HUN ES TU MALADE? NO. 16, LLC v. Tucker

• Decision Date: 16 February 2007
• Docket Number: 1051148 and 1051222.
• Citation: 963 So.2d 55
• Parties: HUN ES TU MALADE? # 16, LLC v. Richard TUCKER et al. David J. Slyman, Jr., and Todd J. Slyman v. Richard Tucker et al.
• Court: Alabama Supreme Court

963 So.2d 55

HUN ES TU MALADE? # 16, LLC v. Richard TUCKER et al.

David J. Slyman, Jr., and Todd J. Slyman v. Richard Tucker et al.

1051148 and 1051222.

Supreme Court of Alabama.

December 15, 2006.

Rehearing Denied February 16, 2007.

Guy V. Martin, Jr., of Martin, Rawson & Woosley, P.C., Birmingham, for appellant Hun Es Tu Malade? #16, LLC.

Larry O. Daniel, Jr., of Wolfe, Jones, Boswell, Wolfe & Hamner, Huntsville, for appellants David J. Slyman, Jr., and Todd J. Slyman.

Joseph A. Jimmerson and Kristin D. Horn of Watson, Jimmerson, Martin, McKinney, Graffeo & Helms, P.C., Huntsville, for appellees.

STUART, Justice.

Richard Tucker, William R. Kruse, and Henry H. Scheuer, all property owners in an area of Madison County referred to as Beasley Spring Acres (hereinafter referred to collectively as "the property owners"), sued Hun Es Tu Malade? # 16, LLC, David J. Slyman, Jr., and Todd J. Slyman.¹ Hun Es Tu Malade and the Slymans each own a parcel of land in the same area as the property owners.

In this action, the property owners sought to enjoin Hun Es Tu Malade and the Slymans from developing their two parcels for commercial purposes, more specifically, to enjoin them from constructing a "CVS Pharmacy" discount drugstore on their property (the two parcels of land owned by Hun Es Tu Malade and the Slymans are hereinafter referred to as "the CVS property"). The property owners also sought to reform the deeds to the two parcels making up the CVS property. In support of their action, the property owners asserted that the chains of title to the parcel owned by Hun Es Tu Malade and to the parcel owned by the Slymans contained restrictive covenants prohibiting commercial use of the property and prohibiting further subdivision of that property.

The trial court entered a summary judgment in favor of the property owners, declaring that the two parcels owned by Hun Es Tu Malade and the Slymans were subject to the restrictive covenants found in their respective chains of title. The trial court also declared that Beasley Spring Acres, which had been developed by Clarence Beasley, a common grantor, had been developed pursuant to a common scheme. For these reasons, the trial court permanently enjoined Hun Es Tu Malade from developing its property for commercial purposes and ordered the deeds to the CVS property reformed to grant Hun Es Tu Malade, David J. Slyman, Jr., and Todd J. Slyman an undivided interest in each of the two parcels making up the CVS property, which the trial court held had been improperly subdivided.

In case no. 1051148, Hun Es Tu Malade appeals, and we affirm. In case no. 1051222, the Slymans appeal, and we affirm.

I. Background

A. The Area

The disputed property — the CVS property — is included in 160 acres of land located in Madison County, all 160 acres of which were at one time owned by an individual named Clarence Beasley.² The property owners asserted that, beginning in 1955 and continuing for nearly 30 years, Clarence Beasley and his wife, Mildred Beasley, conveyed 90 separate parcels from these 160 acres.³ The property owners assert that the Beasleys made the vast majority of these conveyances subject to restrictive covenants; these restrictive covenants limited, among other things, the grantee's use of the parcel and the grantee's right to subdivide the parcel. The record contains copies of numerous deeds from the Beasleys to the original grantees.⁴

In the vast majority of these deeds, the grantees were restricted from using their property for commercial purposes. Also in the vast majority of these deeds, the grantees were prohibited from further subdividing their property. However, the phrasing of the restriction against further subdivision varied from deed to deed. In some of the deeds, the grantee was prohibited from any further subdivision of the lot. In some other deeds, the grantee was prohibited from subdividing the lot into parcels smaller than a size specified in the deed (the specified size varied between 1.4 and 4.0 acres). Still other deeds contained no restrictions on subdividing the lots.

