United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendants' motions for
summary judgment. (Docs. 111-16). The parties have filed
briefs and evidentiary materials in support of their
respective positions, (Docs. 111-16, 120-30, 132), and the
motions are ripe for resolution. After careful consideration,
the Court concludes the motions are due to be granted in part
and denied in part.
remaining defendants are Tannin, Inc. (“Tannin”)
and George Gounares, the owner of Tannin. The remaining
plaintiffs are five couples and two individuals,
purchasers of property in the development known as the
Village of Tannin (“the Village”). The Village
lies just north of, and adjacent to, Highway 182 in Orange
Beach, Alabama. The Gulf of Mexico (“the Gulf”)
is south of Highway 182. According to the complaint, (Doc.
1), the defendants represented to the plaintiffs that, by
purchasing land in the Village, they would have deeded access
to the Gulf via a 41-foot-wide strip of land (“the
Parcel”) extending from the south side of Highway 182
to the Gulf. These representations were made repeatedly from
1989 to 2015, during which time the plaintiffs enjoyed
unfettered beach access via the Parcel, including vehicular
access. In July 2015, the defendants placed a locked gate
across the northern end of the Parcel and thereafter limited
the plaintiffs' beach access to foot traffic. When
Village property owners complained, the defendants responded
that they (the defendants) owned the Parcel, that no Village
property owner had been conveyed deeded access to the Parcel,
and that, prior to a May 2015 Grant of Right to Use Land
(“the Grant”), the defendants had merely
permitted owners to use the Parcel for beach access. The
Grant purported to vest the Village of Tannin Association
(“the Association”) with a right of access to a
five-foot width of the Parcel extending the full length of
plaintiffs “bring this litigation to acquire the access
rights they were promised, and to recover money damages for
the Tannin Defendants' false and misleading sales
practices.” (Doc. 1 at 5). The complaint includes six
causes of action: (1) Interstate Land Sales Full Disclosure
Act (“ILSA”); (2) declaratory judgment; (3)
easement by prescription; (4) fraud; (5) breach of warranty;
and (6) breach of fiduciary duty. The defendants seek summary
judgment as to all claims.
judgment should be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The moving party may meet its burden in either of
two ways: (1) by “negating an element of the non-moving
party's claim”; or (2) by “point[ing] to
materials on file that demonstrate that the party bearing the
burden of proof at trial will not be able to meet that
burden.” Id. “Even after
Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.”
Id.; accord Mullins v. Crowell, 228 F.3d
1305, 1313 (11th Cir. 2000); Sammons v.
Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
the moving party has the burden of proof at trial,
that party must show affirmatively the absence of a
genuine issue of material fact: it must support its motion
with credible evidence ... that would entitle it to a
directed verdict if not controverted at trial. [citation
omitted] In other words, the moving party must show that, on
all the essential elements of its case on which it bears the
burden of proof, no reasonable jury could find for the
nonmoving party.” United States v. Four Parcels of
Real Property, 941 F.2d 1428, 1438 (11th Cir.
1991) (en banc) (emphasis in original); accord
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
the party moving for summary judgment fails to discharge the
initial burden, then the motion must be denied and the court
need not consider what, if any, showing the non-movant has
made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
however, the movant carries the initial summary judgment
burden ..., the responsibility then devolves upon the
non-movant to show the existence of a genuine issue of
material fact.” Fitzpatrick, 2 F.3d at 1116.
“If the nonmoving party fails to make ‘a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof, ' the
moving party is entitled to summary judgment.”
Clark, 929 F.2d at 608 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may … consider the
fact undisputed for purposes of the motion ….”).
deciding a motion for summary judgment, “[t]he
evidence, and all reasonable inferences, must be viewed in
the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003). “Therefore, the
plaintiff's version of the facts (to the extent supported
by the record) controls, though that version can be
supplemented by additional material cited by the defendants
and not in tension with the plaintiff's version.”
