DOCUMENT 672

ELECTRONICALLY FILED
7/14/2023 10:22 PM
03-CV-2022-901306.00
CIRCUIT COURT OF
MONTGOMERY COUNTY, ALABAMA
GINA J. ISHMAN, CLERK
No. SC-2023-0354

IN THE SUPREME COURT OF ALABAMA

──────────────────────────────
JOHN R. COOPER, IN HIS OFFICIAL CAPACITY AS
DIRECTOR OF THE ALABAMA DEPARTMENT OF
TRANSPORTATION,

Appellant,
v.

THE BALDWIN COUNTY BRIDGE COMPANY, LLC,

Appellee.
──────────────────────────────

ON APPEAL FROM
THE CIRCUIT COURT OF MONTGOMERY COUNTY
CIVIL ACTION NO. 03-CV-2022-901306.00

REPLY BRIEF IN SUPPORT OF THE APPELLANT

Attorneys for Appellant:

Dorman Walker Ed Haden

Email: dwalker@balch.com Email: ehaden@balch.com
W. Joseph McCorkle, Jr. James A. Bradford
Email: jmccorkle@balch.com Email: jbradford@balch.com
Robert DeMoss III Michael P. Taunton
Email: tdemoss@balch.com Email: mtaunton@balch.com
BALCH & BINGHAM, LLP BALCH & BINGHAM LLP
PO Box 78 1901 Sixth Avenue North
Montgomery, AL 36101 Suite 1500
Telephone: (334) 834-6500 Birmingham, Alabama 35203
Telephone: (205) 226-8795
July 14, 2023
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TABLE OF CONTENTS

I. Sovereign Immunity Bars BCBC’s “Bad Faith” Claim And A

Stand-Alone Bad Faith Claim Is Not Legally Recognized. ............. 2
A. Alabama Constitution § 14 Bars BCBC’s claim for “Bad
Faith.” ...................................................................................... 2
1. Alabama Constitution § 23’s inverse-condemnation
exception to Alabama Constitution § 14 immunity is
not applicable to BCBC’s claim for injunctive relief. .... 4
2. Ingle v. Adkins is inapplicable. ...................................... 5
B. BCBC’s “Bad Faith” Claim Fails as a Matter of Law. ........... 8
1. Alabama law does not recognize a standalone claim
for “bad faith” outside the insurance context. ............... 8
2. Alabama law does not recognize a standalone claim
for an injunction. ............................................................ 9
3. American Radio Ass’n, AFL-CIO v. Mobile S.S. Ass’n,
Inc. is inapplicable. ...................................................... 12
4. BCBC has not stated a claim that ALDOT
“wrongful[ly] interfer[ed]” with its business, in any
case. .............................................................................. 14

II. BCBC’s Novel Theory of “Bad Faith” Would Violate the

Separation of Powers Provision of the Alabama Constitution. ..... 16

III. BCBC’s “Bad Faith” Claim Is Barred By Collateral Estoppel. ..... 18

IV. BCBC Failed To Meet Its Burden To Obtain A Preliminary

Injunction. ...................................................................................... 20
A. BCBC cannot demonstrate a likelihood of success on the
merits..................................................................................... 20
1. BCBC’s claims fail as a matter of law. ........................ 20
2. BCBC cannot demonstrate that it has been injured. .. 20

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3. The New Bridge will alleviate traffic on Highway 59.

...................................................................................... 22
4. Director Cooper has not acted in bad faith. ................ 25
5. BCBC has acted in bad faith. ...................................... 29
B. The Balance of Equities Weighs in ALDOT’s Favor, BCBC
will not be irreparably harmed without an injunction, and
BCBC has an adequate remedy. ........................................... 31

V. The $100,000 Bond Violates this Court’s Pronouncements in

DeVos and Must Be Increased. ...................................................... 32

VI. In the Absence of Any Land Use Regulation, BCBC’s

“Regulatory Taking” Necessarily Fails. ......................................... 35

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TABLE OF AUTHORITIES

CASES
Ala. Dept. of Corrections v. Montgomery Cty. Comm’n,
11 So. 3d 189 (Ala. 2008) ...................................................................viii
Alabama Power Co. v. Citizens of Alabama,
740 So. 2d 371 (Ala.1999) ................................................................... 17
Alabama Power Co. v. Guntersville,
177 So. 332 (Ala. 1937) ....................................................................... 15
Alabama Power Co. v. Thompson,
32 So. 2d 795 (Ala. 1947) .................................................................... 18
Alabama v. U.S. Army Corps of Engs.,
424 F.3d 1117 (11th Cir.) ...................................................................... 9
ALDOT v. Blue Ridge Sand & Gravel, Inc.,
718 So. 2d 27 (Ala. 1998) .............................................................. 31, 32
Allied Manatts Grp., LLC v. Qwest Corp.,
No. 3:18-CV-0020-JAJ, 2020 WL 13553318 (S.D. Iowa Jan. 2,
2020) .................................................................................................... 34
American Radio Ass’n, AFL-CIO v. Mobile S.S. Ass’n, Inc.,
279 So. 2d 467 (Ala. 1973) .................................................................. 13
Avendano v. Shaw,
__ So. 3d __, 2022 WL 3572663 (Ala. Aug. 19, 2022) ........................ 12
Beatty v. Carmichael,
293 So. 3d 874 (Ala. 2019) .................................................................viii
Bessemer Water Serv. v. Lake Cyrus Dev. Co.,
959 So. 2d 643 (Ala. 2006) .................................................................. 22
Campbell v. Taylor,
159 So. 3d 4 (Ala. 2014) .....................................................................viii
Carter v. Knapp Motor Co.,
11 So. 2d 383 (Ala. 1943) .................................................................... 14

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Caton v. Pelham,
329 So. 3d 5 (Ala. 2020) ................................................................ 19, 20
Cleveland v. Cent. Bank,
574 So. 2d 741 (Ala. 1990) .................................................................. 28
Concrete Pipe & Prods. of Cal., Inc., v. Constr. Laborers Pension
Tr. for S. Cal.,
508 U.S. 602 (1993) ............................................................................. 35
Cooper v. Ziegler,
193 So. 3d 722 (Ala. 2015) ........................................................ 7, 16, 17
DeVos v. Cunningham Group, LLC,
297 So. 3d 1176 (Ala. 2019) .......................................................... 33, 34
Dyer v. Tuskaloosa Bridge Co.,
2 Port. 296 (Ala. 1835) .................................................................. 16, 36
Ex parte Ala. Dep’t of Transp.,
143 So. 3d 730 (Ala. 2013) .......................................................... passim
Ex parte Moulton,
116 So. 3d 1119 (Ala. 2013) ...................................................... 2, 3, 4, 9
Ex parte Smith,
683 So. 2d 431 (Ala. 1996) .................................................................. 19
Ex parte Southern Bldg. Code Congress,
213 So. 2d 365 (Ala. 1968) ............................................................ 10, 12
Hallandale Pro. Fire Fighters Loc. 2238 v. City of Hallandale,
922 F.2d 756 (11th Cir. 1991) ............................................................. 35
Horne v. Dept. of Agric.,
576 U.S. 350 (2015) ............................................................................. 35
Ingle v. Adkins,
256 So. 3d 62 (Ala. 2017) .............................................................. 5, 6, 7
Kennedy v. Boles Invs., Inc.,
53 So. 3d 60 (Ala. 2010) ........................................................................ 6

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Lafayette Land Acquisitions II, LLC v. Walls,

