Trevor Cole v. Arthur M. Davis, Ronald F. Ham, Patricia G. Hooper, Thomas R. Miller, Sara A. Minor, June Montgomery, Jill Murray, and Debbie Rice

Rel: March 24, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
SC-2022-0723
_________________________
Trevor Cole
v.
Arthur M. Davis, Ronald F. Ham, Patricia G. Hooper, Thomas R.
Miller, Sara A. Minor, June Montgomery, Jill Murray, and
Debbie Rice
Appeal from Madison Circuit Court
(CV-21-900855)
COOK, Justice.
This appeal arises from an action to enforce restrictive covenants
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within a subdivision. The plaintiffs are the owners of different lots:
Arthur M. Davis, Ronald F. Ham, Patricia G. Hooper, Thomas R. Miller,
Sara A. Minor, June Montgomery, Jill Murray, and Debbie Rice ("the lot
owners"). They sought an injunction to prevent Trevor Cole from
subdividing his lot. The Madison Circuit Court entered a summary
judgment in favor of the lot owners and issued the injunction.
On appeal, Cole argues (1) that the restrictive covenants should not
be enforced for various equitable reasons (because of the "relative
hardship" enforcing the covenants would allegedly impose upon him;
because the "character of the neighborhood" has allegedly changed
"radically" since the covenants were adopted; and because a majority of
the other property owners in the subdivision, including some of the lot
owners, have waived enforcement of the covenants), (2) that he should
have been provided certain discovery before the entry of the summary
judgment, and (3) that necessary or indispensable parties to the action
were absent. We reject each of these arguments and affirm.
Facts and Procedural History
Kirkwood Heights ("the subdivision") is a residential subdivision
located in Huntsville. The subdivision, like many other subdivisions, has
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a set of restrictive covenants known as the "Kirkwood Heights
Restrictions" ("the Kirkwood Heights covenants"), which dictate what
property owners in the subdivision can and cannot do with their property.
The Kirkwood Heights covenants provide, in pertinent part:
"1 -- BUILDING LOCATION: No Building shall be located on
any lot nearer to the front lot line or nearer to the side street
line than the minimum building setback lines shown on the
recorded plat. In any event no building shall be located on any
lot nearer than 30 feet to the front lot line, or nearer than 30
feet to the side street line …. No dwelling shall be located on
any interior lot nearer than 40 feet to the rear lot line.
"2 -- LOT AREA AND WIDTH: No dwelling shall be erected
or placed on any lot having a width of less than 85 feet at the
minimum building setback line, nor shall any dwelling be
erected or placed on any lot having an area of less than 11,900
square feet.
"3 -- LAND USE AND BUILDING TYPE: No lot shall be used
except for residential purposes. No building shall be erected,
altered, placed or permitted to remain on any lot other than
one detached single-family dwelling ….
"….
"15 -- TERM: These covenants are to run with the land and
shall be binding on all parties and all persons claiming under
them for a period of twenty-five years from the date these
covenants are recorded, after which time said covenants shall
be automatically extended for successive periods of 10 years
unless an instrument signed by a majority of the then owners
of the lots has been recorded, agreeing to change said
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covenants in whole or in part.
"16 -- ENFORCEMENT: Enforcement shall be by proceedings
at law or in equity against any person or persons violating or
attempting to violate any covenant either to restrain violation
or to recover damages.
"17 -- SEVERABILITY: Invalidation of any one of these
covenants by judgment or court order shall in no wise affect
any of the other provisions which shall remain in full force
and effect."
(Emphasis added.)
According to the record, in 2016 the owner of a particular lot in the
subdivision -- Lot 14 -- requested that the Kirkwood Heights covenants
be amended to allow that owner to subdivide the lot. Pursuant to
paragraph 15 in those covenants, that owner recorded an "Amendment
and Waiver" ("the 2016 waiver") to the Kirkwood Heights covenants in
the Madison Probate Court, in which a majority of the property owners
in the subdivision, including some of the lot owners, agreed to amend
those covenants as follows:
"1. Notwithstanding anything in paragraph 2 [of the
Kirkwood Heights covenants] to the contrary, Lot 14, Block 5
may be subdivided and the resulting Lot(s) shall have a width
of no less than 60 feet at the minimum building setback line
and may have a minimum Lot area of 7,500 square feet.
"2. Except as herein changed, all other restrictions
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and/or covenants recorded … shall remain in full force and
effect."
(Emphasis added.)
In 2018, Cole bought his lot -- Lot 1 -- located in the subdivision. He
does not dispute that he had actual knowledge of the Kirkwood Heights
covenants. He also claims that he had knowledge of the 2016 waiver and
alleges that he relied upon it when purchasing his lot. Despite his
knowledge of the Kirkwood Heights covenants, including the lot-size and
width restrictions in paragraph 2, Cole submitted to the City of
Huntsville a proposed plat in which Cole noted his intention to work with
Augustus Homes, LLC, to subdivide his lot into two residential lots.
According to Cole, his intent was to build two high-end homes on the
subdivided lots and market them to the public. At no point before doing
this, however, did Cole attempt to seek an "Amendment and Waiver" to
the Kirkwood Heights covenants similar to the 2016 waiver.
