Lancaster v. Evans
| Decision Date | 18 November 2016 |
| Docket Number | 2150627 |
| Citation | 229 So.3d 779 |
| Parties | Harold LANCASTER and Candy Lancaster v. Walter S. EVANS and Traci E. Evans |
| Court | Alabama Court of Civil Appeals |
Alabama Supreme Court 1160170
Robin F. Reynolds, Dadeville, for appellants.
Chip Cleveland of Cleveland, Riddle & Atchison, Attorneys at Law, LLC, Prattville; and Thomas A. Radney of Radney, Radney & Jackson, LLC, Alexander City, for appellees.
Harold Lancaster and Candy Lancaster appeal from a summary judgment of the Tallapoosa Circuit Court ("the trial court") denying their claim seeking an injunction against Walter S. Evans and Traci E. Evans. The Lancasters alleged that the Evanses had violated restrictive covenants applicable to certain property by building a boathouse ("the boathouse")1 and by planting trees and erecting a sign in the border area between the parties' properties. The trial court entered a summary judgment in favor of the Evanses, finding that the boathouse was built on a third party's property and that a latent ambiguity existed in the restrictive covenants preventing enforcement of the covenants in the manner requested by the Lancasters.
We hold that the Evanses' construction of the boathouse was subject to the restrictive covenants because the provisions of the restrictive covenants regarding boathouses touched and concerned the Evanses' property. We also hold that the restrictive covenants prohibited the boathouse built by the Evanses. However, the Lancasters waived on appeal any issue regarding the planting of the trees and the erection of the sign in the border area between the parties' properties. We therefore affirm the summary judgment in part, reverse the summary judgment in part, and remand the cause to the trial court for further proceedings.
The Lancasters and the Evanses are owners of adjoining properties that abut Lake Martin. Both properties are located in the Clearwaters Subdivision ("the subdivision") that consists of 6 lots. In 1995, the Lancasters purchased their property, which is located in the rear of a slough. The Evanses purchased their property in December 2013. It is undisputed that the properties in the subdivision are subject to the provisions in the "Protective Covenants Plat" ("the restrictive covenants") recorded in the Tallapoosa Probate Court. In January 2015, the Evanses began the replacement of a pier extending outward from their property into Lake Martin and the construction of the boathouse at the end of the pier over the water of Lake Martin.
On February 2, 2015, the Lancasters filed a complaint alleging that the Evanses had violated the restrictive covenants by beginning construction of the boathouse. The Lancasters alleged that the boathouse did not have their approval or the approval of an Architectural Control Committee for the subdivision. According to the Lancasters' allegations, no Architectural Control Committee had been formed as required by the restrictive covenants. The Lancasters claimed that they were pursuing enforcement of the restrictive covenants as adjacent-property owners. The Lancasters sought a temporary restraining order, a preliminary injunction, and a permanent injunction ordering that construction on the boathouse cease and that the boathouse be removed. The Lancasters later amended the complaint to allege additional violations of the restrictive covenants by the Evanses along the adjoining border line between the parties' properties—namely, the Evanses' posting of a "no trespassing" sign and the Evanses' planting of trees obstructing the Lancasters' view. In the amended complaint, the Lancasters also alleged that construction of the boathouse had been completed.
The Evanses filed an answer denying the allegations that they had violated the restrictive covenants. The Evanses asserted various affirmative defenses, including that the claims against them are barred by the unclean-hands doctrine. The Evanses asserted counterclaims against the Lancasters, alleging trespass and invasion of riparian rights. According to the Evanses' allegations, the Lancasters had tied a water vessel to a cleat on their property and had walked across their property without their permission in the summer of 2014 and had installed a water line that diverted water from the inlet adjacent to the Evanses' property.
On October 23, 2015, the Evanses filed a motion for a summary judgment. The Evanses contended that the provisions of the restrictive covenants regarding the use of Lake Martin were not enforceable against them because those covenants do not touch or concern the property that had been conveyed to them. The Evanses asserted that Lake Martin is owned by Alabama Power Company ("Alabama Power") and that they had obtained a use permit from Alabama Power to build the boathouse on December 4, 2014. In support of their motion, the Evanses submitted the use permit from Alabama Power allowing for the replacement of their pier and the construction of the boathouse at the end of the new pier. The permit indicated that Alabama Power owned the "pool property" of Lake Martin.
The Evanses conceded that if the boathouse was subject to the restrictive covenants, those covenants prohibited the construction of any structure other than a pier or a dock without the approval of adjacent-property owners, an Architectural Control Committee, and Alabama Power. The Evanses asserted that uncertainty as to the existence of an Architectural Control Committee created a latent ambiguity in the restrictive covenants regarding the approval of the boathouse and that, therefore, only the approval of Alabama Power was needed. In support of their assertion that an ambiguity existed, the Evanses referred to the allegation in the Lancasters' complaint that an Architectural Control Committee did not exist and the Lancasters' responses to interrogatories in which they listed 11 individuals they stated were a part of an Architectural Control Committee.
The Evanses additionally argued that enforcing the restrictive covenants would create an unjust hardship on them, asserting that the expense of removing the boathouse outweighed the benefits to the Lancasters of doing so. The Evanses also argued that the claims against them were barred by the unclean-hands doctrine. They asserted that the Lancasters had violated the approval provisions of the restrictive covenants by constructing a pier within 15 feet of the Evanses' extended interior property line without their express written approval as adjacent-property owners. No evidence was submitted by the Evanses to support those assertions.
On November 11, 2015, the Lancasters filed a brief in opposition to the motion for a summary judgment, contending that the restrictive covenants prohibited the construction of the boathouse. The Lancasters submitted, among other exhibits, the following: the use permit from Alabama Power, the restrictive covenants, the deed conveying the property to the Evanses, and affidavits from Harold Lancaster, George Hammond, and Walter Lowery, Jr. In his affidavit, Harold Lancaster testified that construction of the boathouse began on January 5, 2015, and that, on the next day, he met with Walter Evans, objected to the structure, and personally delivered to Walter a copy of the restrictive covenants. Harold testified that a week later Walter stated that he would comply with the covenants and build only a pier with boat lifts but that, on January 29, 2015, it became apparent that the Evanses were building a boathouse. He further testified that construction of the boathouse and an adjoining gazebo was completed by February 7, 2015, after the Lancasters had filed their complaint. He additionally testified that, on March 29, 2015, the Evanses planted pine trees and magnolia trees along the parties' property line and placed a "no trespassing" sign facing the front of the Lancasters' house.
The Lancasters argued that the use permit from Alabama Power was insufficient to meet the approval requirements in the restrictive covenants to build a boathouse. The use permit states the following regarding covenants:
The restrictive covenants contain the following provisions regarding piers and boathouses:
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