Justia Real Estate & Property Law Opinion Summaries

Plaintiffs Frank and Martha Buck, challenged the Court of Civil Appeals’ decision to affirm the trial court's judgment in favor of defendants CH Highland, LLC (“Highland”) and the City of Birmingham (“City”) in their challenge to a City rezoning ordinance. The Bucks owned property in the City. Highland, a real-estate-development company, wanted to build a multistory apartment complex ("the project") on property located adjacent to the Bucks' property. As planned, the project did not conform with the then existing zoning restrictions for the area in which the subject property was located. Thus, Highland submitted a rezoning application to the Zoning Advisory Committee of the Birmingham Planning Commission. Highland requested that the subject property be rezoned from a "B-2 general business district" to a "B-3 community business district" so that it could construct the project. The Alabama Supreme Court found that the proposed rezoning ordinance that was published merely indicated to the public that there would be a zoning change from a B-2 district to a B-3 district. Ordinance 1949-G did not create a B-3 district; instead, it created a district of a substantially smaller range of uses than what was otherwise disclosed to the public in the Public Notice of the rezoning change. “Even if this Court were to reject the long-standing rule that, to invalidate an ordinance, it is unnecessary for the public to be prejudiced by the City's failure to publish the ordinance, we cannot presume that no prejudice occurred in this case.” The Court reversed the Court of Civil Appeals, and the case was remanded for further proceedings. View "Ex parte Buck." on Justia Law

Darlene Slamen, Charles Martin, Wilhelmina Martin, and Harris Partnership, LLP ("Harris LLP") (collectively "the defendants"), appealed a circuit court order granting Herbert Slamen's motion for a preliminary injunction. Herbert and Darlene married in 1981 and later formed Harris LLP, of which Herbert, Darlene, Charles, and Wilhelmina each owned a 25% share. In 2008, Herbert was diagnosed with chronic obstructive pulmonary disease, and, in 2010, he moved to Thailand because, Darlene said, he wanted "to enjoy what remained of his life." After moving to Thailand, Herbert was dependent upon Darlene to send him the proceeds generated from his assets so that he could pay for living expenses and medical treatment. Payments in an agreed amount were deposited in a checking account in Thailand set up in Herbert's name. In addition to his interest in Harris LLP, Herbert's assets included a house in Alabama, a house in Florida, and an interest in the dental practice from which Herbert had retired. In 2013, Herbert, via his attorney in fact, established the Herbert A. Slamen Revocable Living Trust ("the trust") to facilitate the management of his assets, and he thereafter transferred his assets, including his interest in Harris LLP, to the trust. Herbert was the beneficiary of the trust, and both he and Darlene were the appointed cotrustees. In 2016, Herbert sued the defendants, alleging that he had revoked the trust but that Darlene, purportedly under her authority as cotrustee, had nevertheless transferred the assets of the trust to herself. As a result, Herbert alleged, the defendants had "failed to distribute proceeds from [Harris LLP] to [Herbert] and instead made all payments directly to Darlene." Herbert filed a motion for a preliminary injunction in which he requested that the trial court enjoin the defendants "from disbursing funds and profits from [Harris LLP] and requiring [the defendants] to keep all funds and profits in the regular business account of [Harris LLP] until the resolution of this case." The motion was granted, and the defendants appealed. The Alabama Supreme Court reversed, finding the underlying causes of action asserted in Herbert's complaint were actions at law that alleged only monetary loss and sought only to recover monetary damages for that alleged loss. Thus, Herbert's alleged injury was not irreparable, given that it can be adequately redressed with the monetary damages he sought if he was able to prove that the defendants wrongfully divested him of the proceeds generated from his assets. View "Slamen v. Slamen" on Justia Law

