Cole v. Davis
| Docket Number | SC-2022-0723 |
| Decision Date | 24 March 2023 |
| Parties | Trevor Cole v. Arthur M. Davis, Ronald F. Ham, Patricia G. Hooper, Thomas R. Miller, Sara A. Minor, June Montgomery, Jill Murray, and Debbie Rice |
| Court | Alabama Supreme Court |
Appeal from Madison Circuit Court (CV-21-900855)
This appeal arises from an action to enforce restrictive covenants within a subdivision. The plaintiffs are the owners of different lots: Arthur M. Davis, Ronald F. Ham, Patricia G Hooper, Thomas R. Miller, Sara A. Minor, June Montgomery Jill Murray, and Debbie Rice ("the lot owners"). They sought an injunction to prevent Trevor Cole from subdividing his lot. The Madison Circuit Court entered a summary judgment in favor of the lot owners and issued the injunction.
On appeal, Cole argues (1) that the restrictive covenants should not be enforced for various equitable reasons (because of the "relative hardship" enforcing the covenants would allegedly impose upon him; because the "character of the neighborhood" has allegedly changed "radically" since the covenants were adopted; and because a majority of the other property owners in the subdivision, including some of the lot owners, have waived enforcement of the covenants), (2) that he should have been provided certain discovery before the entry of the summary judgment, and (3) that necessary or indispensable parties to the action were absent. We reject each of these arguments and affirm.
Kirkwood Heights ("the subdivision") is a residential subdivision located in Huntsville. The subdivision, like many other subdivisions, has a set of restrictive covenants known as the "Kirkwood Heights Restrictions" ("the Kirkwood Heights covenants"), which dictate what property owners in the subdivision can and cannot do with their property. The Kirkwood Heights covenants provide, in pertinent part:
(Emphasis added.)
According to the record, in 2016 the owner of a particular lot in the subdivision -- Lot 14 -- requested that the Kirkwood Heights covenants be amended to allow that owner to subdivide the lot. Pursuant to paragraph 15 in those covenants, that owner recorded an "Amendment and Waiver" ("the 2016 waiver") to the Kirkwood Heights covenants in the Madison Probate Court, in which a majority of the property owners in the subdivision, including some of the lot owners, agreed to amend those covenants as follows:
(Emphasis added.)
In 2018, Cole bought his lot -- Lot 1 -- located in the subdivision. He does not dispute that he had actual knowledge of the Kirkwood Heights covenants. He also claims that he had knowledge of the 2016 waiver and alleges that he relied upon it when purchasing his lot. Despite his knowledge of the Kirkwood Heights covenants, including the lot-size and width restrictions in paragraph 2, Cole submitted to the City of Huntsville a proposed plat in which Cole noted his intention to work with Augustus Homes, LLC, to subdivide his lot into two residential lots. According to Cole, his intent was to build two high-end homes on the subdivided lots and market them to the public. At no point before doing this, however, did Cole attempt to seek an "Amendment and Waiver" to the Kirkwood Heights covenants similar to the 2016 waiver.
On July 8, 2021, the lot owners commenced this action. Attached to their complaint were copies of the following certified documents: (1) the "Kirkwood Heights Subdivision Plat Map"; (2) the Kirkwood Heights covenants; (3) the 2016 waiver; and (4) Cole's deed to his lot.
A few days later, Cole filed his answer, in which he raised various affirmative defenses, including, among others, the "relative-hardship" defense and waiver. He also filed a counterclaim against the lot owners, asserting tortious interference with his ongoing business relationship with Augustus Homes and civil conspiracy. He did not seek a judgment declaring the validity, scope, or enforceability of the Kirkwood Heights covenants.
Shortly thereafter, Cole served requests for production to the lot owners, along with a deposition notice for each lot owner. In the deposition notices, Cole proposed multiple dates and times, leaving the dates and times subject to negotiation among the parties. It does not appear from the record that the lot owners responded to any of Cole's discovery requests.
Cole also filed a motion pursuant to Rule 19, Ala. R. Civ. P., to require the lot owners to add all the other property owners in the subdivision as necessary or indispensable parties. The trial court denied Cole's motion, and Cole filed a petition for a writ of mandamus with this Court, which we denied. Ex parte Cole (No. 1200828, Sept. 24, 2021). Neither the trial court, nor this Court, granted a stay during the pendency of that mandamus petition.
On September 7, 2021, the lot owners filed a motion for a summary judgment in which they argued that there were no genuine issues of material fact in this case because Alabama law is clear that unambiguous restrictive covenants like the ones at issue in this case are enforceable and that an injunction is the appropriate remedy for the breach of such covenants. They further argued that, to the extent that Cole contended that the Kirkwood Heights covenants were unenforceable under either the "relative-hardship" test or the "change-in-the-neighborhood" test, Cole could not demonstrate either that enforcing them would create a relative hardship on him and similar property owners in the subdivision or that the character of the subdivision had changed so drastically that the Kirkwood Heights covenants no longer accomplished their original purpose. Finally, they argued that Cole could not prevail on either his tortious-interference claim or his civil-conspiracy claim because their efforts to enjoin Cole's subdivision of his lot were justified under the law. In support of their motion, the lot owners incorporated by reference the certified copies of the documents that they had attached to their complaint.
Cole timely filed a response in opposition to the summary-judgment motion and argued that, contrary to the lot owners' contentions, genuine issues of material fact existed as to whether the Kirkwood Heights covenants prevented him from being able to subdivide his lot because a majority of the property owners in the subdivision had previously consented to a waiver of the lot-size and width provisions in paragraph 2 of the Kirkwood Heights covenants in the 2016 waiver and because, he said, there had been a general failure to enforce other covenant violations. Cole further argued that, pursuant to Rule 56(f), Ala. R. Civ. P., summary judgment was inappropriate until he was able to conduct some discovery on the claims alleged by the lot owners. He also argued that the balancing of factors under the relative-hardship test or the change-in-the-neighborhood test weighed against the enforcement of the Kirkwood Heights covenants in this case. Finally, he argued that, without some discovery, the trial court also could not make a determination as to whether genuine issues of material fact existed as to his tortious-interference claim or his civil-conspiracy claim.
In support of his response in opposition to the summary-judgment motion, Cole included, pursuant to Rule 56(f), an affidavit from his trial counsel, Robert Presto, who confirmed that despite his efforts, the lot owners had failed to respond to any of Cole's discovery requests. On October 18, 2021 -- three days before the date set for the hearing on the summary-judgment motion -- Cole also filed a motion to compel responses to his discovery request...
To continue reading
Request your trial