 26, 2019, during Bryant's deposition. The Board also presented evidence indicating that, at the time Bryant removed the meter and the cap and lock device in 2018, he did not know that the plaintiffs were claiming that the damage to their house was caused by the water not being properly cut off in 2016 and that the meter and the device were disposed of in the regular course of business. They also argued that the plaintiffs' contractor, Stokes, had access to the meter and the cap and lock device for at least four days before the Board knew there was a problem to resolve and that the plaintiffs were aware of the problem with the water meter several days before the Board was notified of the problem.
The plaintiffs filed a response, which included additional evidence to support their motion for a partial summary judgment. Specifically, the plaintiffs attached photographs and a video of the water meter and the cap and lock device that were taken by Stokes and his partner, Willie May, on February 24, 2018,2 when they went to inspect the plaintiffs' house. According to the plaintiffs, the photographs and video clearly showed that "the blue cap covering the cut-off valve was in its proper place and that the lock on that cap was intact." The plaintiffs also attached an affidavit from Hugh Buchanan, who lived near the plaintiffs' house. He stated that, in the spring of 2018, his wife complained about water running into their yard from "up the street" and that, when Buchanan saw someone from the Board at the plaintiffs' house, he went to speak with him. According to Buchanan, the Board employee, whom Buchanan identified as Bryant, "stated that the water department was supposed to have cut off the water to the [plaintiffs' house] but had apparently not cut the water off properly which is why it was still running."3 The plaintiffs argued that this evidence "directly contradicts" Bryant's testimony regarding the condition of the cap and lock device on February 28, 2018.
The Board moved to strike the plaintiffs' response and the evidentiary submissions attached to it. After the plaintiffs responded to the Board's motion, the trial court conducted a hearing, and, on January 17, 2020, the trial court entered an order...
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