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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.
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