Williams v. Limestone Cnty. Water & Sewer Auth.

• Citation: 223 So.3d 240
• Decision Date: 16 September 2016
• Docket Number: 2150310
• Parties: Donald P. WILLIAMS v. LIMESTONE COUNTY WATER AND SEWER AUTHORITY et al.
• Court: Alabama Court of Civil Appeals

223 So.3d 240

Donald P. WILLIAMS

v.LIMESTONE COUNTY WATER AND SEWER AUTHORITY et al.

2150310

Court of Civil Appeals of Alabama.

Sept. 16, 2016

Certiorari Denied November 16, 2016

Alabama Supreme Court 1151349

Rodney B. Slusher, Florence, for appellant.

Wm. Dudley Motlow, Jr., of Porterfield, Harper, Mills, Motlow & Ireland, P.A., Birmingham, for appellee Limestone County Water & Sewer Authority.

Daniel J. Newton of Gaines, Gault, Hendrix, P.C., Birmingham, for appellee Danny McCafferty.

On Application for Rehearing

THOMPSON, Presiding Judge.

The opinion of June 17, 2016, is withdrawn, and the following is substituted therefor.

Donald P. Williams appeals from a summary judgment entered by the Lauderdale Circuit Court ("the trial court") in favor of the Limestone County Water and Sewer Authority ("LCWSA"), Danny McCafferty, and the other remaining defendants named in Williams's complaint. The gravamen of Williams's complaint was that LCWSA and McCafferty had worked together to "steal" water from Williams for McCafferty's benefit.

The evidentiary submissions of the parties in support of and in opposition to LCWSA's motion for a dismissal or, in the alternative, for a summary judgment indicate the following. McCafferty owns property in Rogersville across the street from Williams's lake house.¹ Williams purchased the lake house and surrounding property from McCafferty in 1995. The water meter that served both McCafferty's property and Williams's property was on the property McCafferty had retained. LCWSA records indicate that on June 19, 1995, McCafferty's service provided through that meter was disconnected. On October 23, 1995, Williams completed an application requesting water service from LCWSA, and service was begun in late 1995.

On April 19, 2002, Williams inquired about moving the water meter that served his property from McCafferty's property across the street to Williams's property. According to the affidavit of Tammy Smith, the customer-service manager for LCWSA, Williams was given a quote for the cost of parts and labor to move the meter. Smith, who has worked for LCWSA since May 1994, said that on April 29, 2002, a service representative went to Williams's house to see whether Williams wanted to move the water meter to his side of the road. After receiving the price quote, however, Williams did not pursue the matter.

Smith testified in her affidavit that, in late February or early March 2008, Williams's service was disconnected because he had not paid his water bill. Smith stated that, in reviewing Williams's water usage from late 1995, when Williams's service began, until it was disconnected in 2008, "the usage was relatively constant indicating that the meter, even though on the opposite side of the road, was serving only Mr. Williams's residence."

On December 16, 2009, Williams, acting pro se, filed a civil action in the trial court against LCWSA and McCafferty ("the 2009 action"). The allegations in the complaint in the 2009 action are not clear, but Williams complained about the water meter that served his house being located across the street from his house. He alleged that he had learned from members of an LCWSA work crew that McCafferty was "stealing" his water and that Williams was being billed for it. Williams also appeared to complain that LCWSA had done work on water lines that caused his plumbing to rupture. On February 17, 2011, the trial court dismissed the 2009 action for lack of prosecution.

Byron F. Cook, the general manager of LCWSA, testified by affidavit that he spoke to Williams in late 2010 when Williams came to the office of LCWSA to complain about the location of the water meter and his service. In his affidavit, Cook stated that, in an effort to resolve Williams's complaints, he and another LCWSA employee visited Williams's property to inspect the meter. Cook said that on January 27, 2011, LCWSA installed a new meter on Williams's property and connected that meter to Williams's water line at no charge to Williams.

On March 10, 2011, Williams sent the trial court a letter in which he sought to have the 2009 action reinstated.² The trial court treated the letter as a motion to reinstate. Williams attempted to file an amended complaint in the 2009 action on March 15, 2011, in which he again asserted that he was being billed for water that McCafferty was using. The trial court denied Williams's request to reinstate the 2009 action on April 1, 2011.