No. SC-2022-0765, 2023 WL 3029817 (Ala. Apr. 21, 2023) ............... 22
Larson v. Domestic & Foreign Com. Corp.,
337 U.S. 682 (1949) (superseded on other grounds 5 U.S.C. §
702) ...................................................................................................... 12
Luria Bros. & Co. v. United States,
369 F.2d 701 (Ct. Cl. 1966) ................................................................. 34
McFadden v. Ten-T Corp.,
529 So. 2d 192 (Ala. 1988) .................................................................... 8
Nat’l Advert. Co. v. City of Miami,
402 F.3d 1335 (11th Cir. 2005) ........................................................... 35
Palazzolo v. Rhode Island,
533 U.S. 606 (2001) ............................................................................. 36
Pontius v. State Farm Mut. Auto. Ins. Co.,
915 So. 2d 557 (Ala. 2005) .................................................................viii
Proprietors of Charles River Bridge v. Proprietors of Warren
Bridge, 36 U.S. 420 (1837) ...................................................... 16, 36, 37
Se. Const., L.L.C. v. WAR Const., Inc.,
159 So. 3d 1227 (Ala. 2014) ................................................................ 17
St. Clair County v. Town of Riverside,
128 So. 2d 333 (Ala. 1961) .................................................................. 17
State Farm Fire & Cas. Co. v. Slade,
747 So. 2d 293 (Ala. 1999) ................................................................ 1, 8
State Highway Bd. v. Willcox,
168 Ga. 883, 149 S.E. 182 (1929)........................................................ 37
State v. Epic Tech, LLC,
No. 1200798, 2022 WL 4588777 (Ala. Sept. 30, 2022) ......................... 6
State, Pers. Bd. v. Akers,
797 So. 2d 422 (Ala. 2000) .................................................................. 19

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Superior Derrick Corporation v. NLRB,

273 F.2d 891 (5th Cir. 1960) ............................................................... 13
Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency,
535 U.S. 302 (2002) ............................................................................. 36
Taylor v. Troy State University,
437 So. 2d 472 (Ala. 1983) .............................................................. 9, 12
Tennessee Electric Power Co. v. TVA,
306 U.S. 118 (1939) ............................................................................. 16
Tolbert v. Tolbert,
903 So. 2d 103 (Ala. 2004) .................................................................... 6
Tom’s Foods, Inc. v. Carn,
896 So. 2d 443 (Ala. 2004) .................................................................. 14
Vail v. The Fall Creek Turnpike Co.,
32 Ind. 198 (1869) ............................................................................... 18
Wright v. Wisconsin Central Railroad Co.,
29 Wis. 341 (1872)............................................................................... 18

STATUTES
Ala. Code § 23-1-21 .......................................................................... passim
Ala. Code § 23-1-40 .......................................................................... passim

RULES
Rule 3, Ala. R. Civ. P. .............................................................................. 17
Rule 8, Ala. R. Civ. P. .............................................................................. 17

REGULATIONS
9 U.S.C. § 158 .......................................................................................... 13

CONSTITUTION
Ala. Const. § 139...................................................................................... 17
Ala. Const. § 14................................................................................ passim

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Ala. Const. § 23.......................................................................................... 4

Ala. Const. § 42........................................................................................ 17

OTHER AUTHORITIES
51A C.J.S. Labor Relations s. 319........................................................... 13

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STATEMENT OF JURISDICTION

On June 8, 2023, this Court ordered that “Appellant’s reply brief

shall be due not later than seven (7) days after the filing of Appellee’s

brief.” This brief is timely because Appellee BCBC amended its brief on

July 7, 2023 by filing an amended certificate of service. Under this

Court’s June 8, 2023 order, Appellant Cooper’s reply brief was due seven

days later on July 14, 2023. Undersigned counsel verified with the clerk’s

office that Appellant Cooper’s reply brief is due on July 14, 2023, the date

on which this brief is filed.

This Court has jurisdiction to consider the arguments raised by

Director Cooper on appeal because:

 Sovereign immunity and ripeness each implicate this Court’s

subject-matter jurisdiction, Ala. Dept. of Corrections v.
Montgomery Cty. Comm’n, 11 So. 3d 189, 193 (Ala. 2008) (“A trial
court lacks subject-matter jurisdiction if the defendant is
immune under the doctrine of sovereign immunity.”); Pontius v.
State Farm Mut. Auto. Ins. Co., 915 So. 2d 557, 562 (Ala. 2005)
(“Ripeness implicates subject-matter jurisdiction.”), and
“subject-matter jurisdiction may be raised at any time by any
party....” Campbell v. Taylor, 159 So. 3d 4, 11 (Ala. 2014).1

1
BCBC cites Beatty v. Carmichael, 293 So. 3d 874 (Ala. 2019)
arguing that Director Cooper’s challenges to subject-matter jurisdiction
are not properly before this Court. Beatty concerns the waiver of a right
to appeal due to failure to timely appeal. Id. at 876–77. It is undisputed,
however, that Director Cooper timely appealed. (C.3216.) Beatty is not on
point.

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 All arguments made in Director Cooper’s Opening Brief to this

Court were identified in Director Cooper’s notices of appeal and
docketing statements. (C.3216–3228;3272–3285.)

 The arguments made by Director Cooper on appeal were also

made in opposition to BCBC’s motion for preliminary injunction.
(C.2847,2851,2868–69.) Director Cooper has appealed from the
trial court’s order granting a preliminary injunction.
(C.3216;3272.)

 The trial court’s order granting BCBC a preliminary injunction

also denied “all other pending motions” (e.g., post-hearing
motions concerning sovereign immunity, failure to state/prove a
claim, collateral estoppel, etc.) (C.3215), and thus an appeal from
the trial court’s preliminary injunction order was also an appeal
from the trial court’s denial of Director Cooper’s motions to
dismiss.

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REPLY

 Sovereign Immunity: The “sixth exception” to sovereign immunity

for bad faith does not apply because Judge Pool’s injunction directly
affects a contract of the State. See infra Arg. I.

 Ingle v. Adkins: Ingle concerns a substantively illegal contract that

could not create a valid contract right of the State, not a construction
contract. See infra Arg. I.A.2.

 No Recognized Claim: “[W]e reject the Slades’ argument that… the

tort of bad faith provides a cause of action that is separate and
independent of an insurance contract.” State Farm Fire & Cas. Co. v.
Slade, 747 So. 2d 293, 318 (Ala. 1999). See infra Arg. I.B.

 Invalid Injunction: Judge Pool’s injunction fails because of

sovereign immunity, BCBC’s claim is unrecognized, separation of
powers, and collateral estoppel, among others. See infra Args. I-III.

 Inverse Condemnation: There is no ripe or valid inverse

condemnation claim because there is no regulation and no taking of
any right from BCBC, either immediately or ever. See infra Arg. IV.

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ARGUMENT

I. Sovereign Immunity Bars BCBC’s “Bad Faith” Claim And A

Stand-Alone Bad Faith Claim Is Not Legally Recognized.

A. Alabama Constitution § 14 Bars BCBC’s claim for “Bad

Faith.”

The preliminary injunction must be reversed because it directly

affects the State’s contractual rights for construction of the New Bridge.

In Ex parte Moulton, this Court held that the “sixth ‘exception’ to the bar

of State immunity under [Ala. Const.] § 14… [is] subject to the limitation

that the action not be, in effect, one against the State.” Id., 116 So. 3d

1119, 1141 (Ala. 2013). “[A]n action is one against the State when a

favorable result for the plaintiff would directly affect a contract or

property right of the State….” Id., 1132 (cleaned up).

Judge Pool’s preliminary injunction order “directly affect[s] a

contract or property right of the State….” 116 So. 3d at 1132. The trial

court’s order enjoins “constructing the Cooper Bridge,” (C.3215)—a direct

prohibition on the performance of the contract between Scott Bridge

Company, Inc. and the State of Alabama:

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Construction Contract for New Bridge

(Cooper-Br.,34–35.) Alabama Const. § 14 thus bars the trial court’s

injunction.

BCBC does not contest that the trial court has enjoined

performance of a State contract; and BCBC entirely ignores this Court’s

holding in Ex parte Moulton. Instead—When BCBC addresses sovereign

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immunity at all, (BCBC-Br.,51–54)—it doubles-down on the (in this

context, irrelevant) “sixth exception” to sovereign immunity and cites two

inapposite cases.

1. Alabama Constitution § 23’s inverse-

condemnation exception to Alabama Constitution
§ 14 immunity is not applicable to BCBC’s claim
for injunctive relief.

First, BCBC cites the non-binding, three-judge plurality opinion in

Ex parte Ala. Dep’t of Transp., 143 So. 3d 730 (Ala. 2013) (plurality), for

the unremarkable proposition that “[a] valid inverse-condemnation

action is a clear exception” to Ala. Const. § 14. Id. at 739. (BCBC-Br.,51–

52.) While Director agrees with that statement, (C.2855), that has no

relevance here because BCBC’s “bad faith” claim for injunctive relief

relies on the “sixth exception,” not on the inverse-condemnation “fifth

exception.” See Ex parte Moulton, 116 So. 3d at 1131 (listing exceptions).

