Barter v. Burton Garland Revocable Trust

• Decision Date: 05 April 2013
• Docket Number: 2111050.
• Citation: 124 So.3d 152
• Parties: Lynn BARTER and Joy Barter v. BURTON GARLAND REVOCABLE TRUST et al.
• Court: Alabama Court of Civil Appeals

124 So.3d 152

Lynn BARTER and Joy Barter

v.BURTON GARLAND REVOCABLE TRUST et al.

2111050.

Court of Civil Appeals of Alabama.

April 5, 2013.

James A. Bradford and Ed R. Haden of Balch & Bingham, LLP, Birmingham; and S. Sanford Holliday, Roanoke, for appellants.

Kesa Johnston Dunn, Roanoke, for Dennis Connell.

THOMAS, Judge.

Lynn Barter and his wife, Joy Barter, own Lots 38 and 39 in Lakeview Estates, a subdivision located in Randolph County; the Barters purchased their lots from Mawal, Inc., one of the 60 named defendants in this case.¹ The Barters' deed to Lot 39, which is dated July 1999, is contained in the record on appeal. That deed includes the following exception (“the exception”) from the grant of Lot 39: “Except all rights and title to the dirt drive roadway and boat ramp located on the East side of said lot as shown on the plat recorded in Plat Book 2 Page 70 and Page 89 in the office of the Probate Judge of Randolph County, Alabama.” In April 1999, before the Barters purchased Lot 39, Burlin Meadows and Gwen Meadows executed a quitclaim deed to “all lot owners of Lakeview Estates”; the deed recited that it “remise[d], release[d], quitclaim[ed], and convey[ed] to the lot owners,” which it described as “the owners of lots one thru fifty-four,” “all right, title, interest, and claim in and to” the roadway and the boat ramp shown in the subdivision plat to be located on Lot 39.²

In June 2009, the Barters filed an action in the Randolph Circuit Court seeking an abatement of the nuisance they alleged was caused by the use of the boat ramp and seeking a declaration of the legal effect of the April 1999 quitclaim deed of the roadway and the boat ramp to “the owners of Lakeview Estates.” The Barters named as defendants the Lakeview Estates Homeowners Association and all the record owners of Lakeview Estates as of April 1999 (“the subdivision lot owners”), including the Burton Garland Revocable Trust, Mawal, Inc., and Dennis Connell. After service on some, but not all, of the defendants was perfected, only a few of the defendants answered, all but one of them appearing pro se by letter to the trial court. The only defendant to appear through an attorney, Dennis Connell, answered and filed a counterclaim, in which he sought a determination that he had an express easement over the roadway and the boat ramp, a determination that the Barters had interfered with that easement, and an injunction requiring the Barters to remove the gate across the roadway and to permit unfettered access to the boat ramp.

Connell filed a motion for a summary judgment in February 2011. The Barters opposed that motion. Based on the facts in the parties' pleadings and various submissions, it appears that the Barters alleged that they had improved the boat ramp by paving the area surrounding the boat ramp and had, at times, cleared the area. The Barters alleged that their house had been burglarized twice and that people, including people who were not owners of lots in Lakeview Estates, were gathering and drinking at the boat ramp, which the Barters alleged created a nuisance. Based on recommendations from the sheriff's department, the Barters stated, they had placed a gate across the roadway to restrict access to the boat ramp. According to the Barters, they would give a key to the gate to whomever requested one. The Barters characterized the interest in the roadway and the boat ramp granted to the subdivision lot owners as an easement.

In his summary-judgment motion, Connell argued that, based on the April 1999 quitclaim deed and the exception in the July 1999 deed to the Barters, Connell, and the other subdivision lot owners, and not the Barters, had title to the roadway and the boat ramp. He further argued that the Barters had “improperly caused impediment to Connell's use and enjoyment of his jointly owned land.” Connell noted in his motion that the Barters were on notice of the subdivision lot owner's common ownership of the roadway and the boat ramp at the time they purchased Lot 39. Connell also stated that the Barters had not “sufficiently plead[ed] or proved a prima facie case for nuisance.” Connell's motion did not contain a narrative summary of facts, but he supported his motion with a copy of the April 1999 quitclaim deed, a 1993 deed conveying his lot to him, and the July 1999 deed conveying Lot 39 to the Barters, as well as with his own affidavit.

