ELECTRONICALLY FILED 4/24/2014 1:40 PM 01-CV-2013-904100.

00 CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA BIRMINGHAM DIVISION RRP, LLC and GEORGE GLENN, JR., ) Plaintiffs, ) ) V. ) ) CITY OF TRUSSVILLE, et al., ) Defendants. )

Case No.:

CV-2013-904100.00

ORDER GRANTING MOTIONS TO DISMISS This case is before the Court on Motions to Dismiss filed by all of the Defendants in this case.1 For the reasons set forth below, the Motions are hereby GRANTED. Overview and Background. Plaintiffs Complaint in this action concerns the creation, general operation and certain specific decisions of the Trussville Redevelopment Authority (the Authority). The particular decisions of the Authority that Plaintiffs challenge here concern the property commonly referred to as the Old Food World Building and/or the Village in Trussville shopping center. The Authority and the Village in Trussville shopping center were previously the subject of a 2011 Petition filed here in the Circuit Court of Jefferson County by the City of Trussville, its Mayor and members of the Trussville City Council against all taxpayers in - and citizens of - the City, which Petition was adjudicated under case number CV-2011901537 (hereinafter, the prior Petition).2 The Jefferson County District Attorney responded to the prior Petition on behalf of all taxpayers in and citizens of the City of Trussville. A number of individual taxpayers/citizens also intervened in that litigation, objecting to and moving to dismiss the same. Among those individual intervenors was George Glenn, Jr., who is also a Plaintiff in this case.
1

See Motion to Dismiss filed by Mayor Eugene Melton, Brian Plant, Buddy Choat, Perry Cook, Anthony Montalto and Alan Taylor; Motion to Dismiss filed by the Trussville Redevelopment Authority, Joe Howle, David Morgan, Diane Poole, Jef Freeman, Mike Gunter, Eddie Seal and Scott Walls; and Motion to Dismiss Defendant City of Trussville. When a party refers to another proceeding or judgment of a court in his pleading before that same court, the court on motion to dismiss may take judicial notice of the entire proceeding. Lesley v. City of Montgomery, 485 So.2d 1088, 1093 (Ala.1986). Here, the prior Petition is referenced both in Plaintiffs Complaint in this case (see Complaint at 47(B) and in Defendants Motions to Dismiss.

The primary bases alleged for the objections litigated against the prior Petition by Mr. Glenn and others were: (1) that the determination it was in the best interests of the City of Trussville to acquire ownership of the Village in Trussville property was unlawful, impractical, in error, and based on incorrect statements; (2) that the process of adoption of the relevant governmental resolutions was not in compliance with Amendment 772 to the Alabama Constitution; (3) that the City of Trussville would overpay by some $1,738,000.00 for the property; (4) that several matters of substantial importance were misstated to the public or omitted from disclosure to the public; and (5) that the City should not be permitted to use public funds to compete with private enterprise, owners of land and/or retail businesses. See August 15, 2011, Answer, Objection and Motion to Dismiss in Case No. CV-2011-901537. After a trial on August 18, 2012 before Presiding Circuit Judge Scott Vowell, the Court on September 2, 2011 - sustained the Petition and entered Findings of Fact, Conclusions of Law and a Final Judgment regarding the same. No appeal was taken from that Final Judgment. The Complaint in this Action. Plaintiffs Complaint in this case requests, among other things, that the Court enter a declaratory judgment finding that the City of Trussville, the Trussville Redevelopment Authority, the Mayor and members of the Trussville City Council acted outside their power, improperly, not in the best interests of the community and in a manner that fails to promote the health, safety, morals and general welfare of the public by [i]nitiating Civil Action CV-2011-901537, [t]aking action under the relevant State Enabling Statutes, [t]aking Action under or pursuant to Amendments 772 and/or 449, and passing relevant resolutions in 2005 and 2011. See Complaint 45-48. As relief for the above, the Plaintiffs seek an order restraining the City, its Council persons and Mayor, and the Authority and its members from enforcing said decisions and taking any other action regarding the property at issue. See id. Defendants Motions to Dismiss. In response to Plaintiffs Complaint, the Defendants filed a number of Motions to Dismiss, each of which raised the same essential arguments, including immunity, failure to state a claim upon which relief can be granted, failure to provide statutory notice, res judicata and collateral estoppel. As the Court here concludes that Defendants res judicata arguments are dispositive of their Motions, it will address only that defense in detail. Applicable Law of Res Judicata. The elements of the doctrine of res judicata under Alabama law are: (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both

actions. Peterson v. Woodland Homes of Huntsville, Inc., 959 So. 2d 135, 138-39 (Ala. Civ. App. 2006) (quoting Dairyland Ins. v. Jackson, 566 So. 2d 723, 725-26 (Ala.1990)). Alabama Courts have recognized that [i]n some instances, res judicata may be properly raised by means of a motion to dismiss. Wigler v. State Department of Pensions and Security, 390 So. 2d 656, 657 (Ala. 1980). This is such a case. See also Lesley v. City of Montgomery, 485 So.2d 1093 (Ala. 1986)(upholding trial courts grant of a motion to dismiss on grounds of res judicata where a property owner sued the city for damages resulting from construction of a retaining wall but a prior action to enjoin construction of the retaining wall had been decided in favor of the city). Ruling of the Court. In this case, Plaintiffs expressly challenge the decisions and actions litigated to a final judgment in the prior Petition. Mr. Glenn personally participated in the last litigation and all other citizens of and taxpayers in the City of Trussville were parties in that case. In addition, the Plaintiffs here seek a declaratory judgment holding that the City of Trussville, its Council persons and Mayor and/or the Trussville Redevelopment Authority and its members exceeded their authority in initiating the prior Petition (CV-2011901537) and Plaintiffs further seek an injunction restraining all of the Defendants from enforcing the Final Judgment entered in the prior Petition and/or taking any other actions with regard to the property at issue. In light of all of the above, this Court holds that Plaintiffs claims in this case are barred by res judicata and that this lawsuit constitutes an impermissible collateral attack on the Final Judgment previously entered in the case of City of Trussville, Alabama, et al. v. The Taxpayers and Citizens of the City of Trussville, Alabama, et al., CV-2011-901537 in the Circuit Court of Jefferson County, Alabama. Wherefore, the Defendants Motions to Dismiss are GRANTED and this case is DISMISSED, WITH PREJUDICE as to all Defendants. Costs are taxed as paid. DONE this 24th day of April, 2014. /s/ JIM HUGHEY III CIRCUIT JUDGE