BCBC does not seek injunctive relief as part of its inverse

condemnation claim. (C.35–36) (“COUNT TWO INVERSE

CONDEMNATION,” seeking “compensatory damages” but not injunctive

relief). And at the preliminary injunction hearing, BCBC stated it was

not seeking an injunction based on its inverse condemnation claim. (R.52)

(“MR. ESPY [counsel for BCBC]: Judge this [preliminary injunction]

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hearing is about bad faith. This has nothing to do with inverse

condemnation. We’re not here to talk about inverse condemnation….

There’s no issue before the Court in this hearing about inverse

condemnation.”). Ex parte ALDOT’s discussion of inverse-condemnation

claims simply does not apply to the injunction in this case.2

2. Ingle v. Adkins is inapplicable.

Second, BCBC directs this Court to the non-binding, plurality

opinion of Ingle v. Adkins, 256 So. 3d 62 (Ala. 2017) (plurality), to argue

that the State of Alabama’s contract with Scott Bridge is not the type of

contract that is protected by Ala. Const. § 14. (BCBC-Br.,52–53.)

Unlike the construction contract at issue here, Plaintiff claimed

that the superintendent was “an elected officer whose duties, term and

conditions of employment are prescribed by statute.… Because Adkins’

employment, including its terms and conditions, was completely provided

for by state law,… the purported contract is a void document, and

2
Additionally, this Court has stated that only “valid” inverse-
condemnation actions are “exceptions” to sovereign immunity. See, e.g.,
Ex parte ALDOT, 143 So. 3d at 735 (emphasis in original) (cleaned up).
BCBC has not stated a “valid” inverse-condemnation claim, and thus
BCBC’s inverse-condemnation claims is also barred by sovereign
immunity. See infra Arg. IV.

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useless.” Brief of Appellant, Ingle v. Adkins, 256 So. 3d 62 (Ala. 2007)

(No. 1160671) 2017 WL 4569283, *22.3 See also Ingle, 256 So. 3d at 64

(Noting that Plaintiff claimed the alleged “contract” between the Board

of Education and its superintendent was “unconstitutional, illegal, and

void.”).4

A contract whose subject-matter is illegal is beyond the power of the

State, and does not vest in the State a valid “contract right” protected by

Alabama Constitution § 14. Brief of Appellant, Ingle, 2017 WL 4569283

at *21 (arguing the same).5 By contrast, the State’s construction contract

for the New Bridge is not substantively illegal. The ALDOT Director and

the State of Alabama plainly have the power to enter a construction

contract for a bridge. See Ala. Code §§ 23-1-21, 23-1-40(a).6

3
See Kennedy v. Boles Invs., Inc., 53 So. 3d 60, 66 n.2 (Ala. 2010)
(“[T]his Court may take judicial notice of its own records in another
proceeding....”); Tolbert v. Tolbert, 903 So. 2d 103, 112–13 (Ala. 2004)
(using the record in prior cases to shed light on precedents).
4
See State v. Epic Tech, LLC, No. 1200798, 2022 WL 4588777, *14
(Ala. Sept. 30, 2022) (enjoining illegal gambling operations where State
showed that the operations constituted a legal nuisance, unlike ALDOT’s
building of a bridge).
5
See supra n.3.
6
Moreover, the appellees in Ingle did not argue that the appellant’s
claims affected a state contract and were thus barred by Ala. Const. § 14.

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Cooper v. Ziegler, 193 So. 3d 722 (Ala. 2015), is more instructive.

There, the Zieglers sought an injunction against Director Cooper under

the “sixth exception.” Id. at 729. This Court, however, concluded: “the

[plaintiffs’] claim for injunctive relief, although purportedly asserted

against Cooper in his official capacity, is in actuality an indirect claim

against ALDOT insofar as the claim impermissibly strips ALDOT

of its property rights under the easement….” 193 So. 3d at 733

(emphasis added). “Accordingly,” this Court held, “the [plaintiffs’] claim

for injunctive relief against Cooper in his official capacity is due to be

dismissed on the ground of sovereign immunity.” Id. at 733

(emphasis added). The same is true here.

BCBC contends that Director Cooper’s “argument would gut the

sixth exception,” (BCBC-Br.,53), but it is BCBC’s interpretation of that

exception which would swallow the Ala. Const. § 14 rule. If a State

construction contract is not the type of “contract or property right of the

State,” 116 So. 3d at 1132, that is entitled to Ala. Const. § 14 immunity,

no State contract is safe. There is no claim in this case that Governor Ivey

See generally Brief of Appellee, Ingle, 2017 WL 4569283 (failing to raise

argument that claims were “against the State”). See supra n.3.

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acted in bad faith when she signed the contract with Scott Bridge on

behalf of the State. A bridge construction contract is not substantively

illegal. Ala. Code §§ 23-1-21, 23-1-40(a). And if a contractor commits a

tort during the performance of a legal contract, the contractor is subject

to suit for the harm. See, e.g., McFadden v. Ten-T Corp., 529 So. 2d 192,

200 (Ala. 1988) (holding plaintiff could sue ALDOT contractor for

negligence in performing work widening and resurfacing a road).7

Based on this Court’s settled precedents, sovereign immunity bars

BCBC’s “bad faith” claim, requires the preliminary injunction to be

dissolved, and the case to be dismissed.

B. BCBC’s “Bad Faith” Claim Fails as a Matter of Law.

1. Alabama law does not recognize a standalone

claim for “bad faith” outside the insurance
context.

No Alabama appellate court has ever recognized the tort of “bad

faith” outside the limited context of insurance cases. See, e.g., State Farm

Fire & Cas. Co. v. Slade, 747 So. 2d 293, 318 (Ala. 1999). BCBC admits

that it cannot state such a claim, (BCBC-Br.,40,n.10), and this Court held

7
Additionally, while BCBC says that ALDOT will bear no cost of
the injunction for the first 120 days (BCBC.Br.,52), Judge Pool’s
injunction is not limited to 120 days.

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to similar effect in Ex parte Moulton. 116 So. 3d at 1146, n.8 (dismissing

case, in part, because “[t]here is no cause of action in this State for

‘malice.’”) (emphasis added).

2. Alabama law does not recognize a standalone

claim for an injunction.

BCBC now claims that it is “assert[ing] a standalone claim for

injunctive relief,” which it alleges is permissible under the plurality

opinion of Ex parte ALDOT. (Id.,41.) Like “bad faith” and “malice,” there

is no standalone claim for injunctive relief. The Eleventh Circuit

explained in Alabama v. U.S. Army Corps of Engs., 424 F.3d 1117, 1127

(11th Cir.):

[A]ny motion or suit for either a preliminary or permanent

injunction must be based upon a cause of action, such
as a constitutional violation, a trespass, or a nuisance.
There is no such thing as a suit for a traditional
injunction in the abstract…. An injunction is a
remedy… if the plaintiff’s rights have not been
violated, he is not entitled to any relief, injunctive or
otherwise.

Id. (cleaned up) (emphases added); (Cooper-Br.,36).

An injunction is a remedy, not a claim. See Taylor v. Troy State

University, 437 So. 2d 472, 474 (Ala. 1983) (“The State’s immunity bars

suits for relief by way of mandamus or injunction, no less than suits for

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any other remedy.”) (emphases added). And there is no remedy without

a claim. See, e.g., Ex parte Southern Bldg. Code Congress, 213 So. 2d 365,

369 (Ala. 1968) (“‘Remedy’ signifies the judicial means for enforcing a

right or redressing a wrong. It is distinct from a ‘cause of action,’ and is

the means by which the cause of action is satisfied.”) (citations omitted).

On that basis alone, BCBC’s “claim” fails.

