Pardue v. Citizens Bank & Trust Co.

Decision Date25 March 1971
Docket Number2 Div. 535
Citation247 So.2d 368,287 Ala. 50
PartiesJ. Bruce PARDUE et al. v. CITIZENS BANK & TRUST COMPANY, a Corporation, et al.
CourtAlabama Supreme Court

S. P. Keith, Jr., Birmingham, for appellants.

Hill, Hill, Stovall, Carter & Franco, Montgomery, for appellees.

MERRILL, Justice.

This appeal is from a decree granting, in part, the prayer for relief of the appellees, Citizens Bank & Trust Company, hereinafter referred to as the Bank, and its directors, and denying the cross bill of appellants, J. Bruce Pardue, hereinafter referred to as appellant, and Citizens Development Corporation.

The bill, as amended, alleged that the Bank was organized in Selma in 1959 with appellant as president and chairman of the board of directors. He continued in that capacity until he was discharged on March 23, 1966. When organized, the Bank acquired a building and lot fronting east on Broad Street and a fifteen-foot alley easement along the north side of the building for ingress and egress. Later, this fifteen-foot alley easement was extended westward through the block to connect with the next street to the west, Lauderdale Street. The next lot south of the Bank lot was a corner lot, facing 100 feet on Broad Street and 115 feet on Jeff Davis Avenue. With the approval of the board of directors, appellant proceeded to remodel and alter the building to make it suitable to bank use. He installed on the north wall of the building a drive-in teller window, metal canopy, night depository, downspouts, electrical conduits, and similar installations which encroached a few inches into the alley easement. The shed over the drive-in window encroached 4.78 feet. Two or three years later, he raised the elevation of the alley approximately eight inches to bring drivers of automobiles to a convenient level with the drive-in window.

Appellant then undertook the promotion of a shopping center within the block of which the Bank was a part. He represented to the officials and directors that the shopping center would complement the services of the Bank and would provide parking which would be for the mutual benefit of the Bank and the stores in the center. With his active participation, Mid-Selma Land Company, Inc., a private corporation, was organized by all of the directors of the Bank to acquire, and it did acquire, properties within the block. Appellant, with the sanction of the board of directors, and some of them joining with him, organized Citizens Development Corporation to develop and own the shopping center. On the basis of representation by appellant, Mid-Selma Land Company on December 23, 1963, conveyed to the Bank for expansion a parcel of land contiguous to the Bank at its west end, identified on the map as Tract B. On the same date, it conveyed to Citizens Development Corporation contiguous land which was later developed as a part of the shopping center parking lot. Parking easements for the Bank were not expressly reserved. However, appellant, acting for Citizens Development Corporation, had prepared an overall plan for the development of the complex. The evidence later reflected this plan, dated September 7, 1963, and a copy is attached to the court's decree.

In 1968, appellee Bank, at a cost in excess of $50,000.00, constructed an addition on Tract B of its property following the plan of development prepared by the appellant for Citizens Development Corporation. No objection was made to the construction until it was substantially completed. At that time, appellant owned all the stock of Citizens Development Corporation.

Following completion of the bank addition, appellant conducted harassment tactics designed to hinder the use by the Bank of its facilities, particularly those in the alley. Intermittent repairs to the alley surface hindered the use of the drive-in window. The area next to the window was lowered eight inches to its original grade. Likewise, over the protest of the Bank, appellant caused to be constructed a brick wall around the bank addition to a height of six to eight feet, preventing access of vehicles and pedestrians to the addition from Jeff Davis Avenue as had been planned in the development scheme.

The complaint sought an injunction against harassment and limitations on the use of the bank facilities, the removal of the wall, and declaratory judgment that the Bank was not indebted to appellant for unearned salary in 1966.

The appellants filed a cross bill in which they sought an adjudication of substantially the same issues which were raised in the original bill. The cross bill also claimed payment for a year's salary from the Bank to appellant. For answer to this aspect, the appellees included defenses that (1) there was no contract of employment and appellant Pardue was subject to release at any time, (2) that his discharge was 'by reason of misfeasance and non-feasance in office' which was detrimental to the best interest of the Bank, and (3) that there was an accord and satisfaction by the payment to Pardue of $2,750.00 as severance pay.

