Michael W. Dendy and Dendy Investment Group, LLC v. James Ryan, Jim Durbin, Eric Newman, Todd Carroll, Gail Kappler, and The Architectural Committee of the River Pointe Subdivision

Rel: December 19, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026
_________________________

SC-2025-0024
_________________________

Michael W. Dendy and Dendy Investment Group, LLC

v.

James Ryan, Jim Durbin, Eric Newman, Todd Carroll, Gail
Kappler, and The Architectural Committee of the River Pointe
Subdivision

Appeal from Marshall Circuit Court
(CV-22-900124)

BRYAN, Justice.

Michael W. Dendy and Dendy Investment Group, LLC, appeal from

a judgment of the Marshall Circuit Court ("the trial court") in favor of
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James Ryan, Jim Durbin, Eric Newman, Todd Carroll, Gail Kappler, and

the Architectural Committee of the River Pointe Subdivision. For the

reasons explained below, we affirm the trial court's judgment.

Background

In April 2022, Ryan, Durbin, Newman, Carroll, Kappler, and the

Architectural Committee of the River Pointe subdivision ("the AC")

commenced this action against Dendy and Dendy Investment Group,

LLC, in the trial court seeking declaratory and injunctive relief. Ryan,

Durbin, Newman, Carroll, and Kappler own property in the River Pointe

Subdivision ("River Pointe"). Ryan, Durbin, Newman, Carroll, Kappler,

and the AC are hereinafter referred to collectively as "the River Pointe

plaintiffs." Dendy and Dendy Investment Group, LLC, are hereinafter

referred to collectively as "the Dendy defendants."

As finally amended, the River Pointe plaintiffs' complaint alleged

that the Dendy defendants had engaged in residential construction on

two parcels of real property located within River Pointe -- Lot 7 and Lot

8. According to the River Pointe plaintiffs, the Dendy defendants had

lacked a building permit for the construction, the construction did not

conform to the plans that had been approved by the AC, and the

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construction violated certain municipal building codes that had been

adopted by the City of Guntersville.

The Dendy defendants answered the complaint and asserted

several counterclaims, including a request for declaratory relief. In

August 2023, the River Pointe plaintiffs moved for a summary judgment

regarding all the Dendy defendants' counterclaims. The trial court

granted the River Pointe plaintiffs' summary-judgment motion.

The trial court conducted a bench trial on June 25, 2024. After the

trial, the parties requested that the trial-court judge visit and inspect the

houses being constructed on Lot 7 and Lot 8 and view the "character" of

River Pointe. Thereafter, the trial-court judge inspected the houses on

Lot 7 and Lot 8 and drove through River Pointe outside the presence of

the parties or their attorneys.

On October 4, 2024, the trial court entered a lengthy judgment

making the following pertinent findings of fact:

"[River Pointe] is a residential subdivision located in
Guntersville …. [It] was created in 1998, and the entire
subdivision is encumbered by certain restrictive covenants
found in the Declaration of Covenants, Conditions, and
Restrictions of River Pointe Subdivision (hereinafter referred
to as 'River Pointe Covenants,' which were introduced and
admitted … at trial).

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"… The construction on Lot 7 and Lot 8 of the
subdivision is at the heart of the controversy in this matter,
and the River Pointe Covenants control and restrict what the
[Dendy] defendants … are able to do and not do with the
subject lots within the subdivision.

"… The subdivision plat, description, and other
necessary documents for the subdivision, including the River
Pointe Covenants, have been filed and recorded in the Probate
Court of Marshal County …. The River Pointe Covenants
provide, in part, as follows:

" 'Now therefore, declarant hereby declares
that all of the properties shall be held, sold and
conveyed subject to the following easements,
restrictions, covenants, and conditions, which are
for the purpose of protecting the value and
desirability of, and which shall run with, the
properties and be binding on all parties having any
right, title or interest in the properties or any part
thereof, their heirs, successors, and assigns, and
shall inure to the benefit of each owner thereof.'