Rachel v. City of Mobile, 112 F.Supp.3d 1263, 1274
(S.D. Ala. 2015), aff'd, 633 Fed.Appx. 784
(11th Cir. 2016).
is no burden on the Court to identify unreferenced evidence
supporting a party's position. Accordingly, the Court
limits its review to the exhibits, and to the specific
portions of the exhibits, to which the parties have expressly
cited. Likewise, “[t]here is no burden upon the
district court to distill every potential argument that could
be made based upon the materials before it on summary
judgment.” Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995);
accord Gennusa v. Canova, 748 F.3d 1103, 1116
(11th Cir. 2014). The Court accordingly limits its
review to those arguments the parties have expressly
plaintiffs identify Counts Two, Three and Five as designed to
establish that the defendants have no legal authority to
restrict their beach access, with Counts One, Four and Six
arguing for relief in the event the defendants do possess
such authority. (Doc. 120 at 2). The Court therefore
addresses first the claims challenging the defendants'
ability to restrict the plaintiffs' use of the Parcel.
uncontroverted that the owner of record of the Parcel has at
all relevant times been Tannin. It is also uncontroverted
that the only relevant transfer of record of any interest in
the Parcel is the May 2015 Grant from Tannin to the
Association, which is limited to a five-foot swath. The
plaintiffs nevertheless maintain that they possess a legally
protected property interest in the entirety of the Parcel,
which interest precludes the defendants from cutting off
their vehicular access to the Parcel.
Count Two - Declaratory Judgment.
plaintiffs base their demand for declaratory relief on three
legal theories: common-law dedication, dedication by
estoppel, and “scheme of development.” (Doc. 1 at
15; Doc. 121 at 1). As discussed below, the defendants are
entitled to summary judgment as to all three theories and
thus as to Count Two in toto.
‘dedication' is a donation or appropriation of
property to the public use by the owner.” Ritchey
v. Dalgo, 514 So.2d 808, 810 (Ala. 1987) (internal
quotes omitted). Common-law dedication “is accomplished
when there have been acts which evidence an unequivocal
intent by the owner to dedicate the property to a
public use and an acceptance by the members
of the public of the property for that public use.”
Id. (emphasis in original).
public is a necessary party to any dedication, there being no
such thing as a dedication to an individual.”
Ritchey, 514 So.2d at 810 (internal quotes omitted).
Indeed, and as the plaintiffs concede, “there is no
such thing as a dedication to … a limited group of
persons.” (Doc. 121 at 4). Rather, a dedication
“must be for the benefit of the public, and not for any
particular part of it.” Stringer Realty Co. v. City
of Gadsden, 53 So.2d 617, 619 (Ala. 1951) (internal
quotes omitted). That is, “the essence of a dedication
to public uses is that it shall be for the use of the public
at large.” Id. (emphasis added,
internal quotes omitted). Again the plaintiffs concur,
acknowledging that dedication must be to “the general
public.” (Doc. 121 at 4).
cases have repeatedly emphasized that dedication cannot work
in favor of a select subset of the public at large, such as
those who purchase nearby property from a common owner.
According to Stringer Realty, “a grant by the
owner of a private right of way over his lands to buyers of
different parcels of the same to furnish them with convenient
access to the street is no dedication to public use.”
53 So.2d at 619 (internal quotes omitted). According to
Trustees of Howard College v. McNabb, 263 So.2d 664
(Ala. 1972), a valid dedication of land as a public park or
parkway “must be for the benefit of the public at
large, and open for the use and enjoyment of everyone, rather
than for the use of those few individuals who own the
adjoining property, ” such that “the private
nature of the alleged rights granted [to adjoining landowners
only] precludes a finding that this property has been
dedicated as a public park.” Id. at 671-72.
