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Crosby v. Seminole Landing Property Owners Association, Inc.

Alabama Court of Civil Appeals

May 4, 2018

Edward Crosby and Valerie Crosby
v.
Seminole Landing Property Owners Association, Inc.

          Appeal from Baldwin Circuit Court (CV-17-900883)

          THOMPSON, Presiding Judge.

         Edward Crosby and Valerie Crosby appeal from an order of the Baldwin Circuit Court ("the trial court") purporting to extend the duration of a temporary restraining order ("the first TRO") that had previously been entered against them. In the order "extending" the TRO ("the second TRO"), the trial court directed that, for good cause shown, the second TRO would remain in place until a hearing could be held on the request of Seminole Landing Property Owners Association, Inc. ("SLPOA"), for a preliminary injunction. In the second TRO, the trial court consolidated a hearing on the preliminary injunction with a trial on the merits, and it scheduled the trial for November 29, 2017. The trial was continued, and, as of the date of this opinion, it still has not been held.

         The record indicates that, on August 4, 2017, SLPOA filed a complaint that, among other things, sought injunctive relief against the Crosbys in connection with the construction of a building ("the building") the Crosbys were erecting on their property. SLPOA alleged that the building violated the setback provisions set forth in the restrictive covenants governing the Crosbys' property. Specifically, SLPOA alleged that the covenants required all buildings to be set back ten feet from the side-lot lines of the property and that the building was less than two feet from a side-lot line.

         On August 9, 2017, SLPOA filed in the trial court an ex parte application for a temporary restraining order ("TRO"). The application included the affidavit of James Mann, the president of the Seminole Landing Homeowners Association, who stated that, before SLPOA filed the complaint and the application for a TRO, the Crosbys had been notified by letter of their alleged breach of the restrictive covenants. Mann also said that he had placed several telephone calls to Edward Crosby about the placement of the building and had told the Crosbys' construction crew that the building violated the restrictive covenants. It is undisputed that the Crosbys were not served with the ex parte application for a TRO.

         On August 12, 2017, the trial court entered an order granting the application for a TRO and directing SLPOA to prepare a proposed order. On August 14, 2017, the trial court entered the first TRO ordering, among other things not germane to this opinion, that construction of the building "shall cease immediately." The first TRO explicitly stated that it would remain in effect until August 23, 2017, when a hearing on the matter was scheduled.

         The Crosbys received personal service of both the complaint in this matter and the first TRO on August 17, 2017. After obtaining counsel, the Crosbys requested a one-week continuance of the August 23, 2017, hearing because their attorney had a scheduling conflict with that date. The Crosbys requested

"a short, one-week extension of the hearing from August 23 to August 30. It is undersigned's intent in asking for such a short extension to allow the current [TRO] to remain in place and that neither side lose any positions, defenses, or claims by the granting of such extension."

         The trial court granted the continuance and rescheduled the hearing on a TRO for September 20, 2017. The morning of the hearing, the Crosbys filed a motion to dissolve the first TRO.[1] In their motion, the Crosbys contended that, among other things, the TRO failed to meet the requirements of Rule 65, Ala. R. Civ. P.

         A transcript of the September 20, 2017, TRO hearing appears in the record on appeal. At the hearing, the attorney for SLPOA notified the trial court that, by the time the first TRO was issued on August 14, 2017, the building had been completed. SLPOA's attorney said that he did not know whether there was "anything to restrain [the Crosbys] from." SLPOA's attorney also told the trial court that SLPOA wished to go ahead with the trial on the merits, but on a future date, because the September 20 hearing was only for purpose of discussing the TRO. The trial court stated that the ten days allowed for the operation of the first TRO had already expired, see Rule 65(b), Ala. R. Civ. P., and it proposed that the parties agree to maintaining the status quo until a trial on the merits could be held.

         In response, the attorney for the Crosbys acknowledged that the building was "substantially complete." She also agreed with the trial court that the first TRO had expired; however, she still appeared to seek to have it dissolved. The Crosbys' attorney also "objected to" a trial on the merits, saying "we're entitled to an evidentiary hearing before there's--on a preliminary injunction before there's [an] ultimate trial on the merits." She pointed out that legal questions existed regarding whether the building was subject to the restrictive covenants.

          The trial court again asked whether the parties would agree to maintain the status quo until a trial on the merits could be held. The attorney for SLPOA agreed, stating that a TRO at that point was moot because the building had already been erected. The Crosbys' attorney, on the other hand, argued that if the trial court "were to issue any kind of order right now maintaining the status quo, it would be in violation of Rule 65, in that we are entitled to a hearing on a preliminary injunction." She also stated that the building was intended to be a pump house and the Crosbys intended to go forward on the installation of a water-filtration system.

         The trial court told the parties that it would hold an additional hearing before the trial on the merits but that it had been trying to save them time. The trial court stated that, because the Crosbys intended to move forward with additional work on or in the building, SLPOA needed to respond to the Crosbys' motion to dissolve the first TRO. The trial court reiterated its position that it would like to maintain the status quo until a trial on the merits could resolve the matter.

          On September 27, 2017, SLPOA filed its response to the motion to dissolve the first TRO. SLPOA also moved the trial court for a preliminary injunction and filed a brief in support of a preliminary injunction. In its motion, SLPOA reincorporated the verified allegations it made in its complaint and in its application for the TRO, which included ...


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