"… At trial, attorney David Jones testified concerning
his representation of property owners who subdivided River
Pointe and his preparation of all documents, including the
River Pointe Covenants for the subdivision. Attorney Jones
testified that the River Pointe Covenants are not overly
restrictive or burdensome but were standard covenants and
even routine.

"[The Dendy defendants] are the owner(s) of Lot 7 and
Lot 8 in the subdivision and one or both defendants are
responsible for the construction of the structures on Lot 7 and
Lot 8 of the subdivision.

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"… At trial, the [Dendy] defendants stipulated to having
known about and being aware of the River Pointe Covenants
as relates to Lot 7 and Lot 8.

"… With knowledge of the River Pointe Covenants, [the
Dendy] defendants began construction of two separate
structures on said lots, one on Lot 7 and one on Lot 8, which
[the River Pointe] plaintiffs at trial contended violated the
River Pointe Covenants.

"… The River Pointe Covenants provide, in pertinent
part at Article Four (4) -- Land Use, Section 1(c):

" 'Construction Plans. Except for Lots 24 and 37
which plans have been preapproved by declarant,
no improvement shall be commenced, erected,
placed, altered, added to or improved on any lot
until a complete set of the construction plans and
specifications, and a plan showing the location of
any structure and all improvements on the lot
have been submitted to and approved, in writing,
by the [AC]. The set of plans will be retained by
the [AC] and shall include floor plans, exterior
elevations, material details, setting and
landscaping plans. The [AC] shall have
responsibility to ensure that no improvement
whether building construction or landscaping,
shall be initiated unless the quality and
appearance of such improvement is compatible
with neighborhood standards. The [AC] shall have
the right to refuse to approve any plans or
specifications or landscape plans which are not
reasonably suitable or desirable in its opinion for
aesthetic or other reasons, and in so passing upon
such plans, specifications and landscape plans and
without any limitation of the foregoing, it shall
have the right to take into consideration the
suitability of the proposed building or other
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structure, and of the materials of which it is to be
built, the site upon which it is proposed to erect the
same, the harmony thereof with the surroundings
and the effect of the building or other structure as
planned, on the appearance from neighboring
property. Notwithstanding that improvements
meet or exceed specified minimum size
requirements; the quality and attractiveness of
every improvement must also meet high
neighborhood standards and the [AC] is hereby
granted broad discretion in judging the
compatibility of proposed improvements for the
neighborhood. In any case, it is intended that the
[AC] will not approve plans, materials or
specifications that do not conform to the following
requirements: ….'

"The requirements include, but are not limited to, minimum
size, ceiling height, exterior grade, exterior materials,
windows and doors, roofing materials, air conditioner,
fencing, screen porches, screen material, site location, and
garages.

"… At trial, … Dendy, a home builder by trade, who has
three additional lots at the subdivision, acknowledged that he
was aware and had actual notice of the above River Pointe
Covenants before he began construction on the structure now
located on Lots 7 and 8, and his attorney of record stipulated
to the same.

"… In approximately January 2021, [the Dendy]
defendants submitted two separate complete set of
construction plans and specifications and a plan showing the
location of the proposed structures and all proposed
improvements on Lots 7 and 8 to the [AC] for approval. These
submissions were filed by [the Dendy] defendants pursuant to
the River Pointe Covenants. The plans [were] introduced and
admitted into evidence. The [AC] considered the plans, and
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they were approved by the [AC] on or around February 4,
2021. The approval by the [AC] allowed [the Dendy]
defendants to proceed with the construction of the two
different houses on Lots 7 and 8 according to the complete
plans submitted [to] and approved by the [AC].

"… Had the structures been constructed as contained in
the construction plans approved by the [AC], one would
assume this action would not have been instituted against
[the Dendy] defendants. However, after approval of the plans
by the [AC], [the Dendy] defendants changed the plans and
began construction of structures on Lots 7 and 8 which did not
conform to the plans submitted. At no time after approval of
the initial construction plans by the [AC] did [the Dendy]
defendants submit new or amended construction plans with
all the requirements to the [AC] in order to seek approval for
any such changes/amendments after the [AC] approved the
original house plans, which were later abandoned in the
construction process by [the Dendy] defendants.

