Chancy v. Chancy Lake Homeowners Association, Inc., No. 2081154 (Ala. Civ. App. 5/28/2010)

• Decision Date: 28 May 2010
• Docket Number: No. 2081154.,2081154.
• Parties: Beverly Chancy v. Chancy Lake Homeowners Association, Inc., et al.
• Court: Alabama Court of Civil Appeals

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Beverly Chancy v. Chancy Lake Homeowners Association, Inc., et al.

No. 2081154.

Court of Civil Appeals of Alabama.

May 28, 2010.

Appeal from Autauga Circuit Court, (CV-08-43).

MOORE, Judge.

Beverly Chancy appeals from summary judgments entered by the Autauga Circuit Court ("the trial court"). We affirm in part and reverse in part.

Facts and Procedural History

On February 25, 2008, Chancy filed a complaint in the trial court against Johnson Properties, L.L.C., Wayne M. Johnson, Chancy Lakes Homeowners Association, Inc., Brad Wiggins, Kathleen Wiggins, Cedric Butler, Bridgette Butler, Joseph A. Wolf, Cathee W. Wolf, Roger P. Traywick, Andrea Traywick, Scott Post, Brent Post, Christy C. Post, and Buffi Post; Chancy also sued a number of fictitiously named defendants. Chancy asserted in her complaint that, in September 2003, Johnson had approached Chancy with a proposal to purchase from Chancy approximately 40 acres of property in Autauga County ("the subject property") in order to develop a subdivision and that Chancy and Johnson had negotiated the terms of an agreement for the sale of that property.

According to Chancy, the terms of the agreement for the sale of the subject property included the reservation of an access easement ("the easement") allowing Chancy to access approximately 197 acres of property that she owned that lied adjacent to the subject property. Chancy further asserted that she and Johnson had agreed that the easement would be shown on any proposed subdivision plat, that it would be addressed in the restrictive covenants that would bind the lots within the subdivision, and that it would be designed and maintained to meet the City of Prattville's requirements for a public road. Chancy asserted that she and Johnson had also agreed that any proposed subdivision plat involving the subject property would first be submitted to Chancy for her approval. Chancy further asserted that the terms of the agreement were memorialized in a written document labeled "Agreement." Chancy attached the Agreement, signed by both Chancy and Johnson, to her complaint.

Chancy asserted that, pursuant to the Agreement, Johnson recorded restrictive covenants for the subdivision, which was named Chancy Lake, in the Autauga Probate Office in a document entitled "Declaration of Protective Covenants for Chancy Lake" ("the Declaration"). Chancy attached a copy of the Declaration, signed by Johnson as manager of Johnson Properties and notarized on April 2, 2004, to the complaint. Attached to the Declaration was a survey/plat that depicted the properties bound by the covenants and the location of the easement. The Declaration stated, in pertinent part:

"WHEREAS, [Johnson Properties] desires to impose and subject the described property and each lot to mutual and beneficial restrictions, covenants, terms, conditions and limitations (hereinafter for convenience sometimes referred to collectively as `Covenants') for the benefit of all the lots in said Subdivision, the owners of said lots, and any other party as may be specified herein;

"NOW, THEREFORE, [Johnson Properties], does hereby adopt and impose the following covenants on the real property described on Exhibit `A'. The covenants contained herein shall apply only to Chancy Lake as described on Exhibit `A' and shall not apply to any other land owned by [Johnson Properties], unless specifically imposed upon such other land by a document or plat executed by [Johnson Properties] and recorded in the Office of the Judge of Probate of Autauga County, Alabama.

"These covenants are to run with the land and shall be binding for a period of twenty-five (25) years from the date of the recording of these covenants, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change said covenants in whole or in part.

"ARTICLE I

"HOMEOWNER'S ASSOCIATION

"Section 1.1. These covenants are to run with the land and shall be binding for a period of twenty-five (25) years from the date of the recording of these covenants, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by a majority of the then owners of the lots has been recorded agreeing to change said covenants in whole or in part.

". . . .

"ARTICLE V

"EASEMENTS

"Section 5.1. [Johnson Properties] (1) reserves for itself, its successors and assigns and its other real property located adjacent to the subdivision, the right to use dedicate and/or convey to the State of Alabama, to Autauga County to an appropriate utility company or other company and (2) hereby dedicates for the use of all the lots in the subdivision, rights of way or easements on, over or under the ground to locate and maintain utilities, electric and telephone lines; wires, cables, cable television, conduits, storm sewers, sanitary sewers, water mains, drainage swales and ways and other utilities over the interior ten (10) feet in width along each Lot line.