Further, Ex parte ALDOT did not recognize a standalone injunctive

relief “claim” based on the “sixth exception.” The plaintiff’s injunctive

relief “claim” in Ex parte ALDOT was permitted to proceed “[b]ecause

ACI stated a valid inverse-condemnation claim in its original

complaint….” Id. at 740. Thus, “the trial court had jurisdiction to

entertain ACI’s amended complaint in which it modified its claim for

injunctive relief….” Id.

The question before the Court concerning the injunctive relief

“claim” was very narrow: whether the plaintiff had sufficiently stated an

inverse-condemnation claim in its original complaint such that the trial

court had jurisdiction to consider the plaintiff’s amended complaint at all.

Id. Unlike here, the parties did not raise arguments before the Court

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about whether there was a standalone claim for injunctive relief8—and

for good reason. The distinction between a “claim” and a “remedy” was

largely irrelevant in Ex parte ALDOT because the plaintiff was plainly

seeking an injunctive remedy for its underlying valid inverse-

condemnation/physical intrusion/takings claims:

ALDOT… employ[ed] Hydraulic control measures with

knowledge that its measures would necessarily involve the
discharge of TCE-laden water onto ACI’s property; by
failing to seek or obtain permission or consent from ACI prior
to discharging TCE-laden water onto ACI's property;
and by taking ACI’s property and thereby obtaining
and taking a draining easement without [ALDOT’s]
seeking or obtaining permission or consent from ACI.

143 So. 3d at 740 (emphases added) (quoting “Injunctive Relief” claim).

Unlike the plaintiff in Ex parte ALDOT, BCBC has explicitly

disclaimed any relationship between its “claim” for injunctive relief and

its inverse condemnation claim. See supra Argument I.A.1. (R.52.)

Without an underlying claim to support the remedy of an

injunction, BCBC’s Count I fails. See, e.g., Avendano v. Shaw, __ So. 3d

8
See generally Pet. for Writ of Mand., Ex parte ALDOT, 143 So. 3d
730 (No. 1101439) (Ala. 2013); Brief of Respondent, Ex parte ALDOT, 143
So. 3d 730 (No. 1101439) 2011 WL 7074078 (Ala. 2013); Reply Brief of
Petitioner, 143 So. 3d 730 (No. 1101439), 2011 WL 7099410 (Ala. 2013).
See supra n.3.

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__, 2022 WL 3572663, *2, n.3 (Ala. Aug. 19, 2022) (plurality) (noting that

Plaintiffs’ two separate standalone “bad faith” “claims” based on the

“sixth exception” “are not actually claims but rather arguments related

to [other] claims”).9 See also Taylor, 437 So. 2d at 474; Ex parte Southern

Bldg. Code Congress, 213 So. 2d at 369; Larson v. Domestic & Foreign

Com. Corp., 337 U.S. 682, 693 (1949) (“In a suit against an agency of

the sovereign, as in any other suit, it is therefore necessary that

the plaintiff claim an invasion of his recognized legal rights.”)

(superseded on other grounds 5 U.S.C. § 702) (emphases added).

3. American Radio Ass’n, AFL-CIO v. Mobile S.S.

Ass’n, Inc. is inapplicable.

Perhaps recognizing that it cannot use legal alchemy to transform

an exception (i.e., the “sixth exception”) to an affirmative jurisdictional

9
Like BCBC, the plaintiffs in Avendano included two claims for
“bad faith” based on the “sixth exception.” Brief of Appellants, Avendano
v. Shaw, __ So. 3d __ (No. 1210125) 2022 WL 616834, *3–4 (Ala. 2022)
(“Count 1: Willful or Malicious Fraud and Bad Faith… Count VI: Willful,
Malicious, Fraudulent, Bad Faith, Excess Authority or Action Under
Mistaken Belief of the Law….”). The defendants argued that “such
language is not a separate cause of action but rather language
contained in th[e] Court’s analysis in Cranman….” Brief of
Appellees, __ So. 3d __ (No. 1210125) 2022 WL 616834, *41 (Ala. 2022)
(emphasis added). The Court agreed: “The complaint also lists three
individual-capacity ‘counts’ (Counts I, V, and VI) that are not actually
claims but rather arguments related to [other] claims….” See supra n.3.

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defense (i.e., sovereign immunity) into a cause of action, BCBC belatedly

argues that it has stated a claim based on a couple out-of-context lines

from American Radio Ass’n, AFL-CIO v. Mobile S.S. Ass’n, Inc., 279 So.

2d 467 (Ala. 1973). But American Radio Ass’n is an “in-the-weeds” labor

relations case concerning balancing the First Amendment rights of union

picketers with the broader economic impact of keeping people from doing

business in the Port of Mobile. See generally id.

In that context, this Court borrowed the “motive/objective test”

specifically prescribed by Congress under federal law to determine when

picketing is wrongful—when the purpose is to impact a secondary

employer. Id. at 212 (quoting 51A C.J.S. Labor Relations s. 319, p. 135)

(analyzing wrongful picketing under 9 U.S.C. § 158(b)(4)(A) & (B), which

specifies a “motive/objective test”); id. (quoting Superior Derrick

Corporation v. NLRB, 273 F.2d 891 (5th Cir. 1960) (analyzing wrongful

picketing under 9 U.S.C. § 158(b)(4)(A) & (B), which specifies a

“motive/objective test”). In other words, this Court did not look to

amorphous rights—such as a broad, common-law cause of action related

to “the right to conduct one’s business without wrongful interference,” as

BCBC suggests (BCBC-Br.,43)—but instead to cases and authorities

13
 DOCUMENT 672

specifically analyzing the legal regime governing union picketing. See

generally id.

This case does not involve a labor dispute, the First Amendment

rights of union picketers, or a “motive/objective test” for wrongful

picketing under the National Labor Relations Act borrowed by state

courts for labor disputes.10

4. BCBC has not stated a claim that ALDOT

“wrongful[ly] interfer[ed]” with its business, in
any case.

Further, even taking BCBC’s retooled claim at face value, none of

the actions BCBC alleges that Director Cooper, ALDOT, or the State of

Alabama have undertaken are legally “wrongful,” nor does it allege

actual interference with a protected right. Through all of its sound and

fury, BCBC alleges that Director Cooper has done one thing: build a

10
BCBC also cites Carter v. Knapp Motor Co., 11 So. 2d 383 (Ala.
1943). (BCBC-Br.,43.) Carter concerned tortious interference, not
competition. Competition is not “wrongful interference.” See Tom’s Foods,
Inc. v. Carn, 896 So. 2d 443, 457 (Ala. 2004). Additionally, BCBC over-
reads Carter. The Carter Court first found tortious interference, 11 So.
2d at 385, and then, in dicta, noted a bad motive. Id. Injunctive relief was
granted for the defendant’s actions, not for his motives. In the context of
competition, motive is irrelevant.

14
 DOCUMENT 672

bridge. That action, as a matter of law, is not “wrongful” because Director

Cooper is vested with the authority to do precisely what he did. See Ala.

Code §§ 23-1-21, 23-1-40(a).

Moreover, a defendant’s actions must still interfere with BCBC’s

rights. (BCBC-Br.,44.) BCBC has not sufficiently alleged what legal

“right” has been interfered with. For instance, BCBC makes vague

reference to “contractual rights,” (id.,44–45), but all rights that BCBC

has are still fully intact:

Impaired?
BCBC’s Rights Yes No
Right to Possess X
Right to Exclude Others X
Right to Allow Public to Cross X
Right to Charge Tolls X
“Right” to Operate Exclusive of
Any New Competing Bridge N/A

(See Cooper-Br.,40–41);(C.3305-PX39-R.68(offered&admitted)).

BCBC actually complains about the downstream effect of potential

competition. (BCBC-Br.19-20.) BCBC admits in its Brief, though, that it

has no contractual right to exclusivity. (BCBC-Br.,45–46.) Competition is

perfectly lawful, and is not “wrongful interference.” See, e.g., Alabama

Power Co. v. Guntersville, 177 So. 332, 340 (Ala. 1937) (holding that

plaintiff had no right to be free from government “embarking upon a

15
 DOCUMENT 672

competitive business with appellant, without any physical disturbance of

appellant's property, or any interference with the right the appellant has

to the legal and proper use of the same.”); Tennessee Electric Power Co.

v. TVA, 306 U.S. 118, 140 (1939) (same); Proprietors of Charles River

Bridge v. Proprietors of Warren Bridge, 36 U.S. 420 (1837) (same); Dyer

v. Tuskaloosa Bridge Co., 2 Port. 296, 305 (Ala. 1835) (same). McDonald’s

can’t sue Burger King for merely building a competing restaurant, and

BCBC can’t sue ALDOT’s Director for merely building a competing

bridge.

