Soutullo v. Mobile County.Gary A. Soutullo

• Decision Date: 17 September 2010
• Docket Number: and 1090932.,1090622,1090041
• Citation: 58 So.3d 733
• Parties: Gary A. SOUTULLO and Janet L. Soutullov.MOBILE COUNTY.Gary A. Soutullo and Janet L. Soutullov.Mobile County.Gary A. Soutullo and Janet L. Soutullov.Mobile County.
• Court: Alabama Supreme Court

58 So.3d 733

Gary A. SOUTULLO and Janet L. Soutullo

v.MOBILE COUNTY.Gary A. Soutullo and Janet L. Soutullo

v.Mobile County.Gary A. Soutullo and Janet L. Soutullo

v.Mobile County.

1090041

1090622

and 1090932.

Supreme Court of Alabama.

Sept. 17, 2010.

Herndon Inge III, Mobile, for appellants.C. Mark Erwin and Deena R. Tyler of Satterwhite & Erwin, L.L.C., Mobile, for appellee.WOODALL, Justice.

Arising out of an action commenced by Gary A. Soutullo and Janet L. Soutullo against Mobile County (“the County”) seeking, among other things, compensation for storm-water damage, these three appeals involve the Soutullos' challenges to a judgment on the merits for the County as a matter of law (“JML”)(case no. 1090041), and to two orders disposing of motions filed by the Soutullos (case no. 1090622) and the County (case no. 1090932) seeking fees or costs in the litigation. We affirm the judgment and the orders in all three cases.

I. Factual and Procedural Background

Between September 23, 2002, and April 16, 2003, the County constructed a public-improvement drainage project known as the “Heid Place Storm Water Drainage System” (“the project”). Since the project was constructed, the Soutullos' property has experienced flooding, which they attribute to the County's construction or maintenance of the project. On October 15, 2005, Gary Soutullo wrote a letter to the County's engineering department complaining that his property was being repeatedly flooded by “drainage from [Heid Place].” On November 13, 2006, the Soutullos sent the County a “statement of claim,” claiming damage from flood events occurring on August 8, 2006, and November 6, 2006.

On November 29, 2006, the Soutullos sued the County. The complaint stated that the County had “adopted standards or regulations” for storm-water-drainage systems in Mobile County and alleged that it had negligently “ fail[ed] to maintain an adequately designed ” system. (Emphasis added.) More specifically, the complaint alleged:

“3. In establishing such systems, which are applicable to the property owned by the [Soutullos], and in establishing standards for the maintenance of said storm water and surface water systems, the [County] has been negligent as the standards adopted for the capacity of such drains and the outfall of such drains owned and maintained by the County to handle storm water and surface water runoff are too low; the storm water and surface water drainage systems are inadequate; the maintenance of such system is negligently performed or negligently omitted.

“4. The [County] has been negligent in maintaining such systems as the storm water and surface water drainage systems [are] allowed to flood private property and to damage private property. The [County] has been further negligent in failing to maintain the storm water and surface water drainage systems in the area of the [Soutullos'] real property, to include underground piping and adequate outfall lines and drains, which negligence has existed in the past and continues to exist as of this date. The [County] has been further negligent in failing to maintain said storm water and surface water drainage systems by allowing flooding of and damage to private property at the outfall.”

(Emphasis added.)

The complaint contained counts alleging negligence, trespass, and nuisance. It sought compensatory damages and an injunction abating the alleged nuisance. Between November 29, 2006, and August 20, 2009, the complaint was amended approximately 82 times to add allegations of successive instances of flooding.

The Soutullos employed Kenneth D. Underwood, a “consulting civil engineer,” to serve as an expert witness. On November 2, 2007, the County filed a notice of the taking of Underwood's deposition. He was deposed on November 9, 2007. On December 8, 2008, Underwood sent the County's counsel a statement reflecting his fees for deposition preparation and requested payment in the amount of $1,239.28. By June 16, 2009, the fees had not been paid and the Soutullos' counsel wrote a letter to the County's counsel requesting payment. The request was denied or ignored.

Trial of the case began before an advisory jury on August 24, 2009. At the close of all the evidence, the County moved for a JML, which the trial court granted from the bench, citing Mitchell v. Mackin, 376 So.2d 684 (Ala.1979). A few weeks later, on September 17, 2009, the trial court entered a judgment “as to all counts and all causes of action for [the County].” In that judgment, the court stated, in pertinent part:

“The [Soutullos], who are husband and wife, purchased their real property, which lies ... several miles outside of the Mobile city limits.

“....

“[The] project took surface water from Heid Place to the existing roadside drainage ditch. [The Soutullos] asserted that it was this project which caused surface storm drainage to flood their real property. They assert that improvements in the drainage system, including a box culvert and the paving of the drainage ditch, as well as negligent maintenance caused or contributed to this flooding.

