Kennedy v. Conner

          Appeal from Baldwin Circuit Court (CV-18-900531)

          EDWARDS, Judge.

         This appeal involves a boundary-line dispute between Georgene Gause Conner and J. Gregory Kennedy. Kennedy appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") that found in favor of Conner on her adverse- possession claim, awarded Conner injunctive relief, and awarded Conner damages against Kennedy for trespass.

         Facts and Procedural History

         Conner is the daughter of Thomas Gause and Georgia Gause. By a deed dated May 30, 1989, Thomas Gause, Georgia Gause, and Conner acquired title, as joint tenants with right of survivorship, to a parcel of property in Orange Beach ("the Gause property"). The Gause property included a vacation home that had been constructed next to the western boundary of that property. The southern boundary of the Gause property fronted Bay Ornocor ("the bay"). The northern boundary and eastern boundary shared a common boundary with property owned by Kenneth Harman, Jr. At the northern boundary, the Gause property had a 20-foot-wide access easement across Harman's property to the southern right-of-way of Alabama Highway 180.

         By a deed dated June 19, 1998, Thomas Gause acquired title to Lot 3 ("Lot 3") of the Sun Circle Subdivision ("the subdivision"), which subdivision was located west of the Gause property. That deed specifically stated that the conveyance was subject to certain restrictive covenants ("the restrictive covenants") in favor of the other two lots in the subdivision, and a copy of those restrictive covenants was attached to the deed. Lot 3, which was a vacant lot, was located immediately west of the Gause property and was the easternmost lot of the subdivision. Like the southern boundary of the Gause property, the southern boundary of Lot 3 fronted the bay. The eastern boundary of Lot 3 was the common boundary with the western boundary of the Gause property. Unlike the Gause property, however, the eastern boundary of Lot 3 continued in a northerly direction to the southern right of way of Alabama Highway 180. In other words, the eastern boundary of Lot 3 also shared a common boundary with Harman's property where the access easement in favor of the Gause property was located on Harman's property.

         After Thomas Gause acquired Lot 3, that lot was combined with the Gause property, and the combined property was resubdivided into two lots referred to as the "Gause addition" to the subdivision. Lot 2 of the Gause addition consisted of what had been the Gause property plus a strip of land from Lot 3 of the subdivision; Lot 2 also included the access easement over Harman's property. Lot 1 of the Gause addition consisted of the remaining portion of the property that was formerly Lot 3 of the subdivision. The plat for the Gause addition reflects that the combined bay frontage for Lot 1 and Lot 2 was "179 feet more of less." Lot 2 of the Gause addition included approximately 94 feet of bay frontage; Lot 1 of the Gause addition included approximately 85 feet of bay frontage.

         The strip of land that was taken from Lot 3 of the subdivision and made a part of Lot 2 of the Gause addition began at the bay front. From the bay front, and for most of the length of the strip of land, including the area where the vacation home was located, the strip of land was approximately 15-feet wide. Towards the northern end of Lot 2 of the Gause addition, however, the strip of land taken from Lot 3 of the subdivision widens to approximately 30 feet, for a distance of approximately 150 feet.^[1] The northern boundary of Lot 2 of the Gause addition is approximately 350 feet south of the southern right-of-way to Alabama Highway 180; Lot 1 of the Gause addition shares that approximately 350 feet as a common boundary with Harman's property as described above.

         It appears that Thomas Gause was the sole owner of Lot 3 of the subdivision when the plat of the Gause addition was recorded, and, obviously, the deed to the Gause property did not include the strip of land that was later taken from Lot 3 and added to the Gause property to form Lot 2 of the Gause addition. It is unclear from the record how and when Conner acquired title to that strip of land, but it is undisputed that Thomas Gause and Georgia Gause died before Conner commenced the underlying action, and it is undisputed that Conner owned Lot 2 of the Gause addition, which included that strip of land.

         By a deed dated August 12, 1998, Thomas Gause conveyed Lot 1 of the Gause addition to John C. Hope III. The deed to Hope stated that the conveyance was subject to the restrictive covenants and certain additional restrictions on use, as did a deed dated November 28, 2012, by which Hope conveyed Lot 1 of the Gause addition to Millie, LLC, a family owned limited-liability company managed by Hope.

         By a deed dated February 23, 2018, Millie, LLC, conveyed Lot 1 of the Gause addition to Kennedy, who is a general contractor and has been building in Gulf Shores and Orange Beach for almost 30 years. The deed from Millie, LLC, to Kennedy states that the conveyance was subject to the restrictive covenants and the additional restrictions on use referenced in the preceding paragraph.