II. BCBC’s Novel Theory of “Bad Faith” Would Violate the

Separation of Powers Provision of the Alabama
Constitution.

BCBC does not respond to the Association of County Commissions

of Alabama’s amicus brief, arguing that Judge Pool’s order violates

separation of powers. (See ACCA-Amicus-Br.,9–19.)

Instead, BCBC says that several cases that mention injunctions

demonstrate that there is no separation of powers issue with enjoining

state officials for acting in bad faith. (BCBC-Br.,46–49.) Those cases show

that a court issues an injunction on a valid claim. See Ziegler, 193 So. 3d

at 724–25 (trial court issued injunction based on plaintiff’s land rights,

16
 DOCUMENT 672

but this Court reversed because of sovereign immunity—State’s land

rights) (BCBC-Br.,48); St. Clair County v. Town of Riverside, 128 So. 2d

333, 334 (Ala. 1961) (trial court’s injunction was based on blocking of

roads, but this Court reversed based on sovereign immunity where no

abuse of authority shown) (BCBC-Br.48–49).

Instead of basing his injunction on recognized legal rights like the

trial judges in Ziegler and Town of Riverside, Judge Pool issued an

injunction without a valid underlying claim (i.e., on a bad faith motive

without an underlying violation of rights). Separation of powers is

violated when a court enjoins a government official’s conduct that does

not impact a right of the plaintiff. In such a case, the court is acting

outside its powers because it is acting on something other than a case or

controversy to resolve a claim (i.e., violation of a right) and is thus acting

outside the limits of the judicial power. See Ala. Const. § 139; Alabama

Power Co. v. Citizens of Alabama, 740 So. 2d 371, 381 (Ala.1999) (Section

139 vests “a limited judicial power that entails the special competence

to decide discrete cases”) (emphases added); Ala.R.Civ.P.3(a) (case);

Ala.R.Civ.P.8(a) ("claim”); Se. Const., L.L.C. v. WAR Const., Inc., 159 So.

3d 1227, 1238 (Ala. 2014); Ala. Const. § 42(c); Ala. Code § 23-1-40(a)

17
 DOCUMENT 672

(“duty of the Department of Transportation” “to construct” “bridges of

this state”); Ala. Code § 23-1-21 (“duties vested in the State Department

of Transportation shall be exercised by the Director”).

III. BCBC’s “Bad Faith” Claim Is Barred By Collateral Estoppel.

BCBC’s entire bad faith case is premised on Director Cooper

deciding to build the New Bridge in 2017, and engaging in post-2018

negotiations about not building the New Bridge although, BCBC says, he

had already made up his mind to build the New Bridge. (C.3152–

53,3169,3193.) BCBC fails to mention, though, Judge Reid’s 2018 finding

that Director Cooper’s decision to build the New Bridge and thus

condemn property for that project was “without any showing of fraud,

corruption, bad faith or gross abuse of discretion.” (C.1155) (emphasis

added). This pulls the rug out from under BCBC’s bad faith case.

 BCBC’s quote from the Lewis treatise (BCBC-Br.,56) about a lower

court order being vacated was based on Vail v. The Fall Creek
Turnpike Co., 32 Ind. 198 (1869) (not mentioning what happened to
the lower court’s judgment”, and Wright v. Wisconsin Central
Railroad Co., 29 Wis. 341 (1872) (lower court’s judgment expressly
set aside). ALDOT’s 2018 Probate Court judgment was not
expressly set aside. (C.1173.) Instead of following out-of-state cases
that do not support the vacation proposition, this Court should
follow Alabama Power Co. v. Thompson, 32 So. 2d 795, 800 (Ala.
1947) (“[I]f the appeal is dismissed, the decision appealed from is
restored to full force and effect.”).

18
 DOCUMENT 672

 BCBC’s argument that the “no bad faith” determination in the 2018
probate court case concerned a different claim than in this 2022
case (BCBC-Br.,57) fails because Director Cooper asserts issue
preclusion, not claim preclusion. See Caton v. Pelham, 329 So. 3d
5, 13, 25-27 (Ala. 2020) (applying issue preclusion even though
unemployment claim in earlier proceeding was different from
retaliatory discharge claim in later proceeding). The issue of bad
faith was determined in the 2018 probate case (C.1155–56) and
should not be re-litigated in this case.

 BCBC’s argument that the bad faith issue was not actually decided
by Judge Reid (BCBC-Br.,57–58) fails on the words of the judgment:
““without any showing of fraud, corruption, bad faith or gross
abuse of discretion.” (C.1155). Cf. Ex parte Smith, 683 So. 2d 431,
433, 436 (Ala. 1996) (applying collateral estoppel when first
judgment did not mention issue, but only implicitly decided it).

 BCBC’s argument that collateral estoppel should not apply because

the probate and circuit courts used different standards of proof
(BCBC-Br.,58) fails on the words of the judgment finding no bad
faith at all– “without any showing of... bad faith….” (C.1155)
(emphases added). See State, Pers. Bd. v. Akers, 797 So. 2d 422, 424
(Ala. 2000) (interpreting judgments by “the literal meaning of the
language used”).

19
 DOCUMENT 672

IV. BCBC Failed To Meet Its Burden To Obtain A Preliminary

Injunction.

A. BCBC cannot demonstrate a likelihood of success on

the merits.

1. BCBC’s claims fail as a matter of law.

BCBC cannot show a likelihood of success on the merits because of

sovereign immunity, its claim is unrecognized, separation of powers, and

collateral estoppel. See supra Args. I-III.11

2. BCBC cannot demonstrate that it has been

injured.

Director Cooper has done one thing: begun construction of a bridge.

BCBC has not demonstrated that this violates any of its “rights.” BCBC

makes vague reference to “contractual rights,” (id.), but none of those

rights are interfered with by building a bridge. (C.3305-PX39-

R.68(offered&admitted)). See supra Arg. I.B.4. BCBC complains about its

tolls and the value of the BEX Bridge, (BCBC-Br.,44), but BCBC remains

free to set its tolls as high or as low as it wishes, and BCBC points to no

11
Director Cooper made these same arguments in his post-hearing
brief opposing a preliminary injunction (C.2847,2851,2868–69) and in his
post-hearing JML motion. (C.2783, et seq.) The trial court’s order rejected
Director Cooper’s arguments by granting a preliminary injunction, and
denied “all other pending motions.” (C.3215.) Director Cooper appealed
from that order. (C.3216;3272.) See generally Caton, 329 So. 3d at 19
(merger rule).

20
 DOCUMENT 672

contractual right for any particular “value” for the BEX Bridge—much

less a value guaranteed by the State. As Mack Roberts, BCBC’s

“representative,”12 testified:

Q [ALDOT Counsel, Dorman Walker]. Okay. Are you aware

of any rights of BCBC’s that ALDOT has violated?

A [BCBC’s Rep. Mack Roberts]. No.

…
Q. Would you agree that ALDOT’s project will not diminish
public access to BCBC’s toll bridge?

A. Yes.

Q. And would you agree that ALDOT has not taken possession
of BCBC’s personal or real property?

A. Yes.

(R.488:18–20, 489:8–13).

Instead, BCBC is seeking to avoid the effects of competition. BCBC

admits, though, that it has no contractual right to exclusivity. (R.120:24–

121:8-Belitsky) (no exclusively). And competition is not “wrongful

interference.” See Guntersville, 177 So. at 340; TVA, 306 U.S. at 137–40.

12
BCBC’s counsel introduced Mr. Roberts as “our representative”
during the preliminary injunction hearing. (R.26:2–8) (“MR. ESPY:… Mr.
Mack Roberts… will be the representative of the plaintiff in this case.”).

21
 DOCUMENT 672

3. The New Bridge will alleviate traffic on Highway

59.