And according to Garland v. Clark, 88 So.2d 367
(Ala. 1956), there was no dedication to the public of a
parking area adjoining a non-public, church cemetery when
only those owning cemetery lots or with other permission to
use a cemetery lot used the parking area. Id. at
370-71; accord Ledlow v. City of Pell City, 497
So.2d 86, 88 (Ala. 1986) (“The dedication of property
as a public cemetery requires an intention to devote the
property to the public at large ….”) (citing
defendants note, (Doc. 112 at 2-4), the plaintiffs have no
evidence that the defendants intended to open the Parcel to
use by the public at large. Their evidence is, at best, that
the defendants authorized only the plaintiffs, other Village
property owners, and a select few others to use the Parcel.
There is not a shred of evidence that the defendants intended
to, or did, authorize the public at large to use the Parcel.
On the contrary, the plaintiffs agree that the defendants
took pains to prevent the public at large from using the
Parcel, keeping it fenced on both sides and with signs at the
northern (highway) end proclaiming the Parcel to be
“private property” for use by Tannin or the
Village only and at the southern (beach) end announcing
“private beach.” (Doc. 111-17 at 10; Doc. 111-21
at 23; Doc. 111-22 at 8; Doc. 112-3; Doc. 112-5). As the
cases discussed above reflect, such evidence is patently
insufficient to support a common-law dedication. See
Stringer Realty, 53 So.2d at 619 (“To describe a
tract of land as ‘Private Park' appears to indicate
the opposite of public use.”).
plaintiffs note that the plat of the Village (“the
Plat”) depicts the Parcel and labels it as “Beach
Access.” (Doc. 111-31 at 1, 3). This language, they
say, “correspond[s] with” the phrases,
“Sand Beach” and “community beach”
used on the plats of the property at issue in
Ritchey, where the Court found the evidence
sufficient to support a common-law dedication. (Doc. 121 at
6). The Ritchey Court, however, did not rely on the
term “sand beach” as indicating an intent to
dedicate the area to the public at large. 514 So.2d at 813.
While the Court did rely on the “community beach”
language, id., that adjective on its face connotes
access by the public. In contrast, the term “beach
access” does nothing to identify who has such
access and, in the context of a plat of the Village, it could
hardly be read to mean anything other than access by Village
obvious conclusion is only bolstered by the plaintiffs'
reliance on the language of the Village declaration
(“the Declaration”) for its
“corresponding” statement, (Doc. 121 at 8), that
“Tannin is near the Gulf of Mexico and has access to
it.” (Doc. 111-30 at 5). Reading the Declaration in
conjunction with the Plat, as the plaintiffs demand, renders
it inescapable that the “beach access” mentioned
in the Plat is the “access” of “Tannin,
” not the public at large.
noted, to sustain a common-law dedication, the evidence of
the defendants' intent to dedicate the Parcel to the
public at large must be “unequivocal.” This is
not a low threshold. “To establish a dedication, the
clearest intention on the part of the owner to that
effect must be shown, and the evidence must be clear and
cogent, and the acts of the owner relied on to establish
a dedication must be unequivocal in their indication of the
owner's intention to create a public right exclusive of
his own.” Trustees, 263 So.2d at 670 (emphasis
added, internal quotes omitted). The plaintiffs' evidence
does not come close to meeting this demanding standard, and
no properly functioning jury could find it satisfied.
Dedication by Estoppel.
plaintiffs quote from Ritchey regarding “the
role of estoppel as that doctrine applies in common law
dedication cases, ” and they conclude that,
“[u]nder the facts as presented, Defendants should be
estopped … from … restricting the
Plaintiffs' use of the … Parcel.” (Doc. 121
at 7). Ritchey did not apply an estoppel theory, and
it explained neither how such an estoppel arises nor the
relation of estoppel to dedication based on the owner's
conduct as discussed in Part I.A. However, Ritchey
quoted from Sam Raine Construction Co. v. Lakeview
Estates, Inc., 407 So.2d 542 (Ala. 1981), which
addresses these issues in more detail.