The Barters, in their response to Connell's motion, argued that only nine of the subdivision lot owners had objected to the Barters' claim of ownership of the roadway and the boat ramp or to the Barters' requests to have the use of the roadway and the boat ramp ended or at least restricted. The Barters offered Lynn Barter's affidavit, in which he explained the facts giving rise to the litigation, including descriptions of some of the behavior occurring at the boat ramp. In the statement of facts contained in their first brief in opposition to Connell's summary-judgment motion, the Barters stated that the Meadowses had recorded the plat to create the Lakeview Estates subdivision, that the plat reflected a dirt roadway and the boat ramp that ran across Lot 39, and that the Meadowses had executed a quitclaim deed in April 1999 conveying the roadway and the boat ramp to the subdivision lot owners. The first brief the Barters offered in opposition to Connell's summary-judgment motion focused solely on the legal right of a servient estate holder to burden an easement insofar as the burden on the easement is not unreasonable. However, the Barters' first brief did not address Connell's claim that the 1999 quitclaim deed conveyed the roadway and the boat ramp to the subdivision lot owners in fee simple. After a hearing on the summary-judgment motion, the trial court directed the parties to brief the issue of the parties' interests in the roadway and the boat ramp.

Thus, in June 2011, the Barters filed a supplemental brief in support of their opposition to Connell's motion, in which they argued that the April 1999 quitclaim deed, which they characterized as a deed from the original developers of the Lakeview Estates subdivision, was void because of the ambiguous description of the grantees in that deed. The Barters also briefly argued that the deed had not been delivered. Connell responded with his own brief, which contained a statement of facts and a brief legal argument that the grantees of the deed were sufficiently named because they were capable of being ascertained. The Barters filed an objection to Connell's brief, in which they requested that the trial court not consider Connell's brief because it was filed after the deadline the court had set; the trial court did not rule on that motion. After a hearing, the trial court entered a summary judgment in favor of Connell and the other defendants.³

The Barters filed a postjudgment motion, in which they advanced several arguments that they had not made before the entry of the summary judgment. First, the Barters moved to strike Connell's affidavit based on, among other things, the ground that the affidavit contained hearsay evidence. They further argued that Connell's motion for a summary judgment had been procedurally deficient because it lacked a narrative summary of facts. The Barters also argued to the trial court that Connell did not establish that the Meadowses had had good title to the roadway and the boat ramp such that the April 1999 quitclaim deed could convey fee-simple title to the subdivision lot owners, although they had never disputed the fact that the Meadowses could have conveyed an easement and had stated at a hearing on the summary-judgment motion that the Meadowses had conveyed the roadway and the boat ramp to the subdivision lot owners to avoid liability that might arise from the use of the boat ramp, indicating that the Barters conceded that the Meadowses had had title to the roadway and the boat ramp to convey. The Barters further argued that the April 1999 quitclaim deed should be construed not as a grant of fee-simple title to the roadway and the boat ramp but, instead, as the grant of an easement. Finally, the Barters argued that they, as tenants in common with the other lot owners, had the right to install the gate across the roadway because the Barters' actions in installing the gate did not amount to an ouster of the other cotenants. The trial court did not rule on the Barters' motion, and it was denied by operation of law. SeeRule 59.1, Ala. R. Civ. P. The Barters then timely appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12–2–7(6).

On appeal, the Barters advance some of the arguments that they presented for the first time in their postjudgment motion. Although a trial court may consider an argument made for the first time in a postjudgment motion, a trial court is not required to do so. See Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988). In the present case, the trial court permitted the postjudgment motion to be denied by operation of law, which indicates that the trial court did not consider the Barters' tardy arguments. See, generally, Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010) (indicating that an appellate court will not presume that a trial court considered the merits of an untimely asserted legal argument absent an indication that it did so). Thus, to the extent that the Barters rely on appeal on those arguments asserted for the first time in their postjudgment motion, we cannot consider those arguments as a basis for reversing the summary judgment in favor of Connell and the other defendants. Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (recognizing that “the appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before...