APPEALS - EX PARTE DAVID YOUNG AND DEBBIE YOUNG
In
Ex parte David Young and Debbie Young, [Ms. 2100579, Aug. 26, 2011] __ So. 3d __(Ala. Civ. App. 2011), the Alabama
Court of Civil Appeals held that, under the circumstances of this particular
case, it was within a trial court's discretion to order a second trial
to hear additional evidence after the case was remanded. The case involved
a dispute between neighbors as to whether a pine tree between them could
be cut down. The trial court's initial judgment in the matter declared
that Kathy and Roger Ledford had the right to "cut into the tree
to the property line and then cut from that point to the center of the
earth and into the sky." Furthermore, because the property line was
19 inches into the tree's 28-inch diameter, the trial court declared
that the Ledfords had the right to remove the entire tree, since removing
19 inches of it would likely kill it anyway. The Youngs appealed that
decision and the Alabama Court of Civil Appeals reversed, holding that
the tree was "a boundary-line tree" and that "each adjacent
landowner has ownership rights that cannot be trumped by the other's
desires in the manner suggested by the trial court's judgment."
In a special concurrence to the Court's original opinion, Judge Thompson
(joined by Judge Moore) stated that whether the pine tree was a nuisance,
which would serve as an exception to that general rule, had not been litigated.
Judge Bryan also concurred in the result and noted that had the record
included evidence that the pine tree posed a danger to the Ledfords'
house, he would have voted to affirm the judgment. After the appellate
court's certificate of judgment had been issued, Kathy Ledford filed
a motion requesting a hearing to consider additional evidence consistent
with the appellate opinion. The Youngs opposed the motion and moved for
an entry of judgment in their favor. The trial court granted Kathy Ledford's
request for a hearing and the Youngs timely filed a mandamus petition
challenging the propriety of that decision. The Court of Civil Appeals
denied the petition for writ of mandamus, holding that the only question
addressed on the original appeal was whether the Ledfords could unilaterally
remove the boundary-line tree simply because a majority of it was located
on their side of the common boundary between the parties' properties.
However, it also held that it remanded the case for "further proceedings
consistent with [that] opinion," which would include a second trial as to the issues
of whether the tree poses a danger to the Ledfords' home or whether
it amounts to a nuisance.