M&N Materials Rehearing Request

7/30/2019 M&N Materials Rehearing Request

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Case Nos. 1110439 & 1110507

IN THE

SUPREME COURT OF ALABAMATOWN OF GURLEY, ALABAMA,

Appellant/Cross-Appellee,

v.

M&N MATERIALS, INC.,

Appellee/Cross-Appellant.

On Appeal from the CircuitCourt of Madison County,

Case No. 05-731-KKH

BRIEF IN SUPPORT OF APPLICATION FOR REHEARING

DEBORAH ALLEY SMITHMICHAEL A. VERCHER

ABBOTT MARIE JONES REBEKAH K. MCKINNEY

CHRISTIAN &SMALL LLP WATSONMCKINNEY,LLP1800 Financial Center 203 Greene Street

505 20th Street North Huntsville, AL 35801Birmingham, Alabama 35203 Tel: (256)536-7423

Tel: (205)795-6588 Fax: (256)536-2689Fax: (205)328 7234 [email protected]

[email protected]@csattorneys.com

[email protected]

E-Filed

01/11/2013 @ 04:49:00 PM

Honorable Robert Esdale

Clerk Of The Court


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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... iii

STATEMENT OF THE ISSUES ................................... 1

SUMMARY OF THE ARGUMENT ................................... 1

ARGUMENT .................................................. 4

I. The Opinion fails to recognize that M&Ns inverse

condemnation claim may rest on grounds independent

of 235. .............................................. 4

II. The Opinion erroneously concludes that only a

physical disturbance or invasion upon the surface of

land is sufficient to establish a violation of 235. .. 6

III.M&Ns claim under 23 was proper. .................... 12

IV. The Opinion improperly characterized M&Ns

negligence and evidentiary arguments. ................ 14

CONCLUSION ............................................... 15

CERTIFICATE OF SERVICE ................................... 17


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TABLE OF AUTHORITIES

Page

Cases:

Ala. Dep't of Transp. v. Land Energy, Ltd.,

886 So.2d 787, n.2 (Ala. 2004) ....................... 6, 10

Annicelli v. Town of S. Kingstown,

463 A.2d 133 (R.I.1983) .................................. 3

Annison v. Hoover,

517 So.2d 420 (La. Ct. App. 1987) ........................ 2

Beroth Oil Co. v. N.C. Dept. of Transp.,

725 S.E.2d 651 (N.C.Ct.App.2012) ......................... 3

Blair v. Dept. of Conserv. and Recreation,

932 N.E.2d 267 (Mass. 2010) .............................. 2

Blankenship v. City of Decatur,

115 So. 2d 459 (Ala. 1959) .............................. 11

Brooks v. Hobbie,

631 So.2d 883 (Ala. 1993) ............................... 13

Buhmann v. State,

201 P.3d 70 (Mont. 2008) ................................. 2

Burrows v. City of Keene,

432 A.2d 15 (N.H.1981) ................................... 2


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Byrd v. City of Hartsville,

620 S.E.2d 76 (S.C.2005) ................................. 3

Calhoun v. City of Durant,

970 P.2d 608 (Okla.Civ.App. 1997) ........................ 3

Calhoun v. Coffee Cnty. Comm'n,

706 So.2d 755 (Ala. Civ. App. 1997) ...................... 9

Cannone v. Noey,

867 P. 2d 797 (Alas. 1994) ............................... 2

Carroll v. City of Prattville,

653 F. Supp. 933 (M.D. Ala. 1987) ........................ 4

Cheyenne Airport Bd. v. Rogers,

707 P.2d 717 (Wyo. 1985) ................................. 3

Church of Jesus Christ of Latter Day Saints v. Jefferson

County,721 F. Supp. 1212 (N.D. Ala. 1989) ................ 4

City Council of Montgomery v. Maddox,

7 So. 433 (Ala. 1890) ................................. 7, 8

City Council of Montgomery v. Townsend,

2 So. 155 (Ala. 1887) .................................... 8

City of Tuscaloosa v. Patterson,

534 So. 2d 283 (Ala. 1988) .............................. 10

City of Virginia Beach v. Bell,

498 S.E.2d 414 (Va. 1998) ................................ 3


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Clay Co., Missouri v. Bogue, Inc.,

