Clarke v. Tannin, Inc.

• Decision Date: 14 March 2018
• Docket Number: CIVIL ACTION 16-0572-WS-M
• Citation: 301 F.Supp.3d 1150
• Parties: Kendall CLARKE, et al., Plaintiffs, v. TANNIN, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

301 F.Supp.3d 1150

Kendall CLARKE, et al., Plaintiffs,

v.TANNIN, INC., et al., Defendants.

CIVIL ACTION 16-0572-WS-M

United States District Court, S.D. Alabama, Southern Division.

Signed March 14, 2018

Daniel G. Blackburn, Daniel Grant Blackburn, Jr., Bay Minette, AL, for Plaintiffs.

Jennifer S. Holifield, Zieman, Speegle, Jackson & Hoffman, L.L.C., Jerome E. Speegle, Speegle, Hoffman, Holman & Holifield, LLC, Thomas O. Gaillard, III, Helmsing Leach Herlong Newman & Rouse P.C., Carroll H. Sullivan, Carter Roberts Hale, Scott, Sullivan, Streetman & Fox, P.C., Mobile, AL, for Defendants.

ORDER

WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE

This matter is before the Court on the defendants' motions for summary judgment. (Docs. 111-16). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 111-16, 120-30, 132), and the motions are ripe for resolution. After careful consideration, the Court concludes the motions are due to be granted in part and denied in part.

BACKGROUND

The remaining defendants are Tannin, Inc. ("Tannin") and George Gounares, the owner of Tannin.¹ The remaining plaintiffs² are five couples and two individuals,³ all purchasers of property in the development known as the Village of Tannin ("the Village"). The Village lies just north of, and adjacent to, Highway 182 in Orange Beach, Alabama. The Gulf of Mexico ("the Gulf") is south of Highway 182. According to the complaint, (Doc. 1), the defendants represented to the plaintiffs that, by purchasing land in the Village, they would have deeded access to the Gulf via a 41-foot-wide strip of land ("the Parcel") extending from the south side of Highway 182 to the Gulf. These representations were made repeatedly from 1989 to 2015, during which time the plaintiffs enjoyed unfettered beach access via the Parcel, including vehicular access. In July 2015, the defendants placed a locked gate across the northern end of the Parcel and thereafter limited the plaintiffs' beach access to foot traffic. When Village property owners complained, the defendants responded that they (the defendants) owned the Parcel, that no Village property owner had been conveyed deeded access to the Parcel, and that, prior to a May 2015 Grant of Right to Use Land ("the Grant"), the defendants had merely permitted owners to use the Parcel for beach access. The Grant purported to vest the Village of Tannin Association ("the Association") with a right of access to a five-foot width of the Parcel extending the full length of the Parcel.

The plaintiffs "bring this litigation to acquire the access rights they were promised, and to recover money damages for the Tannin Defendants' false and misleading sales practices." (Doc. 1 at 5). The complaint includes six causes of action: (1) Interstate Land Sales Full Disclosure Act ("ILSA"); (2) declaratory judgment; (3) easement by prescription; (4) fraud; (5) breach of warranty; and (6) breach of fiduciary duty. The defendants seek summary judgment as to all claims.⁴

DISCUSSION

Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc. , 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id. ; accord Mullins v. Crowell , 228 F.3d 1305, 1313 (11th Cir. 2000) ; Sammons v. Taylor , 967 F.2d 1533, 1538 (11th Cir. 1992).

"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property , 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993).

"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick , 2 F.3d at 1116 ; accord Mullins , 228 F.3d at 1313 ; Clark , 929 F.2d at 608.

"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick , 2 F.3d at 1116. "If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment." Clark , 929 F.2d at 608 (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion....").

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale , 333 F.3d 1234, 1243 (11th Cir. 2003). "Therefore, the plaintiff's version of the facts (to the extent supported by the record) controls, though that version can be supplemented by additional material cited by the defendants and not in tension with the plaintiff's version." Rachel v. City of Mobile , 112 F.Supp.3d 1263, 1274 (S.D. Ala. 2015), aff'd , 633 Fed. Appx. 784 (11th Cir. 2016).

There is no burden on the Court to identify unreferenced evidence supporting a party's position.⁵ Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment." Resolution Trust Corp. v. Dunmar Corp. , 43 F.3d 587, 599 (11th Cir. 1995) ; accord Gennusa v. Canova , 748 F.3d 1103, 1116 (11th Cir. 2014). The Court accordingly limits its review to those arguments the parties have expressly advanced.

The plaintiffs identify Counts Two, Three and Five as designed to establish that the defendants have no legal authority to restrict their beach access, with Counts One, Four and Six arguing for relief in the event the defendants do possess such authority. (Doc. 120 at 2). The Court therefore addresses first the claims challenging the defendants' ability to restrict the plaintiffs' use of the Parcel.

It is uncontroverted that the owner of record of the Parcel has at all relevant times been Tannin. It is also uncontroverted that the only relevant transfer of record of any interest in the Parcel is the May 2015 Grant from Tannin to the Association, which is limited to a five-foot swath. The plaintiffs nevertheless maintain that they possess a legally protected property interest in the entirety of the Parcel, which interest precludes the defendants from cutting off their vehicular access to the Parcel.

I. Count Two—Declaratory Judgment.

The plaintiffs base their demand for declaratory relief on three legal theories: common-law dedication, dedication by estoppel, and "scheme of development." (Doc. 1 at 15; Doc. 121 at 1). As discussed below, the defendants are entitled to summary judgment as to all three theories and thus as to Count Two in toto.

A. Common-Law Dedication.

"A ‘dedication’ is a donation or appropriation of property to the public use by the owner." Ritchey v. Dalgo , 514 So.2d 808, 810 (Ala. 1987) (internal quotes omitted). Common-law dedication "is accomplished when there have been acts which evidence an unequivocal intent by the owner to dedicate the property to a public use and an acceptance by the members of the public of the property for that public use." Id. (emphasis in original).

"The public is a necessary party to any dedication, there being no such thing as a dedication to an individual." Ritchey , 514 So.2d at 810 (internal quotes omitted). Indeed, and as the plaintiffs concede, "there is no such thing as a dedication to ... a limited group of persons." (Doc. 121 at 4). Rather, a dedication "must be for the benefit of the public, and not for any particular part of it." Stringer Realty Co. v. City of Gadsden , 256 Ala. 77, 53 So.2d 617, 619 (1951) (internal quotes omitted). That is, "the essence of a dedication to public uses is that it shall be for the use of the public at large. " Id. (emphasis added, internal quotes omitted). Again the plaintiffs concur, acknowledging that dedication must be to "the general public." (Doc. 121 at 4).

Alabama cases have repeatedly emphasized that dedication cannot work in favor of a select subset of the public at large, such as those who purchase nearby property from a common owner. According to Stringer Realty , "a grant by the owner of a private right of way over his lands to buyers of different parcels of the same to furnish them with convenient access to the street is no dedication to public use." 53 So.2d at 619 (internal quotes omitted). According to Trustees of Howard College v....