"… Dendy testified at trial that he did not build the two
approved houses on Lots 7 and 8 because River Pointe Drive
was 'in the wrong place.' He also stated he did not build the
houses because of the location of the City's setback lines.

"… It was established at trial that, as construction
progressed on Lots 7 and 8, it became apparent that the
structures under construction on Lots 7 and 8 did not conform
to the construction plans submitted and approved; the
construction had not been approved by the [AC]; and … did
not resemble any plan submitted to the City or the [AC. The
AC] put [the Dendy] defendants on notice and asked that [the
Dendy] defendants stop construction.

"… Phillip Bartlett, an engineer and draftsman,
inspected the houses being constructed on Lots 7 and 8
approximately one week before the trial of the case. …
Bartlett prepared a complete to-scale drawing of both houses
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under construction on Lots 7 and 8, including each level,
exterior and interior measurements, as well as the layout of
rooms on each floor and such were admitted into evidence ….
Bartlett also testified that he had examined every drawing,
plan or diagram which [the Dendy] defendants had prepared
or submitted to the City or to the [River Pointe] plaintiffs at
any time. … Bartlett then testified that none of the plans,
drawings, drafts, or diagrams that he reviewed matched the
houses under construction on Lots 7 and 8.

"… River Pointe resident, Jay Ronca, testified that he
had followed [the Dendy] defendants' activities on Lots 7 and
8 closely. He testified concerning erosion problems, public-
safety problems, and the environmental problems arising out
of [the Dendy] defendants' construction practices in the
subdivision. Ronca also described the retaining wall at the
back of Lot 8 having long, vertical and horizontal cracks and
his observations that the retaining wall was bulging when he
examined the wall before trial.

"… Jay Ronca also testified regarding the effect [that]
the construction on Lots 7 and 8 had on the entire subdivision.
He expressed his opinion that the houses under construction
by [the Dendy] defendants on Lots 7 and 8 were not
compatible with the other homes in the subdivision. He
stated that the homes lacked any architectural detail and did
not blend in with the neighborhood. … Ronca also stated
that, in his opinion, the construction on Lots 7 and 8
diminished the value of his home at River Pointe.

"… On or about August 5, 2022, [the Dendy] defendants
delivered a letter to the [AC] together with a hand-drawn
sketch of one floor of a building …. [The Dendy] defendants
requested approval of changes in the original plans, which
had previously been approved by the [AC]. [The Dendy]
defendants characterized the request for approval of changes
as 'only an addendum to the previously submitted plans.' The
letter requested that the [AC] approve the hand-drawn sketch
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for the same structure to be built on Lots 7 and 8. The sketch
only includes one floor of a three-floor structure and did not
constitute a complete construction plan, as contemplated by
the River Pointe Covenants. The [AC] declined the request
and informed [the Dendy] defendants of [its] decision by a
letter dated August 11, 2022 …. [The Dendy] defendants in
doing so appeared to request to completely change the original
house plans that had been approved. The River Pointe
Covenants state expressly that 'no improvement shall be
commenced, erected, placed, altered or added to, or improved
on any lot until a complete set of construction plans and
specifications have been approved in writing by the [AC].'
(Emphasis added.) ….

"… Dendy refers to the request as an Addendum, but,
in the context of contracts by definition, 'an addendum can
only become a part of the original document once it has been
accepted by both parties.' -- Merriam-Webster Dictionary.

"… Regarding [the Dendy] defendants' defense for
building unapproved houses on Lots 7 and 8 during the trial,
the following exchange occurred [between counsel for the
River Pointe plaintiffs and Dendy]:

" 'Q: … Do you have permission or have you
obtained permission from the [AC] to construct
those houses that are there today?

" 'A. … No.

" 'Q. … Mr. Dendy, what's marked as Plaintiff's
Exhibit 17, do you recognize that as the house
that's constructed on Lot 8?