988 S.W.2d 102 (Mo. Ct. App. 1999) ....................... 2

Cleaver v. Bd. of Adjustment of Tredyffrin Twp,

200 A.2d 408 (Pa. 1964) .................................. 8

Covington v. Jefferson Co.,

53 P.3d 828 (Ida. 2002) .................................. 2

Cumberland Farms, Inc. v. Town of Groton,

808 A.2d 1107 (Conn. 2002) ............................... 2

DeCook v. Rochester Int'l Airport Joint Zoning Bd.,

796 N.W.2d 299 (Minn. 2011) .............................. 2

Diamond B-Y Ranches v. Tooele Cnty,

91 P.3d 841 (Utah Ct.App. 2004) .......................... 3

Dykes v. City of Mountain Brook,

628 So.2d 713 (Ala. Civ. App. 1993) ...................... 9

Eberle v. Dane Co. Bd. of Adjustment,

595 N.W.2d 730 (Wisc. 1999) .............................. 3

Estate of Sanchez v. Cnty of Bernalillo,

902 P.2d 550 (N.M.1995) .................................. 3

Forest Glade Mgmt., LLC v. City of Hot Springs,

2008 WL 4876230 (Ark. Ct. App.2008) ...................... 2

Fred F. French Investing Co. v. City of New York,

350 N.E.2d 381 (N.Y.App.1976) ............................ 3


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G & A Land, LLC v. City of Brighton,

233 P.3d 701 (Colo. Ct. App. 2010) ....................... 2

Gradous v. Bd. of Comm'rs of Richmond Co.,

Ga., 349 S.E.2d 707 (Ga. 1986) ........................... 2

Hall v. Oregon,

288 P.3d 574(Ore.Ct.App. 2012) ........................... 3

Jackson Mun. Airport Auth. v. Evans,

191 So.2d 126 (Miss. 1966) ............................... 2

Killington, Ltd. v. State,

668 A.2d 1278 (Vt.1995) .................................. 3

Lingle v. Chevron U.S.A., Inc.,

544 U.S. 528 (2005) ..................................... 12

Lone Star Indus, Inc. v. Sec'y Kansas Dept. of Trans.,

671 P.2d 511 (Kansas, 1983) .............................. 2

Mansoldo v. State of New Jersey,

898 A.2d 1018 (N.J.2006) ................................. 3

Maryland-Nat'l Capital Park & Planning Comm'n v. Chadwick,

405 A.2d 241 (Md. 1979) .................................. 2

Mayhew v. Town of Sunnyvale,

964 S.W.2d 922 (Tex. 1998) ............................... 3

MC Assoc. v. Town of Cape Elizabeth,

773 A.2d 439 (Me. 2001) .................................. 2


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McCarran Int'l Airport v. Sisolak,

137 P.3d 1110 (Nev.2006) ................................. 2

McFillan v. Berkeley Cnty Planning Comm'n,

438 S.E.2d 801 (W.Va. 1993) .............................. 3

McGowin v. City of Mobile,

4 So.2d 161 (Ala. 1941) .................................. 8

McKinney v. City of Birmingham,

296 So.2d 236 (Ala. 1974) ............................... 13

Molo Oil Co. v. City of Dubuque,

692 N.W.2d 686 (Iowa 2005) ............................... 2

Mutschler v. City of Phoenix,

129 P.3d 71 (Ariz. 2006) ................................. 2

Opinion of the Justices,

48 So.2d 757 (Ala. 1950) ................................ 11

Pickett v. Matthews,

192 So. 261 (Ala. 1939) ................................. 13

Poirier v. Grand Blanc Twp,

423 N.W.2d 351 (Mich. 1988 ............................... 2

Rippley v. City of Lincoln,

330 N.W.2d 505 (N.D.1983) ................................ 3

Scofield v. Nebraska Dept. of Nat. Res.,

753 N.W.2d 345 (Neb.2008) ................................ 2


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State ex rel. Shemo v. City of Mayfield Heights,