On July 8, 2021, the lot owners commenced this action. Attached
to their complaint were copies of the following certified documents: (1)
the "Kirkwood Heights Subdivision Plat Map"; (2) the Kirkwood Heights
covenants; (3) the 2016 waiver; and (4) Cole's deed to his lot.
A few days later, Cole filed his answer, in which he raised various
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affirmative defenses, including, among others, the "relative-hardship"
defense and waiver. He also filed a counterclaim against the lot owners,
asserting tortious interference with his ongoing business relationship
with Augustus Homes and civil conspiracy. He did not seek a judgment
declaring the validity, scope, or enforceability of the Kirkwood Heights
covenants.
Shortly thereafter, Cole served requests for production to the lot
owners, along with a deposition notice for each lot owner. In the
deposition notices, Cole proposed multiple dates and times, leaving the
dates and times subject to negotiation among the parties. It does not
appear from the record that the lot owners responded to any of Cole's
discovery requests.
Cole also filed a motion pursuant to Rule 19, Ala. R. Civ. P., to
require the lot owners to add all the other property owners in the
subdivision as necessary or indispensable parties. The trial court denied
Cole's motion, and Cole filed a petition for a writ of mandamus with this
Court, which we denied. Ex parte Cole (No. 1200828, Sept. 24, 2021).
Neither the trial court, nor this Court, granted a stay during the
pendency of that mandamus petition.
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On September 7, 2021, the lot owners filed a motion for a summary
judgment in which they argued that there were no genuine issues of
material fact in this case because Alabama law is clear that unambiguous
restrictive covenants like the ones at issue in this case are enforceable
and that an injunction is the appropriate remedy for the breach of such
covenants. They further argued that, to the extent that Cole contended
that the Kirkwood Heights covenants were unenforceable under either
the "relative-hardship" test or the "change-in-the-neighborhood" test,
Cole could not demonstrate either that enforcing them would create a
relative hardship on him and similar property owners in the subdivision
or that the character of the subdivision had changed so drastically that
the Kirkwood Heights covenants no longer accomplished their original
purpose. Finally, they argued that Cole could not prevail on either his
tortious-interference claim or his civil-conspiracy claim because their
efforts to enjoin Cole's subdivision of his lot were justified under the law.
In support of their motion, the lot owners incorporated by reference the
certified copies of the documents that they had attached to their
complaint.
Cole timely filed a response in opposition to the summary-judgment
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motion and argued that, contrary to the lot owners' contentions, genuine
issues of material fact existed as to whether the Kirkwood Heights
covenants prevented him from being able to subdivide his lot because a
majority of the property owners in the subdivision had previously
consented to a waiver of the lot-size and width provisions in paragraph 2
of the Kirkwood Heights covenants in the 2016 waiver and because, he
said, there had been a general failure to enforce other covenant
violations. Cole further argued that, pursuant to Rule 56(f), Ala. R. Civ.
P., summary judgment was inappropriate until he was able to conduct
some discovery on the claims alleged by the lot owners. He also argued
that the balancing of factors under the relative-hardship test or the
change-in-the-neighborhood test weighed against the enforcement of the
Kirkwood Heights covenants in this case. Finally, he argued that,
without some discovery, the trial court also could not make a
determination as to whether genuine issues of material fact existed as to
his tortious-interference claim or his civil-conspiracy claim.
In support of his response in opposition to the summary-judgment
motion, Cole included, pursuant to Rule 56(f), an affidavit from his trial
counsel, Robert Presto, who confirmed that, despite his efforts, the lot
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owners had failed to respond to any of Cole's discovery requests. On
October 18, 2021 -- three days before the date set for the hearing on the
summary-judgment motion -- Cole also filed a motion to compel responses
to his discovery requests.
Other than the affidavit of his counsel under Rule 56(f), Cole did
not file any evidence in opposition to the summary-judgment motion.
However, at the hearing on the motion, he provided several exhibits,
including (1) a tax assessor's plat of the entire subdivision, (2) various
printouts from the tax assessor's office relating to other property in the
subdivision, (3) a petition signed by 108 people claiming to be residents
of the subdivision and opposing the subdivision of Cole's lot, (4) a picture
of Cole's lot, (5) a notice of violation of the Kirkwood Heights covenants
based on trash on Cole's lot, and (6) pictures of signs on other properties
in the subdivision. There is no indication in the record that any of those
documents were certified by affidavit or otherwise authenticated.
On October 21, 2021, the trial court held a hearing on the summary-
judgment motion.1 The trial court entered a summary judgment in favor
1A transcript of that hearing was not included in the record on
appeal.
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of the lot owners on March 16, 2022, enjoining Cole and "his successors
and assigns" from subdividing Lot 1 "without adhering to and complying
with the procedure(s) set out in the applicable" Kirkwood Heights
covenants. The trial court also entered a summary judgment in favor of
the lot owners on Cole's tortious-interference and civil-conspiracy claims.
Cole appeals.
Standard of Review
" ' "This Court's review of a summary
judgment is de novo. Williams v. State Farm Mut.
Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003). We
apply the same standard of review as the trial
court applied. Specifically, we must determine
whether the movant has made a prima facie
showing that no genuine issue of material fact
exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R.
