Ex parte Phillip D. Odom et al.
Phillip D. Odom et al. In re: Robert Diercks and Carin Diercks
Circuit Court, CV-15-900029; Court of Civil Appeals, 2151011
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
Diercks and Carin Diercks, residents of a subdivision located
in Escambia County, purchased a vacant lot in the subdivision
located directly behind their house and began construction of
a garage on the lot. A group of homeowners in the subdivision
("the plaintiffs") sued the Dierckses in the
Escambia Circuit Court, contending that construction of the
garage violated various restrictive covenants applicable to
the lot. The trial court agreed. It entered a summary
judgment in favor of the plaintiffs, enjoined the Dierckses
from further construction on the garage, and ordered the
removal of what had been constructed on the lot. On direct
appeal, the Court of Civil Appeals reversed the judgment of
the trial court, finding that the trial court had not
properly applied the restrictive covenants. We granted
certiorari to review that decision. For the following
reasons, we reverse and remand.
Facts and Procedural History
Second Alexander Heights Subdivision ("the
subdivision") is located within the City of Brewton. The
lots in the subdivision are subject to the following
"KNOW ALL MEN BY THESE PRESENTS: That Hines Realty
Company, Inc., a corporation, the owner of Second Alexander
Heights Addition to Escambia County, Alabama, a subdivision,
as shown by plat of said subdivision recorded in Plat Book 5,
Page 153, in the Office of the Judge of Probate of Escambia
County, Alabama, do hereby adopt the following Protective
Covenants with reference to the property located in said
"1. Land Use and Building Type.
"A. Single family dwellings only and accessory
structures customarily incidental to this use.
"B. All accessory structures must be of the same design
and constructed of the same materials as the main dwelling
"C. The carports and garages must not open on or face
toward the front of the lot.
"2. Size and Location of Structure.
"A. Dwelling house to contain a minimum of 1, 700 square
feet of living space exclusive of carport, garage and/or open
"B. House to be located on lot in accordance with zoning
regulations of the City of Brewton, Alabama.
"3. Building lot to be a minimum of 100 feet in width at
the front building line with the exception of Lots #17, #18,
main thoroughfare through the subdivision is Brooks
Boulevard. Brooks Boulevard runs through the subdivision in
roughly the shape of a circle, which is divided into northern
and southern halves by Robin Drive. Building lots are located
on both sides of Brooks Boulevard and Robin Drive. The
Dierckses home is located on lot 47, which they purchased in
1993. Lot 47 fronts the north side of Robin Drive. In 2010,
the Dierckses purchased lot 58, an unimproved lot located
directly behind their home. Lot 58 fronts the south side of
the northern half of Brooks Boulevard.
2013, the Dierckses began efforts to construct a garage on
lot 58. They hired a contractor and applied for a building
permit for the structure. The application for a building
permit, however, was denied by the City of Brewton on the
basis that a city ordinance prohibits an accessory building
from being located on a lot by itself. A city official met
with the Dierckses and recommended that they combine lot 58
with their adjacent lot.
29, 2014, the Dierckses conveyed lots 47 and 58 to themselves
in a combined metes and bounds description, subject to the
restrictive covenants. The Dierckses also had the two lots
combined into a single parcel for taxation purposes at the
Escambia County tax assessor's office. The Dierckses,
however, did not seek to have the subdivision formally
"replatted" or to amend the existing plat.
2, 2014, the City of Brewton issued the Dierckses a building
permit for the garage, and the Dierckses moved forward with
construction. It is undisputed that the garage, once
completed, will open onto and face Brooks Boulevard.
October 20, 2014, before the garage was completed, the City
of Brewton halted construction of the garage on the basis
that it was in violation of a city ordinance that limited the
height of accessory structures to a maximum height of 15
feet. While the Dierckses were pursuing a variance to the
height ordinance, the plaintiffs filed this
lawsuit. The lawsuit contended that the
construction of the garage violated the restrictive covenants
applicable to all lots in the ...