Blackburn v. Lefebvre, 2060312.

• Court: Alabama Court of Civil Appeals
• Writing for the Court: Thompson
• Citation: 976 So.2d 482
• Parties: Warren D. BLACKBURN and Kathleen A. Berube v. Paul E. LEFEBVRE and Patricia R. Lefebvre.
• Docket Number: 2060312.
• Decision Date: 26 June 2007

976 So.2d 482 Warren D. BLACKBURN and Kathleen A. Berube
v.
Paul E. LEFEBVRE and Patricia R. Lefebvre. 2060312. Court of Civil Appeals of Alabama. June 26, 2007.

[976 So.2d 485]

C. Robert Gottlieb, Jr., Mobile; and Edward S. Sledge III and William G. Chason of McDowell Knight Roedder & Sledge, L.L.C., Mobile, for appellants.

C. Britton Bonner, Richard O. Kingrea, and Matthew J. Landreau of Bonner Landreau Kingrea, LLC, Foley, for appellees.

THOMPSON, Presiding Judge.

Paul E. Lefebvre ("Lefebvre") and Patricia R. Lefebvre (hereinafter collectively referred to as "the Lefebvres") sued Warren D. Blackburn ("Blackburn") and his wife, Kathleen A. Berube, in October 2005, seeking, among other relief, a judgment declaring the rights of the parties to access and use a boat slip and pier owned by and adjacent to real property owned by Blackburn and Berube (hereinafter collectively referred to as "the Blackburns"). The Blackburns counterclaimed, seeking, among other things, certain declaratory relief.

The trial court conducted an ore tenus hearing on October 17, 2006. On November 16, 2006, the trial court entered an order resolving the claims for declaratory relief. The trial court certified the November 16, 2006, order as final pursuant to Rule 54(b), Ala. R. Civ. P. The Blackburns timely appealed the trial court's judgment to our supreme court, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

Factual and Procedural Background

The central issue in this appeal is whether the Lefebvres have a right to access and use a boat slip and pier that extends from the Blackburns' real property into Palmetto Creek. The evidence received by the trial court showed the following relevant facts. In 1998, Mary Marler ("Marler") and her now deceased husband created a family subdivision of three contiguous lots. Only one of the lots, parcel A, was adjacent to Palmetto Creek. Parcel B was between parcel A and the third lot, parcel C, which was adjacent to parcel B and to a public road. The deeds to the three lots each include an easement ("the common easement") that provided the respective property holders access to the public road and to Palmetto Creek. The common easement is not at issue in this dispute.

After the creation of the family subdivision, Marler and her husband retained ownership of the waterfront lot, parcel A. The Marlers sold parcel B to Marler's son Tracey L. Thompson and his wife Beverly

976 So.2d 486

J. Thompson. The Marlers sold parcel C to Marler's sister, Barbara Gail Belew, and her husband Michael Belew. The Marlers built a pier and boat slip on parcel A, and they allowed their family members to use those structures.

On May 10, 2004, the Lefebvres, who are not related to the Marlers, purchased parcel B from the Thompsons. On that same date, the Lefebvres also entered into an agreement ("the boat-slip agreement") with Marler,¹ the Thompsons, and the Belews that specified that the Lefebvres would have certain rights relating to the use of the pier and boat slip located on parcel A. Specifically, the boat-slip agreement provided:

"AGREEMENT RE: ACCESS AND USE OF BOAT SLIP

"Comes now, PAUL E. LEFEBVRE, and PATRICIA R. LEFEBVRE, hereinafter referred to as `Purchasers' and TRACEY L. THOMPSON and BEVERLY J. THOMPSON, hereinafter referred to as `Sellers', MARY MARLER, MICHAEL CHARLES BELEW and BARBARA GAIL BELEW, hereinafter referred to as `Owner' and would enter into this agreement to grant to the Purchasers of that certain real property located at 8649 Escambia Avenue, Elberta, Alabama the right to use a boat slip located on property owned by Mary Marler, Michael Charles Belew, Barbara Gail Belew and/or Tracey L. Thompson and Beverly J. Thompson.[²]

"The parties agree that the Purchasers shall be entitled to an easement to access and use the existing boat slip currently being used by the Sellers. This right shall accrue only to the benefit of the Purchasers and shall be non-assignable by them and shall not run with the property. Any improvements or alterations to the easement for access to the boat slip, or to the boat slip itself shall require the approval, in writing, of all owners of the property over which the easement runs and where the boat slip is constructed. Purchasers agree to have all owners of the property over which the easement and boat slip runs to sign an agreement to this effect.