“The [County] asserted ... that the only effect this project had was to increase the speed of the water in the Heid Place ditch but would not have caused the [Soutullos'] real property to flood.

“Notwithstanding the above, the [Soutullos] urged the court to analyze this case under the standards set by the Alabama appellate courts in Lott v. City of Daphne, 539 So.2d 241 (Ala.1989), and [ Lott v. City of Daphne ], 624 So.2d 544 (Ala.1993). In other words, the [Soutullos] argued that the court should apply the law on water regarding incorporated municipalities and the undertaking to construct and maintain a drainage system rather than the law of water flow from upper land owners to the lower land owner in unincorporated areas.

“The case of Mitchell v. Mackin, 376 So.2d 684 (Ala.[1979] ) contains a good historical discussion on the differences between the development of the two schools of thought.

“....

“While the court, in announcing its judgment from the bench, advised that it was employing the unincorporated/incorporated analysis, further review of the caselaw from Reichert v. City of Mobile, 776 So.2d 761 (Ala.2000), and from Byrd v. City of Citronelle, 937 So.2d 515 (Ala.2006), holds for the proposition that the nuisance claimed by the [Soutullos] was ... non-abatable and thus it is also the court's opinion that even had this case taken place within an incorporated municipality, that the statute of limitations would have ... expired.”

(Emphasis added.) The appeal in case no. 1090041 is from that judgment.

On September 9, 2009, the Soutullos filed a “petition to assess costs,” seeking, pursuant to Rule 26(b)(4)(C)(i), Ala. R. Civ. P., an “order requiring [the County] to pay [their] expert [witness] a reasonable fee for time spent in submitting to the [County's] deposition.” On November 24, 2009, the trial court denied the Soutullos' petition. On December 3, 2009, the Soutullos filed a motion, based on Rule 59(e), Ala. R. Civ. P., to “alter or amend” the order denying their fee request. Included in that motion was a request for a hearing. On January 6, 2010, the trial court denied that motion without the requested hearing. The Soutullos filed their notice of appeal from that denial on February 4, 2010. Case no. 1090622 represents that appeal.

Meanwhile, on September 22, 2009, the County filed a “motion to tax costs,” seeking, pursuant to Ala.Code 1975, § 12–21–144, and Rule 54(d), Ala. R. Civ. P., an order requiring the Soutullos to pay, among other things, the cost to the County of taking depositions. The next day, the Soutullos filed an answer to the County's motion to tax costs. In that answer, they stated, among other things: “The [County] has provided no proof of any costs, nor has the [County] previously submitted any proof of any costs to the [Soutullos].” (Emphasis added.) On December 18, 2009, the County filed a statement of its claimed expenses. The statement was supported by the affidavit of its counsel, who attested that, “[i]n order to adequately evaluate, prepare and defend [the County's] case and present evidence at trial,” the County had incurred expenses in taking the depositions of Gary Soutullo, Janet Soutullo, Kenneth Underwood, and Donald Rowe,¹ in the amounts of $1,385.15, $591.20, $575.90, and $107.70, respectively, along with $2,420.07 in “copying expenses,” totaling $5,080.02. Subsequently, on December 21, 2009, the Soutullos filed a second answer to the County's motion to tax costs. The answer stated, in pertinent part:

“1. The deposition of Gary Soutullo was not ‘used at trial.’

“2. The deposition of Janet Soutullo was not ‘used at trial.’

“3. The deposition of Kenneth Underwood was not ‘used at trial.’

“....

“6. Copying expenses are neither ‘depositions or exhibits used at the trial,’ and are not segregated or itemized or verified.

“7. The expenses claimed by the [County] should be denied.

“8. When the court's judgment in favor of the [County] is reversed on appeal, the [County] is unlikely to reimburse the [Soutullos].”

On February 23, 2010, the trial court awarded the County $5,080.02 in costs for depositions and copying. Case no. 1090932 represents the Soutullos' timely appeal from that judgment.

II. Discussion

We will address first the appeal from the JML (case no. 1090041); second, the appeal from the award of deposition costs (case no. 1090932); and finally, the appeal from the denial of the Soutullos' petition for the fees of their expert witness (case no. 1090622).

A. Case No. 1090041

On appeal, the parties join issue as to only one of the two grounds referenced in the trial court's judgment, namely, whether this case should turn on the fact that the alleged damage occurred in an unincorporated—as opposed to an incorporated—area of Mobile County. The Soutullos contend that we should overrule Mitchell v. Mackin, 376 So.2d 684 (Ala.1979), and apply the rule set forth in...