B. The CVS Property

This dispute specifically centers on two parcels located at the corner of Providence Main Road and U.S. Highway 72 in Madison County. In 1956, both parcels were part of the 160 acres owned by Clarence Beasley. On May 8, 1956, Beasley conveyed one of the parcels to Millenia McLemore. That conveyance was made subject to the following restrictions:

"This conveyance being subject, however, to the following restrictive covenants which are to run with said lands, to-wit:

"1. That said lot or tract is to be used for private residential purposes only, with no buildings to be erected, altered or permitted to remain on said premises for residence purposes other than detached single family dwelling houses;

"2. That no residence or dwelling house costing less than $10,000.00, exclusive of outbuildings, is to be constructed on said lot;

"1. That said lot is not to be subdivided for any purpose and no lot or tract of lesser size is to be sold or otherwise transferred from the lot herein conveyed."

On that same day, Beasley conveyed the other parcel to Alfred Powers. That conveyance was made subject to the same restrictions set forth above.

Linda Harris and Barbara Deckelman later became the owners of these two parcels (hereinafter referred to as "the Harris property" and "the Deckelman property"). In December 2003, Harris, Slyman Construction Company, Inc., and Slyman Investment Group, Ltd., entered into a document entitled "Declaration of Property Use and Removing Restrictions" regarding the Harris property. In this document, Harris acknowledged that she owned property fronting U.S. Highway 72, that Barbara Deckelman owned the property adjacent to Harris's on the west side, and that Slyman Investment Group, Ltd., owned the property adjacent to Harris on the east side. Harris also acknowledged that her property was "subject to restrictions in the chain of title" but, she asserted, the restrictions had ceased to be of any value to the property, that the character of the lands surrounding the property had changed drastically since 1956, and that enforcement of the restrictive covenants would be harmful to Harris. In this document, Harris also acknowledged that she wanted to sell her property to Slyman Construction Company, Inc.

Harris, Deckelman, Slyman Construction Company, and Slyman Investment Group, Ltd., executed a document that they recorded in the Madison County Probate Court. By executing and recording this document, Harris purported to remove the deed restrictions applicable to the Harris property.

On December 12, 2003, Harris sold her property to Slyman Construction Company. Harris made this conveyance subject to all "restrictions, restrictive covenants and easements of record, if any." In February 2004, Slyman Construction Company conveyed by quitclaim deed the Harris property to David J. Slyman, Jr., and Todd J. Slyman, in their individual capacities.⁵ In September 2004, the Slymans conveyed the Harris property to Schreiner Development, LLC, by indenture. The indenture executed by the Slymans did not reference any restrictions or restrictive covenants. On that same date, Schreiner Development conveyed the northern half of the Harris property back to the Slymans individually and conveyed the southern half of the Harris property to FHT, LLC.⁶

In July 2004, this same sequence of events occurred in connection with the property owned by Barbara Deckelman. Deckelman executed a document entitled "Declaration of Property Use and Removing Restrictions." In this document, Deckelman acknowledged that she owned certain property fronting U.S. Highway 72, that Schreiner Development, LLC, owned property adjacent to her property on the west side, and that Slyman Construction Company, Inc., owned property (the Harris property) adjacent to Deckelman on the east side.⁷ In this document, Schreiner & Schreiner Development, Inc., indicated a desire to purchase the Deckelman property and Deckelman indicated her interest in selling that property to Schreiner & Schreiner Development, Inc.⁸

Additionally, Deckelman acknowledged that her property was subject to certain restrictions but that the restrictions contained in the chain of title to her property had ceased to be of benefit or of value to the property, that the character of the land had changed drastically since the restrictions were placed in the deed, and that enforcement of those restrictions would harm Deckelman. Deckelman, Schreiner Development, LLC, Schreiner & Schreiner Development, Inc., and Slyman Construction Company were the parties to this document, which was recorded in the Madison County Probate Court.⁹ By executing and recording this document, Deckelman purported to remove the restrictions applicable to the Deckelman property.

On September 30, 2004, Deckelman conveyed her property to Schreiner Development, LLC. Deckelman's conveyance of the Deckelman property to Schreiner Development, LLC, was not made subject to the restrictions or covenants of record. On that same date, September 30, 2004, Schreiner Development, LLC, conveyed title to the northern half of its lot (the Deckelman property) to the Slymans, and conveyed the southern half of that lot to FHT, LLC.

By conveying the northern half of the two lots to the Slymans and the southern half of the two lots to FHT, Schreiner Development, LLC, had subdivided the two parcels. Several months later, FHT conveyed its interest in the southern half of the Harris property and the Deckelman property to Hun Es Tu Malade.

Thus, by April 2005, Hun Es Tu Malade held title to the southern half of the Harris property and the Deckelman property and the Slymans held title to the northern half. Shortly after obtaining title to the southern half of the Harris property and the Deckelman property, Hun Es Tu Malade began construction of a CVS Pharmacy on the property.

II. The...