This case involved two competing claims to a 40-acre tract of land ("the property") and whether the rule of repose could be applied to resolve that dispute. The complications in this case began in 1964, when one of Felix's children, James Freeman ("James"), purported to deed all the property to another child of Felix's, Joseph Freeman ("Joseph"). The 1964 deed was duly recorded. Nothing in the record established that, before that deed was executed, James owned more than the one-tenth interest in the property he had inherited from Felix in 1961. The 1964 deed from James to Joseph began a series of conveyances involving various parties over several years. That line of conveyances ended with two deeds in 2004, when DRL, LLC, purported to convey one-half of the surface estate of the property to Thomas and Cindy Hinote and one-half of the surface estate of the property to David and Rebecca Dowdy. DRL also purported to convey a portion of the mineral rights in the property to the Hinotes and the Dowdys; DRL retained a portion of the mineral rights for itself. The various transactions created a situation with two sides laying claim to the property. In 2011, four of Felix's descendants sued the Hinotes and the Dowdys. In pertinent part, the plaintiffs sought a judgment determining the ownership of the property, and they requested a sale of the property for a division of the proceeds. The Hinotes and the Dowdys primarily argued that the plaintiffs' action is barred by the 20-year rule of repose; the plaintiffs dispute that their action is barred by the rule of repose.After review, the Alabama Supreme Court concluded the rule of repose was inapplicable in this case and thus did not bar the plaintiffs' action. Accordingly, the Supreme Court affirmed the trial court's judgment in favor of the plaintiffs. View "Hinote v. Owens et al." on Justia Law

Action Auto Sales, Inc. ("AAS"), petitioned the Alabama Supreme Court for a writ of mandamus to direct the Clarke Circuit Court to vacate orders denying AAS' objection to L.M. Stewart and Cathy Cargile's notice of intent to serve subpoenas on nonparties Merchants Bank and accountant Eddie Nicholes and denying AAS's motion for a protective order. The underlying dispute arose out of Stewart and Cargile's purchase of an automobile, still encumbered by a security interest by AAS. AAS, a financing company, made loans to Pine City Motors, LLC; Pine City sold the vehicle to Steward and Cargile. Steward and Cargile alleged that after they took possession of the car, Pine City failed to satisfy its debt to AAS, and AAS or Pine City retained physical possession of the certificate of title for the vehicle. Thereafter, AAS sued Pine City, Stewart, and Cargile, requesting damages and a judgment directing Stewart and Cargile to return the vehicle to AAS. Stewart and Cargile filed a counterclaim against AAS and a cross-claim against Pine City. Pointing to various Alabama statutes, Stewart and Cargile asserted that their rights in the vehicle are superior to AAS's and that AAS or Pine City improperly retained possession of the certificate of title for the vehicle. Stewart and Cargile also demanded compensatory and punitive damages, asserting theories of negligence and wantonness and conspiracy between AAS and Pine City. The Supreme Court found Stewart and Cargile were not entitled to the discovery of the nonparties, and the trial court erred in not granting the motion for a protective order. The Court therefore granted AAS' petition and issued the writ. View "Ex parte Action Auto Sales, Inc." on Justia Law

The City of Selma ("the City") filed a petition for a writ of mandamus requesting the Alabama Supreme Court direct the Dallas Circuit Court to enter a summary judgment in its favor, based on State-agent immunity, as to claims Gregory Pettaway filed against it. Pettaway financed the purchase of a 2006 Nissan Armada sport-utility vehicle. Subsequently, Santander Consumer USA, Inc. ("Santander"), took over the loan. Santander contracted with Par North America, Inc. ("Par"), to handle repossessions for it and that Par used Central Alabama Recovery Systems ("CARS") to carry out the actual repossessions. Early on November morning in 2010, two men from CARS came to Pettaway's residence and told him that they were there to repossess the vehicle. By the time Pettaway got dressed and walked outside, the men had already hooked the Armada up to the tow truck and lifted it. Pettaway objected and telephoned the Selma Police Department; Officer Jonathan Fank responded to the call. After Officer Fank told Pettaway that the repossession was a civil matter and that he could not do anything because the vehicle was already hooked up to the tow truck, Pettaway again called the Selma Police Department to ask that Officer Fank's supervisor come to the scene. Pettaway filed a complaint against Santander, Par, CARS, and the City, alleging conversion, negligence, wantonness, and trespass claims. Although he stated conversion, negligence, wantonness, and trespass claims, Pettaway admitted that his only complaint against the City was that the officers told the repossession men to take the vehicle. The City admitted that officers were called to the scene at Pettaway's request to keep the peace but denied the remaining allegations as to the actions of its officers, raising the affirmative defense of immunity. The City argued the trial court erred in denying its motion for a summary judgment: at the time of the incident that formed the basis for Pettaway's complaint, Officers Fank and Calhoun were performing discretionary functions within the line and scope of their law-enforcement duties and that, therefore, they would be entitled to State-agent immunity. The Supreme Court concluded the City established that it has a clear legal right to a summary judgment in its favor based on State-agent immunity. View "Ex parte The City of Selma." on Justia Law

