Kennedy v. Conner

Citation291 So.3d 867
Decision Date07 June 2019
Docket Number2180063
Parties J. Gregory KENNEDY v. Georgene Gause CONNER
CourtAlabama Court of Civil Appeals

J. Gregory Kennedy of Chason & Chason, P.C., Bay Minette, pro se.

Mark D. Ryan and Samuel K. Wilkes of Ryan & Wilkes, P.C., Orange Beach, for appellee.

EDWARDS, Judge.

This appeal involves a boundary-line dispute between Georgene Gause Conner and J. Gregory Kennedy. Kennedy appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") that found in favor of Conner on her adverse-possession claim, awarded Conner injunctive relief, and awarded Conner damages against Kennedy for trespass.

Facts and Procedural History

Conner is the daughter of Thomas Gause and Georgia Gause. By a deed dated May 30, 1989, Thomas Gause, Georgia Gause, and Conner acquired title, as joint tenants with right of survivorship, to a parcel of property in Orange Beach ("the Gause property"). The Gause property included a vacation home that had been constructed next to the western boundary of that property. The southern boundary of the Gause property fronted Bay Ornocor ("the bay"). The northern boundary and eastern boundary shared a common boundary with property owned by Kenneth Harman, Jr. At the northern boundary, the Gause property had a 20-foot-wide access easement across Harman's property to the southern right-of-way of Alabama Highway 180.

By a deed dated June 19, 1998, Thomas Gause acquired title to Lot 3 ("Lot 3") of the Sun Circle Subdivision ("the subdivision"), which subdivision was located west of the Gause property. That deed specifically stated that the conveyance was subject to certain restrictive covenants ("the restrictive covenants") in favor of the other two lots in the subdivision, and a copy of those restrictive covenants was attached to the deed. Lot 3, which was a vacant lot, was located immediately west of the Gause property and was the easternmost lot of the subdivision. Like the southern boundary of the Gause property, the southern boundary of Lot 3 fronted the bay. The eastern boundary of Lot 3 was the common boundary with the western boundary of the Gause property. Unlike the Gause property, however, the eastern boundary of Lot 3 continued in a northerly direction to the southern right of way of Alabama Highway 180. In other words, the eastern boundary of Lot 3 also shared a common boundary with Harman's property where the access easement in favor of the Gause property was located on Harman's property.

After Thomas Gause acquired Lot 3, that lot was combined with the Gause property, and the combined property was resubdivided into two lots referred to as the "Gause addition" to the subdivision. Lot 2 of the Gause addition consisted of what had been the Gause property plus a strip of land from Lot 3 of the subdivision; Lot 2 also included the access easement over Harman's property. Lot 1 of the Gause addition consisted of the remaining portion of the property that was formerly Lot 3 of the subdivision. The plat for the Gause addition reflects that the combined bay frontage for Lot 1 and Lot 2 was "179 feet more of less." Lot 2 of the Gause addition included approximately 94 feet of bay frontage; Lot 1 of the Gause addition included approximately 85 feet of bay frontage.

The strip of land that was taken from Lot 3 of the subdivision and made a part of Lot 2 of the Gause addition began at the bay front. From the bay front, and for most of the length of the strip of land, including the area where the vacation home was located, the strip of land was approximately 15-feet wide. Toward the northern end of Lot 2 of the Gause addition, however, the strip of land taken from Lot 3 of the subdivision widens to approximately 30 feet, for a distance of approximately 150 feet.1 The northern boundary of Lot 2 of the Gause addition is approximately 350 feet south of the southern right-of-way to Alabama Highway 180; Lot 1 of the Gause addition shares that approximately 350 feet as a common boundary with Harman's property as described above.

It appears that Thomas Gause was the sole owner of Lot 3 of the subdivision when the plat of the Gause addition was recorded, and, obviously, the deed to the Gause property did not include the strip of land that was later taken from Lot 3 and added to the Gause property to form Lot 2 of the Gause addition. It is unclear from the record how and when Conner acquired title to that strip of land, but it is undisputed that Thomas Gause and Georgia Gause died before Conner commenced the underlying action, and it is undisputed that Conner owned Lot 2 of the Gause addition, which included that strip of land.

By a deed dated August 12, 1998, Thomas Gause conveyed Lot 1 of the Gause addition to John C. Hope III. The deed to Hope stated that the conveyance was subject to the restrictive covenants and certain additional restrictions on use, as did a deed dated November 28, 2012, by which Hope conveyed Lot 1 of the Gause addition to Millie, LLC, a family owned limited-liability company managed by Hope.

By a deed dated February 23, 2018, Millie, LLC, conveyed Lot 1 of the Gause addition to Kennedy, who is a general contractor and has been building in Gulf Shores and Orange Beach for almost 30 years. The deed from Millie, LLC, to Kennedy states that the conveyance was subject to the restrictive covenants and the additional restrictions on use referenced in the preceding paragraph.