"SEE EXHIBIT `A' ATTACHED HERETO AND MADE A PART HEREOF.

"The Purchasers agree to pay the sum of Two Hundred Dollars ($200.00) per annum to Marler. Said payments are to be due on or before October 1st of each year, commencing with October 1, 2004.

"This `Family Subdivision' was established with the understanding that all three owners will have equal access to easement, dock and boat slips.

"Executed on this the 10th of May, 2004."

(Capitalization in original.)

At the time the Lefebvres purchased parcel B and the house located on that property, Marler had not built a house on parcel A, and the Belews had not built a house on parcel C. At the hearing before the trial court, Lefebvre testified that, before he purchased parcel B, he discussed the use of the pier and boat slip with Tracey Thompson and that he demanded "something" from Tracey Thompson in writing that would guarantee the Lefebvres' right to use the pier and boat slip. Lefebvre explained that the only reason the Lefebvres purchased parcel B was so that they could use the boat slip. Tracey Thompson acknowledged that the Lefebvres were only interested in purchasing parcel B if they also obtained the accompanying

976 So.2d 487

right to use the pier and boat slip. The boat-slip agreement, which specified that the rights conveyed in that agreement were also subject to the common easement, was recorded in the probate records of Baldwin County.

After the Lefebvres purchased parcel B in May 2004, the Lefebvres used the pier and boat slip. In October 2004 they paid Marler $200 pursuant to the terms of the boat-slip agreement. The Lefebvres also left some of their personal property on the pier itself or upon the real property they traversed in order to use the pier.

In September 2004 Hurricane Ivan damaged the pier. The Lefebvres repaired the pier. Although the Lefebvres did not obtain permission from Marler (or the other parties to the boat-slip agreement) before conducting those repairs, Marler did not object to them.

In April 2005, the Blackburns purchased parcel A from Marler.³ The Blackburns knew of the existence of the boat-slip agreement before they purchased parcel A. In order to alleviate the Blackburns' concerns, Marler executed an affidavit that stated, among other things, that Marler intended to give the Lefebvres a license to use the pier and boat slip⁴ and that it was not her intent to create an easement in favor of the Lefebvres. Marler also testified at the hearing that she intended only to grant the Lefebvres a license. However, on cross-examination, Marler admitted that she did not know the difference between a license and an easement and that she thought a license and an easement were "virtually the same thing."

The warranty deed by which Marler conveyed parcel A to the Blackburns contained a description of the boundaries of parcel A, including the pier and boat slip, as well as the description of the common easement. When the Blackburns obtained title insurance to the property, the insurance company excluded the pier and boat slip from coverage.

According to Lefebvre, after the Blackburns purchased parcel A, the Blackburns denied his right to use the pier and boat slip. Blackburn testified that, initially, he gave the Lefebvres permission to use the pier and boat slip but that he revoked that permission when the dispute among the parties arose.

Over the Memorial Day weekend in May 2005, the parties had a discussion in which the Lefebvres told the Blackburns that they wanted to build a separate pier on the Blackburns' property and into Palmetto Creek. The Blackburns informed the Lefebvres that they did not want another pier on their property. In July 2005, when the Blackburns and their daughters arrived at their house on parcel A for the Fourth of July weekend, they discovered that Lefebvre had removed the deck boards on the pier but that he had left the structural supports for the pier in place. During the hearing, the trial court stopped the parties' attempts to present evidence regarding that incident. The trial court indicated that it recalled testimony on that issue taken at an earlier hearing on a petition for a preliminary injunction. The record does not contain a transcript of that

976 So.2d 488

earlier hearing, and, therefore, the details of the incident are not before this court. Although it is clear that at the time of the hearing the deck boards on the pier had been replaced, the record does not indicate which party replaced the deck boards.

At the October 17, 2006, hearing, the Blackburns presented evidence indicating that the Lefebvres had not paid them the $200 annual payment referenced in the boat-slip agreement for the years 2005 and 2006. Tracey Thompson testified that he insisted that the boat-slip agreement require the annual payment to Marler to help Marler defray the costs of property taxes on parcel A. Lefebvre testified that he believed that the provision of the boat-slip agreement requiring him to pay $200 per year was only effective as long as Marler owned the property. Marler also testified that she believed that that provision applied for as long as she owned the property. Lefebvre testified that he had not paid, and did not intend to pay, the Blackburns for the use of the pier and boat slip.

The Blackburns also attempted to demonstrate that the Lefebvres violated the terms of the boat-slip agreement by "assigning" their rights under that agreement. The record indicates that Lefebvre allowed a friend, Thomas Bailey, to use the boat slip while repairs were...