Civ. P.; Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So. 2d 949, 952-53 (Ala. 2004). In
making such a determination, we must review the
evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d
794, 797-98 (Ala. 1989); Ala. Code 1975, § 12-21-
12. '[S]ubstantial evidence is evidence of such
weight and quality that fair-minded persons in the
exercise of impartial judgment can reasonably
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infer the existence of the fact sought to be proved.'
West v. Founders Life Assur. Co. of Fla., 547 So.
2d 870, 871 (Ala. 1989)." '
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
Discussion
Our Court has previously recognized that, as a general matter,
"restrictive covenants are not favored in the law and will therefore be
strictly construed by this Court." Lange v. Scofield, 567 So. 2d 1299, 1301
(Ala. 1990). "All doubts must be resolved against the restriction and in
favor of free and unrestricted use of the property." Id.However, when the language of a restrictive covenant is not "of
doubtful meaning [or] ambiguous," the language of that covenant "is
entitled to be given the effect of its plain and manifest meaning." Laney
v. Early, 292 Ala. 227, 231-32, 292 So. 2d 103, 107 (1974). "If 'there is no
inconsistency or ambiguity within a restrictive covenant, the clear and
plain language of the covenant is enforceable by injunctive relief.' " Hipsh
v. Graham Creek Estates Owners Ass'n, 927 So. 2d 846, 848 (Ala. Civ.
App. 2005) (quoting Carpenter v. Davis, 688 So. 2d 256, 258 (Ala. 1997)).
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That proposition of law takes precedence over the disfavor that our Court
has previously shown toward restrictions of the use of land. Laney, 292
Ala. at 231, 292 So. 2d at 106-07.
In Tubbs v. Brandon, 374 So. 2d 1358, 1361 (Ala. 1979), this Court
stated:
"When a restrictive covenant is broken, … an injunction
should be issued because the mere breach of the covenant is a
sufficient basis for interference by injunction. The right to
enjoin such a breach will not depend upon whether the
covenantee will be damaged by the breach. Reetz v. Ellis, 279
Ala. 453, 186 So.2d 915 (1966)."
(Emphasis added.)
In the present case, neither side argues that the Kirkwood Heights
covenants are ambiguous. It is also undisputed that Cole's proposed
subdivision of his lot violates the Kirkwood Heights covenants in the
following ways: (1) it proposes creating 2 lots that would each be
approximately 65 feet wide and, thus, would not comply with the
minimum 85-foot width per lot set forth in paragraph 2 of the Kirkwood
Heights covenants and (2) it proposes creating 2 lots that would each be
approximately 9,000 square feet and, thus, would not comply with the
minimum square footage of 11,900 square feet per lot set forth in
paragraph 2 for the Kirkwood Heights covenants.
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Although, as noted earlier, the breach of a restrictive covenant is,
by itself, enough to warrant the issuance of an injunction, in Lange this
Court stated that enforcement of covenants running with land " 'is
governed by equitable principles, and will not be decreed if, under the
facts of the particular case, it would be inequitable and unjust.' " 567 So.
2d at 1302 (quoting 20 Am. Jur. 2d Covenants, Conditions & Restrictions
§ 313 (1965)).
Our appellate courts have previously evaluated the enforceability
of restrictive covenants like the Kirkwood Heights covenants by applying
two independent, alternative equitable tests -- the relative-hardship test
and the change-in-the-neighborhood test. This Court, in Lange, created
an exception to the holding in Tubbs, providing that when a party
opposing the enforceability of a covenant can meet its burden under
either of these tests, the covenant should be held unenforceable.
Relative-Hardship Test
If " 'the restrictive covenant has ceased to have any beneficial or
substantial value' " or " 'the defendant will be subject to great hardship or
the consequences would be inequitable,' " a court, applying equitable
principles, of equity will not enforce the covenant. Id. (citation omitted).
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In Lange, this Court explained:
" 'The equitable enforcement of a restriction can be
invoked only for the purpose of protecting the benefit which it
was the object of the covenant to afford. If the restrictive
covenant has ceased to have any beneficial or substantial
value to the ... property, it can form no ground for equitable
relief. ... [I]f the defendant will be subject to great hardship or
the consequences would be inequitable, relief will be denied.' "
Id. (citation omitted). Accordingly,
"if, upon a balancing of the equities, a court determines that
the harm resulting to one landowner from the enforcement of
a restrictive covenant would be considerably disproportionate
to the benefit received by the landowner seeking enforcement,
a court may decline to afford the landowner seeking
enforcement the equitable relief of an injunction to redress a
breach of the restrictive covenant."
Grove Hill Homeowners' Ass'n v. Rice, 90 So. 3d 731, 737 (Ala. Civ. App.
2011). We note, however, that the relative-hardship defense is an
affirmative one, and, thus, the burden is on the party asserting the
defense.