The Turners contended Wells Fargo Bank failed to give them proper notice of foreclosure required pursuant to Section 22 of their mortgage documents. Because they did not receive proper notice required by the mortgage, the Turners argued Wells Fargo was precluded from foreclosing on the property and that the foreclosure sale was void. The Alabama Supreme Court found that Wells Fargo indeed failed to provide the Turners with proper notice under the mortgage. Accordingly, because Wells Fargo failed to comply with the requirements of the mortgage, the mortgage sale conducted on February 27, 2012, failed. The Court of Civil Appeals’ judgment holding to the contrary was thus reversed and the matter remanded for further proceedings. View "Ex parte Trenton Turner, Jr." on Justia Law

Aliant Bank, a division of USAmeribank ("Aliant"), sued various individuals and business entities involved in a failed effort to develop the Twelve Oaks subdivision in Odenville, alleging that, as a result of those defendants' conspiracy and wrongful actions, Aliant's security interest in the property upon which the Twelve Oaks subdivision was to be built had been rendered worthless. The Circuit Court ultimately entered a number of orders either dismissing Aliant's claims or entering a summary judgment in favor of the various defendants. Aliant has filed three appeals; we affirm in part and reverse in part in appeals no. 1150822 and no. 1150823 and affirm in appeal no. 1150824. After careful consideration of all the claims, the Alabama Supreme Court affirmed those judgments in part and reversed them in part. In appeal no. 1150822, the Court reversed summary judgment against Aliant (1) on the negligence and breach-of-fiduciary duty claims asserted against the Board members in count four of Aliant's complaint; (2) on the fraudulent-misrepresentation and fraudulent-suppression claims asserted against Smith and Twelve Oaks Properties in count seven of Aliant's complaint; and (3) on the conspiracy claims asserted against Smith, Twelve Oaks Properties, Four Star Investments, Mize, and Billy Smith in count seven of Aliant's complaint. The Court affirmed summary judgment against Aliant and in favor of the various Twelve Oaks defendants in all other respects. In appeal no. 1150823, the Court reversed summary judgments against Aliant on the conspiracy claims asserted against Hunt and WHA in count seven of Aliant's complaint; however, the Court affirmed those summary judgments with regard to all other claims asserted by Aliant against Hunt and WHA. Finally, in appeal no. 1150824, the Court affirmed summary judgment against Aliant and in favor of the EOS defendants on all counts. View "Aliant Bank v. Wrathell, Hunt & Associates, LLC" on Justia Law

Rochester-Mobile, LLC, and Salzman-Mobile, LLC ("Rochester-Salzman"), appealed a judgment entered against them in a declaratory-judgment action relating to the validity of a 25-year sublease between Rochester-Salzman and Southern Family Markets of Mobile South University BLVD, LLC ("SFM"), and C&S Wholesale Grocers, Inc. ("C&S"). The trial court concluded that because the sublease was not recorded pursuant to section 35-4-6, Ala. Code 1975, the sublease was void for the remainder of the term extending beyond 20 years. After review, the Alabama Supreme Court held that the sublease in this case was not void under the provisions of section 35-4-6. Accordingly, the trial court erred in entering a judgment on the pleadings in favor of SFM and C&S and against Rochester-Salzman. Given this holding, the Court pretermitted discussion of the issue whether the sublease contained separate agreements that are independently enforceable, regardless of the validity of the sublease. View "Rochester-Mobile, LLC v. C&S Wholesale Grocers, Inc." on Justia Law

