MURDOCK, Justice.
The Alabama Department of Transportation ("ALDOT") and its director John R. Cooper petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying their motion to dismiss all claims filed against them by Asphalt Contractors, Inc. ("ACI"). We grant the petition in part and deny it in part.
Most of the factual background is succinctly explained in ACI's original complaint.
On April 12, 2011, ACI filed a "Petition for Temporary Restraining Order/Preliminary Injunction/Complaint" against ALDOT and Cooper, in his official capacity as the director of ALDOT. The complaint asserted trespass to realty and inverse condemnation and made claims for injunctive relief. ACI requested damages for the full fair-market value of its property, consequential and incidental damages,
On May 12, 2011, ALDOT and Cooper filed a motion to dismiss the complaint in which they contended that the trial court lacked subject-matter jurisdiction because ALDOT and Cooper were entitled to State immunity. On May 19, 2011, ACI filed a response to ALDOT's motion to dismiss. On July 13, 2011, ACI filed an amended complaint in which it added a claim that it was entitled to an injunction because, it says, ALDOT, through Cooper, acted fraudulently, in bad faith, beyond its authority, or under a mistaken interpretation of the law.
On July 15, 2011, the trial court held a hearing on the motion to dismiss and heard testimony and arguments concerning ACI's request for a preliminary injunction. On July 27, 2011, the trial court entered an order denying the motion to dismiss, and it took ACI's motion for a preliminary injunction under advisement.
Ex parte Lawley, 38 So.3d 41, 44-45 (Ala. 2009).
Ex parte Alabama Dep't of Transp., 978 So.2d 17, 21 (Ala.2007).
ALDOT and Cooper contend that they are immune from suit under Art. I, § 14, Ala. Const.1901. As to ALDOT, they are unquestionably correct.
Ex parte Alabama Dep't of Transp., 978 So.2d at 22. See also Ex parte Alabama Dep't of Transp., 985 So.2d 892, 895 (Ala. 2007) (stating that "ALDOT is a State agency, and this Court has repeatedly held that the absolute bar of § 14 applies to the State and its agencies"). Thus, the trial court erred in denying the motion to dismiss ACI's claims against ALDOT. We therefore grant the petition as to ACI's claims against ALDOT.
ACI's claims against Cooper, however, are another matter. This Court has repeatedly stated that there are general categories of actions against State officials that do not come within the prohibition of § 14. Those categories are:
Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 58 (Ala.2006) (first emphasis added).
ALDOT and Cooper correctly argue that ACI's claim against Cooper in his official capacity alleging trespass to realty does not fall within any of the categories of so-called "exceptions" to State immunity.
ALDOT and Cooper also contend that the trial court lacked jurisdiction over
State v. Armstrong, 779 So.2d 1211, 1214 (Ala.2000). This Court has further explained:
Alabama Dep't of Transp. v. Land Energy, Ltd., 886 So.2d 787, 792 (Ala.2004). See also Jefferson Cnty. v. Southern Natural Gas Co., 621 So.2d 1282, 1287 (Ala. 1993) (observing that "`[i]nverse condemnation'... is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when the taking authority has not initiated condemnation proceedings").
ALDOT and Cooper contend that ACI did not state a valid inverse-condemnation claim because it has not alleged that ALDOT committed an actual physical taking of its property for public use; rather, ACI has claimed that ALDOT injured its property through the pumping of TCE-laden
In Willis, Donald Willis filed an inverse-condemnation action against the University of North Alabama ("UNA"), which had built a multilevel parking deck across the street from his property. Willis complained that the parking deck "damaged his property and caused the value of his property to decrease substantially." Id. at 119. The Willis Court affirmed a summary judgment entered by the trial court in favor of UNA. In doing so, the Court overturned two previous cases — Foreman v. State, 676 So.2d 303 (Ala.1995), and Barber v. State, 703 So.2d 314 (Ala.1997) — which had "held that under § 23[, Ala. Const. 1901,] "`a governmental authority need only occupy or injure the property in question."'" 826 So.2d at 121. The Willis Court concluded that "those holdings [were] incorrect" because § 23, Ala. Const. 1901, requires that private property not be "taken" for public use without just compensation. Id. The Court noted that "the trial court assumed that Willis's property was injured . . .; however, since no portion of Willis's property was `taken,' or applied to public use by UNA, UNA was not required to compensate Willis under § 23 of the Constitution." Id. ALDOT and Cooper argue that, like the property owner in Willis, ACI has claimed only that its property has been injured, not taken, and thus that ACI has not stated a valid inverse-condemnation claim under § 23.
ACI argues that it has stated a valid inverse-condemnation claim. It first notes that this Court has stated that "an inverse-condemnation action must be brought against a State official in his or her official capacity." State v. Cornelius, 36 So.3d 504, 507 (Ala.2009). ACI named Cooper, in his capacity as director of ALDOT, as a defendant in its inverse-condemnation action. Moreover, ACI distinguishes Willis, observing that
ACI's brief, p. 19 (emphasis added). ACI further contends that "[b]y pumping water onto ACI's property without first obtaining a drainage easement via appropriate eminent-domain proceedings, ALDOT improperly subjected ACI's property to public use in violation of the constitution." Id. at 20.