The lot owners contend that Cole cannot rely on the relative-
hardship test recognized in Lange because Cole had both actual and
constructive notice of the particular covenant -- paragraph 2 of the
Kirkwood Heights covenants -- that he sought to breach. In support of
their argument, the lot owners rely on Maxwell v. Boyd, 66 So. 3d 25714
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(Ala. Civ. App. 2010), wherein the proposition that the relative-hardship
test cannot be applied if the covenant violator had actual or constructive
notice of the covenant appears to have been adopted by the Court of Civil
Appeals. In that case, the party seeking to invoke the relative-hardship
defense had continued to construct a garage in violation of a restrictive
covenant, despite having actual notice of the covenant. The Court of Civil
Appeals concluded that a party seeking to invoke the relative-hardship
test recognized in Lange must have clean hands, and, in applying the
clean-hands doctrine, that court held that "a restrictive covenant should
be enforced if the defendant had knowledge of it before constructing an
improvement contrary to its provisions, even if the harm is
disproportionate." 66 So. 3d at 261 (citing Green v. Lawrence, 877 A.2d
1079, 1082 (Me. 2005), citing in turn 9 Powell on Real Property § 60.10(3).
The Court of Civil Appeals has repeatedly upheld this proposition.
See, e.g., Grove Hill, 90 So. 3d at 739 (recognizing that the relative-
hardship test cannot be invoked by one who had notice of a restrictive
covenant "to avoid the consequences of [a] breach" of that covenant); and
Heaven's Gate Ministries Int'l, Inc. v. Nejad, 329 So. 3d 643 (Ala. Civ.
App. 2020) (holding that a defendant who had violated a restrictive
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covenant of which the defendant had constructive notice was not entitled
to a balancing of the equities or to the benefit of the relative-hardship
test).
Cole does not deny that he had actual, let alone constructive,
knowledge of the lot-size and width requirements in paragraph 2 of the
Kirkwood Heights covenants. Thus, under the legal principles discussed
above, he would not be entitled to the benefit of the relative-hardship
test.
However, this Court has not developed or applied a hard and fast
rule preventing a party from relying on the relative-hardship defense in
situations in which that party violated a covenant of which it had notice.
Instead, a party's knowledge -- constructive or actual -- of a restrictive
covenant should simply be one factor for a trial court's consideration in
determining whether the resultant harm from enforcement of a
restrictive covenant "would be considerably disproportionate to the
benefit received by the landowner seeking enforcement" of the covenant.
Grove Hill, 90 So. 3d at 737. See, e.g., id. at 742 (Bryan, J., dissenting)("I
would hold that a trial court should consider a party's knowledge of a
restrictive covenant as a factor in applying the relative-hardship test
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rather than holding that such knowledge precludes the application of the
test."). Indeed, under virtually every circumstance, a property owner
would have at least constructive notice of a recorded restrictive covenant,
and thus the bright-line rule adopted by the Court of Civil appeals would
read the relative-hardship defense out of existence.
We will therefore proceed to apply the relative-hardship test. Here,
Cole did not provide the trial court with any admissible evidence
indicating that the harm from enforcing the Kirkwood Heights covenants
would be "considerably disproportionate to the benefit received by" the
lot owners. For instance, he has presented no evidence as to whether it
would be feasible for him to build and market a new house while
complying with the lot-size and width requirements in paragraph 2 of the
Kirkwood Heights covenants or as to what financial impact complying
with those covenants might have on him. Likewise, he has presented no
evidence regarding whether other property owners in the subdivision
would be helped or hurt by enforcing the Kirkwood Heights covenants
(for instance, valuation testimony) or whether there would be any other
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significant impacts resulting from the enforcement of those covenants.2
Under these circumstances, Cole has failed to meet his burden and, thus,
has not demonstrated that he is entitled to relief under the relative-
hardship test.
"Change-in-the-Neighborhood" Test
Next, Cole argues that he should be relieved from having to comply
with the Kirkwood Heights covenants based on the application of the
"change-in-the-neighborhood" test. Because the subdivision of Lot 14 in
2016 was made with the approval of a majority of the property owners in
the subdivision, including some of the present lot owners, and because,
Cole says, the apparent acquiescence to "numerous other violations of the
… Covenant provisions" by the other property owners in the subdivision
demonstrates that the neighborhood (i.e., the subdivision) has changed
so radically that the original purpose o f the Kirkwood Heights covenants,
which were first approved in 1957, can no longer be accomplished, Cole
contends that he is entitled to relief from the enforcement of the
Kirkwood Heights covenants.
2Compare Lange v. Scofield, 567 So. 2d 1299, 1302 (Ala. 1990)
(noting that "there was ample evidence that [the plaintiff's lot] would be
almost without value if the covenants are enforced" (emphasis added)).
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Under the change-in-the-neighborhood test, "a restrictive covenant
will not be enforced if the character of the neighborhood has changed so
radically that the original purpose of the covenant can no longer be
accomplished." AmSouth Bank, N.A. v. British W. Florida, L.L.C., 988
So. 2d 545, 550 (Ala. Civ. App. 2007). This Court has recently stated:
" ' "A change in character of the neighborhood sufficient to
defeat a restrictive covenant must have been so great as to
clearly neutralize the benefits of the restriction to the point of
defeating the object and purpose of the covenant." ' Laney [v.