765 N.E.2d 345 (Ohio 2002) ............................... 3

State v. Kimco of Evansville, Inc.,

902 N.E.2d 206 (Ind. 2009) ............................... 2

Twain Harte Assoc., Ltd. v. County of Tuolumne,

217 Cal. App. 3d 71 (Cal. Ct. App. 1990) ................. 2

U.S. West Communications, Inc. v. Public Utilities Comm'n

of South Dakota,

505 N.W.2d 115 (S.D. 1993) ............................... 3

Willis v. Univ. of N. Ala.,

826 So.2d 118 (Ala. 2002) ............................... 14

Statutes:

Ala. Const. Art. I, 23 ................... 1, 5, 12, 13, 14

Ala. Const. Art. XII 235 ............ 1, 4, 7, 8, 9, 10, 12

Ala. Code 10A-21-2.04 .................................. 10

Ala. Code 11-47-170 ..................................... 5

Ala. Code 18-1A-3(16) ................................... 9

Ala. Code 18-1A-32 ...................................... 5

Ala. Code 18-1A-32(a) ................................... 6

Ala. Code 18-1A-1, et seq. ........................... 5, 6


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STATEMENT OF THE ISSUES

I.Whether a claim for inverse condemnation requires proofof a violation of either 235 or 23 of the Alabama

Constitution.

II. Whether a showing of total destruction of subsurfacerights/interests in a property is sufficient to establish

a claim under 235 of the Alabama Constitution.

III.Whether Gurley violated 23 of the AlabamaConstitution.

IV. Whether the Court properly characterized and consideredM&Ns negligence and evidentiary arguments.

SUMMARY OF THE ARGUMENT

Under the Courts Opinion, any city in Alabama can now

shut down any business, farm, or industry it does not like

by (1) involuntarily annexing the property on which the

business is located, (2) issuing moratoria to prevent the

issuance of a business license for that property, and (3)

zoning the property to forever prohibit the operation of

the business. The Court has removed any deterrent to doing

so by stating that a city is not required to pay just

compensation for such a taking as long as the property is

regulated rather than physically occupied.


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The Opinion places Alabama in a tiny minority of states

that do not specifically recognize regulatory takings and

at a severe disadvantage in recruiting industry,

agriculture and business to this state.1

To make matters

1Counsel have identified forty-three states that have

recognized an action for either inverse condemnation or

other relief on the basis of regulatory takings under state

law. See Cannone v. Noey, 867 P. 2d 797, 800 (Alas. 1994);

Mutschler v. City of Phoenix, 129 P.3d 71, 72 (Ariz. 2006);

Forest Glade Mgmt., LLC v. City of Hot Springs, 2008 WL4876230 *2 (Ark. Ct. App.2008); Twain Harte Assoc., Ltd. v.

County of Tuolumne, 217 Cal. App. 3d 71, 81 (Cal. Ct. App.,

5th Distr. 1990); G & A Land, LLC v. City of Brighton, 233

P.3d 701, 706 (Colo. Ct. App. 2010): Cumberland Farms, Inc.

v. Town of Groton, 808 A.2d 1107, 1111, 1125-1131 (Conn.