         Kennedy utilized the services of Rowe Engineering and Surveying, Inc. ("RESI"), to locate the purported common boundary line between his property and Lot 2 of the Gause addition, and he began site work for the construction of a residence, including making trenches for utilities, installing "electrical hookups," clearing and grading an area for a foundation pad for the residence, and laying a gravel driveway. However, after RESI placed stakes purporting to show the common boundary line between Lot 1 and Lot 2 of the Gause addition, and during Kennedy's construction activities, disputes arose between Conner and Kennedy. Specifically, Conner confronted Kennedy about allegedly trespassing onto her property as part of his construction activities and about the location of their common boundary line. As to the latter, Conner claimed that the common boundary line was further west than the stakes laid by RESI indicated. Specifically, based on the evidence submitted to the trial court, Conner claimed title by adverse possession to a long, thin, triangular parcel of property ("the disputed parcel") that was part of Lot 1 of the Gause addition according to the plat of the Gause addition and that was contiguous to Lot 2 of the Gause addition. Lot 1 of the Gause addition, minus the disputed parcel, is hereinafter referred to as "Kennedy's property"; Lot 2 of the Gause addition and the disputed parcel are hereinafter collectively referred to as "Conner's property." The southern boundary of the triangle forming the disputed parcel is the widest part of the triangle and is located on the bay front; that part of the triangle is approximately 5 feet wide --which would leave Kennedy's property with approximately 80 feet of bay frontage rather than the approximately 85 feet shown on the plat of the Gause addition. From the westernmost point of the southern boundary of the disputed parcel, Conner claimed the common boundary line between Conner's property and Kennedy's property continued north through certain landmarks (an iron axle and the eastern side of a bent oak tree) for several hundred feet until the line met the common boundary line between Lot 2 of the Gause addition and Kennedy's property as reflected on the plat of the Gause addition.^[2]

         On May 4, 2018, Conner filed a verified complaint against Kennedy in the trial court. According to Conner's complaint, she had acquired title to the disputed parcel by adverse possession. The complaint requested a judgment declaring the common boundary line between Conner's property and Kennedy's property and declaring that Kennedy's property is subject to the restrictive covenants. Also, the complaint sought a preliminary injunction enjoining

"Kennedy and any of his agents and/or contractors from moving forward with construction activities on, along, or around [Kennedy's property or Conner's property] ... until such time as the restrictive covenants issue and common boundary line issue can be resolved by the parties or by this Court, or until further Order from this Court."

         Further, the complaint sought compensatory damages and punitive damages for Kennedy's alleged intentional or wanton trespass onto Conner's property; the trespass claim included allegations that Kennedy "ha[d] installed a power utility box and pole, water pipes, a portion of his gravel driveway, and [had] dug utility trenches clearly onto Conner's property, well beyond even Kennedy's claimed boundary line." The complaint also included a claim for ejectment seeking "the recovery of [Conner's] property, removal of the physical invasion [onto Conner's] property, and compensatory and punitive damages."

         On May 14, 2018, Kennedy filed an answer and a counterclaim seeking a judgment declaring the location of the common boundary line to be as reflected on the plat of the Gause addition, declaring the extent to which the restrictive covenants applied to Kennedy's property, and declaring whether Conner had any right to enforce the restrictive covenants. Conner filed an answer denying the allegations of the counterclaim and asserting the affirmative defense that she was entitled to the disputed parcel based on statutory adverse possession. See Ala. Code 1975, § 6-5-200. Conner also asserted that Kennedy's counterclaims were barred based on the application of the doctrines of estoppel, waiver, and unclean hands.

         When Conner filed her complaint, she also filed a motion seeking a temporary restraining order requiring Kennedy to cease further construction activities. The trial court granted Conner's motion for a temporary restraining order, and, thereafter, it held an ore tenus proceeding regarding Conner's request for a preliminary injunction. On May 24, 2018, the trial court entered an order partially granting Conner's request for a preliminary injunction. The May 2018 order required Kennedy to "immediately remove the power pole, utility conduits and driveway encroachment from [Conner's] property and restore the disturbed areas within 14 days of the date of this order." The May 2018 order authorized Kennedy to resume construction activities, but

"enjoined [him] from the following:

"(I) any improvements whatsoever, including the placement of utilities, landscaping, fences, etc. east of the east boundary line of [Kennedy's property] ... as claimed by [Conner] and as marked by the existing string line running from the M & W capped pin by [Kennedy's] recently installed water meter to the north and the M & W capped pin at the axle to the south of the proposed primary residence area.

"(ii) no pier, wharf or boathouse shall be built closer than the applicable setback from the existing piling set by [Conner's] father and claimed as a boundary marker."