In its original complaint, ACI alleged that
(Emphasis added.)
Though it is true that ACI alleged that ALDOT and Cooper "damaged," or injured, ACI's property, it is also apparent that ACI alleged that ALDOT and Cooper appropriated ACI's property for public use. ACI alleged that ALDOT, under Cooper's direction, physically pumped chemically tainted water onto ACI's property, used ACI's property to help in the cleanup of TCE from area groundwater, and dumped at least a portion of the remaining water into ACI-owned wetland property. ALDOT and Cooper allegedly did all of this without initiating eminent-domain proceedings in order to use ACI's private property for public use. Clearly, in this case, unlike in Willis, there has been a "physical invasion" of the plaintiff's land.
Ex parte Murphy, 72 So.3d 1202, 1207-08 (Ala.2011). See also Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala. 2006) (stating that "a party may not indirectly sue the State by suing its officers or agents `"when a result favorable to plaintiff would be directly to affect the financial status of the state treasury"'" (quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002), quoting in turn State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added in Patterson))). Based on Murphy, ALDOT and Cooper contend that ACI cannot maintain its action because the result would be the recovery of monetary damages from the State.
Murphy stated that "actions to recover money damages from the State... are generally barred." Murphy, 72 So.3d at 1208 (emphasis added). A valid inverse-condemnation action is a clear exception to this general bar. This Court has stated:
Armstrong, 779 So.2d at 1214 (emphasis added). The very point of an inverse-condemnation action is for the private-property owner to be able to recover compensation for the government's use of his or her property that he or she would have received had the government initiated eminent-domain proceedings as it was supposed to do. It would make no sense for valid inverse-condemnation actions to fall
Because ACI stated a valid inverse-condemnation claim in its original complaint, the trial court had jurisdiction to entertain ACI's amended complaint in which it modified its claim for injunctive relief by alleging that Cooper acted fraudulently, in bad faith, beyond his authority, or under a mistaken interpretation of law.
At a minimum, under the facts presented by ACI, it is possible for ACI to maintain a claim that ALDOT, through Cooper,
Because ACI stated a viable claim for injunctive relief based on allegations of bad faith, the trial court did not err in denying ALDOT and Cooper's motion to dismiss that claim as to Cooper. Whether ACI can show further grounds at trial for application of the injunction exception to immunity is a matter that should be addressed at trial.
The trial court erred in denying the motion to dismiss ALDOT as a party to this action. Conversely, the trial court did not err in denying the motion to dismiss as to ACI's inverse-condemnation claim against Cooper in his official capacity. Likewise, the trial court properly refused to dismiss ACI's claim for injunctive relief against Cooper. Accordingly, we grant the petition for a writ of mandamus in part and deny it in part.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
PARKER and WISE, JJ., concur.
MOORE, C.J., and BOLIN, SHAW, and BRYAN, JJ., concur in the result.
STUART, J., recuses herself.
BOLIN, Justice (concurring in the result).
I concur with the main opinion that Asphalt Contractors, Inc. ("ACI"), stated a valid inverse-condemnation claim against the Alabama Department of Transportation ("ALDOT") based on its allegations, among others, that ALDOT appropriated ACI's property for public use; that ALDOT, through John R. Cooper, its director, physically pumped chemically tainted water onto ACI's property; and that ALDOT did all of these things without initiating eminent-domain proceedings. As stated below, however, my concurrence is based on a different rationale than that of the main opinion; therefore, I concur in the result.
ALDOT claimed that ACI did not state a valid inverse-condemnation claim because it failed to allege that ALDOT had committed an actual physical taking of ACI's property. As the main opinion states: "ACI has claimed that ALDOT injured its property through the pumping of TCE-laden water onto its land." 143 So.3d at 736. See Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002)(holding that an inverse-condemnation claim requires a physical taking of property).
My rationale in this writing is a reiteration of the opinion expressed in my recent dissent in M & N Materials, Inc. v. Simpson, [Ms. 1110507, September 27, 2013] 143 So.3d 1, 50-51 (Ala.2013) (on application for rehearing) (Bolin, J., dissenting from the denial of rehearing and joining Justice Bryan's special writing), that the Willis decision was wrongly decided and should be overruled. Inverse condemnation is the taking of private property for public use without formal condemnation proceedings and without just compensation being paid by the governmental agency or entity that has the power of condemnation. See Foreman v. State, 676 So.2d 303, 305 (Ala.1995), overruled on other grounds by Willis. This Court's holding in Foreman allowed for
In Willis, Donald Willis, the plaintiff, claimed that a multilevel parking deck being built across the street from his property "damaged his property and caused the value of his property to decrease substantially." Willis, 826 So.2d at 119 (emphasis added). There is no significant difference between ACI's assertion in its inverse-condemnation claim that its property was "injured" and Willis's assertion in his inverse-condemnation claim that his property was "damaged." Both allege a compensable damage, or injury, to property pursuant to the Alabama Eminent Domain Code, § 18-1A-1 et seq., Ala. Code 1975.