Early], 292 Ala. [227,] 233, 292 So. 2d [103,] 108 [(1974)]
(quoting Thompson on Real Property § 3174, p. 20 (1972
Supp.)). Such a change in the nature and condition of the
neighborhood 'must be determined based on a comparison of
its present character with its character when the restrictive
covenants were created ....' AmSouth Bank[, N.A. v. British
W. Florida, L.L.C.], 988 So. 2d [545,] 551 [(Ala. Civ. App.
2007)]. When the original purposes of the covenants can be
effectuated, changes outside the restricted area should not be
allowed to defeat the purposes of the restriction. Laney, 292
Ala. at 233, 292 So. 2d at 108 (citing Centers, Inc. v. Gilliland,
285 Ala. 593, 596, 234 So. 2d 883, 886 (1970)). The burden of
proof is on the party seeking to remove the restrictive
covenants pursuant to the 'change-in-the-neighborhood' test.
Laney, supra."Capitol Farmers Mkt., Inc. v. Ingram, [Ms. 1200688, Dec. 3, 2021] ____
So. 3d ____, ____ (Ala. 2021).
To illustrate, in AmSouth Bank, supra, the Court of Civil Appeals
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upheld a trial court's decision to abandon the restrictive covenants at
issue under the "change-in-the-neighborhood" test. After comparing the
neighborhood in its modern state to its state when the restrictive
covenants were first created, the trial court concluded that the
neighborhood had radically changed and, therefore, that a covenant
requiring only single-family homes could not be enforced. The evidence
indicated that the neighborhood originally consisted of a single bait shop
and single-family dwellings surrounded by vacant land. At the time of
the litigation, however, the neighborhood was dominated by high-rise
condominiums and hotels and had become a highly populated resort area
along the Gulf Coast. In upholding the trial court's decision not to enforce
the restrictive covenants, the Court of Civil Appeals noted that the
evidence clearly indicated that a "radical" change in the neighborhood
had occurred and that it was a fundamentally different place, used for
different purposes, with a fundamentally different density.
In the present case, Cole alleges that the subdivision has radically
changed since it was originally established in 1957 such that the object
and purpose of the Kirkwood Heights covenants can no longer be met. In
support of his contention, Cole notes that the majority of the property
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owners in the subdivision, including some of the lot owners, formally
waived the lot-size and width provisions in paragraph 2 of the Kirkwood
Heights covenants when they signed the 2016 waiver. He also points to
the fact that several lots in the subdivision have encroached upon various
required setbacks mandated by the Kirkwood Heights covenants.
Finally, he notes that a "commercial" lawnmower-repair business is
being run out of at least one house in the subdivision, which, he says, is
a direct violation of the Kirkwood Heights covenants.
None of the alleged violations of the Kirkwood Heights covenants
claimed by Cole indicate that the subdivision has undergone such a
radical change since its inception that enforcing those covenants in this
case would be improper. The evidence indicates that there is only 1
subdivided lot among the 52 lots that are subject to the Kirkwood Heights
covenants. 3 The admissible evidence demonstrates only that the
3The lot owners claim that only 52 lots are subject to the Kirkwood
Heights covenants and that many of the "violations" Cole cites do not
involve lots covered by those covenants. In support of their contention,
they cite the plat that is attached as an exhibit to their complaint and
that is verified by an affidavit from the Probate Court, which states that
it is a "true, correct and complete" copy. (Emphasis added.) Cole disputes
this contention and produced a plat at the summary-judgment hearing
that purports to be from the county tax assessor's office and that indicates
that 148 lots are part of the subdivision. However, that plat was not
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subdivision as a whole remains a residential neighborhood with single-
family homes. We cannot say that the change in the character of the
subdivision is " 'so great as to clearly neutralize the benefits of the
restriction to the point of defeating the object and purpose of the
covenant.' " Laney, 292 Ala. at 233, 292 So. 2d at 108 (quoting Thompson
on Real Property § 3174 (1972 Supp.)). Thus, Cole has failed to meet his
burden establishing that application of the change-in-the-neighborhood
test prevents the enforcement of Kirkwood Heights covenants in this
case.
Rule 56(f) Affidavit
Cole contends that he is entitled to relief because, he says, the trial
court prematurely entered a summary judgment in this case without first
affording him an opportunity to conduct discovery. Relying on Rule 56(f),
Ala. R. Civ. P., Cole contends that the trial court had an obligation to
deny or withhold a ruling on the lot owners' motion for a summary
judgment until they responded to his prior discovery requests. 4
certified by an affidavit. Even more importantly, the tax assessor's map
does not (and cannot) speak to whether all the lots depicted in the tax
assessor's plat are subject to the same set of restrictive covenants.
4We note that Cole also contends that the lot owners violated Rule
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Rule 56(f) provides:
"Should it appear from the affidavits of a party opposing the
motion that the party cannot, for reasons stated, present by
affidavit facts essential to justify the party's opposition, the
court may deny the motion for summary judgment or may
order a continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or may make
such other order as is just."
Here, Cole filed such an affidavit from his trial counsel, Robert Presto.