         "M & W" refers to McCrory & Williams, the engineering and land-surveying firm that had prepared the plat of the subdivision and the plat of the Gause addition. The trial court subsequently amended the May 2018 order; the amended order clarified that the trial court had granted preliminary injunctive relieve in order to preserve the status quo pending a final determination of the common boundary line. O n June 13, 2018, Conner filed a motion seeking to have Kennedy held in contempt of the May 2018 order based on his alleged failure to fully remove the purported gravel-driveway encroachment on her property and to restore "the lost and disturbed lawn" in areas that Kennedy had excavated for utilities. Kennedy responded to the contempt motion, and, thereafter, the trial court entered an order stating that it would consider Conner's motion to hold Kennedy in contempt when it held a final hearing regarding the location of the common boundary line.

         On July 18, 2018, Conner filed a "Supplement to Motion for Preliminary Injunction." In the supplement, Conner alleged that Kennedy's son was the "superintendent of Greg Kennedy, Inc., General Contractor"; it is undisputed that the corporation was owned by Kennedy and was performing the construction work on Kennedy's property. Conner also alleged that Kennedy's son had battered Harman at approximately midnight on July 6, 2018, after Harman responded to alleged harassment by Kennedy's son at Harman's property. Conner also alleged that Kennedy's construction workers had harassed Harman, particularly by playing loud music while working at Kennedy's property. Conner further alleged that Harman had testified on Conner's behalf at the hearing on Conner's motion for a preliminary injunction and that Harman was listed as a witness for Conner at the upcoming trial. We note that the record includes an affidavit from Kennedy's son admitting that an altercation had occurred with Harman but denying that Kennedy's son was responsible for that incident. Conner requested that the trial court enter a "preliminary injunction against Kennedy ... [e]njoining and restraining [Kennedy], and/or his agents or contractors, from coming onto Conner's property [and] from taunting, threatening or harassing Conner, her family, or any witnesses disclosed in this matter."

         The trial court held an ore tenus hearing on July 27, 2018. On August 20, 2018, the trial court entered a judgment declaring that Conner had acquired title to the disputed parcel by adverse possession. The August 2018 order states:

"[F]or over ten years, [Conner] has been in actual possession and has continuously, openly and notoriously maintained, mowed, utilized exclusively and claimed exclusively her property along a line from the property corner immediately west of and nearest her driveway entrance (located where [Kennedy] recently placed a temporary power pole and water meter) to the base of the bent oak tree southward to the historic iron axle marker and survey-placed capped rebar, and then further to the piling placed a short distance out into the water, treating that as the understood boundary line between the lot with [Kennedy] and his predecessors in title. Therefore, [Conner] has satisfied the elements of adverse possession and the Court declares said line of actual possession to be the common boundary line between the subject lots. See Bearden v. Ellison, 560 So.2d 1042, 1044 (Ala. 1990); Smith v. Brown, 213 So.2d 374 (1968)."

         The August 2018 judgment then includes a metes and bounds description of the common boundary line and directs Kennedy to retain a surveyor to mark that boundary line. The metes and bounds description is consistent with the evidence offered by Conner and with a survey from RESI (Kennedy's exhibit 16) and a "computation" prepared by Cecil Hudson, vice president of RESI, illustrating Conner's claimed common boundary line in relation to the common boundary line shown on the plat of the Gause addition (Kennedy's exhibit 21).

         Also, the August 2018 judgment granted Conner injunctive relief, enjoining "[Kennedy], and/or his agents and contractors, ... from coming onto [Conner's] property," "from taunting, threatening, or harassing [Conner], her family, or any witnesses that participated in this matter or their families," and "from blatantly blaring music over and above the local noise ordinances in a harassing manner."^[3]

         Regarding Conner's trespass claim, the August 2018 judgment states:

"The evidence is also undisputed that after the surveying work was concluded, including the flagged and marked capped rebar along the boundary, [Kennedy] trespassed and encroached upon [Conner's] land in placing a temporary power pole on her property, causing a water service line to be installed upon and across her property, installing utility conduits running down her property intended for future ... water and power service for his planned pier, installing his driveway approximately five feet over and into her property and burying a previously marked and flagged historical capped iron rod beneath his driveway. [Kennedy] failed to provide any evidence which would justify or explain these trespasses in light of his recent survey. Therefore, the Court finds that [Kennedy] is liable for willfully trespassing upon [Conner's] property and awards nominal compensatory damages in the amount of $500.00 and punitive damages in the amount of $2, 500.00 for which judgment is hereby entered."