Raine considered whether there was sufficient evidence
to reach a jury that a particular road had become a public
way. This can occur in any of three ways: a regular
proceeding for that purpose, general use by the public for
twenty years, or “by a dedication as such by the owner
of the land the way crosses, with acceptance by the proper
authorities.” 407 So.2d at 544. The evidence ruled out
the first two possibilities, leaving the plaintiff to show a
common-law dedication. Id. Citing Trustees,
the Court acknowledged that, “to constitute a
dedication at common law, there must of course be an
intention of the owner to dedicate the property
….” Id. at 548. The Court also
acknowledged that “[t]he owner must
unequivocally intend to create a public right
exclusive of his own.” Id. at 544 (emphasis
added, internal quotes omitted).
Sam Raine Court then identified common-law
dedications as “either expressed or implied, ”
with the latter “aris[ing] when the acts or conduct of
the owner are deemed to intend a dedication to the public
use, such an implication being founded on the doctrine of
estoppel in pais rather than by estoppel in grant.”
Id. “Once the public accepts the dedication by
its use of the land, the owner will be estopped to deny the
dedication without a clear showing that his acts were
erroneously construed as intending to dedicate.”
Id. at 544-45. As to what acts or conduct by the
owner suffice to support an estoppel, the Court turned to a
1903 decision from Kentucky, which indicates that,
“[i]f … the owner suffers the public to use the
passway, knowing it is claiming it as a matter of right, the
law presumes a dedication to the public, and presumes the
dedicator's intention to be in accord with the
public's use, ” regardless of “whether there
has been in fact an actual dedication to the public.”
Id. at 545 (internal quotes omitted). The idea is
that if the owner “suffer[s] the public generally to so
use his land as a passway, under a notorious claim of right,
for a great length of time, ” such that persons have
paid an enhanced price for nearby property on the
understanding the way is public, it would be unfair for the
owner to disappoint their understanding. Id.
(internal quotes omitted).
as the Court can determine, only Ritchey has cited
Sam Raine's discussion of estoppel, and
Ritchey does not elucidate Sam Raine's
meaning or application. Nor have the parties done so. The
Court finds Sam Raine to be subject to multiple
interpretations, but neither of them assists the plaintiffs.
If Sam Raine is a gloss on Trustees and the
other cases discussed in Part I.A, then no estoppel arises
unless the plaintiffs first demonstrate the defendants'
unequivocal intent to dedicate the Parcel to the public at
large. Because, as discussed above, the plaintiffs cannot do
so, no estoppel to deny a dedication can arise.
other possibility is that Sam Raine recognizes an
additional method of showing a common-law dedication, one in
which the owner's intent to dedicate his property to
public use need not be shown unequivocally by his own acts
and conduct but can be presumed simply by his passive failure
to respond to the public's open and notorious use of his
property under a claim of right. The plaintiffs, however,
identify no evidence that the general public has used the
Parcel openly, notoriously and under a claim of right; on the
contrary, they insist the Parcel has at all times been for
the exclusive use of Village owners and a few select others.
(Doc. 111-16 at 4-5, 7-8; Doc. 111-17 at 14-16; Doc. 111-19
at 13; Doc. 111-21 at 9, 18-19; Doc. 112-3).
there evidence of the defendants' passive acquiescence in
any (undemonstrated) public use, as there was in Sam
Raine. A jury issue was raised in Sam Raine
based on: (1) the county's performance of maintenance
work on the road in question; (2) the owner's failure to
pay for a public water system installed along the road by a
water and fire protection authority; (3) the owner's
failure to ever stop anyone from freely traveling the road;
and (4) the absence of any sign declaring the road to be
private. 407 So.2d at 545. The plaintiffs identify no
evidence that anyone other than the defendants has maintained
or improved the Parcel, and it is uncontroverted that only
Tannin did so. (Doc. 111-39 at 2-3). It is further
uncontroverted that the defendants fenced off both sides of
the Parcel and posted signs at both ends warning the public
that the Parcel was private. The plaintiffs make no assertion
that the defendants have never affirmatively stopped any
member of the general public from using the Parcel and,
without proof (which they do not offer) that the general
public routinely used the Parcel, it is difficult to see how
a failure to post guards at the Parcel or to take other
extreme measures could amount to passive acquiescence.