" 'A. … Yes.

" 'Q. … All right. What about Exhibit 16? Is that
the house --
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" 'A. … Yes.

" 'Q. … -- on [Lot] 7?

" 'A. … Yes.

" 'Q. … Did the [AC] ever approve any houses that
look like this?

" 'A. … No, they didn't.

" 'Q. … All right. So[,] if I understand it correctly,
you contend that you're within your rights, after
plans are originally submitted and approved, by
the [AC], you can build anything you want to?

" 'A. … I don't understand the question.

" 'Q. … Well, you had plans for [Lot] 7 and [Lot] 8
approved, and they're in evidence. They're a
complete set of plans and specifications. They
were approved by the [AC]. After that, do you
contend that you can build anything you want to
on Lots 7 and 8 without regard for the [AC]'s
approval?

" 'A. … Yes.' "

Based on its factual findings, the trial court made the following

determinations:

"Under Alabama law, when the language of a restrictive
covenant is not 'of doubtful meaning and ambiguous,' the
language of that covenant is entitled to be given the effect of
its plain and manifest meaning. Thus, if there is no
inconsistency or ambiguity within a restrictive covenant, the
clear and plain language of the covenant is enforceable by
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injunctive relief. That proposition of law is to take precedence
over the disfavor that courts harbor toward restrictions of the
use of land as a general matter. Maxwell v. Boyd, 66 So. 3d
257 (Ala. Civ. App. 2010). The language in the River Pointe
Covenants is plain, clear, and in no way ambiguous.
Furthermore, the [Dendy] defendants have not claimed in any
way that the River Pointe Covenants are unclear, ambiguous,
or difficult to understand. It is well established that the
proper recording of an instrument in the probate court that
relates to an interest in real property, such as the covenant
documents, constitutes constructive notice to all the world of
the contents of the instrument. Additionally, in this instance,
the [Dendy] defendants were aware of the River Pointe
Covenants and the restrictions imposed thereby. With that
knowledge, [the Dendy] defendants began construction of one
or more structures on Lots 7 and 8, which violate the clear
and unambiguous language of the River Pointe Covenants,
and such structures are not the same structure(s) approved
by the [AC] as submitted by [the Dendy] defendants.

"The argument by [the Dendy] defendants that the River
Pointe Covenants allow a property owner to seek and receive
approval from the [AC] of a specific structure pursuant to a
complete set of construction plans submitted, then allows said
property owner to thereafter construct any structure on said
property without further approval is totally absurd and not
provided for in the plain language of the River Pointe
Covenants. Clearly, one cannot seek approval, obtain
approval of a specific set of construction plans, and then build
any structure without reference to the approved plans. To do
so would allow a River Pointe lot owner, or any subdivision lot
owner anywhere with similar restrictive covenants, to submit
plans for the construction one [a $1 million] home, receive
approval from the governing body for a [$1 million] home, in
this case the [AC], and then said lot owner build a [$100,000]
home on the lot. The River Pointe Covenants specifically
provide 'no improvement shall be commenced, erected, placed,
altered, added to, or improved on any lot' until a complete set
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of construction plans are submitted to and approved by the
[AC].

"The law does not place the onus on the enforcer of
restrictive covenants to warn violators that they may not be
in compliance, particularly where the restrictive covenants
require homeowners to gain preapproval of any
improvements. And in this case, [the Dendy] defendants were
aware of the River Pointe Covenants and built the structures
on Lots 7 and 8 with knowledge that such structures were not
the same structures approved by the [AC].