This action concerned a piece of real property located in Calhoun County, Alabama. Lynda Newman, individually and as personal representative of the estate of Oscar Newman, deceased, appealed the summary judgment entered in favor of Michael and Rhonda Howard. The Howards owned the property in 2003 and in April 2003 mortgaged the property to secure a note. In 2007, the Howards conveyed the property by general warranty deed to Lynda and Oscar Newman; Oscar, Lynda's husband, subsequently died. It was undisputed that, unbeknownst to the Newmans, the 2003 mortgage was not satisfied by the Howards before the conveyance and remained an encumbrance on the property. The Newmans and the Howards were involved in litigation concerning numerous claims against one another, as well as others, involving deeds, financing agreements, mortgages, and contracts between the various parties concerning several pieces of real property, including the property at issue in this case. Before a final judgment was reached in that litigation, in December 2014 the parties dismissed the lawsuit and entered into a "settlement agreement and mutual release agreement." Also in December 2014, shortly after Lynda signed the agreement, she attempted to sell the property at issue here. During the process of closing on the sale of the property, Lynda's attorney conducted a title search of the property and discovered that the property was encumbered by the 2003 mortgage. Lynda requested that the Howards satisfy the mortgage pursuant to the terms of the May 16, 2007, warranty deed. The Howards refused. Following a hearing, the circuit court granted the Howards' summary-judgment motion on the sole basis that Lynda had released any claims she may have had against the Howards. Lynda appealed. The Alabama Supreme Court reversed, finding Lynda timely objected to the Howards' reliance on the affirmative defense of settlement and release in their summary-judgment motion and equally clear that an amendment to specially plead that affirmative defense was not made by the Howards. The circuit court erred in granting the Howards' summary-judgment motion based on an unpleaded affirmative defense of release. View "Newman v. Howard" on Justia Law

Aliant Bank, a division of USAmeribank ("Aliant"), sued various individuals and business entities involved in a failed effort to develop the Twelve Oaks subdivision in Odenville, alleging that, as a result of those defendants' conspiracy and wrongful actions, Aliant's security interest in the property upon which the Twelve Oaks subdivision was to be built had been rendered worthless. The Circuit Court ultimately entered a number of orders either dismissing Aliant's claims or entering a summary judgment in favor of the various defendants. Aliant filed three appeals. In appeal no. 1150822, the Alabama Supreme Court reversed summary judgment against Aliant: (1) on the negligence and breach-of-fiduciary duty claims asserted against the Board members in count four of Aliant's complaint; (2) on the fraudulent-misrepresentation and fraudulent-suppression claims asserted against Bobby Smith and Twelve Oaks Properties in count seven of Aliant's complaint; and (3) on the conspiracy claims asserted against Smith, Twelve Oaks Properties, Four Star Investments, Mize, and Billy Smith in count seven of Aliant's complaint. The Court affirmed summary judgment against Aliant and in favor of the various Twelve Oaks defendants in all other respects. In appeal no. 1150823, the Court reversed the summary judgments entered against Aliant on the fraudulent misrepresentation and conspiracy claims asserted against Pfil Hunt, and his management company Wrathell, Hunt & Associates, LLC, in count seven of Aliant's complaint; however, the Court affirmed those summary judgments with regard to all other claims asserted by Aliant against Hunt and WHA. Finally, in appeal no. 1150824, the Court affirmed summary judgment against Aliant and in favor of the Engineers of the South, LLC defendants on all counts. View "Aliant Bank v. Four Star Investments, Inc." on Justia Law