2002); Gradous v. Bd. of Commrs of Richmond Co., Ga., 349

S.E.2d 707, 709 (Ga. 1986); Covington v. Jefferson Co., 53

P.3d 828, 831-832 (Ida. 2002); State v. Kimco of

Evansville, Inc., 902 N.E.2d 206, 211 (Ind. 2009); Molo Oil

Co. v. City of Dubuque, 692 N.W.2d 686, 692 (Iowa 2005);

Lone Star Indus, Inc. v. Secy Kansas Dept. of Trans., 671P.2d 511, 518-19 (Kansas, 1983); Annison v. Hoover, 517

So.2d 420, 423 (La. Ct. App. 1987); MC Assoc. v. Town of

Cape Elizabeth, 773 A.2d 439, 441-42 (Me. 2001); Maryland-

Natl Capital Park & Planning Commn v. Chadwick, 405 A.2d

241, 244-246 (Md. 1979); Blair v. Dept. of Conserv. and

Recreation, 932 N.E.2d 267, 271-277 (Mass. 2010); Poirier

v. Grand Blanc Twp, 423 N.W.2d 351, 353-354 (Mich. 1988);

DeCook v. Rochester Intl Airport Joint Zoning Bd., 796

N.W.2d 299, 305 (Minn. 2011); Jackson Mun. Airport Auth.

v. Evans, 191 So.2d 126, 128 (Miss. 1966); Clay Co.,Missouri v. Bogue, Inc., 988 S.W.2d 102, 106-07 (Mo. Ct.

App. 1999); Buhmann v. State, 201 P.3d 70, 85 (Mont.2008);

Scofield v. Nebraska Dept. of Nat. Res., 753 N.W.2d 345,

358-59 (Neb.2008); McCarran Intl Airport v. Sisolak, 137

P.3d 1110, 1121 (Nev.2006); Burrows v. City of Keene, 432

A.2d 15, 19-20 (N.H.1981); Mansoldo v. State of New

Jersey,898 A.2d 1018, 1023-24 (N.J.2006); Estate of Sanchez


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worse, the Opinion is premised on Gurleys inaccurate

arguments, which include mischaracterizations of M&Ns

claims, misapplication of Alabama law, misinterpretation or

total omission of relevant facts, and selective

consideration of the ample evidentiary and legal citations

in M&Ns brief.

The jury found that a taking occurred in this case via

Gurleys systematic and overt manipulation of power.

v. Cnty of Bernalillo, 902 P.2d 550,551-552 (N.M.1995);

Fred F. French Investing Co. v. City of New York, 350

N.E.2d 381, 383 (N.Y.App.1976); Beroth Oil Co. v. N.C.

Dept. of Transp., 725 S.E.2d 651,660-662 (N.C.Ct.App.2012);

Rippley v. City of Lincoln, 330 N.W.2d 505, 506-507

(N.D.1983); State ex rel. Shemo v. City of Mayfield

Heights, 765 N.E.2d 345, 350-352 (Ohio 2002); Calhoun v.

City of Durant, 970 P.2d 608,613 (Okla.Civ.App. 1997); Hall

v. Oregon, 288 P.3d 574, 576-577(Ore.Ct.App. 2012); Cleaver

v. Bd of Adjustment, 200 A.2d 408, 411-412 (Pa.1964);Annicelli v. Town of S. Kingstown, 463 A.2d 133, 139

(R.I.1983); Byrd v. City of Hartsville, 620 S.E.2d 76, 79

(S.C.2005); U.S. West Communications, Inc. v. Public

Utilities Commn of South Dakota, 505 N.W.2d 115, 126 (S.D.

1993); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933-934

(Tex. 1998); Diamond B-Y Ranches v. Tooele Cnty, 91 P.3d

841, 845-46 (Utah Ct.App. 2004); Killington, Ltd. v. State,

668 A.2d 1278, 1283-84 (Vt.1995); City of Virginia Beach v.

Bell, 498 S.E.2d 414, 416-417 (Va. 1998); Presbytery of

Seattle v. King Cnty, 787 P.2d 907, 911-912 (Wash.1990);McFillan v. Berkeley Cnty Planning Commn, 438 S.E.2d 801,

809-811 (W.Va. 1993); Eberle v. Dane Co. Bd. of Adjustment,

595 N.W.2d 730, 737-38 (Wisc. 1999); Cheyenne Airport Bd.

v. Rogers, 707 P.2d 717, 726-733 (Wyo. 1985). Counsel have

identified only six states (Florida, Hawaii, Illinois,

Indiana, Kentucky, and Tennessee) that have not recognized

a regulatory taking under state law.