BCBC states that the trial court found that the New Bridge will not

reduce traffic congestion on Highway 59. (BCBC-Br.,19–20.) To the

degree that the trial court found this, that finding is not entitled to

deference because, as Director Cooper already extensively discussed, it is

undisputed that the New Bridge will alleviate traffic on Highway 59.13

(Cooper-Br.,10–15.)

Further, despite BCBC’s claim (BCBC-Br.,20–21), it is indisputable

that travelers are avoiding the BEX Toll Bridge. (Cooper-Br.,14–15.)

BCBC’s entire theory of this case is that, when presented with a toll-free

New Bridge, a substantial majority of drivers will elect to use the free

bridge over the BEX Toll Bridge. (BCBC-Br.,19–20.) That’s toll

avoidance.

Municipal and county governments have long supported the

construction of a toll-free bridge in South Baldwin County to address the

13
The ore tenus presumption does not apply to documents or
undisputed evidence. See Lafayette Land Acquisitions II, LLC v. Walls,
No. SC-2022-0765, 2023 WL 3029817, at *2 (Ala. Apr. 21, 2023)
(documents); Bessemer Water Serv. v. Lake Cyrus Dev. Co., 959 So. 2d
643, 648 (Ala. 2006) (undisputed evidence) (Cooper Open. Br. 29).

22
 DOCUMENT 672

known traffic problems on Highway 59. (Cooper-Br.,10–12.) Indeed, in

this case, Gulf Shores—where the 59 Bridge is located—has reiterated

its vocal support for the project both through witness testimony and as

an amicus. (See Gulf Shores Amicus Brief); (R.731–802-Phelps). The

Association of Counties has likewise weighed in as amicus in support of

Director Cooper. And Baldwin County has recently passed a resolution

transferring certain road maintenance rights to ALDOT in support of the

New Bridge project. (Cooper-Br.,12)(C.7755-DX596-

R.1827(offered&admitted)).14

By contrast, Orange Beach Mayor Tony Kennon, on whom BCBC

and its amicus rely, has proven flexible:

14
BCBC claims that Foley “renounced” its support for the New
Bridge. (BCBC-Br.,21–22). The record shows only that current Foley
Mayor Hellmich had other priorities. (C.4654.) Foley Mayor Koniar—who
signed the 2018 letter to Governor Ivey supporting the New Bridge
project—did not renounce his support. (Cooper-Br.,11.)

23
 DOCUMENT 672

Mayor Kennon’s Opinions on

the New Bridge and the Toll Bridge
2018 Opinions New Opinions

 New Bridge proposal “made perfect sense.” The New Bridge is a

(R.315:12–316:4-Kennon) “boondoggle,” a
“monstrosity”, and
an “inferior
 “And it never made sense from the beginning product” that
that one company could control access, ingress, “defies logic.”
egress into the public beaches and town. To this (C.4584–86-PX628
day, I can’t imagine what they were thinking at 22:22–23:13,
when they negotiated this contract.” (C.7775- 27:11–29:5-R.288
DX599 at 47:22–48:8-R.1871 (offered&admitted).)
(offered&admitted).)

 BCBC’s purpose was “not to minimize traffic

or to alleviate traffic problems, it [was] to
maximize revenues…” (C.7775–76-DX599 at
48:23–49:3-R.1871(offered&admitted).)

 “There is no need for additional studies. We’ve

listened to the travelers and residents who
must navigate our congested roads…. [T]here
is a desperate need for infrastructure
expansion to and from the cities of Gulf
Shores and Orange Beach.” (C.5676–77-
DX291-R.1558–59(Offered&Admitted).)

Under BCBC’s final 2022 term sheet to ALDOT, BCBC would pay

Orange Beach a lump sum of $10 million, and $1 million each year for

the next 50 years (a total of $60 million), if the New Bridge is not built.

(R.329-Kennon); (C.7082-DX479 at 2-R.249(offered&admitted).) If the

New Bridge is built, Orange Beach will receive 30 cents per car for a lot

24
 DOCUMENT 672

fewer cars crossing the BEX Toll Bridge. (R.324:110-329-Kennon.)

During his deposition in this 2023 case, which was put in the record,

Mayor Kennon testified that “Truth has a thousand degrees.” (R.326:11–

327:1-Kennon).

At the condemnation hearing in 2018, in response to questioning

from BCBC’s attorney, Mayor Kennon testified as follows:

Q. You generally mean what you say, don’t you, Mayor

Kennon?

A. Depends on the situation.

Q. Sometimes you don’t?

A. Yeah. Have you ever been a public servant?

(C.7773-DX 599 at 39:14–18-R.1871(offered&admitted)).

Judge Pool’s order relies heavily on Mayor Kennon’s testimony.

(C.3162,3164–65,3170–71,3189.)

4. Director Cooper has not acted in bad faith.

BCBC focuses on three actions of Director Cooper that it says

demonstrate “bad faith”: (1) his “demand” that BCBC give up other

bridges, (2) the 40% traffic capture rate; and (3) not considering BCBC’s

last offer. (BCBC-Br.25–27.) None of these demonstrates bad faith.

25
 DOCUMENT 672

First, Director Cooper’s request was a proposal, not a demand, to

compensate the State for the millions of dollars the State had spent on

roads leading to the BEX Bridge. (C.8225-DX242-R.1580–

81(offered&admitted));(C.7472-7507-DX572-R.1374(offered&admitted)).

The proposal was negotiable, (C.8293-DX323-R.1850–

51(offered&admitted)), and Director Cooper later dropped it when

American Roads indicated that it was not interested. (R.1645-Cooper.)

Second, BCBC’s negotiation counsel Britton Bonner acknowledged

that a traffic capture rate was a “threshold” element of any acceptable

deal for ALDOT. (C.6071-DX431-R.232(offered&admitted)). At a meeting

of the parties in November 2021, a representative of DIF conveyed that

a 50% capture rate target was too high. (R.1599-Cooper.) Darrell Skipper,

a Gulf Shores traffic consultant, proposed a capture rate of 40%.

(R.1303:11-25-Skipper.) A BCBC representative stated BCBC could

probably meet that. (R.1600-Cooper); (R.1307-Skipper); (C.5391-DX112-

R.1344(offered&admitted)).15 BCBC’s contemporaneous traffic studies

15
BCBC claims that Director Cooper provided no citation for this
statement. Director Cooper’s immediately prior citations made this point.
(Cooper-Br.22.) (See also C.5391-DX112) (“7. Bridge Co stated that they
felt they could meet these requirements [including 40% traffic carry

26
 DOCUMENT 672

indicated that BCBC could capture up to 39% of all traffic crossing the

intracoastal waterway under certain circumstances, (R.565-Bates); (see

generally C.5089-DX31-R.810(offered&admitted)), and BCBC even made

a proposal to ALDOT that included a 40% traffic carry rate provision,

though it was unacceptable to ALDOT for other reasons. (C.6099-DX452-

R.234(offered&admitted)).

Third, BCBC’s last proposal (i) was a rejection of ALDOT’s final

“take it or leave it” offer; (ii) did not include any traffic carry rate

provisions (critical to ALDOT); (iii) demanded 50 years of exclusivity; and

(iv) contained no limit on tolls charged to non-Baldwin County residents.

These terms were unacceptable to Director Cooper. (Cooper-Br.,60); (see

also C.7059-DX472-R.245,46(offered&admitted)). In any event, Director

Cooper did analyze BCBC’s proposal. This analysis is demonstrated by

ALDOT General Counsel William Patty’s letter to Mayors Kennon and

Kraft recapping recent negotiations between ALDOT and BCBC, and

explaining in detail why—in keeping with the above analysis—ALDOT

did not accept BCBC’s counter proposal. (C.5410-DX150-R.313–

provision] and would submit a revised proposal to ALDOT within 2

weeks.”).