Although Presto's affidavit identified the discovery requests that
had previously been issued -- i.e., the requests for production and the
deposition notices -- it did not explain how the evidence sought by those
requests would be relevant. Instead, he merely parroted the language
from Rule 56(f): "[T]his affidavit confirms that I cannot at this time
present by affidavit or by discovery materials the facts that are necessary
to justify our opposition to the [lot owners'] Motion seeking summary
56(c)(1), Ala. R. Civ. P., because, he says, they failed to include a
"narrative summary of what the movant contends to be the undisputed
material facts." This is not true. The lot owners included a fact section,
with citations to admissible evidence, in their summary-judgment
motion. Although this Court has never addressed how strictly to enforce
Rule 56(c)(1), the caselaw on which Cole relies in support of his
contention -- Tucker v. Morgan, 833 So. 2d 68, 72 (Ala. Civ. App. 2002) --
involved an extreme failure by the movant and is, therefore,
unpersuasive.
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judgment."
The law is clear that the nonmoving party bears the burden to
demonstrate to the trial court that the evidence sought in opposition to a
summary-judgment motion is critical to its case. See Diamond v. Aronov,
621 So. 2d 263, 265 (Ala. 1993). " ' "[W]hen no such crucial evidence would
be supplied [by discovery] it is not error for the trial court to grant
summary judgment with discovery pending." ' " Id. at 266 (citations
omitted; emphasis added).
In short, it is Cole's burden under Rule 56(f) to demonstrate that
the evidence sought by his discovery requests is "crucial" -- not merely
that he has issued discovery requests. Conclusory statements are not
enough.5
Waiver or Acquiescence
5It is also clear that at least some (perhaps most) of the relevant
evidence as to the relative-hardship defense was within Cole's own
control. Cole could have provided evidence relating to the hardship
imposed upon him by enforcement of the Kirkwood Heights covenants,
expert or third-party testimony regarding the lack of substantial benefit
enforcing those covenants would provide to the lot owners, or affidavit
testimony addressing the alleged covenant violations in the subdivision.
For instance, Cole claims in his brief that he "easily recognized the
multiple Covenant violations." Cole's brief at 53. Nonetheless, he
presented no admissible evidence of such multiple "easily recognized"
violations.
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Cole also argues that there is a fact question as to whether the "Lot
Owners, and all of the other owners of lots within the Subdivision, had
effectively waived and abandoned the Covenants." Cole appears to make
two types of waiver arguments.
First, Cole appears to argue that the 2016 waiver somehow waived
the lot-size and width requirements in paragraph 2 the Kirkwood
Heights covenants. To the extent that he is making such an argument,
the plain language of the 2016 waiver is exactly to the contrary. The
2016 waiver applies to one lot and states: "Lot 14 … may be subdivided
.… Except as herein changed, all other restrictions and/or covenants as
recorded … shall remain in full force and effect." (Emphasis added.)
Furthermore, the 2016 waiver acknowledged and complied with the
process for formal amendment of the Kirkwood Heights covenants.
Next, Cole argues that the existence of the 2016 waiver -- combined
with the alleged repeated violations of the setback requirements (and the
operation of the alleged lawnmower-repair business) -- evidences a
waiver and/or acquiescence of all the Kirkwood Heights covenants by all
the property owners in the subdivision. In short, he contends that nobody
cares anymore about the Kirkwood Heights covenants, as evidenced by
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the pervasiveness of the violations.
The first problem with this argument is that Cole cites no Alabama
cases that have recognized waiver or acquiescence as a defense to the
enforcement of restrictive covenants. Instead, he cites cases from other
jurisdictions -- Morris v. Nease, 160 W. Va. 774, 238 S.E.2d 844 (1977),
McColm v. Stegman, 3 Kan. App. 2d 416, 596 P.2d 167 (1979), and Alfaro
v. Community Housing Improvement System & Planning Assn., 71 Cal.
App. 4th 1356, 1364, 124 Cal. Rptr. 3d 271, 280 (2009). We note, however,
that these out-of-state cases apply waiver narrowly and could be read to
support the lot owners. For instance, the court in Alfaro refused to find
waiver, holding that "[a] nebulous allegation that 'several' of [the
defendant lot owners are in violation] is clearly insufficient to establish
that [they] have generally waived their right to enforce the restrictive
covenant." 171 Cal. App. 4th at 1380, 124 Cal. Rptr. 3d at 293. Likewise,
in McColm, the Kansas Court of Appeals refused to find waiver, and in
Morris, the Supreme Court of Appeals of West Virginia rejected a number
of waiver arguments because the violations allegedly supporting waiver
were "not so similar in character." Morris, 160 W. Va. at 780, 238 S.E.2d
at 848. Thus, they do not support Cole's argument here.
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There is also Alabama precedent that could be interpreted to the
contrary of these out-of-state cases. For instance, this Court stated in
Tubbs v. Brandon, 374 So. 2d 1358, 1360 (Ala. 1979), that we would follow
"the general rule that restrictive covenants in a deed will be enforced
even though other owners of lots in the subdivision have violated the
restrictions without objection." (Emphasis added.) Moreover, in general,
Alabama recognizes the need for certainty when dealing with real
property; it is generally an important public policy that recorded real-
property documents accurately provide at least inquiry notice to the
public of the legal status of real property. Thus, we would hesitate before
recognizing any blanket doctrine that might weaken such certainty.