an estoppel under Sam Raine would require proof, not
merely of unimpeded use of the Parcel by the public at large,
but a resulting increase in surrounding property values based
on the Parcel's availability to the general public. The
plaintiffs do not even suggest that this has occurred.
noted, the Court will not manufacture or support arguments on
behalf of the litigants, and the plaintiffs' failure to
support their conclusory invocation of estoppel places no
burden on the Court to supply the deficiency.
Scheme of Development.
to the complaint, “when a subdivision is platted and a
lot in the subdivision is conveyed with reference to that
plat, any landowner in the subdivision has the right to
enforce the scheme of development shown on the plat.”
(Doc. 1 at 15). The actual rule, as expressed by the cases on
which the plaintiffs rely, is somewhat more limited.
is well settled … that where a person plats land and
lays off lots according to such plat and makes sale of one or
more of such lots with reference thereto, he irrevocably
dedicates the land designated thereon as streets, alleys,
avenues, and highways to the public for public uses
….” Whitten v. Ferster, 384 So.2d 88,
88 (Ala. 1980) (emphasis added, internal quotes omitted).
Once this has occurred, “[e]very purchaser of a lot
shown on the recorded map of the subdivision has the right,
as against the dedicator of the streets and the purchasers of
the other lots, to have the designated scheme of public
thoroughfares maintained in its integrity, as it existed
when he purchased the property, and all persons whosoever may
use these public ways as the occasion requires.”
Booth v. Montrose Cemetery Association, 387 So.2d
774, 777 (Ala. 1980) (emphasis added).
line of cases represents a particular application of the rule
that an owner's intent to dedicate land to the general
public must be unequivocally manifested by his acts.
Booth, 387 So.2d at 777 n.1. Such an intention may
be unequivocal when the owner records a plat that
“designates” areas as “unrestricted”
streets, as the plaintiffs' cited cases reflect.
Id. at 777 & n.1; Cottage Hill Land Corp. v.
City of Mobile, 443 So.2d 1201, 1202 (Ala. 1983);
Whitten, 384 So.2d at 88; Snead v. Tatum,
25 So.2d 162, 162 (Ala. 1946); Thetford v. Town of
Cloverdale, 115 So. 165, 167 (Ala. 1927); Highland
Realty Co. v. Avondale Land Co., 56 So. 716, 718 (Ala.
1911). The recorded Plat in this case, however, does not
designate the Parcel as a street or other thoroughfare;
instead, the Parcel is labeled blandly as “beach
access.” (Doc. 111-31 at 1, 3). The plaintiffs - who
devote no argument to this section but simply quote from two
cases and string cite others - do not address this
Court is aware that an adequate designation may sometimes be
shown “without the designation eo nomine of the space
as a street, highway or alley” but “from the
situation created by the relative location of blank spaces
and lots or blocks and from the purpose to which the lots or
blocks are expected to be devoted and from the lines and
courses indicated by the map as they relate to lines of the
subdivisions made.” East Birmingham Realty Co. v.
Birmingham Machine & Foundry Co., 49 So. 448, 451
(Ala. 1909). While the plaintiffs included East
Birmingham Realty in their string citation, they
presented no argument based on it, or even an explanation of
its relevance. (Doc. 121 at 12). The Court has and expresses
no opinion whether East Birmingham Realty would have
aided the plaintiffs had they articulated any argument drawn
therefrom; as noted previously, the Court will not construct
arguments on behalf of the parties that they have elected not
to present themselves.