". . . .

"ARTICLE X

"ADJOINING PROPERTY

"Section 10.1. The real property adjoining Chancy Lake to the east will have a easement for ingress/egress as recorded on the Chancy Lake Plat.

"ARTICLE XI

"TERM AND MODIFICATION

"Section 11.1. These covenants shall run with the land and can be changed, modified, amended, altered or terminated only by a duly recorded written instrument, executed by [Johnson Properties], its successors and assigns, until December 31, 2006, and thereafter by the then owners of eighty-five percent (85%) of the number of lots of this Subdivision.

"ARTICLE XII

"SEVERABILITY

"Section 12.1 Each covenant is hereby declared to be independent of and severable from, the rest of the covenants and from every other one of the covenants and of and from every combination of the restrictions. Invalidation by any court of any covenant in this instrument shall in no way affect any of the other covenants which shall remain in full force and effect."

Chancy asserted that Johnson and Johnson Properties proceeded to sell parcels of property in the subdivision without first obtaining Chancy's approval as agreed upon. She further asserted in the complaint that a gate had been erected by the Chancy Lake Homeowners Association ("the Association") at the entrance of the subdivision, that the gate was always locked and could only be opened with a code, and that members of the Association had withheld the access code from Chancy, thereby denying her access to her adjoining property. Chancy asserted that the easement now functions as a drainage culvert for the subdivision and as an overflow ditch for the subdivision pond and that the easement is blocked by power poles and water-drainage infrastructure. Moreover, according to Chancy, the easement was never paved or improved and, thus, does not meet the City of Prattville's requirements for a public road. According to Chancy, in October 2007, the members of the Association executed a document entitled "Declaration of Amendment to the Declaration of Protective Covenants of Chancy Lake" ("the Amendment"), which deleted Article X of the Declaration in its entirety; the Amendment also deleted Section 5.1, Article V, of the Declaration. A copy of the Amendment, which had been signed by each of the members of the Association, was attached to Chancy's complaint.

Chancy asserted claims of breach of contract and fraudulent misrepresentation against Johnson and Johnson Properties; a claim of "interference with access easement/intentional violation of [Chancy's] property rights" against the Association and each of the members of the Association; and claims of continuing trespass, nuisance, invasion of her right to privacy, and the tort of outrage against all the parties named in her complaint. Chancy also sought injunctive relief and a judgment declaring that Chancy had an easement by adverse possession, by prescription, by necessity, or by implication.

The members of the Association, Brad Wiggins, Kathleen Wiggins, Cedric Butler, Bridgette Butler, Joseph A. Wolf, Cathee W. Wolf, Roger P. Traywick, Andrea Traywick, Scott Post, Brent Post, Christy C. Post, and Buffi Post (hereinafter sometimes collectively referred to as "the Association members"), and the Association filed a number of separate and joint answers to Chancy's complaint. On April 4, 2008, Johnson filed an answer to the complaint and a motion to dismiss; on June 5, 2008, the trial court entered an order granting Johnson's motion to dismiss on Chancy's claim of the tort of outrage.

The Association members and the Association filed a number of separate and joint summary-judgment motions. A number of the Association members filed affidavits in support of those motions.

Kathleen Wiggins stated in her affidavit that she and her husband, Brad, had purchased Lot 1 of the Chancy Lake subdivision from Olivia Post in April 2005. Bridgette Butler filed her affidavit, in which she stated that she and her husband, Cedric, had purchased Lot 2 of the Chancy Lake subdivision on August 8, 2007, from Keith Wheeler and Heather Wheeler and that the Butlers' deed had contained an "erroneous legal description" because it included a "thirty (30) foot easement for ingress/egress." She stated that Johnson and/or Johnson Properties had executed a "Corrective Deed" on November 1, 2007, which changed the type of easement that existed on their property from an easement for ingress/egress to a "thirty (30) foot drainage easement."

Joseph A. Wolf filed an affidavit in which he stated that he and his wife, Cathee, had purchased Lot 3 of the Chancy Lake subdivision from Rick Church in October 2006 and that the deed to their property contains a 20-foot drainage easement, although, he stated, it is his "understanding that this is incorrect and has been corrected by Johnson Properties, LLC." He further stated that...