then to the next appeal thank you judge wilson and may it please the court my name is john nyman i represent waste management my client and i are grateful for all the work the court and its staff have done to make oral argument possible during this pandemic four and a half years ago a federal jury found that the mobile solid waste disposal authority breached its multimillion dollar long term contract with waste management in the years that have followed the authority has refused to pay or to otherwise take any steps to satisfy the central judgment the authority is therefore subject to the same post judgment remedies all defendants face when they do these sorts of things the land at issue here which the authority says it will not need for its stated purpose for another fifty years is due to be executed upon to satisfy a portion of the five million dollars that remains on this federal judgment now the authority has argued it should face this consequence because of a special exemption that alabama law to cities and counties for property use for municipal or county purposes if the authority were right about that then the authority would be very close to judgment proof and that would be a very bad thing the authority would be able to continue  this federal judgment it would be able to continue defying this contract in fact in the last three weeks another federal jury found the authority liable to waste management for continuing breaches of the same provisions of the same long term contract and awarded waste management another two million eight hundred thousand dollars as a result the authority presumably plans to defy that federal judgement as well this court should head off that possibility by holding that the authority is wrong about this alabama law exemption for two reasons the st is that this exemption does not apply to any of the authorities property the nd is that this exemption at the very least does not apply to the specific property at issue in this case those those considerations are before your honor that's certainly waste management position i do think i don't want to speak for mr miller but i do think that the solid waste disposal authority would concede that number one the city has never had its name on a deed on this property  number two that the authority not the city purchased this property initially twenty five years ago and number three that if you would look at the deed today the city's name does not appear on the deed only the authority which is a separate entity under alabama law has any ownership of this property and under the under the alabama statute that deals with execution and you can only execute on the prime real property if the defendant has a legal as a matter of law property that is owned by the solid waste disposal authority is in fact belongs to the city and that's erroneous for a number of reasons it's contrary to the text it's contrary to the purposes names its board of directors upon dissolution of the authority the property with the city and all of the authorities earnings go to the city and you don't dispute that the premises that you mentioned earlier in terms of this property that's being in the city upon dissolution we would dispute because this property is not necessarily going to belong to the authority upon its solution dissolution the authority may never dissolve and before then the authority has the power to sell the property so some of those premises we disagree with and they call for a different result in the in the district court reach here but also it's it's entirely  within the questions before the court to conclude that this property on the specific facts of this case regardless of whether authority property generally is subject to execution this particular property does not is not subject to the exemption so whether the court wants to label that finding that this property is being used as a statute in visions or whether the court wants to say that this is not m be used for a non you know simple purpose in other words can waste management use the property for any reason that it wants to well currently judge wilson the property is of owned by the solid waste disposal authority currently property and understand that it can be used for any reason that it wants to put in the movement park there if it wants to and use it for non you know simple purpose and generate an income from the property that will not go to the city judge wilson the solid waste disposal authority i doubt very seriously that it could that the landfill will not be expanded if at all for another fifty years in these circumstances the same precedence that the solid waste disposal authority relied upon in claiming that authorities also get the same exemptions cities and counties stablish that this kind of property that isn't being used according to the authority for its stated public purpose and for which the authority has no plans to use the property for its stated public purpose is not to be used for the expansion of a city cemetery it had not in fact used that property and did not have plans to use that property for that stated public purpose at that point in time at the time of the levy and the alabama supreme court there h that in those circumstances the exemption should not apply so that reasoning should apply on all fours with the facts of this case and this court can and should resolve the case on that narrow ground has claimed that it is going to use the property it has in fact made that claim but it bought the property twenty five years ago when the facts suggest that the landfill is not going to be need to be expanded for another fifty years in those circumstances basically this property is serving the same function as a bank account and it ought to be subject to levy just as cash in a bank account would be given that this is a it seems to me a fairly difficult question a statutory interpretation that goes directly to the relationship of cities and the authority that it creates is a question that would be better certified to the alabama supreme court judge prior i think the court could take that step but i i think it need not do so for two reasons st of all the facts that we have been discussing and focusing on during this argument make it sufficiently clear that whatever the rule generally is for authorities in alabama the exemption would not apply to the specific track at issue here this case does not involve a levy or not an attempted execution on for example the landfill itself this case involves a piece of property that that that on its face the authorities said it does not need and has not needed ye purposes of the other issue which is the common law issue that clearly is a question that we should certified to the alabama supreme court because there are no cases on common law on the issue common law with regard to th particular tract of land judge will go i agree it's a question of st impression and we think that the text of the statute the purposes of the common law in the equities all point in the same direction here in this court very can in fact resolve the question i do think that the broader question of whether authorities ever get the