Point Clear Landing Ass'n, Inc. v. Kaylor

• Decision Date: 08 December 2006
• Docket Number: 2050608.
• Citation: 959 So.2d 672
• Parties: POINT CLEAR LANDING ASSOCIATION, INC. v. Jessie KAYLOR.
• Court: Alabama Court of Civil Appeals

959 So.2d 672

POINT CLEAR LANDING ASSOCIATION, INC. v. Jessie KAYLOR.

2050608.

Court of Civil Appeals of Alabama.

December 8, 2006.

Douglas L. McCoy of Hand Arendall, L.L.C., Mobile, for appellant.

William Daniel Calhoun of Duck, Calhoun & Stone, Fairhope, for appellee.

THOMPSON, Judge.

This action has a long procedural history, a portion of which was set forth by this court as a part of a previous appeal. See Point Clear Landing Ass'n, Inc. v. Point Clear Landing, Inc., 864 So.2d 369 (Ala. Civ.App.2003). In Point Clear Landing Association, Inc. v. Point Clear Landing, Inc., supra, this court set forth the procedural history of this action as follows:

"On June 13, 1995, Point Clear Landing, Inc. (`PCL'), filed an appeal in the Baldwin Circuit Court seeking a review of the decision of the Baldwin County Board of Adjustment denying PCL's request for a variance to construct single-family housing on its property. PCL also named Baldwin County as a party in its appeal (those two parties are hereinafter referred to collectively as `the Board'). In the materials filed in the trial court, PCL alleged that it owned certain real property (`the subject property') located adjacent to Point Clear Landing Condominiums. PCL explained that it had originally intended to construct condominiums on the subject property but it had later elected to attempt to construct single-family dwellings on the property. PCL acknowledged in its filing that the construction of single-family dwellings on the subject property would conflict with the existing zoning ordinances.

"On September 13, 1995, Point Clear Landing Association, Inc. (`the Association'), filed a motion to intervene in the circuit court. In that motion, the Association argued in favor of the Board's decision, citing, among other things, the language in the deed to the subject property that restricted the development of the property to its use for condominiums similar to the Point Clear Landing Condominiums. The Association also asserted that it had adversely possessed the property since July 1983, and it sought a judgment declaring, among other things, that PCL did not have a right to develop the subject property.

". . . PCL and the Board later reached an agreement as to PCL's claims regarding the variance, and the trial court dismissed the Board [from] the action.

"PCL and the Association each amended its filings to assert claims against the other. In summary, PCL sought to enjoin the Association from renting boat slips on the subject property; sought damages in the amount of any rental fees from those boat slips; and sought damages on a claim alleging conversion. The Association sought the reformation of the description contained in the deed to the subject property.

"On June 28, 2002, PCL [asserted in a separate action] claims against the Association, stating that the Association had purchased the subject property at a tax sale in December 1998, and asserting its intention to redeem the subject property pursuant to § 40-10-82, Ala.Code 1975. The Association answered, contending that PCL did not have statutory authority to redeem the subject property, but in the event the trial court ruled adversely on that issue, the Association was entitled, pursuant to § 40-10-83, Ala.Code 1975, to an award of the redemption price plus a reasonable attorney fee.[¹]

"On October 8, 2002, the trial court entered an order granting PCL the right to redeem the subject property and awarding the Association certain amounts as the redemption price for the property. The trial court certified its October 8, 2002, order as final, pursuant to Rule 54(b), Ala. R. Civ. P."

864 So.2d at 369-70.

In Point Clear Landing Association, Inc. v. Point Clear Landing, Inc., supra, the Association appealed the October 8, 2002, order granting PCL the right to redeem the subject property. This court, ex mero motu, concluded that the October 8, 2002, order was not appropriate for a certification of finality pursuant to Rule 54(b), Ala. R. Civ. P. 864 So.2d at 371. Therefore, this court dismissed the appeal on the basis that it had been taken from a nonfinal judgment. Id.

The record indicates that following this court's decision in Point Clear Landing Association, Inc. v. Point Clear Landing, Inc., supra, PCL did redeem the subject property and that no further challenge to that redemption has been asserted. In October 2002, the Association moved for a partial summary judgment pertaining to its alleged adverse possession of certain boat slips apparently located on the subject property; it does not appear that the trial court ruled on that motion. The trial court conducted a trial on the merits on October 27, 2003. However, no further action was taken in the case for more than a year.

