J. Gregory KENNEDY
v.
Georgene Gause CONNER.
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Appeal
from Baldwin Circuit Court (CV-18-900531).
J.
Gregory Kennedy, of Chason & Chason, P.C., Bay Minette,
pro se.
Mark
D. Ryan and Samuel K. Wilkes of Ryan & Wilkes, P.C.,
Orange Beach, for appellee.
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
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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
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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
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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. On 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
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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,
282 Ala. 528, 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]
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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
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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 ...