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Overturning what the jury saw as an illegal taking, this

Court has now sanctioned Gurleys unconscionable and

unconstitutional behavior. If this Opinion stands, it will

invite unbridled abuse of regulatory power by cities that

can now impose their will on businesses, farms, and

industry with no remedy under state law.

ARGUMENT

I. The Opinion fails to recognize that M&Ns inversecondemnation claim may rest on grounds independent of

235.

The Opinion incorrectly presumes2

that M&Ns inverse

condemnation claim was based solely upon Article 12, 235

of the Alabama Constitution. Opinion at 25 (reversing

based upon [the] holding that 235 does not support M&Ns

inverse-condemnation claim asserting a regulatory taking by

the Town). In fact, M&Ns claim was based also on Article

2The Opinion also incorrectly states that M&N pleaded

this case under the laws and Constitution of Alabama, and

not under the U.S. Constitution, for strategic forum-

selection reasons. In fact, M&N so pleaded its case,

because as Gurley pointed out in its motion to dismiss in

federal court, M&N had to avail [itself] of [its] right tobring an inverse condemnation action in state court and

exhaust available state law remedies before pursuing any

claim under the Fifth Amendment to the U.S. Constitution.

Carroll v. City of Prattville, 653 F. Supp. 933, 942-43

(M.D. Ala. 1987); see also Church of Jesus Christ of Latter

Day Saints v. Jefferson County, 721 F. Supp. 1212, 1216

(N.D. Ala. 1989).


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I, 23 of the Alabama Constitution and Alabama Code 18-

1A-1, et seq. C.55-58 (allegations in complaint); R.1300,

1359 (jury instructions and discussion on the record).

The inverse condemnation statute provides:

(a) If property is to be acquired by a condemnorthrough the exercise of its power of eminent domain,

the condemnor shall commence a condemnation action for

that purpose. A condemnor shall not intentionally make

it necessary for an owner of property to commence an

action, including an action in inverse condemnation, to

prove the fact of the taking of his property. (b) The

judgment and any settlement in an inverse condemnationaction awarding or allowing compensation to the

plaintiff for the taking or damaging of property by a

condemnor shall include the plaintiff's litigation

expenses.

Ala. Code 18-1A-32 (emphasis added). The Alabama Pattern

Jury Instruction for a claim of inverse condemnation also

provides that a property owner is entitled to just

compensation if the condemnor takes or damages its

property, and that the condemnor need only occupy or

damage the property in question. Ala. Pattern Jury Instr.

Civ. 14.20 (3d ed.) (emphasis added); see also R.1359.

Gurley undoubtedly had the power to condemn M&Ns property,

including M&Ns mineral interests. Ala. Code 11-47-170

([T]he town or city shall have full power and authority to

acquire by purchase the necessary lands or rights,

easements, or interests therein, thereunder, or thereover


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or ... may proceed to condemn the same in the manner

provided by this article, or by the general laws of this

state governing the taking of lands or the acquiring of

interests therein. (emphasis added)). As a governmental

entity has the power to condemn subsurface rights,

certainly a property owner has a right to just compensation

for the lost subsurface rights when those rights are taken

away without just compensation (whether this Court

considers such a taking a traditional physical taking or

a regulatory one). Cf. Ala. Code 18-1A-32(a); Ala. Dept

of Transp. v. Land Energy, Ltd., 886 So.2d 787, n.2 (Ala.

2004) (noting that the condemnor ... should not

intentionally fail to condemn and require a landowner to

file an inverse-condemnation action).