exemption though is is one where the the the law has not directly addressed the point otherwise would be a decent candidate for certification should the court want to take that tack but i think that the specific facts of this case make the case make this issue and the the the appropriate resolution of the post judgment motion here so clear that the court can resolve this case on that facts specific narrow ground and leave for another day if it wishes the broader statutory and common law question of whether the exemption ever applies to  was correct in this matter but before i get to that point i want to correct a few statements that mr naaman made very lighting to the facts in this case st of all the authority has a not refused to pay the judgment in this case twice management as offsetting royalties nothing in the record that states that the property will not need to be used for fifty years the property is held by the authority as a solid waste landfill facility it can only be used for that purpose contrary to what mr name and says the authority does not have the power to sell property that it holds for a solid waste landfill that's why the remainder of the city and the property which this upon the dissolution because in the murphy case that dealt with a property that was owned by the city and it dealt with a tract of land that the city claimed was going to be used for purposes of the cemetery but in fact had never been used for purposes of the cemetery for twenty five years and the alabama supreme court said that because there is there it was not being used and there were no plans to use it therefore it was not exempt and it could be executed on so why is that not the same ok st of all your honor if you read the marquis case you have to read that and respond to the town of awning on a case which is the russ one johnson case and that case on page sixty six dollars talks about the fact that the exemption statute should be liberally can straighten that it's the burden is on the party trying to execute on the property to prove that that property the subject of it clearly shows that just because it's being held there's not me under the alabama supreme court ruling that it was being used and therefore it was exempt but again maybe this is a question we should certified to the alabama supreme court your honor we have no to serve on that question to the alabama supreme court but no answer to your question this execution result it from a trespass a state court trespass action and conversion case which was removed to judge dubai's is docking docket and has since been remanded and that the basis of that case was that waste management was using the west track to support its operations on the landfill was converting cover subject of that also because they were doing that without compensating the solid waste authority said the facts will show if we get to that that that property was being used for a landfill park this is with respect to the murphy case th the cemetery plot that the city that the question that turned on that case was the fact that the city never held that property for public use until after execution was attempted before that time if you look at that case the city had maps drawn they had fences put around certain cemetery plots in the plot the piece of land that was subject to execution was outside of that it was never represented to be part of the cemetery that's not the facts in this case and this fact where the district court there were minutes of public authority matings where they where waste management appeared at those meetings and at one point stated that it might be a good idea to include the west track in the fall it was permit and then later came back and said at the time that they didn't need that that is where the facts that the kit that the court had before  weiss management did not offer any facts and really in the district court did not dispute the public use of the property all they always management argued was that the fact that the one and as well as the solid waste act and noted that the only purpose of the solid waste authority was to serve the public bar serve the public interest and the health and safety of the give the authority the power to sell sanitary landfill property it's already can only have two types of facilities landfill disposal facilities and reclamation or recycle facilities the statute does give the authority the power to sell recycle facilities but not sanitary landfill facilities now waste management will argue well there's a catch all that says that  the power to do any and all things and this is serious convenient to carry out its purposes and to exercise its powers but the power to sell the land fill facility property is not a power that was granted by the legislature and it makes sense because  the legislature would not want an authority to sell landfills i mean the whole purpose of the solid waste that and they saw was that they already act is to confirms that the public purpose or use of the property is what controls the exemption and that's what judge dubai was for a lot of on judge dubai's also found that the authority the term belonging to mainz more than just ownership and means connected with and we stated that in our brief and in this case the connections judge wilson as you point it out with net profits of the authority go into the city with the city controlling the members of the authority with the control over amendments to the articles of incorporation of the authority and with respect to the vested reminder in the interest all show that the authority is connected to the city even waste management practices with respect to royalties and payments it has dealt directly with the city and not with the solid life that the already the city is what is it the city is so connected with solid waste authority that it's hard to even separate the to the only reason this separated was for bonding  nine it states that any remedy with respect to those mortgages that all those remedies shall not be inconsistent with the general laws as excited about bama or the provisions of this chapter if they had already assumed any obligations relating to bonds or regional ababa gores are never really to say that always protects the only protections there would be to bondholders not to judgment creditors i might submit to the court that this court would want to be deferential to judge dubose on the general principle that this case involves execution of a trial judge judgement and specifically here because the property is subject to public control and the public use is at stake this is not a mere private dispy judge do but should have the discretion to conclude that the public  intended for the west track it seems undisputed that public use of the property is meant to be determining when there is too much property in reserve for future use size to lose the sense of being actually committed  could enter into contracts like this one with waste management and i'm concerned that if we were to hold that the parties when they contracted and execute judgement on that contract when that defeated key part of the purpose of the public corporation