Michael Barry d/b/a Michael Barry Properties, Inc. v. The D.M. Drennen and Emma Houston Drennen Memorial Trust of Saint Mary's Church et al.

Summary

The Alabama Supreme Court reviewed Michael Barry's challenge to the vacation of a Birmingham alley. The court held that the 30-day appeal limitation for challenging an alley vacation could not be applied at the pleading stage to an alleged abutting landowner who had not received the statutory notice, and that dismissal against the Trust, Church, Rubaiyat, and City was premature. It affirmed dismissal of the City Council members sued solely in their official capacities and remanded for further proceedings.

Holdings

1. The 30-day appeal limitation in Alabama Code § 23-4-5 cannot be applied to an alleged abutting landowner who never received the notice required by § 23-4-2. Because Barry alleged that his property was adjacent to the alley, the complaint stated a potentially viable claim and could not be dismissed as untimely at the pleading stage.
2. The trial court erred by dismissing the action without treating the defendants' reliance on a tax map and other evidentiary materials as requiring conversion to a summary-judgment proceeding and without allowing discovery relevant to Barry's alleged status as an abutting landowner.
3. Barry was not required to serve the Alabama Attorney General because he challenged the application and enforcement of the statutory notice and appeal provisions, rather than the constitutionality of a statute, ordinance, or franchise itself.
4. The City Council members were properly dismissed because they were sued only in their official capacities, and Barry conceded that they were entitled to dismissal.

Questions Presented

1. Whether Barry's action challenging the alley vacation was barred by the 30-day appeal period in Alabama Code § 23-4-5 when he alleged that he was an abutting landowner who did not receive the statutory notice required by § 23-4-2.
2. Whether the defendants' reliance on a tax map and other materials outside the complaint required conversion of the motions to dismiss into motions for summary judgment.
3. Whether Barry was required to serve the Alabama Attorney General under § 6-6-227 because he allegedly challenged the constitutionality of a municipal vacation resolution or statute.
4. Whether the City Council members sued only in their official capacities were entitled to dismissal.

Disposition

reversed_and_remanded