The Court should reconsider its decision because M&N

established the elements of an inverse condemnation claim

as described in Alabama Code 18-1A-1, et seq., independent

of the constitutional provisions discussed below.

II. The Opinion erroneously concludes that only a physicaldisturbance or invasion upon the surface of land issufficient to establish a violation of 235.

Prior to 1875 when 235 was enacted, Alabama followed

the common law rule for the kinds of damages recoverable


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for takings of private property for public use. The old

common law rule required an actual, physical taking of the

property and did not allow for the recovery of

consequential damages unless the municipality was negligent

in executing its work. City Council of Montgomery v.

Maddox, 7 So. 433, 434 (Ala. 1890). In 1875, the Alabama

Constitutional Convention adopted 235 to expand the losses

for which a property owner may recover to include not only

actual takings but also injury to or destruction of

property. Id. Section 235 plainly states [m]unicipal ...

corporations ... shall make just compensation for the

property taken, injured, or destroyed. Ala. Const. art.

XII 235 (emphasis added). The language of that provision

was copied directly from a provision that recently had been

added to the Pennsylvania Constitution. Maddox, 7 So. at

434.

Because the Alabama Constitutional provision is copied

directly from a Pennsylvania provision, Alabama courts have

relied upon Pennsylvania cases interpreting that states

identical provision as persuasive authority. See, e.g., id.

at 434-35 (referencing the interpretation of injury by

the Pennsylvania Supreme Court in interpreting that word in


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Alabamas provision specifically because the Alabama

provision was borrowed from Pennsylvania); City Council of

Montgomery v. Townsend, 2 So. 155, 158 (Ala. 1887)

(construing 235 in a manner consistent with the

construction given the identical Pennsylvania provision by

the Pennsylvania court). Pennsylvania recognizes a right to

recover for regulatory takings of property under its

version of 235.Cleaver v. Bd. of Adjustment of Tredyffrin

Twp, 200 A.2d 408, 411-12 (Pa. 1964). This Court should

reconsider its opinion and should likewise recognize an

action for regulatory takings under 235, in harmony with

the broader meaning of taken, injured or destroyed

intended by Alabamas 1875 Constitutional Convention and

over 120 years of Alabama case law. See, e.g., Maddox,

supra.; McGowin v. City of Mobile, 4 So.2d 161, 162 (Ala.

1941) (concluding that complaint sufficiently stated a

claim under 235 where the property owner alleged that the

citys planned construction of a tunnel in front of

property would result in traffic, impair access to the

property, obstruct the view of storefront windows, and

diminish the property value).Calhoun v. Coffee Cnty.

Commn, 706 So.2d 755, 757 (Ala. Civ. App. 1997)


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(concluding that plaintiffs assertion that the defendant

constructed a landfill near their homes, which devalued

their homes and threatened to contaminate their water

supply sufficiently stated a claim under 235); Dykes v.

City of Mountain Brook, 628 So.2d 713 (Ala. Civ. App.

1993);

Moreover, utilizing the broad definition of taken,

injured or destroyed under 235 and the broad definition

of property under Alabama law, the taking in this case is

a physical taking, injury or destruction. In the Alabama

Code sections setting out the procedure for an eminent

domain action, property is defined as [a]n interest in

real or personal property under the law of this state.

Ala. Code 18-1A-3(16) (emphasis added). The comments to

this section indicate that property should be given a

broad interpretation to include such interests as air

rights, subsurface rights, and mineral interests. Id. cmts.

(emphasis added). Total destruction of an owners ability

to access subsurface interests in real property is a

physical harm, not merely an economic harm felt in

diminished property values. See, e.g., Ala. Dept of

Transp. v. Land Energy, Ltd., 886 So.2d 787, 790 (Ala.