         The August 2018 judgment also addressed Conner's claim for ejectment and her motion requesting that Kennedy be held in contempt for not fulfilling his obligations under the May 2018 order as follows:

"After the initial preliminary injunction hearing, the Court ordered [Kennedy] to remove his utilities and driveway encroachments from [Conner's] property and restore the disturbed areas. Since the date of the Amended Order on Preliminary Injunction, ... [Kennedy] has removed the utilities, but has made nominal efforts to remove the driveway materials or restore [Conner's] damaged lawn as expressly ordered. Therefore, the Notice of Noncompliance with Injunctive Order and Motion to Show Cause is hereby GRANTED and [Kennedy] is found in contempt of the Amended Order on Preliminary Injunction. Therefore, [Kennedy] shall within 14 days:

"... remove all of his driveway materials (i.e., white rock, sand, fabric, concrete, etc.) from [Conner's] property; and

"... re-sod [Conner's] property with St. Augustine grass in the locations where he dug utility trenches across [Conner's] property.

"... [Conner] shall notify the Court within 21 days of the status of [Kennedy's] compliance with this paragraph of the Final Order."

         The August 2018 judgment also adjudicated Conner's claim regarding the application of the restrictive covenants and Kennedy's counterclaims; those claims are not at issue on appeal. Finally, the August 2018 judgment denied all relief not otherwise specifically addressed.

         Kennedy filed a postjudgment motion, arguing that Conner had failed to present sufficient evidence in support of her adverse-possession claim, her claim for injunctive relief, and her request for an award of punitive damages for trespass. Kennedy also argued

"that to award money damages for trespass to land, in addition to ordering mandatory injunctive relief requiring Kennedy to repair the damage done to the land in connection with the trespass, by replacing sod and removing gravel from the driveway, is inconsistent and amounts to a double recovery to Conner."

         The trial court denied Kennedy's postjudgment motion. Kennedy appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

         Standard of Review

"Where ore tenus evidence is presented to the trial court, a presumption of correctness exists as to the court's findings of fact. This presumption is especially applicable in cases involving claims of adverse possession, because the evidence in such cases is usually difficult to assess from the vantage point of the appellate court. Unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence, the trial court's determination of fact will not be disturbed. Gaston v. Ames, 514 So.2d 877, 878 (Ala. 1987). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra."

Brackin v. King, 585 So.2d 37, 40 (Ala. 1991) (some citations omitted). Also, as the supreme court stated in Thomas v. Davis, 410 So.2d 889 (Ala. 1982):

"[T]he trier of fact, the trial court without a jury, unlike an appellate court later reviewing the matter from a written record, occupies a position of peculiar advantage enabling it to see and hear firsthand the evidence as it is presented. From that vantage point the trier of fact can observe the demeanor of the witnesses, listen to the inflections and intonations of their voices during oral testimony, and study their eyes, facial expressions, and gestures -- all of these sensory perceptions which play a critical role in the factfinder's determination of which witnesses are to be afforded credibility when conflicting testimony is given. Consequently, this court will rarely disturb the judgment of the trial court in a boundary line dispute or adverse possession case which turns on issues of disputed facts."

Id. at 892.

         "Witnesses frequently testify to the existence of 'lines, locations, distances, monuments, culverts, fences and the like' by pointing or verbally referring to a diagram. Barnett v. Millis, 286 Ala. 681, 684, 246 So.2d 78, 80 (1971). ... An appellate court is without the benefit of the 'pointing finger or any information which enables [it] to determine the particular line, location, distance, monument, culvert or fence to which the witness referred.' Id. Accordingly, the ore tenus presumption of correctness as to the trial court's findings of fact is 'especially strong in adverse possession cases.' Scarbrough [v. Smith, 445 So.2d 553');">445 So.2d 553, ] 556 [(Ala. 1984)]."

         Lilly v. Palmer, 495 So.2d 522, 526 (Ala. 1986).

         Analysis

         Kennedy first argues that the August 2018 judgment is not supported by clear and convincing evidence of Conner's adverse possession of the disputed parcel.

"It is a well established general principle of law that title to land may be acquired by adverse possession provided, that for a period of ten years preceding commencement of the action, the claimant has held hostile possession of the land under a claim of right that was actual, exclusive, open, notorious and continuous."

Cambron v. Kirkland, 287 Ala. 531, 534-35, 253 So.2d 180, 182-83 (1971). "[S]uch possession is required to be shown by clear and convincing evidence." Prestwood v. Hunt, 285 Ala. 525, 530, 234 So.2d 545, 549 (1970).

         Section 6-5-200, Ala. Code 1975, discusses the requirements for statutory adverse possession. However, "[a] boundary line dispute is subject to a unique set of requirements that is a hybrid of the elements of statutory adverse possession and adverse possession by ...