However, we need not decide today whether some set of compelling
facts might merit a limited application of waiver or acquiescence in the
restrictive-covenant context, because the evidence does not support
Cole's waiver arguments here. The 2016 waiver actually proves the
opposite of generalized acquiescence. The owner of Lot 14 followed the
procedures set forth in the Kirkwood Heights covenants to obtain the
2016 waiver, and the property owners who consented to the 2016 waiver
followed the procedures prescribed by those covenants. The actions of all
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of those persons showed compliance with the Kirkwood Heights
covenants -- not a blanket acquiescence in violation of those covenants.
Regarding the other alleged violations, Cole has provided no admissible
evidence. Further, those other alleged violations concern provisions of
the Kirkwood Heights covenants other than the provisions regarding
width and lot size (that is, they do not involve the " 'same type of
restriction' "). Morris, 160 W.Va. at 780, 238 S.E.2d at 848 (quoting 2
American Law of Property 441-42 (A.I.Casner ed., 1952)). Thus, under
these circumstances, Cole has failed to show that he is entitled to relief.
Rule 19 -- Are The Owners of Other Lots Necessary or
Indispensable Parties?
Next, Cole argues that the trial court erred when it refused to
require the lot owners to join all of the other property owners in the
subdivision as necessary or indispensable parties. According to Cole, this
would presumably add at least 140 more parties to this action.
Rule 19(a), Ala. R. Civ. P., provides:
"A person who is subject to jurisdiction of the court shall be
joined as a party in the action if (1) in the person's absence
complete relief cannot be accorded among those already
parties, or (2) the person claims an interest relating to the
subject of the action and is so situated that the disposition of
the action in the person's absence may (i) as a practical matter
impair or impede the person's ability to protect that interest
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or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest. If
the person has not been so joined, the court shall order that
the person be made a party. If the person should join as a
plaintiff but refuses to do so, the person may be made a
defendant, or, in a proper case, an involuntary plaintiff. If the
joined party objects to venue and joinder of that party would
render the venue of the action improper, that party shall be
dismissed from the action."
This Court has previously explained the following with regard to the
difference between "necessary parties" and "indispensable parties":
" ' " Indispensable parties" are persons who not only have
an interest in the controversy but an interest of such a nature
that a final decree cannot be made without either affecting
that interest or leaving the controversy in such a condition
that its final determination may be wholly inconsistent with
equity and good conscience. Bennie v. Pastor, C.A.N.M. 1968,
393 F.2d 1 [10th Cir. 1968].
" ' " ....
" ' " Necessary parties" are those affected by the
judgment and against which in fact it will operate. West Coast
Exploration Co. v. McKay, 1954, 93 U.S. App. D.C. 307, 213
F.2d 582, certiorari denied, 347 U.S. 989, 74 S.Ct. 850, 98
L.Ed. 1123.' "
Frander & Frander, Inc. v. Griffen, 457 So. 2d 375, 377 (Ala. 1984)
(quoting 1 Champ Lyons, Alabama Practice, Rules of Civil Procedure 389
(1973)). "There is no prescribed formula to be mechanically applied in
every case to determine whether a party is an indispensable party or
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merely a proper or necessary one. This is a question to be decided in the
context of the particular case." J.R. McClenney & Son, Inc. v. Reimer, 435
So. 2d 50, 52 (Ala. 1983).
In Capitol Farmers Market, Inc. v. Delongchamp, 320 So. 3d 574,
579 (Ala. 2020), this Court recently stated the following regarding the
process provided in Rule 19:
" 'Rule 19, [Ala.] R. Civ. P., provides a two-step process
for the trial court to follow in determining whether a party is
necessary or indispensable. Ross v. Luton, 456 So. 2d 249, 256
(Ala. 1984), citing Note, Rule 19 in Alabama, 33 Ala. L. Rev.
439, 446 (1982). First, the court must determine whether the
absentee is one who should be joined if feasible under
subdivision (a). If the court determines that the absentee
should be joined but cannot be made a party, the provisions of
[subdivision] (b) are used to determine whether an action can
proceed in the absence of such a person. Loving v. Wilson, 494
So. 2d 68 (Ala. 1986); Ross v. Luton, 456 So. 2d 249 (Ala.
1984). It is the plaintiff's duty under this rule to join as a party
anyone required to be joined. J.C. Jacobs Banking Co. v.
Campbell, 406 So. 2d 834 (Ala. 1981).' "
(Quoting Holland v. City of Alabaster, 566 So. 2d 224, 226 (Ala. 1990).)
"The purposes of Rule 19 'include the promotion of judicial efficiency and
the final determination of litigation by including all parties directly
interested in the controversy.' " City of Gadsden v. Boman, 104 So. 3d 882,
887 (Ala. 2012) (quoting Byrd Cos. v. Smith, 591 So. 2d 844, 846 (Ala.
1991)). "This Court will not disturb a trial court's Rule 19[, Ala. R. Civ.
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P.,] determination unless it exceeded its discretion, because such a
determination is based on equitable and pragmatic considerations."