On March 22, 2005, the trial court sent a notice via e-mail to the parties' attorneys advising them of its intended resolution of the pending issues. In that e-mail notice, the trial court requested that the attorneys for the Association and for PCL submit for its consideration proposed judgments setting forth the terms of the ruling as discussed in the e-mail notice.

On September 15, 2005, Alabama Development and Construction Consultants ("ADCC") filed a motion asserting that it had purchased PCL's interest in the subject property and asking to be substituted as a party in the action. On September 22, 2005, the trial court granted that motion and ordered that ADCC be substituted as the "plaintiff/counterclaim defendant" in this action.

On January 23, 2006, the trial court entered a final judgment in this matter. In that judgment the trial court, among other things, declared that the bulkhead and boardwalks situated on the boundary of the subject property belong to the Association. The trial court awarded ADCC an easement along that part of the bulkhead and boardwalk that are immediately adjacent to the subject property "together with such riparian rights pursuant to § 33-7-50, Ala.Code 1975." The trial court also denied the claims seeking reformation of certain restrictive covenants pertaining to the subject property and property owned by the Association.

The Association filed a postjudgment motion in which it, among other things, objected to the trial court's reference in its judgment to any riparian rights ADCC might have with regard to the subject property. After the trial court denied the Association's postjudgment motion, the Association timely appealed.

During the pendency of the appeal in this court, Jessie Kaylor filed a motion asserting that he had purchased the subject property from ADCC and requesting that he be substituted as the appellee in this appeal. This court granted that motion, and, accordingly, we will hereinafter refer to the appellee as "Kaylor."

The Association first argues that the trial court erred in referring in its January 23, 2006, judgment to any riparian rights Kaylor might have with regard to the subject property. "Riparian rights, which entitle the owner to construct waterfront improvements, belong to the owner of the fee in the riparian lands abutting the water." City of Orange Beach v. Benjamin, 821 So.2d 193, 195 (Ala.2001). Our supreme court has explained:

"The rights of riparian owners are stated in §§ 33-7-50 through 33-7-54, Ala.Code 1975. Section 33-7-50 states:

"`The owner of riparian lands upon navigable waters in the State of Alabama may install in front of their respective riparian lands wharves, docks, warehouses, sheds, tipples, chutes, elevators, conveyors and the like for receiving, discharging, storing, protecting, transferring, loading and unloading freight and commodities of commerce to and from vessels and carriers, and may use their riparian lands in connection therewith and dredge out and deepen the approaches thereto, and may charge and collect reasonable tolls for the use thereof. All such structures are to be subject to such lines and limitations as may at the time of making such improvements be laid or placed by any authority of the United States, or of the State of Alabama, who may have authority to control harbor and pier lines.'

"This section governs building rights not only on riparian lands and the overlying waters but also on the lands and overlying waters, including navigable waters, in front of riparian lands."

Ex parte Cove Props., Inc., 796 So.2d 331, 333 (Ala.2000) (emphasis omitted).

The Association argues that neither of Kaylor's predecessors in interest ever asserted a claim to riparian rights until ADCC submitted its proposed judgment to the trial court. The Association also contends that the issue of the existence of any riparian rights was not litigated during the trial on the merits. "Where an issue is not raised in a pleading but it is tried by the express or implied consent of the parties, the pleadings may be treated as amended so as to conform to the evidence. Rule 15(b), Ala. R. Civ. P." J.A.P. v. L.W.A., 910 So.2d 115, 118 (Ala.Civ.App.2004). However,

"[w]hen a party contends that an issue was tried by express or implied consent and the evidence on that issue is also relevant to the issue expressly litigated there is nothing to indicate that a new issue was raised at trial, and the pleadings are not deemed amended under Rule 15(b). Wright & Miller, Federal Practice & Procedure, Civil, § 1493 (1971)."

McCollum v. Reeves, 521 So.2d 13, 17 (Ala. 1987).

This court's review of the pleadings and motions filed in this action indicates that at no time did any party make any reference to or assert a claim asking for a...