well the public corporation in this case your honor one of the purposes was to enter into long term contracts but they parties to that contract are not left without a remedy they can certainly file man damages against the chairman to recover any role these are revenues of the solid waste authority what we're protecting here is the property that is held by the party for the public use of the sanitary landfill wice management as a sophisticated company it deals in weis and deals with me no simple far authorities and cities and counties all over the country it well knows what's at stake when it enters into these have contracts to enter into but for purposes of the housing authority which i know is it's a do different statute but obviously the legislature in that case specifically exempted at issue here because it didn't need to and the housing authority statute the housing authority was given specific powers to mortgage property and that was in section twenty four dash one that started five and those republic mortgages or mortgages that the public participated in with private lenders obviously housing authorities are going to involve more properties not just d and in its case when it looked at the public use that the common law of public use prevailed to protect that property it was only bolstered by by that provision and they and the housing act and as i said the housing act that was only its high rating and we argued that the only reason that that was put in was because of the fact that the public mortgages were accepted in other words those could be foreclosed upon and the legislature just wanted to make sure that all of the common law exemptions were still intact and just were it's redundant really is what it is so the city you suggesting that the six million dollar judgment is going to be paid by the authority that six million dollars judgment will be offset that already there is a case in state been underestimated by seventy five percent based on the fact that the royalty is based on gross revenues of the landfill and weiss management is in charge of the grice revenues of the landfill what the city puts in the landfill only accounts for twenty five percent of the total waste volumes that go into that landfill the other seventy five percent come from industries and other communities and  royalty should be based on the full gross revenues and their issues as to whether that number which is in the control of waste management is the true number the facts suggest otherwise all right thank you mr miller thank you and mr newman believe you reserve some time for a bottle thank you thank you judge wilson it seemed to me that almost all the discussion during mr miller's  response focused on this broader question of st impression and under alabama law whether authorities ever get to claim the exemption very little was said about the very fact specific fact bound ground on which this court can resolve stated purpose and that it would not need the land for the stated purpose of landfill expansion for wells they thought it didn't allege that an alleged pacifically that they would not need the land for landfill expansion for the next fifty years but the evidence at trial murfree the authority even if it otherwise could claim shelter under sixty one thousand and ten dollars with respect to its landfill for example it cannot claim to shelter this exemption this particular piece of property for exemption distinctions from murfree in the sense that the authority has said ahead of time that it plans to use this property for landfill expansion but given the amount of time that the record establishes will pass before any expansion could ever be needed murfree ought to be on all fours here you know so much of the authorities argument here is about the public interest the authority says that the public interest in efficient waste disposal requires ill be the west track will be used for municipal purpose judge wilson at this point time we don't know what whether the west's track will ever be used for that purpose it has been held for twenty five years and the garbage of the residents of the said judge wilson my i certainly don't dispute that the authority has alleged in response to the writ of execution that it intends to use this property for land fill expansion at some point in the future my point is that that's that i think certain way for management to dispose of this it is for most of the city's garbage the residents garbage that's what that's what the authority was created for and that's what the landfills going to be used the west track is going to be used for and you know you will see and to judge wilson i do dispute that we can know what will be done with this west tract in fifty years if and when the chest ing landfill ever ever fills up so i don't think we can conclude with any certainty that this land will ever be put to the stated purpose that the authority claims it will be in these circumstances i mean if the rule is otherwise then the authority can simply put its money into various pieces of property claim that they're going to be designated for public use at some point  why the public interest it seems that seems unfair but don't you assume the risk when you contract with the government that if there is a breach of contract you might not fully recover i mean that's just that's that's that's you assume the risk when you contract with the city that you might not fully recover it's just listen on that if it's not like a it's not like a breach of contract between two private parties so in response to your st question i thought judge lefkow was question during mr miller's argument was critical my client did not assume the risk that this property would be exempt when it authority exemption that that statute establishes a clear rule for contracting parties that if they contract with housing authorities the exemption isn't going to apply that's critical because there is no such statute as a solid waste contracts with the city and is aware that the city will be able to claim the exemption that rule makes sense to a certain degree because that mandamus remedy is available and the city will have a general fund and the city has the power to tax the authority here has neither a general fund or the power to tax and you've suggested perhaps a remedy here would be that the that my client could sue the authority for  require the authority to issue bonds to cover this judgment i know of no alabama case specifically saying that mandamus is an appropriate vehicle to force and authority or any other entity to go through the complex process of issuing bonds but ultimately if that's a possibility then it points to what the authorities solution here should have been when the authority was faced with this judgment it should have raised funds in whatever it was appropriate to allow it to avoid execution on the property that a designated for public use it should have issued bonds that should have taken out a loan there were many other things that could have done the keys were basically in its pocket and the and this court will be in recess until nine o'clock tomorrow morning thank you everyone thank you