Toomey v. Riverside RV Resort, LLC, 328 So. 3d 228, 232 (Ala. 2020)
Here, the sole claim in the complaint is for a permanent injunction
to enforce the plain language of the Kirkwood Heights covenants against
Cole. The trial court's entry of a summary judgment had no effect on
other property owners' legal or equitable interests in their real property
that is subject to the Kirkwood Heights covenants. All the issues before
the trial court center on whether Cole's lot is subject to those covenants
and, if so, whether Cole's proposed subdivision of his lot violates those
covenants, thereby warranting the issuance of an injunction. The
permanent injunction issued by the trial court in this case is narrowly
tailored to Cole's lot.
Cole contends, however, that he may be faced with the risk of
another injunction because all the property owners in the subdivision
were not joined in the litigation under Rule 19. He also argues that if he
were to defeat the lot owners' claims based upon his affirmative defenses,
the interests of the other property owners in the subdivision would be
affected. In support of his contention, Cole relies on this Court's prior
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decisions in Withington v. Cloud, 522 So. 2d 263 (Ala. 1988), and
Delongchamp, supra.
First and foremost, as explained previously in this opinion, the
Kirkwood Heights covenants clearly provide the parameters for lot size
and width in the subdivision, and it is undisputed that the parameters of
Cole's proposed subdivisions of his lot violate those provisions. Because
the proposed subdivision of his lot would breach the Kirkwood Heights
covenants and because he failed to establish that those covenants were
unenforceable, neither of his arguments as to impact on other property
owners in the subdivision can come to pass. The Kirkwood Heights
covenants will remain in effect for everyone in the subdivision and the
injunction will bar only him from violating those covenants.
Further, the present case is distinguishable from Withington,
supra, and Delongchamp, supra. Here, the lot owners sought only an
injunction against one property owner, and their injunction sought only
to enforce the original, plain meaning of the Kirkwood Heights covenants.
In both Withington and Delongchamp, the plaintiff was seeking to
change the application of the pertinent restrictive covenants. For
instance, in Withington, the plaintiffs were "seeking a judgment
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declaring that they should be allowed to subdivide their lot" despite the
existence of a covenant prohibiting subdivision, and the defendant
countered by claiming (successfully) that "the other owners of property
[in the subdivision] are indispensable parties." 522 So. 2d at 263. Thus,
in Withington, a judgment in favor of the plaintiffs would have impacted
other property owners subject to those covenants. Here, the lot owners
were not seeking to change anything.
The interpretation of Rule 19 that Cole is requesting would make
the enforcement of restrictive covenants in subdivisions, like the ones at
issue here, virtually impossible and prohibitively expensive. Such a rule
would effectively strip property owners of the benefits of the covenants
that were part of the bargain when they purchased their property.
Moreover, Cole could have sought a judgment declaring, for
example, that there had been a waiver of the Kirkwood Heights
covenants or a change in character of the neighborhood. If Cole had
pleaded such a declaratory-judgment claim, he could have added the
remaining property owners in the subdivision as additional parties to his
counterclaim under Rule 13(h), Ala. R. Civ. P. ("Persons other than those
made parties to the original action may be made parties to a counterclaim
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or cross-claim in accordance with the provisions of Rule 19 and 20[, Ala.
R. Civ. P.]." (emphasis added)). Under these circumstances, Cole has
failed to establish that the trial court erred in denying his request to
order the lot owners to add additional parties.
Other Claims
Finally, Cole argues that the trial court erred in entering a
summary judgment in favor of the lot owners on his tortious- interference
and civil-conspiracy claims.
To succeed on his tortious-interference claim, Cole was required to
show (1) a protectable business interest; (2) of which the lot owners were
aware; (3) to which the lot owners were strangers; (4) with which the lot
owners interfered; and (5) thereby damaged Cole. Alabama Psychiatric
Servs., P.C. v. A Ctr. for Eating Disorders, L.L.C., 148 So. 3d 708, 714
(Ala. 2014). Here, Cole has failed to demonstrate that he had a
protectable business interest with Augustus Homes. As established
previously in this opinion, Cole's attempt to subdivide his lot to build two
residential homes constituted a breach of the Kirkwood Heights
covenants. In other words, Cole did not have a "protectable" interest in
subdividing the lot, and the lot owners were justified in bringing their
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complaint. See generally Gross v. Lowder Realty Better Homes &
Gardens, 494 So. 2d 590 (Ala. 1986).
With regard to Cole's civil-conspiracy claim, it is settled law in
Alabama that a civil-conspiracy claim cannot stand alone; a civil-
conspiracy claim " 'must have a viable underlying cause of action.' "
Alabama Psychiatric Servs., 148 So. 3d at 715 (quoting Drill Parts &
Serv. Co. v. Joy Mfg. Co., 619 So. 2d 1280, 1290 (Ala. 1993)). Because Cole
asserts no other viable claims in this action, the trial court properly
entered a summary judgment in favor of the lot owners on Cole's civil-
conspiracy claim.
Conclusion
For the reasons set forth in this opinion, the trial court's judgment
is affirmed.
AFFIRMED.
Parker, C.J., and Wise, Bryan, Sellers, Stewart, and Mitchell, JJ.,
concur.
Shaw and Mendheim, JJ., concur in the result.
35