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2004) (Furthermore, in Alabama, a mineral interest is

considered to be real property.); see also City of

Tuscaloosa v. Patterson, 534 So.2d 283 (Ala. 1988) (A city

must compensate a property owner where a project ... causes

a direct physical disturbance of a right, either public or

private, that the property owner enjoys in connection with

his property. (emphasis added)). In fact, the subsurface

and mineral rights at stake in this case are so vital to

this states economic development that the legislature has

given quarrying operations the power to condemn property

for the purposes of mining subsurface resources. Ala. Code

10A-21-2.04. That the paradigmatic taking is an actual,

physical taking of surface land does not dictate the

conclusion that no other injury or destruction may

constitute a taking under Alabama law. Indeed, such a rule

would render meaningless the plain language of the 1875

constitutional amendment enacting 235, which provides that

not only physical appropriations but also injuries to or

destruction of property are actionable.

Furthermore, ample evidence presented at trial

demonstrated that M&Ns property was taken for public

use. The term public use is given an elastic, liberal


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meaning. Blankenship v. City of Decatur, 115 So.2d 459

(Ala. 1959). This Court has noted that even when the public

does not actually use the property, actions undertaken to

serve a wholesome public purpose can constitute public

use. Opinion of the Justices, 48 So.2d 757, 759 (Ala.

1950). The moratoria ordinances specifically reference the

health and safety of the citizens of the town and

preventing undesirable business operations nearby; there is

no doubt the M&N property was applied to public use

within the meaning of Alabama law. (PX 32 & 37). The

Opinion incorrectly discounts M&Ns reliance on Blankenship

and Opinion of the Justices. Opinion at 30 n.7 (noting that

both cases involved physical takings and thus are

distinguishable from this case on that ground). M&N relies

on these cases for their definitions of public use; whether

they involved a physical or regulatory taking is immaterial

to the definition of public use, for which M&N cited them.

The Court, therefore, should reconsider its conclusion

that only a physical disturbance or invasion upon the

surface of land will establish a claim for inverse

condemnation under 235.


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III.M&Ns claim under 23 was proper.The trial court incorrectly decided, and this Court

incorrectly affirmed the decision, that 23 of the Alabama

Constitution does not support an action for inverse

condemnation when the alleged taking is regulatory.

Section 23 provides that private property shall not be

taken for, or applied to public use, unless just

compensation be first made therefor. As correctly noted in

Justice Murdocks dissent, this language is virtually

identical to the Fifth Amendment to the U.S. Constitution:

[N]or shall private property be taken for public use,

without just compensation. The U.S. Supreme Court has held

that government regulation of private property may, in

some instances, be so onerous that its effect is tantamount

to a direct appropriation or ouster and that such

regulatory takings may be compensable under the Fifth

Amendment. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528,

537 (2005). When this Court construes provisions of the

State Constitution that are similar to provisions of the

U.S. Constitution in situations similar to those considered

by a federal court, the decision of the United States

court, though not controlling ... should be persuasive. A


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different conclusion would produce much confusion and

instability in legislative effectiveness. Pickett v.

Matthews, 192 So. 261, 265-66 (Ala. 1939). That the United

States recognizes a cause of action for regulatory takings

pursuant to virtually identical constitutional language is

a strong signal that Alabama should as well. Brooks v.

Hobbie, 631 So.2d 883, 889 (Ala. 1993) ([I]n many

instances, the individual rights provisions under the state

constitution are as broad as, if not broader than, those in

the federal Bill of Rights.); McKinney v. City of

Birmingham, 296 So.2d 236, 237-38 (Ala. 1974) ([W]hile the

Federal Constitution establishes the minimum safeguards

afforded all citizens of the United States, the state,

through its own constitution, may provide even greater

protection for civil liberties.).

Moreover, the Opinion erroneously relies on inapposite

precedent to conclude that 23 provides a remedy only for

physical occupation of property and does not recognize

takings caused by regulatory or administrative acts.

