Hankins v. Crane

• Decision Date: 17 August 2007
• Docket Number: 2060275.
• Citation: 979 So.2d 801
• Parties: Earl T. HANKINS and Patricia Richardson v. Cathey CRANE, Steve Tucker, and Cheryl Tucker.
• Court: Alabama Court of Civil Appeals

979 So.2d 801

Earl T. HANKINS and Patricia Richardson v. Cathey CRANE, Steve Tucker, and Cheryl Tucker.

2060275.

Court of Civil Appeals of Alabama.

August 17, 2007.

Patrick H. Tate, Fort Payne; and Angela Cochran Morgan, Fort Payne, for appellants.

Chad A. Hopper of Buttram, Hawkins & Hopper, LLC; Centre, for appellees.

THOMPSON, Presiding Judge.

This dispute involves three parcels of land located in a subdivision known as Chigger Farms. Earl T. Hankins and Patricia Richardson appeal from a summary judgment entered in favor of Cathey Crane, Steve Tucker, and Cheryl Tucker ("the plaintiffs"); that judgment required Hankins and Richardson to remove a driveway and retaining wall ("the driveway") that the trial court determined was encroaching on the plaintiffs' property and a mobile home that the trial court determined violated a subdivision restriction. We affirm in part, reverse in part, and remand.

On August 29, 2005, the plaintiffs filed a complaint in Cherokee Circuit Court against Earl T. Hankins. The complaint stated four counts, only two of which are at issue in this appeal.¹ The first count alleged that the driveway that connected Hankins's house to a public road wrongfully crossed a lot owned by the plaintiffs, who were the developers of Chigger Farms. The second count alleged that Hankins had placed two mobile homes on another lot in Chigger Farms, lot 4, in violation of a subdivision restriction. The plaintiffs later amended their complaint to add Hankins's mother, Patricia Richardson, as a defendant. The amended complaint identified Richardson as the true owner of Hankins's house and of lot 4.

On May 4, 2006, the plaintiffs filed a motion for a summary judgment. Hankins and Richardson filed a response, and the trial judge traveled to Chigger Farms to view the properties. The trial court also heard oral arguments and accepted the evidence submitted by the parties. On August 31, 2006, the trial court granted the plaintiffs' summary-judgment motion, stating in its order:

"1. The Plaintiffs' Motion for a Summary Judgment relating to the driveway issue is GRANTED. The evidence is undisputed that the driveway and concrete wall built by the Defendant, Earl T. Hankins, encroaches onto the property of the Plaintiffs. Said encroachment constitutes a trespass, and the trespass is continuing. Defendants shall remove the encroachment within 180 days of the date of this Order.

"2. The Plaintiffs' Motion for Summary Judgment relating to the issue of two mobile homes on one lot is GRANTED. The plat restrictions state that there shall be `only one residence per lot.' This Court went to the real estate in question and viewed two mobile homes on one lot. One mobile home was being rented by the Defendant, Hankins, and the other home was vacant. However, the evidence is undisputed that the Defendant allows people to stay in said home 2-3 times per month. Said home was set up with electricity and satellite television. It is this Court's opinion that said mobile home constitutes a `residence' and that it is a violation of the restrictions of the subdivision for this home to remain on one lot. Defendant shall remove the mobile home within 60 days of the date of this Order."

Hankins and Richardson filed a postjudgment motion on September 25, 2006. The postjudgment motion was based largely on a newly submitted affidavit from Hankins. Regarding the driveway, Hankins and Richardson argued for the first time that no alternate means of access to the public road existed and that they would be denied the full use and enjoyment of the house. Regarding lot 4, Hankins and Richardson argued that one of the mobile homes was occupied two to three times per month only during the spring and fall fishing seasons; thus, they argued that the trial court's finding that that mobile home was a "residence" was contrary to the evidence. Hankins and Richardson also argued that the trial court had erred in failing to consider certain affirmative defenses they had asserted.

The trial court heard oral argument on the postjudgment motion and, on November 21, 2006, entered an order denying that motion. Hankins and Richardson filed a timely appeal to this court. The case was transferred by this court to our supreme court because this court lacked jurisdiction. The case was subsequently transferred back to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.