Count Three -Easement by Prescription.
establish an easement by prescription, the claimant must use
the premises over which the easement is claimed for a period
of twenty years or more, adversely to the owner of the
premises, under claim of right, exclusive, continuous, and
uninterrupted, with actual or presumptive knowledge of the
owner.” Bull v. Salsman, 435 So.2d 27, 29
(Ala. 1983). As the defendants point out, (Doc. 113 at 2),
seven plaintiffs cannot satisfy the 20-year
requirement. The plaintiffs do not contest the point.
parties agree that “permissively” is the antonym
of “adversely, ” but they disagree who bears the
burden regarding this element. The defendants quote
Bull for the proposition that “[t]he
presumption is that the use is permissive, and the claimant
has the burden of proving that the use was adverse to the
owner.” 435 So.2d at 29. The plaintiffs counter with
Thomas v. City of Rainsville, 502 So.2d 346 (Ala.
1987), for the proposition that “an open, defined
roadway, through reclaimed land, in continuous use by the
public as a highway without let or hindrance for a period of
twenty years becomes a public highway by prescription,
” with the burden “then on the landowner to show
the user was permissive only.” Id. at 348
(internal quotes omitted).
defendants point out, (Doc. 128 at 2-3), the cause of action
set forth in Count Three is expressly limited to
“easement by prescription.” (Doc. 1 at 15).
Further, the relief sought is expressly limited to the
establishment of an easement by prescription in favor of the
plaintiffs only. (Id. at 16). As the defendants also
point out, Thomas and the other cases on which the
plaintiffs rely do not involve easement by prescription but
dedication by prescription. 502 So.2d at 347. As with other
forms of dedication, dedication by prescription cannot run in
favor of individuals but only in favor of the public at
large. Id. (“general use by the public”
for a sufficiently long and adverse period results in a
“public highway by prescription”). The Court
agrees with the defendants that the plaintiffs cannot by
brief expand their complaint to encompass a claim for
dedication by prescription. E.g., Dukes v. Deaton,
852 F.3d 1035, 1046 (11th Cir. 2017) (“A
plaintiff may not amend her complaint through argument in a
brief opposing summary judgment.”) (internal quotes
question remains whether the defendants have carried their
threshold burden on motion for summary judgment of showing
either that the plaintiffs' use of the Parcel was
permissive or that the plaintiffs cannot prove otherwise. The
Plat satisfies the defendants' burden by negating adverse
use: in publicly identifying the Parcel as “beach
access, ” the Plat unmistakably reflects the
defendants' permission for the plaintiffs and other
Village owners to use the Parcel for that purpose.
plaintiffs offer no adequate response. Legally, they advance
a presumption of adverse use, (Doc. 122 at 6-8), but the
Court has demonstrated the presumption does not apply in this
case. Factually, they direct the Court to “[t]he
testimony of adverse use cited above, ” (id.
at 8), but the deposition excerpts to which they cite
directly refute the proposition when they address it at all.
(Id. at 2-5). Finally, they suggest the defendants have
admitted they own no interest in the Parcel, such that they
could not give permission to use the Parcel, such that the
plaintiffs' use of the Parcel must have been adverse.
(Id. at 8). If, however, the defendants have no
interest in the Parcel, it is impossible for any plaintiff to
obtain an easement by prescription. “Without having
first determined who owned the driveway, the trial court
could not have granted either party … an easement by
prescription in the driveway, because in order to establish
an easement by prescription, use of the disputed area must be
adverse to the owner [and] with knowledge of the
owner.” Coleman v. Kilpatrick, 824 So.2d
788, 791 (Ala. Civ. App. 2001) (emphasis in original);
accord Hanks v. Spann, 990 So.2d 399, 403 (Ala. Civ.
the defendants have met their initial burden, and because the
plaintiffs have failed to present any evidence that their use
of the Parcel was adverse to the defendants (or, as to seven
plaintiffs, that they used the Parcel for 20 years), the
defendants are entitled to summary judgment as to Count
Count Five - ...