MEMORANDUM BRIEF IN SUPPORT OF DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

COME NOW , three of the defendants in the

above-styled cause, by and through counsel, and hereby submit the following Narrative Summary of Facts and

Memorandum Brief of Law in Support of Defendants’ Motion for Summary Judgment, filed contemporaneously

herewith.

INTRODUCTION

This lawsuit arises out of Plaintiff’s attempt to improperly and fraudulently obtain title to a dedicated public

right-of-way in , known as Drive. Specifically, on , Plaintiff

deceptively obtained a building permit from the City of (the “City”) and initiated the construction of a

private residence on the Drive right-of-way. The City subsequently discovered that the Plaintiff had made

misrepresentations on her building permit application regarding her claims of ownership of the subject property,

and that Plaintiff’s intended building site was actually located on a public right-of-way. Accordingly, on

, the City appropriately issued a stop work order on Plaintiff’s construction taking place on the public right-

of-way.

On , Plaintiff filed this lawsuit against , the Building Official for the

City ; , the Planning Director for the City ; and the City

(collectively referred to as the “City”), claiming that she has wrongfully incurred monetary expenses and other

damages as a result of the City’s issuance of the stop work order. (Ex. 1, “Complaint”). For the reasons set forth

below, however, summary judgment is proper, and all claims asserted by Plaintiff against these Defendants are due

to be dismissed, with prejudice.

 ARGUMENT

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III. THESE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S

CLAIM FOR ESTOPPEL BECAUSE THE PLAINTIFF COULD NOT HAVE RELIED ON ANY
REPRESENTATIONS BY THE CITY REGARDING THIS PROPERTY THAT ARE BEYOND
THE AUTHORITY OF THE CITY.

A. The Plaintiff Cannot Demonstrate Substantial Evidence of Reliance on any Representations by

the City.

In Count Four of Plaintiff’s Complaint, the Plaintiff alleges that she relied to her detriment upon the

appearance, caused by the negligence of these Defendants, that she owned the property in question. Because of her

alleged reliance on the issuance of this building permit, she essentially seeks a declaration from this Court that the

City is now estopped from claiming that the property at issue is a dedicated public right of way and that she herself

is entitled to ownership in fee simple over this property, without having conveyed any consideration for said

property.

Under law, “an estoppel...has three important elements. The actor, who usually must have

knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The

other relies upon that communication. And the other would be harmed materially if the actor is later permitted to

assert any claim inconsistent with his earlier conduct.” .

In this case, there are simply no grounds for asserting that the City must be estopped from claiming that the

property is a dedicated public right of way, as the principle of estoppel is applied in . First, the City, with

knowledge of the true facts, has never communicated anything to the Plaintiff that would indicate to the Plaintiff

that she was in fact the owner of the property. If anything, the City merely relied upon the Plaintiff’s own false

statement of ownership of the property when issuing the building permit to her. A building permit is merely a

revocable license to erect a building under the guidelines of the issuing municipality, and in no way is intended, or

could be construed to be intended, to communicate to the applicant that they own the land for which they have

sought to construct a particular structure.

Secondly, as stated above, the requirement of reasonable reliance upon any statement or conduct by these

Defendants is utterly lacking based on numerous circumstances and actions of Plaintiff herself. By serving as notary

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to the signatures contained in the 1989 Drive Quitclaim Deed and per her father’s involvement in the

litigation, Plaintiff at least should have been aware that her predecessors in interest held questionable

title to the subject property at issue. Also, in 2008, in reliance on something other than anything the City supposedly

knew, said, or did in 2012, Plaintiff executed, under oath, an Affidavit of Ownership in which she swore that the

Family Limited Partnership owned the property in fee simple, and had peaceably owned it for 30 years.

(Ex. 12). Therefore, because Plaintiff was acting on her own belief that she owned the property as early as 2008,

many years prior to any interaction she had with the City, Plaintiff cannot be said to have reasonably relied on any

contact she may have had with the City in 2012 to justify her belief of ownership. Furthermore, a proper inquiry at

any point in time by Plaintiff of the Probate Court records and/or into the prior history of ownership over this

property would have revealed the correct status of this property, and thus Plaintiff cannot claim that she reasonably

relied upon any representations from the City to the contrary.