Records indicate that the readings from the meter that served Williams's property had remained the same from March 4, 2008, to and including September 8, 2015, the date of Smith's affidavit. In her affidavit, Smith stated that a review of the readings on the meter installed in January 2011 have been relatively consistent and did not demonstrate any evidence of excessive usage. Smith said that the meter readings indicated to her that only Williams was using the water for which he was being billed. Cook echoed Smith's testimony, saying that there was no evidence that Williams had ever been billed for anyone else's use of water. He also said that LCWSA had "no knowledge of anyone else being tied into Mr. Williams's water lines on his side of the water meter."

On March 13, 2015, Williams, appearing pro se, initiated another civil action ("the 2015 action") against LCWSA, "McCafferty/A-1 Title Loan et al/Oakfair Subdivision Association," Helen Tatum, NuSouth Concrete of Pulaski, Tennessee, Rackley Security of Pulaski, Tennessee, and "Others A-Z." In the style of the complaint in the 2015 action, Williams instructs the reader to see the complaint filed in the 2009 action. In the 2015 complaint, Williams again alleged that McCafferty was "stealing" his water. He also alleged that, in 2013, the named defendants had conspired to steal his water, to destroy his boat dock, and to commit assault with weapons and had threatened to file criminal charges against him for disconnecting his water supply from the Oakfair subdivision "nonresidential chop shop." As he did in the 2009 action, Williams also complained about "ruptured plumbing." We note that it is difficult to discern the wrongful conduct alleged in the 2015 complaint or the specific legal claims Williams asserted. For example, the complaint contains a claim against several of the defendants for "taxation without representation."

On April 20, 2015, McCafferty filed a motion to dismiss and for a more definite statement. On April 22, 2015, LCWSA also filed a motion to dismiss on the ground that the claims Williams alleged against it had arisen from the same facts as those asserted in the 2009 action, which had been dismissed, and that the claims were barred by the applicable statutes of limitations. A hearing was scheduled for arguments on the motion, and the trial court gave Williams time to obtain an attorney. Williams hired an attorney, and that attorney was given time to become familiar with the case file. Once Williams's attorney became involved, at Williams's request, Tatum was dismissed as a defendant.

After hiring an attorney, Williams also filed an "amended and restated complaint" in which he continued to assert that LCWSA had deliberately withheld from him that he was paying for water provided to McCafferty and A-1 Title Loan. Williams also alleged that LCWSA had "innocently, negligently, wantonly, or intentionally made misrepresentations of material fact" by billing him for water that McCafferty and A-1 Title Loan were using. In the amended complaint, Williams asserted that he was not aware that, from 2011 through 2014, he was being billed for water McCafferty was using. Williams stated that an LCWSA employee had told him in July 2014 that he was paying for McCafferty's water usage. Williams further alleged that LCWSA, McCafferty, and A-1 Title Loan acted intentionally, maliciously, oppressively, and wantonly by conspiring to conceal from him or suppress that he was receiving monthly bills for water being furnished to McCafferty and to A-1 Title Loan.

Williams also asserted claims of conversion and trespass against LCWSA, alleging that it had unlawfully diverted water from his property and provided it to McCafferty and A-1 Title Loan. In a second amended complaint, filed September 3, 2015, Williams added that he was seeking damages from McCafferty for conversion because, Williams said, McCafferty had knowledge that water was being diverted from Williams's property to his property and McCafferty had used that water without payment. In addition to the conversion count, Williams also asserted a civil claim for theft of property against LCWSA and McCafferty. Williams asserted that their conduct resulted in the diversion or unauthorized use of water, which, Williams said, is a Class C felony offense under § 13A–8–23, Ala. Code 1975.

Williams also continued to complain that water lines installed by LCWSA were bursting, causing damage to his house. In the amended complaint, Williams alleged that defendants NuSouth and Rackley had trespassed on his property and removed a sea wall and a boat launch. Williams also alleged claims of conversion against NuSouth and Rackley.

After the amended complaint was filed, LCWSA renewed its motion to dismiss and, in the alternative, sought a summary judgment. LCWSA attached exhibits to its motion. Williams responded to the motion and included his own exhibits to the response. McCafferty also filed a motion to dismiss the amended complaint; however, that motion was filed before Williams's second amended complaint alleged a claim of conversion against McCafferty. The record does not contain motions to dismiss or for a summary judgment from NuSouth, Rackley, or A-1 Title Loan.³

On October 30, 2015, after a hearing on the matter, the trial court entered a judgment in which it stated that, based on LCWSA's renewed motion for a dismissal or, in the alternative, for a summary judgment, which contained a narrative summary of undisputed facts and an evidentiary submission, it had...