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Alabama Appellate Opinions Released
October 27, 2017
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Proper Notice for Zoning Ordinance Proposal
Ex Parte Frank S. Buck and Martha Jane Buck
CH Highland, LLC, a real estate development company, submitted a rezoning application to the Zoning Advisory Committee of the Birmingham Planning Commission. Highland requested that the subject property be rezoned from a "B-2 general business district" to a "B-3 community business district" so that it could construct the project. On November 28, 2014, a "synopsis of zoning ordinance" was published, indicating that the City Council would consider the adoption of an ordinance to change the zoning of the subject property from B-2 to B-3. The notices did not mention rezoning the subject property to a QB-3 district or the existence of any Q conditions. On December 30, 2014, the City Council held a public hearing to consider the proposed rezoning ordinance. The transcript of the hearing indicates that the proposed ordinance was "amended" to include the Q conditions suggested by the Zoning Advisory Committee and the Planning and Zoning Committee. The City Council voted to adopt the amended proposed ordinance as Ordinance 1949-G, which rezoned the area in which the subject property was located from a B-2 district to a QB-3 district and also contained the Q conditions. The Bucks subsequently filed suit, alleging the City failed to publish proper notice of the proposed ordinance as required by Ala. Code § 11-52-77. The trial court granted summary judgment in favor of CH Highland and the City (“the respondents”). The court of appeals also ruled in favor of the respondents, and this Court granted certiorari review regarding whether notice was properly published.
Respondents argued that a city does not need to publish a new notice and hold a new hearing when it adds "details" to a published ordinance but does not add any new potential uses the proposed ordinance originally allowed. The Court rejected this argument and noted this is inconsistent with the idea that the notices should "fairly and sufficiently" apprise the public of the content of a city's proposed zoning action. Most importantly, the Court held the plain language of § 11-52-77 requires that the ordinance ultimately adopted be the same as the proposed ordinance that was published. Therefore, the Court reversed and remanded for further proceedings consistent with this opinion.
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Alabama Court of Civil Appeals
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Release Agreement Does Not Prevent Proof of a Fraud Claim
Jerry K. McCullough v. Allstate Property and Casualty Insurance Company
In 2011, Allstate issued a policy of automobile insurance to McCullough, insuring, among other vehicles, his 2002 Dodge Ram 1500 pickup truck. McCullough loaned the truck to an acquaintance, who returned it to McCullough in September 2012 in a damaged condition. In January 2013, McCullough filed a claim on the policy. After an Allstate adjuster inspected the truck, finding multiple points of damage, Allstate took the position that the truck had been damaged in more than one accident. Thus, McCullough’s claim was treated as multiple different claims, each of which would be subject to the policy deductible. McCullough contended the damage resulted from only one accident, and thus only one deductible should be applied. Based on that disagreement, McCullough filed a lawsuit against Allstate in the United States District Court for the Northern District of Alabama in March 2013. This suit was dismissed after the two parties agreed to a release in which Allstate would put forth its best effort to revise reports to index bureaus showing that there was only one accident which gave rise to the claims made the basis of this suit. According to McCullough, Allstate’s attorney sent him an email indicating the attorney reported that Allstate paid nothing on this claim.
McCullough learned that, in October 2013, Allstate had reported that it had paid $8,000 to McCullough on the September 3, 2012, claim. McCullough subsequently filed suit, alleging fraudulent inducement with regard to the release agreement, among other claims. The trial court granted Allstate’s motion for summary judgment, and McCullough appealed. This court reversed the trial court's summary judgment in favor of Allstate regarding the claim alleging fraudulent inducement. Allstate argued the merger clause of the release agreement from the federal lawsuit barred this fraudulent inducement claim as a matter of law, but this court held a merger clause does not prevent proof of fraudulent representations by a party to the contract. This court denied McCullough’s motion for partial summary judgment on his claim alleging fraudulent inducement, finding a genuine issue of material fact due to the merger clause and because the release did not specify that Allstate must report that nothing was paid on the claim. Finally, because the court found McCullough’s fraudulent inducement claim was not barred as a matter of law, the court reversed the trial court's judgment insofar as it denied McCullough's motion to compel discovery and remanded this cause with instructions for the trial court to reconsider the motion to compel in light of this opinion.
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