27
 DOCUMENT 672

14(offered&admitted)); (C.9118-DX481-R.1580(offered&admitted)).16

After 11 years of unfruitful negotiations and unacceptable

proposals, Director Cooper had a clear choice (see Cooper-Br.,26):

16
BCBC also claims Director Cooper stated that he wanted to put
BCBC “out of business.” (BCBC-Br.,9–10.) That was not a quote of
Director Cooper, but an interpretation from a Mack Roberts memo.
(C.3693-PX53-R.447(offered;R.448(admitted)); (Cooper-Br.,7.) See n.14.
BCBC says that ALDOT does not dispute that Director Cooper
made the final decision to build the New Bridge in 2017. (BCBC-Br..16.)
Director Cooper disputes this. (Cooper-Br.,58.) Director Cooper made
plans to build the New Bridge in 2017, but resumed negotiations with
BCBC when DIF purchased BCBC in 2018. (Id.)
BCBC complains that Director Cooper planned to build the New
Bridge at the same time he negotiated with BCBC (BCBC-Br.,31), but
this dual tracking was to protect the State and the traveling public in
case the negotiations did not work out. (Cooper-Br.,21.)

28
 DOCUMENT 672

50-Year Cost to Alabama Drivers of

New Bridge (Flowing Traffic) v. Status Quo (Traffic Jams)17

Build
ALDOT’s
New Bridge
$81M OR Tolls Paid to BCBC for
BEX Toll Bridge
Approx. $700M

5. BCBC has acted in bad faith.

Director Cooper demonstrated that BCBC’s expectations were that

the New Bridge would be operational in 2022—but that BCBC could reap

significant additional toll revenue for every year it delayed ALDOT’s New

Bridge. (Cooper-Br.,18); (C.5398-DX138-R.220(offered&admitted)).

BCBC contends that it expected to have “good faith” negotiations.

(BCBC-Br.,77.) BCBC’s real expectations, however, were to make money

17
Without citation the record, BCBC asserts that its $14 million
revenue figure for 2022 is not accurate and Director Cooper’s lawyers
“knew” it. (BCBC-Br.,29,n.8.) What Director Cooper’s lawyers know is
what is in the record on appeal. See Cleveland v. Cent. Bank, 574 So. 2d
741, 743 (Ala. 1990). Neil Belitsky, CEO of BCBC, testified under oath:
“Revenue for 2022 was, off the top of my head, in the neighborhood of
probably around 14 million plus or minus.” (R.121:13-15-Belitsky.) BCBC
offered no counter-evidence.

29
 DOCUMENT 672

by delaying operation of the New Bridge, as clearly indicated by its

internal documents. (See supra.) And it had a plan to do it—by following

its “messaging and tactics” memo.18 Follow the money:

BCBC’s Messaging Points to Delay the New Bridge

2017 Messaging Points Judge Pool’s 2023 Order

“A new bridge isn’t “Director Cooper’s outrageous conduct in

needed ….”(C.5398.) embarking on spending more than $120
million of State funds, on a bridge that
ALDOT does not need,” (C.3139.)

“The money spent on this “In light of Director Cooper’s concessions

bridge ($20-30 MM) would about ALDOT’s limited resources and
be better spent on the need for improvements for
numerous other bridges bridges across the State of Alabama,
in Alabama that are in the Court is very disturbed....” (C.3138.)
dire need of repair….”
(Id.)

“Governmental “BCBC has established that, absent a

interference of this type preliminary injunction, its “right to
in a successful public conduct[its] business without the
private partnership….” wrongful interference….’” (C.3180.)
(Id.)

18
BCBC disputes whether its current parent (DIF) or former parent
(Syncora) authored this memo (BCBC-Br.,30,n.9.) Regardless, it is
BCBC’s memo, and BCBC (while it was indirectly owned by DIF) followed
that plan. (see C.5398-DX138.)

30
 DOCUMENT 672

BCBC’s Tactics to Delay the New Bridge

Tactic Execution
“Direct lobbying – DIF/BCBC hired governmental relations
local, state, advisors from Squire Patton Boggs in
federal” (C.5398) Washington, D.C., who met with Director
Cooper and Gov. Ivey’s Chief of Staff, Jo
Bonner, regarding plans for ALDOT’s New
Bridge and to try to make a possible deal
with DIF. (R.1614:21-1615:7-Cooper.)

“Question ALDOT “Director Cooper acknowledged that his

objectives” (Id.) specific intent in building the Cooper Bridge
is to “undo” those rights, and “‘put the BEX
Facility out of business’,” because he
‘do[es]n’t think [BCBC is] entitled to’
operate its business.” (C.2893-94(BCBC’s
Proposed Order,1–2).) [This was not
Director Cooper’s testimony, but he does not
think BCBC is entitled to operate as a
monopoly without oversight of its tolls.]

“Potential BCBC filed its complaint against Director

Litigation— Cooper on October 20, 2022. (C.12.)
Sponsor/Pike
Pointe level.” (Id.)

B. The Balance of Equities Weighs in ALDOT’s Favor,

BCBC will not be irreparably harmed without an
injunction, and BCBC has an adequate remedy.

BCBC’s states that a “modest delay” will cause little harm. (BCBC-

Br.,67–68.) But Director Cooper has shown that the State of Alabama

could suffer between $13-18 million in harm from the delay. (Cooper-

Br.,64–69); (id.,73,n.27). See also ALDOT v. Blue Ridge Sand & Gravel,

31
 DOCUMENT 672

Inc., 718 So. 2d 27, 32 (Ala. 1998) (balancing hardships, including

expense to ALDOT of an injunction). By contrast, the New Bridge will

not open until 2026. (Cooper-Br.,65.) There is no irreparable harm.

BCBC also argues that Director Cooper has no authority to act in

bad faith. (BCBC-Br.,68.) But Director Cooper has authority to build the

New Bridge, and argues that there is no “bad faith,” and no protection

from competition. (Cooper-Br.,35–36,41–44,47; Ala. Code §§ 23-1-40(a),

23-1-21); (see also id.,73,n.27).

BCBC argues that the injunction preserves the status quo “in which

the Cooper Bridge has not yet been built.” (BCBC-Br.,68.) But the status

quo involved ALDOT actively building the New Bridge. (Cooper-Br.,64.)

By contrast, BCBC fundamentally claims loss of toll revenue:

money. (Cooper-Br.,62–64.) But, “[l]oss of profits does not justify the

issuance of an injunction.” Blue Ridge, 718 So. 2d at 32 (cleaned up). To

the degree its claim is “valid,” BCBC can be compensated through an

inverse-condemnation claim. (Cooper-Br.,62–64.);(id.,73,n.27.)

V. The $100,000 Bond Violates this Court’s Pronouncements in

DeVos and Must Be Increased.

BCBC argues that Mr. Leverette did not have personal knowledge

of how Scott Bridge prepared its delay cost estimate, but that did not

32
 DOCUMENT 672

prevent the trial court from admitting the exhibits. (BCBC-Br.,69-70.)

And it did not erase Mr. Leverette’s undisputed years of experience of

dealing with construction and personal knowledge of Scott Bridge’s

contract for the New Bridge. (R.1351–58;1454–57-Leverette.) Further,

because BCBC failed to put on any evidence, Mr. Leverette’s testimony

and documentary evidence of delay costs are undisputed:

(C.Supp.22–DX582–R.1464(offered&admitted).) See supra n.14.

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 DOCUMENT 672

The trial court’s order rejecting the above evidence–the only

evidence–as insufficient violates the requirement to allow “soft” number

of delay costs for pre-injunction estimates. See DeVos v. Cunningham

Group, LLC, 297 So. 3d 1176, 1185 (Ala. 2019).

BCBC tries to characterize the Scott Bridge estimate as dealing

with costs that Scott Bridge would incur without an injunction if work

continued. (BCBC-Br.,71.) It is not. Employees must be paid, equipment

must be rented, prices continue to rise while materials are not purchased,

and overhead continues to be incurred while construction is delayed. See

(R.1467:7–11;1471–72-Leverette) (ALDOT has to “pay for idle

construction equipment or labor”).19

Judge Pool erred by failing to follow DeVos, 297 So. 3d at 1186,

when he disregarded the only delay cost estimates before the trial court

showing a range between $13 million and $18 million, and picked

19
See generally Allied Manatts Grp., LLC v. Qwest Corp., No. 3:18-
CV-0020-JAJ, 2020 WL 13553318, at *5 (S.D. Iowa Jan. 2, 2020) (“[C]osts
for idle or unproductive equipment are properly included in a delay
claim’s cost calculation.”) (cleaned up); Luria Bros. & Co. v. United States,
369 F.2d 701, 709 (Ct. Cl. 1966) (awarding construction delay damages
“for idle equipment, field supervision, winter protection, rehandling
materials, maintaining excavations, and wage and material price
increases” and “office overhead”).