Further, this case is analogous to a line of case law prohibiting estoppel arguments which seek to

estop a City from enforcing City zoning ordinances on the basis that the City issued building permits which were

ultimately contrary to established ordinances for that particular area. In Cobb v. City of New Hope, 682 So. 2d 1375

(Ala. Civ. App. 1996), the plaintiff applied for a building permit allowing for construction of two structures, a

garage and a single-story house with a built-in apartment, which he was to rent to three families. The location for

construction of these two structures was in an area covered under a zoning ordinance for single-family residential

use only. The court held that “only one reasonable inference could be drawn – [the plaintiff] is not entitled to violate

the City’s zoning ordinance based upon the mere fact that the City issued building permits to him.” Id. at 1377; see

also Foster and Kleiser Outdoor Advertising, Inc. v. University Furniture Galleries, Inc., 500 So. 2d 29 (Ala. Civ.

App. 1986) (finding that a although the plaintiff “applied for a permit which the City issued and that it built its

[structure] in good faith relying on that permit,...a city cannot be estopped from denying an illegally issued building

permit – that is, one in violation of local statutes.”).

Similarly, in this case, the Plaintiff seeks to take title to the subject property held as a dedicated public right

of way by way of estoppel on the mere basis of the City’s issuance of a building permit to the Plaintiff. There are

no grounds for such a novel legal theory for stripping the City and the public at large of their preexisting rights to

this property.

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under a theory of estoppel. As such, neither title to nor recovery of damages can be maintained by this Plaintiff over

the subject property in which the City never had any alienable right to transfer, either directly or indirectly.

III. PLAINTIFF’S CLAIM OF BREACH OF CONTRACT IS DUE TO BE DISMISSED BECAUSE,

AS A MATTER OF LAW, A BUILDING PERMIT IS NOT A CONTRACT FOR WHICH AN
ACTION FOR BREACH MAY LIE.

Under law, it is well settled that the creation of a valid contract requires 1) an offer; 2) acceptance;

3) consideration; and 4) mutual assent. Ex parte Holland Mfg. Co., 689 So. 2d 65 (Ala. 1996). However, settled law

in is also clear that the issuance of a building permit does not constitute a contract between the City issuing

the permit and the permit applicant. Thomas Learning Center, Inc. v. McGuirk, 766 So. 2d 161 (Ala. Civ. App.

1998). In Thomas, the Court adopted the reasoning of the Texas Courts in Trevino & Gonzalez Co. v. R.F.

Muller Co., 949 S.W.2d 39 (Tex. App. 1997), which provided:

[W]hen a building permit is issued, none of the elements of a contract are present. There is no offer,
no acceptance, and no consideration. A building permit is simply a revocable and alterable license
authorizing construction. Its purpose is to ensure that appropriate buildings are constructed in a
manner and means approved by the municipality. The application for an issuance of a building
permit does not constitute a voluntary agreement between the parties to enter into a binding
contract.

Because the construction permit in question does not operate as a contract between the
[municipality] and the [permittee], [the owner] has alleged no viable cause of action.... Where there
is no contract, there can be no breach of contract.

Trevino & Gonzalez Co. v. R.F. Muller Co., 949 S.W.2d 39, 42 (Tex. App. 1997).

In this case, the Plaintiff alleges in Count Five of the her Complaint that the issuance of the building permit

by the City to the Plaintiff constituted “in the aggregate a contract between the plaintiff and the defendant City

whereby the City is obligated to permit the plaintiff to complete her home and to convey to the plaintiff

title to the land on which it sits,” such that the subsequent revocation of this building permit amounts to a breach of

contract entitling the Plaintiff to damages. (Exhibit 1). However, because the issuance of a building permit by the

City does not satisfy any of the requirements for a valid contract as a matter of settled law, there was no

enforceable, binding contract between the City and the Plaintiff. As such, there are no grounds for maintaining an

action for breach of contract even assuming revocation of the building permit was wrongful.

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