Opinion at 25-30 (citing Willis v. Univ. of N. Ala., 826

So.2d 118, 121 (Ala. 2002)). First, Willis is

distinguishable because the damage alleged was mere


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reduction in property value as a result of a parking deck

built nearby. Here, Gurley destroyed M&Ns property (its

interest in subsurface rights) entirely, which also

diminished the value of the entire real property. Second,

Willis completely ignored stare decisis (and century-old

State policy) in overturning two prior cases that had held

that an injury to property, as opposed to physical

occupation, was sufficient to sustain an action under 23.

826 So.2d at 121. However, the policy of this State, as

proclaimed by the legislature and ratified by the people in

1875, is that the old common law meaning of takings as

physical appropriation only is too narrow.

IV. The Opinion improperly characterized M&Ns negligenceand evidentiary arguments.

The Court erroneously declined to consider M&Ns

negligence and evidentiary arguments, because M&N ...

failed to cite any authority to support its arguments.

Opinion at 31, 33, 34. As more fully discussed in M&Ns

Application for Rehearing, this characterization of M&Ns

arguments is incorrect. Application for Rehearing at 7-

8. M&N cited both a statute and case law to support its

assertion that Gurley owed a duty. Brief at 86, 96. M&N

also set forth the particular actions shown by the evidence


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[017739-00000/496052/2] 15

in the record that constituted negligence. Id. at 87-91.

M&N offered detailed arguments, with citations to case law

and to the allegations in the complaint, as to why the

trial court should not have granted Gurleys motion to

dismiss the negligent supervision claim on discretionary

function immunity grounds. Id. at 91-93. M&N also

specifically set forth, with citations to the record and to

supporting case law and rules of evidence, the reasons why

the evidence should have been admitted and how it was

prejudiced by its exclusion. Id. at 94-97.

CONCLUSION

For the reasons stated herein and in the Application

for Rehearing, M&N respectfully requests that this Court

grant its application for rehearing, withdraw its December

21, 2012 Opinion, and substitute an opinion affirming the

judgment on the jury verdict.

Respectfully submitted,

___________________________

Deborah Alley SmithMichael A. Vercher

Abbott Marie Jones

CHRISTIAN &SMALL LLP

1800 Financial Center

505 20th Street North

Birmingham, Alabama 35203

(205)795-6588


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[017739-00000/496052/2] 16

Rebekah K. McKinney

WATSON MCKINNEY,LLP

203 Greene Street

Huntsville, AL 35801

(256)536-7423

Counsel for Appellee/

Cross-Appellant


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[017739-00000/496052/2] 17

CERTIFICATE OF SERVICE

TO: The Clerk of the Supreme Court of Alabama

Case No. 1110439 & 1110507

TOWN OF GURLEY, ALABAMA,

Appellant/Cross-Appellee,

v.

M&N MATERIALS, INC.,

Appellee/Cross-Appellant.

On Appeal from the Circuit

Court of Madison County,

Case No. 05-731-KKH

I certify that I have this date served a copy of the

foregoing brief and argument on counsel of record for all

parties to this appeal by sending an electronic copy of

same to the following:

Counsel for Appellant/Cross-Appellee:

George W. Royer, Jr.

David J. Canupp

LANIER FORD SHAVER &PAYNE,P.C.P.O. Box 2087

Huntsville, AL 35804

Angela C. Shields

KEE LAW FIRM,LLC

3800 Colonnade Parkway

Suite 550

Birmingham, AL 35243

Winston SheehanBALL BALL MATTHEWS AND NOVAK,P.C.

2000 Interstate Park Drive

Suite 204

Montgomery, AL 36109


26/26

18

Lorelei Lein

Alabama League of Municipalities

P.O. Box 1270

Montgomery, AL 36102

Jack LivingstonDaryl Eustace

P.O. Box 807

Scottsboro, AL 35768

Mike Partain

General Attorney

UNITED STATES STEEL CORPORATION

610 Preserve Parkway

Suite 200

Hoover, AL 35226

DATED this the 11th day of January, 2013.

___________________________

Counsel for Appellee/

Cross-Appellant

Documents

M&N Materials Rehearing Request