The record on appeal reveals the following facts.² As to the first count, regarding the encroaching driveway, it is undisputed that Richardson owns a house ("the house") and land located at 410 County Road 351 in Leesburg. The house is occupied by Hankins, Richardson's son, who was involved in its construction. The land upon which the house sits is adjacent to property known as "lot B8." The plaintiffs were the developers of Chigger Farms. They jointly own lot B8 and maintain it as a common lot that residents of Chigger Farms use for access to an adjoining lake. Lot B8 apparently lies mostly in a flood plain, and, therefore, its use is heavily restricted.

It is undisputed that the driveway that connects the house to County Road 351 extends beyond Richardson's land and across lot B8. In or about July 2005, Hankins and the plaintiffs had independent surveys performed. Both surveys show that the driveway significantly encroaches onto lot B8.

The house and driveway were constructed in 2002, by a building contractor who was one of the developers of Chigger Farms, Kenneth Mackey. At that time, Mackey was married to one of the plaintiffs, Cathey Crane. In 2002, Mackey was a joint owner of lot B8; however, it is apparent that Mackey no longer owns an interest in the property. Mackey and Crane are now divorced, and Mackey has never been a party to this action.

Mackey testified at deposition that he knew the driveway crossed lot B8 when he put it in and that he consented to its placement on lot B8. According to Mackey, a survey performed at the time the house was built confirmed that the driveway encroached on lot B8. This survey was not submitted to the trial court, and the record does not demonstrate whether the plaintiffs or Hankins ever saw it. Mackey testified that the driveway did not interfere with the use of lot B8.

Mackey also testified that one of the plaintiffs, Steve Tucker ("Tucker"), knew that the driveway crossed lot B8 and consented to the placement of the driveway when it was being built. The record on appeal indicates that Tucker denied knowingly consenting to the encroachment. According to Tucker, he thought the driveway was going to be close to lot B8, but he was not certain that it actually crossed onto lot B8 until the survey confirmed the encroachment in July 2005.

Regarding Hankins's knowledge of the encroachment, Mackey's testimony conflicted. Mackey first testified that because he was the building contractor for the house, Hankins simply followed his instructions regarding the driveway and did not know that it encroached on lot B8. However, Mackey later testified that he told Hankins that the driveway did in fact encroach on lot B8. According to Hankins's deposition testimony, he did not have a survey performed before the driveway was installed. He stated that he did not know where the boundary line between his mother's property and lot B8 was located and that "the driveway was just installed." According to Hankins's affidavit that he submitted in response to the plaintiffs' summary-judgment motion, he discussed the driveway with Mackey, but at the time it was installed he did not know precisely where the boundary line between his mother's property and lot B8 was located. Hankins stated that he relied on Mackey's judgment in deciding where to place the driveway. Hankins also stated that the plaintiffs never complained about the encroachment until an unrelated dispute arose between Hankins and Tucker. Until they filed their postjudgment motion, Hankins and Richardson did not submit evidence showing that no alternate means of access to the house existed and that they would be denied the full use and enjoyment of the house.

As to the second count, regarding the mobile home, it is undisputed that Richardson owns another parcel of land in Chigger Farms known as "lot 4." It is also undisputed that a restriction recorded on the Chigger Farms subdivision plat and referenced in the deed to lot 4 states that there shall be only one residence per lot.

Hankins has placed two mobile homes on lot 4. Hankins lived in one mobile home while the house at 410 County Road 351 was being constructed. After the house was completed, Hankins began renting that mobile home to another family. The second mobile home was placed on lot 4 in 2000. Hankins testified that he obtained permission from Mackey and Tucker before he purchased the second mobile home and placed it on lot 4.

According to Hankins, the second mobile home was used primarily for storage and as a place for his friends to stay when they came to visit him and fish in the nearby lake. Hankins stated in his affidavit that the second mobile home was only used by his friends two to three times each month during the spring and fall fishing seasons.

At the summary-judgment hearing, the trial judge stated that when he viewed the properties, he observed that the second mobile home had electricity and satellite television. Additionally, it was undisputed at the hearing that the second mobile home had hot water, a bathroom, beds, chairs, and a table. It did not, however, have a working stove. Hankins testified that he did not consider the second mobile home a "residence" within the meaning of the restriction "because nobody stays in it." During his deposition, Hankins testified as follows:

"[COUNSEL FOR THE PLAINTIFFS:] It's capable of being a residence, is it not?

"[HANKINS:] If I wanted to rent it to somebody, I probably could fix it up and rent it, but that's not the case."

The plaintiffs filed "`a motion...