The trial was begun on September 8, 1969, and consumed twelve full working days over a period of three weeks. The transcript consists of five separate volumes totaling 1,131 pages.

The trial judge was personally familiar with the block where the Bank and shopping center were located and, with the consent of all the parties, he made a special trip to the area and personally inspected the premises.

A decree was rendered on February 23, 1970, which granted:

1. An injunction prohibiting appellants from obstructing the Bank's ingress and egress of the fifteen-foot alley easement or changing traffic pattern.

2. The right to the Bank to change grade in alley at drive-in window about eight inches.

3. An injunction requiring appellants to demolish wall around west and south end of Tract B.

4. An injunction from changing the design of parking area and vehicular passageway between Tract B and Jeff Davis Avenue or obstructing such lane of traffic.

5. An injunction from denying to complainants and customers and employees of the Bank the right to freely park anywhere in parking area of shopping center, and denying the prayer of cross bill.

The trial court's very studied and comprehensive decree covers nine pages of the transcript, and gives a much more detailed history of the controversy and findings of fact than we state in this opinion, and anyone desiring to fully comprehend the reasoning of the court is referred to that opinion. We refer only to the decree as is necessary in discussing the various assignments of error.

We quote from the trial court's opinion:

'* * * The parties were given broad latitude in the presentation of these issues and in the introduction of evidence, but the Court in its findings of facts and analysis of all of the evidence made the basis of this decree has pursuant to Title 7, Section 372(1) of the ,1958 Recompiled Code of Alabama, considered only evidence which is relevant, material, competent and legal.'

The assignments of error are grouped for disposition. It is well to note that appellant Pardue testified that he owned one hundred per cent of the stock in appellant Citizens Development Corporation and that he spoke for the Corporation. The trial court found that Pardue was the alter ego of the corporation after he acquired all the stock in 1966.

Assignments 1, 2, 6, 7, 84 and 85 are concerned with the alley rights, and relate to the encroachments along the north wall of appellees' property and the eight-inch raise in elevation of the alley at the drive-in teller window.

The finding as to the encroachments is as follows:

'The Court further finds from the evidence that with respect to the encroachment of bank facilities upon the alley, such so-called encroachments are not repugnant to or inconsistent with the deed by which Citizens Development Corporation acquired the underlying fee, but on the contrary the title of the respondent Citizens Development Corporation is subject to such encroachments. Coley v. W. P. Brown & Sons Lumber Co., 251 Ala. 253 (235), 36 So.2d 326, (37 So.2d 125); McCarter v. Crawford, et al., 156 N.E. 90, 245 N.Y. 43; Texaco Inc. v. Bigott, (Pigott), 255 F.Supp. 458 ((D.C.) 1964), affirmed 358 F.2d 723 (5th Cir., 1966).

'It follows as a necessary sequence of the findings and opinion of the Court that the removal by respondents of the eight inch elevated concrete ramp servicing the teller window of complainant bank was improper and in derogation of rights of the bank. It is the finding and opinion of the Court from all of the evidence that the restoration of the grade level of the area-way in the vicinity of the drive-in teller window of the bank to substantially the same elevation which existed prior to its removal should be permitted.'

Some of the testimony supporting the finding of the trial court was that appellant, while serving as president of the Bank, caused the encroachments to be constructed in the alley, and caused the grade in the alley near the teller's drive-in window to be raised eight inches. He acknowledged that he knew the items were encroachments when he directed the contractor to place them there. He also arranged for the deed conveying the underlying fee to Citizens Development Corporation in 1963. The deed to his corporation was made 'subject * * * to encroachments.' Appellant testified that had he been the grantor he also would have made the deed subject to the existing encroachments.

The words 'subject to' have been construed by this and other courts. In Blackwell v. Burketts, 251 Ala. 233, 36 So.2d 326, where the court, in construing the words 'subject to the stipulations hereinafter set forth' in a testamentary bequest, said 'The natural and legitimate office of such proviso is to indicate that subsequent provisions would qualify these bequests.'

In McCarter v. Crawford, 245 N.Y. 43, 156 N.E. 90, where the contract of sale was...

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