Daphne budgets more money for lawsuit appeal

City could be on hook for $450,000 in damages from 2015 lawsuit


Daphne’s City Council unanimously agreed to appropriate additional funds for the appeal of a case filed against the city by some local residents that could currently cost the city $450,000 in compensatory damages.

The council voted to appropriate an additional $50,000 for legal fees associated with appealing the case of Fannon v. City of Daphne.

This move occurred following a final judgement that the city felt was highly unfavorable against it, namely in the amount of damages.

“We’re exercising our ability to appeal this decision and are hopeful for a more favorable outcome as a result of this process,” Daphne Mayor Dane Haygood said.

Fannon case history

The claim against the city was filed in Feb. 2015.

The Fannon family own property on Lovette Lane adjacent to Mobile Bay in Daphne and built their residence on the lot in 1990. As a part of that construction, an 18-inch diameter pipe was installed in the area of the residence to carry intermittent seepage underground from a location upstream of the residence to a location downstream - all of which was permitted, inspected and approved by Daphne in 1990.

Adjacent to the north side of the Fannons’ property is a seepage stream bed that runs along the public street/stormwater drainage into Mobile Bay along the ‘Old Daphne Wharf Right of Way.’

In their claim, the Fannons said in 2005, the city increased the footprint of the upstream drainage area with additional developments and streets and that it directed the storm water runoff from the Daphne streets to the right of way and the Fannon property.

In 2006, the Fannons, according to the claim:

after not receiving any resolution, action or  response  from  Daphne,  the Fannons took steps to defend their property from the threat of flooding caused by the changes to the storm water drainage system. The Fannons paid for and constructed a storm water overflow swale 

within the right of way to direct expected excess storm water away from the residence. The swale commenced at an upstream location and extended to a downstream exit point past the residence. 

The swale was approximately 5 feet wide and 3 feet deep, bordered on both sides by timbers with two layers of fiberglass filter cloth across the swale and attached to the timbers. Rip rap material was placed in the bottom of the completed swale to slow down the expected storm water runoff flow.”

According to the Fannons’ claim:

“On or about April 29, 2014, the disaster that the Fannons had warned Daphne about ultimately occurred. The excessive storm water runoff channeled into Daphne’s four foot diameter pipe overwhelmed the Fannons’ original underground pipe and subsequently the swale, removing soil and producing a gully approximately 15 feet wide and deep. Many large trees located within the right of way had their roots exposed and fell against the north wall and roof of the Fannons’ home.”

The Fannons said that due to  the amount of storm water runoff coming onto their property, another swale “would be useless,” so they paid for a 30-inch diameter overflow pipe that ran from the upstream inlet point to a downstream outlet past the residence, which was completed in June 2014.

On Aug. 27, 2014, then Daphne Public Works Director Richard Johnson filed a complaint with the Alabama Board of Licensure for Professional Engineers and Land Surveyors alleging that David Fannon violated the Canon of Ethics of Professional Engineering by “knowingly trespassing” onto the property of Daphne and undertaking, as an engineer, the design and construction of infrastructure within a wetlands area.

Fannon denied he acted as a professional engineer with regards to the actions relating to the matter and accused Johnson of filing the complaint with the board “only as an attempt to disparage David Fannon’s reputation, to undermine his sworn allegations and to use as leverage to force him to dismiss his claims against Daphne.”

Fannon’s initial claim against the City includes counts of negligent drainage design and maintenance, negligence claims against Daphne and Richard Johnson, wantoness against Johnson, abuse of process against Daphne and Johnson, trespass against the city of Daphne and inverse condemnation against Daphne.

In Aug. 2018, a jury trial came back in favor of the Fannons and on the claim of inverse condemnation and awarded compensatory damages of $450,000.