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11/10/94 GERALD L. LOPER v. CHARLES MCKNIGHT ET AL.

November 10, 1994

GERALD L. LOPER
v.
CHARLES MCKNIGHT ET AL.



Appeal from Mobile Circuit Court. (CV-93-790). Edward B. McDermott, TRIAL JUDGE.

Released for Publication March 4, 1995.

Holmes

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

This is an appeal from the denial of Gerald L. Loper's motion for relief from the trial court's order of April 13, 1994, and/or to alter, amend, or vacate said order.

Our review of the record reveals the following pertinent facts: Charles McKnight and several other owners of residential property in the Dresden Subdivision Unit Three (subdivision), located in Mobile County, Alabama, filed a petition for injunctive relief and other equitable relief.

In the petition McKnight contended that when Loper purchased a lot in the subdivision, there were certain restrictive covenants on file in the probate office of Mobile County, Alabama. McKnight further alleged that these restrictive covenants were valid and were in full force and effect and that Loper was aware of these restrictive covenants at the time of his purchase. McKnight also contended that Loper erected a structure on his lot which was in violation of the restrictive covenants of the subdivision and that Loper refused to remove the structure upon request. Consequently, this cause of action resulted.

On March 25, 1993, the parties appeared before the trial court. At that time the parties discussed the terms of a settlement agreement, regarding Loper's modification of the structure within 15 months to comply with the restrictive covenants. We would note that the Discussion of the terms of the settlement agreement by the parties was transcribed by a court reporter. When the hearing was adjourned, the trial court directed the parties to submit to the trial court for execution of an order memorializing the settlement agreement reached in open court.

A transcript of the settlement hearing was ordered. On June 11, 1993, each party submitted a proposed order to the trial court for execution. The two proposed orders were the same, except for the wording of paragraph four.

Thereafter, the trial court delayed entry of an order while the United States Army Corp of Engineers conducted an independent review of the matter. On April 13, 1994, the trial court issued an order in this matter.

Loper filed a motion for relief from judgment and/or to alter, amend, or vacate said order. After a hearing the motion was denied.

Loper appeals. This case is before this court pursuant to Ala. Code 1975, § 12-2-7(6).

The dispositive issue is whether the trial court committed reversible error when it issued the order dated April 13, 1994.

Loper contends that when the trial court issued the April 13, 1994, order, it denied him procedural due process because, he says, the order took his property without affording him prior notice and an opportunity to be heard. Loper also contends that the trial court's interpretation of the terms of the restrictive covenant ...


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