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Diercks v. Odom

Alabama Court of Civil Appeals

April 7, 2017

Robert Diercks and Carin Diercks
v.
Phillip D. Odom et al.

          Appeal from Escambia Circuit Court (CV-15-900029)

          MOORE, Judge.

         Robert Diercks and Carin Diercks appeal from a judgment entered by the Escambia Circuit Court ("the trial court") determining that they had breached the restrictive covenants applicable to residential lots located in the Second Alexander Heights Subdivision ("the subdivision") and enjoining the Dierckses "from further or additional construction of [a certain accessory building] located on Lot 58" and "[requiring] the [Dierckses] to remove the [building] from Lot 58." We reverse the trial court's judgment.

         Procedural History

         On February 18, 2015, certain owners of real property in the subdivision, specifically, Phillip D. Odom, Lynda Joy Odom, James Steven White, Gregory Wayne White, Kimberly Gibson White, Jason R. Castleberry, and Renee P. Ryan ("the plaintiffs"), filed a complaint against the Dierckses, alleging that the Dierckses had begun construction on an accessory building ("the structure") on lot 58 in the subdivision that was in violation of the restrictive covenants applicable to the subdivision. The plaintiffs requested the trial court to order the Dierckses to stop construction of the structure and to return lot 58 to its previous condition. On May 7, 2015, the Dierckses answered the complaint.

         On February 4, 2016, the plaintiffs filed a motion for a summary judgment. On April 29, 2016, the Dierckses responded to the summary-judgment motion. The trial court entered a summary judgment in favor of the plaintiffs on May 6, 2016. On June 5, 2016, the Dierckses filed a postjudgment motion; that motion was denied on July 26, 2016. On September 6, 2016, the Dierckses filed their notice of appeal.

         Facts

         The trial court set out the undisputed facts in its judgment as follows:

"1. The parties to this action are owners of real property located within the [subdivision].
"2. [The restrictive covenants] were adopted with reference to the real property located within the subdivision and were recorded on April 3, 1986, in Deed Record 452, page 574, in the office of the Judge of Probate of Escambia County, Alabama.
"3. The [Dierckses] purchased Lot 47 in the subdivision by deed dated December 9, 1993. ...
"4. The [Dierckses] purchased Lot 58 in the subdivision by deed dated July 15, 2010. ...
"5. At the time the [Dierckses] purchased Lots 47 and 58 in the subdivision, the [Dierckses] had actual or constructive notice of the [restrictive] covenants.
6.The [Dierckses'] dwelling house in which they reside is located on Lot 47 in the subdivision.
7.Lot 58 had no improvements located thereon at the time the [Dierckses] purchased the lot.
"8. The [Dierckses] commenced construction of [the] structure on Lot 58 in October 2014[, ] which the [Dierckses] describe as an accessory building.
"9. The structure which the [Dierckses] started constructing on Lot 58 is the only improvement the [Dierckses] intended to construct on Lot 58 and is the only improvement located on Lot 58 as of the present date.
"10. There is no family dwelling located on Lot 58.
"11. The front of Lot 58 faces onto Brooks Boulevard in the subdivision.
"12. The carport or garage of the structure on Lot 58 opens onto or faces toward the front of Lot 58.
"13. The structure on Lot 58 when completed would not contain a minimum of 1, 700 square feet of living space exclusive of a carport or garage and/or open porches attached to the structure.
"14. The zoning ordinances of the City of Brewton, Alabama prohibit detached accessory buildings in excess of 15 feet in height and provide that a detached accessory building ...

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