from Escambia Circuit Court (CV-15-900029)
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
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
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.
trial court set out the undisputed facts in its judgment as
"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
"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
"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