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$100,000 for attorney fees (based on no evidence) for delay of a $52

million construction project rather than an amount “more than enough

to cover all possible damages.” Id. (cleaned up).

VI. In the Absence of Any Land Use Regulation, BCBC’s

“Regulatory Taking” Necessarily Fails.

BCBC’s federal regulatory taking/inverse condemnation claim is

neither ripe nor valid because BCBC has not shown the existence of a

government regulatory act that will injure a constitutionally protected

property right, immediately or ever. A regulatory act is “a restriction

on the use of property that [goes] too far.” Horne v. Dept. of Agric., 576

U.S. 350, 360 (2015) (cleaned up) (emphasis added). See also Nat’l Advert.

Co. v. City of Miami, 402 F.3d 1335, 1339 (11th Cir. 2005) (requiring

“immediate danger” of injury to establish ripeness); Hallandale Pro. Fire

Fighters Loc. 2238 v. City of Hallandale, 922 F.2d 756, 760 & n.3 (11th

Cir. 1991) (for both ripeness and standing, “a plaintiff must show he has

sustained, or is in immediate danger of sustaining, a direct injury as the

result of that act.”) (cleaned up).

As for a taking injury, BCBC argues that it has suffered a severe

diminution in value. (BCBC-Br.,73.) But “mere diminution in the value

of property, however serious, is insufficient to demonstrate a taking.”

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 DOCUMENT 672

Concrete Pipe & Prods. of Cal., Inc., v. Constr. Laborers Pension Tr. for

S. Cal., 508 U.S. 602, 645 (1993).

BCBC also argues that its investment-backed expectations are

being disappointed by Director Cooper’s actions. (BCBC-Br.73.) First,

this is false because DIF fully expected the New Bridge to be built when

it bought the BEX Bridge. (Cooper-Br.,18.) Second, this argument fails

because BCBC and its owners had no “reasonable” investment-backed

expectation that the BEX Toll Bridge could operate exclusive of any new

competing bridge. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l

Plan. Agency, 535 U.S. 302, 342 (2002) (requiring that the government

regulation cause substantial interference with “reasonable investment-

back expectations” for a taking) (emphasis added); Palazzolo v. Rhode

Island, 533 U.S. 606, 617 (2001). BCBC’s license to operate the BEX Toll

Bridge does not include a right to exclude any competing bridge, and the

law does not imply one. (C.3305-PX39-R.68(offered&admitted));

(R.120:24–121:8-Belitsky) (no exclusivity). See also Charles River Bridge,

36 U.S. at 551-52. And Director Cooper told DIF he intended to build the

New Bridge before DIF purchased the BEX Bridge. (Cooper-

Br.,18);(R.847:22–25-Adams.)

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ALDOT’s building of the New Bridge is not a regulatory act and

does not restrict BCBC’s rights to possess the BEX Toll Bridge, to exclude

others, to allow the public to cross, or to charge tolls. See supra Arg. I.B.4.

At bottom, BCBC complains that drivers may choose to use the New

(free) Bridge instead of the BEX Toll Bridge. It is ancient law in this

country that that is not a taking. In Tuskaloosa Bridge, 2 Port. at 305,

this Court held that the building of a new toll bridge near an existing

ferry did not constitute a taking where the ferry did not have exclusive

rights over the river. See also State Highway Bd. v. Willcox, 168 Ga. 883,

149 S.E. 182, 185 (1929); Charles River Bridge, 36 U.S. at 551-52.

CONCLUSION20

The preliminary injunction should be vacated, and BCBC’s claims

dismissed.

20
Every argument and authority cited in any part of this Reply
Brief and the Opening Brief is incorporated to apply to every part of this
Brief.

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Respectfully submitted,

/s/ Ed R. Haden
Counsel for Director John R. Cooper

Of Counsel:
Ed R. Haden
Email: ehaden@balch.com
James A. Bradford
Email: jbradford@balch.com
Michael P. Taunton
Email: mtaunton@balch.com
BALCH & BINGHAM LLP
1901 6th Avenue North, Suite 1500
Birmingham, AL 35203
Telephone: (205) 226-3407

W. Joseph McCorkle, Jr.

Email: jmccorkle@balch.com
Dorman Walker
Email: dwalker@balch.com
Robert DeMoss III
Email: tdemoss@balch.com
BALCH & BINGHAM LLP
Post Office Box 78
Montgomery, AL 36101
Telephone: (334) 834-6500

William F. Patty (PAT038)

Email: pattyw@dot.state.al.us
Chief Counsel
Kaasha D. Griffin (BEN082)
Email: griffink@dot.state.al.us
Assistant Counsel
Alabama Department of Transportation
1409 Coliseum Boulevard, Rm 147
Montgomery, AL 36110
Telephone: (334) 242-6350

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 DOCUMENT 672

CERTIFICATE OF COMPLIANCE

I certify that this brief complies with the word limitations set forth
in Ala. R. App. P. 27(d) (i.e., 7,000 words). According to the word-count
function of Microsoft Word, this Brief contains 6,990 words. I further
certify that this Brief, prepared in Century Schoolbook font using 14-
point type, complies with the font requirements set forth in Ala. R. App.
P. 32(a)(7). See Ala. R. App. P. 32(d) (certificate of compliance).

/s/ Ed R. Haden
Counsel for Director of the Alabama
Department of Transportation, John R.
Cooper

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 DOCUMENT 672

CERTIFICATE OF SERVICE

I hereby certify that a copy of the Reply Brief in Support of

Appellant, which was electronically filed today, will be served
electronically under Rules 25(c)(1)(D) and 57(h)(5), Ala. R. App. P., by
email or U.S. Mail properly addressed and postage prepaid, each as
indicated below, under Rule 25(c), Ala. R. App. P., on this 14th day of
July, 2023, on the following:

Joseph C. Espy III Clifford C. Brady

Email: jespy@mewlegal.com Email: ccb@ajlaw.com
Benjamin J. Epsy ARMBRECHT JACKSON, LLP
Email: bespy@mewlegal.com RSA Tower, 27th Floor
William M. Epsy 11 North Water Street
Email: wespy@mewlegal.com Mobile, AL 36602
J. Flynn Mozingo Telephone: (251) 405-0045
Email: fmozingo@mewlegal.com
MELTON, ESPY & WILLIAMS, P.C.
P.O. Drawer 5130
Montgomery, AL 36103
Telephone: 334-263-6621
Facsimile: 334-263-7252

Peter W. Tomlinson Robert E. Poundstone IV

Email: pwtomlinson@pbwt.com Email: bpoundstone@bradley.com
Clint W. Morrison Charles A. Stewart III
Email: cmorrison@pbwt.com Email: cstewart@bradley.com
Isaac J. Weingram Lillie Hobson
Email: iweingram@pbwt.com Email: lhobson@bradley.com
PATTERSON BELKNAP WEBB & BRADLEY ARANT BOULT
TYLER LLP CUMMINGS, LLP
1133 Avenue of the Americas 445 Dexter Avenue Suite 9075
New York City, New York 10036 Montgomery, AL 36104
Telephone: (212) 336-2000 Telephone: (334) 956-7700

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 DOCUMENT 672

Robert D. Segall
Email: segall@copelandfranco.com
J. David Martin
martin@copelandfranco.com
COPELAND FRANCO
444 South Perry Street
Montgomery, AL 36104
Telephone: (334) 834-1180

Mary Margaret Williams Fielder

Email: mfielder@alabamacounties.org
Association of County Commissions of Alabama
2 North Jackson Street
Suite 701
Montgomery, AL 36104
Telephone: (334) 263-7594

Kendrick E. Webb
Email: kwebb@wmwfirm.com
Jamie H. Kidd Frawley
Email: jfrawley@wmwfirm.com
Webb McNeill Walker, P.C.
One Commerce Street
Suite 700
Montgomery, AL 36104
Telephone: (334) 262-1850

/s/Ed R. Haden
Of Counsel

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