Kennedy utilized the services of Rowe Engineering and Surveying, Inc. ("RESI"), to locate the purported common boundary line between his property and Lot 2 of the Gause addition, and he began site work for the construction of a residence, including making trenches for utilities, installing "electrical hookups," clearing and grading an area for a foundation pad for the residence, and laying a gravel driveway. However, after RESI placed stakes purporting to show the common boundary line between Lot 1 and Lot 2 of the Gause addition, and during Kennedy's construction activities, disputes arose between Conner and Kennedy. Specifically, Conner confronted Kennedy about allegedly trespassing onto her property as part of his construction activities and about the location of their common boundary line. As to the latter, Conner claimed that the common boundary line was further west than the stakes laid by RESI indicated. Specifically, based on the evidence submitted to the trial court, Conner claimed title by adverse possession to a long, thin, triangular parcel of property ("the disputed parcel") that was part of Lot 1 of the Gause addition according to the plat of the Gause addition and that was contiguous to Lot 2 of the Gause addition. Lot 1 of the Gause addition, minus the disputed parcel, is hereinafter referred to as "Kennedy's property"; Lot 2 of the Gause addition and the disputed parcel are hereinafter collectively referred to as "Conner's property." The southern boundary of the triangle forming the disputed parcel is the widest part of the triangle and is located on the bay front; that part of the triangle is approximately 5 feet wide -- which would leave Kennedy's property with approximately 80 feet of bay frontage rather than the approximately 85 feet shown on the plat of the Gause addition. From the westernmost point of the southern boundary of the disputed parcel, Conner claimed the common boundary line between Conner's property and Kennedy's property continued north through certain landmarks (an iron axle and the eastern side of a bent oak tree) for several hundred feet until the line met the common boundary line between Lot 2 of the Gause addition and Kennedy's property as reflected on the plat of the Gause addition.2

On May 4, 2018, Conner filed a verified complaint against Kennedy in the trial court. According to Conner's complaint, she had acquired title to the disputed parcel by adverse possession. The complaint requested a judgment declaring the common boundary line between Conner's property and Kennedy's property and declaring that Kennedy's property is subject to the restrictive covenants. Also, the complaint sought a preliminary injunction enjoining

"Kennedy and any of his agents and/or contractors from moving forward with construction activities on, along, or around [Kennedy's property or Conner's property] ... until such time as the restrictive covenants issue and common boundary line issue can be resolved by the parties or by this Court, or until further Order from this Court."

Further, the complaint sought compensatory damages and punitive damages for Kennedy's alleged intentional or wanton trespass onto Conner's property; the trespass claim included allegations that Kennedy "ha[d] installed a power utility box and pole, water pipes, a portion of his gravel driveway, and [had] dug utility trenches clearly onto Conner's property, well beyond even Kennedy's claimed boundary line." The complaint also included a claim for ejectment seeking "the recovery of [Conner's] property, removal of the physical invasion [onto Conner's] property, and compensatory and punitive damages."

On May 14, 2018, Kennedy filed an answer and a counterclaim seeking a judgment declaring the location of the common boundary line to be as reflected on the plat of the Gause addition, declaring the extent to which the restrictive covenants applied to Kennedy's property, and declaring whether Conner had any right to enforce the restrictive covenants. Conner filed an answer denying the allegations of the counterclaim and asserting the affirmative defense that she was entitled to the disputed parcel based on statutory adverse possession. See Ala. Code 1975, § 6-5-200. Conner also asserted that Kennedy's counterclaims were barred based on the application of the doctrines of estoppel, waiver, and unclean hands.

When Conner filed her complaint, she also filed a motion seeking a temporary restraining order requiring Kennedy to cease further construction activities. The trial court granted Conner's motion for a temporary restraining...

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3 cases
  • Ross v. Clark Prop. Mgmt., LLC
    • United States
    • Alabama Court of Civil Appeals
    • 12 March 2021
    ...in a boundary line dispute or adverse possession case which turns on issues of disputed facts.’ " Id. at 892." Kennedy v. Conner, 291 So. 3d 867, 876 (Ala. Civ. App. 2019).Analysis A pro se litigant may represent only himself or herself before a trial court or an appellate court. See § 34-3......
  • Ross v. Clark Prop. Mgmt., LLC
    • United States
    • Alabama Court of Civil Appeals
    • 12 March 2021
    ...court in a boundary line dispute or adverse possession case which turns on issues of disputed facts.'"Id. at 892."Kennedy v. Conner, 291 So. 3d 867, 876 (Ala. Civ. App. 2019).Analysis A pro se litigant may represent only himself or herself before a trial court or an appellate court. See § 3......
  • Wall To Wall Props. v. Deutsche Bank Nat'l Tr. Co.
    • United States
    • Alabama Court of Civil Appeals
    • 11 March 2022
    ... ... v. Buzzelli, 501 So.2d 1211, ... 1213 (Ala. 1987); McCary v. Crumpton, 267 Ala. 484, ... 487, 103 So.2d 714, 716 (1958); Kennedy v. Conner, ... 291 So.3d 867, 876 (Ala. Civ. App. 2019); Rioprop ... Holdings, LLC v. Compass Bank, 256 So.3d 674, 679 (Ala ... ...

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