I again submit that § 23 does not require an "actual physical taking" by a condemnor and that, accordingly, both Willis and ACI alleged a valid inverse-condemnation cause of action. Indeed, it appears that ACI tracked the express operative provision of § 18-1A-32, Ala.Code 1975, which states:
(Emphasis added.)
The property owner here, ACI, sought injunctive relief as well as damages based on its allegation that ALDOT, through Cooper, injured and/or damaged its property through the physical dumping of chemically tainted water onto the property. Rather than straining to allow ACI an inverse-condemnation remedy by a different route, the simple — and I submit proper — resolution of the "physical taking" versus "damaging" argument would be to admit that Willis was wrongly decided and to overrule it, allowing ACI and other similar plaintiffs to pursue their statutory remedy for damage to property under the plain, express language of § 18-1A-32.
BRYAN, J., concurs.
BRYAN, Justice (concurring in the result).
I join Justice Bolin's special writing. I write to emphasize my belief that Willis v. University of North Alabama, 826 So.2d 118 (Ala.2002), was wrongly decided and should be overruled. See my dissent in M & N Materials, Inc. v. Simpson, [Ms. 1110507, September 27, 2013] 143 So.3d 1, 54 (Ala.2013) (on application for rehearing) (Bryan, J., dissenting).
The evidence adduced thus far includes the testimony of Buddy Cox, who is in charge of the TCE cleanup project, to which ALDOT and Cooper refer. Cox stated that ALDOT was awaiting a permit from the Alabama Department of Environmental Management to begin pumping water into an alternate pond. Cox indicated that ALDOT expected the permit to be forthcoming in six weeks, but there was no evidence indicating that receiving the permit was a foregone conclusion or that the use of ACI's pond definitely would cease in six weeks. Further, even assuming a diversion of the water did occur in six weeks, according to ACI's facts, ALDOT's pumping of water into the South Pond has been ongoing for two years.
As to the contention that no trace of TCE has been found in the South Pond, even if this is true, ALDOT's pumping of water into the South Pond still constitutes the use of ACI's property for public use. In other words, an absence of TCE from the South Pond, alone, does not preclude ACI's inverse-condemnation claim.
As presented in this case, the issue whether the use of the ACI's property fails to qualify as a "taking" on the ground that it was not a "permanent invasion" is not of such a nature that this Court should address either the legal or factual questions raised by this issue without both parties having had the opportunity to brief it properly. (In addition, the question may require some further degree of factual development in the trial court.) See generally Arkansas Game & Fish Comm'n v. United States, ___ U.S. ___, ___, 133 S.Ct. 511, 521, 184 L.Ed.2d 417 (2012) (holding that government action need not be permanent to qualify as a taking for purposes of the Fifth Amendment to the United States Constitution but stating that "`temporary limitations are subject to a more complex balancing process to determine whether they are a taking.'" (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 n. 12, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982))).
779 So.2d at 1214 (also noting that "[t]he Legislature has provided that a property owner who prevails in an inverse-condemnation action is entitled to recover litigation expenses in addition to just compensation for the taking. See Ala.Code 1975, § 18-1A-32(b)").
We reject ALDOT and Cooper's argument. ALDOT and Cooper misstate the rule in Turner. The Court in Turner explained that the respondent in that case, by failing to "file an answer and brief," "did not comply with this Court's order." 840 So.2d at 134. The Court concluded that the respondent's "failure to respond to the allegations in [the] petition for a writ of mandamus compels this Court to consider the averments of fact in [the] petition as true." Id. at 134-35 (emphasis added). The Turner Court did not state that it was compelled to accept the petitioner's arguments as true but that it had to accept the petitioner's presentation of the facts in the absence of any facts being presented by the respondent. This Court cannot simply accept a mandamus petitioner's arguments as true regardless of the arguments (or lack thereof) presented by the respondent because "[t]he burden of establishing a clear legal right to the relief sought rests with the petitioner." Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007). "A writ of mandamus is a drastic and extraordinary writ"; thus, it is incumbent upon ALDOT and Cooper, as the petitioners, to convince this Court that they are entitled to immunity under § 14 concerning each claim made by ACI even if ACI elected to present counterarguments for only one of its claims. Ex parte Simpson, 36 So.3d 15, 22 (Ala.2009). Furthermore, though in its brief ACI primarily focused on the validity of its inverse-condemnation claim, it also argued that the trial court had jurisdiction to consider its amended complaint — and therefore its claim for injunctive relief — because the original complaint contained at least one claim not barred by § 14.