"Now and based upon the totality of the evidence
received by the Court and the Court having viewed the
structures being constructed on Lots 7 and 8, inside and out,
during the site visit by the Court, the Court finds that the
River Pointe Covenants do in fact control the [Dendy]
defendants' construction activities on Lots 7 and 8 of the
subdivision, and the language of the River Pointe Covenants
are standard restrictive covenants commonly used in
subdivisions around the State. Further, that the structures
now on said Lots 7 and 8 do not conform to the construction
plans approved by the [AC]. [The Dendy] defendants are
ordered to fully comply with the River Pointe Covenants in all
respects as it relates to the structures being constructed on
Lots 7 and 8 in the subdivision. To the extent that the
structures on Lots 7 and 8 can be built in strict compliance
and in accordance with the 'complete set of the construction
plans and specifications' as previously approved by the [AC],
the [Dendy] defendants may continue constructing the
home/structure as contained in the approved construction
plans. Alternatively, [the Dendy] defendants may seek
approval in compliance with the River Pointe Covenants by
submitting a complete set of construction plans and
specifications and construct any structure that is approved by
the [AC] which otherwise conforms with the River Pointe
Covenants. Any such attempt to seek and gain approval of
the alternate construction plans concerning the existing
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structure(s) on Lots 7 and 8 shall be sought within [30] days
from the date of this order. Otherwise, [the Dendy]
defendants are ordered to immediately submit a plan to the
[AC] for the immediate removal of any structure(s) on Lots 7
and 8 which are currently standing and for which the [Dendy]
defendants did not have approval, or have not gained
approval, by the [AC]. All other relief not specifically
addressed herein is denied."

The Dendy defendants filed a motion to alter, amend, or vacate the

trial court's judgment pursuant to Rule 59(e), Ala. R. Civ. P. That same

day, the Dendy defendants also filed a "motion to extend time to obtain

[the AC's] approval of construction plans." In the latter motion, the

Dendy defendants asserted that they had "submitted floorplans to [the

AC] but need more time to resubmit those plans if the [AC] pushes back

and requires updated plans."

The River Pointe plaintiffs filed a response to the Dendy

defendants' Rule 59(e) motion and a response to the Dendy defendants'

"motion to extend time to obtain [the AC's] approval of construction

plans." In the latter response, the River Pointe plaintiffs asserted that

the Dendy defendants had "failed to submit a complete set of construction

plans and specifications to the [AC] for approval by the [AC] to construct

or alter any structures on Lots 7 and 8 …." They continued:

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"[The] Dendy [defendants] did in fact submit two sets of
documents to a member of the [AC] within [30] days of the
order. The documents do not constitute or even purport to be
a complete set of construction plans and specifications for
structures on Lots 7 and 8. … In [their Rule 59(e)] motion,
[the] Dendy [defendants] describe[] the documents as
floorplans along with engineering schematic[s] on how to
correct the property's retaining wall. These two documents …
are simply drawings by an unidentified individual depicting
the exterior of the structures on Lots 7 and 8 as they stand
today with a proposed floorplan[,] which was introduced at
trial. In other words, [the] Dendy [defendants] ha[ve] done
absolutely nothing to plan, rebuild, alter, or change the two
houses on Lots 7 and 8 since the Court's Order.

"… The [AC] has met and considered the plans or
documents … and … unanimously rejected and did not
approve the plans …."

(Emphasis in original.)

The trial court entered an order stating that it had considered the

Dendy defendants' Rule 59(e) motion and their "motion to extend time to

obtain [the AC's] approval of construction plans" and the River Pointe

plaintiffs' response to each motion. The order concluded: "[I]n light of the

testimony and evidence before the Court from the trial of this matter, the

[motions] are both hereby DENIED." (Capitalization in original.)

The Dendy defendants thereafter appealed to this Court. The

Dendy defendants do not specifically challenge the trial court's denial of

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their "motion to extend time to obtain [the AC's] approval of construction

plans" on appeal.

Analysis

On appeal, the Dendy defendants argue that the trial court erred

by failing to consider and apply the "relative-hardship test" in entering a

judgment in favor of the River Pointe plaintiffs enforcing the restrictive

covenants at issue ("the River Pointe covenants"). See Cole v. Davis, 383

So. 3d 646, 654 (Ala. 2023)(" '[I]f, upon a balancing of the equities, a court

determines that the harm resulting to one landowner from the

enforcement of a restrictive covenant would be considerably

disproportionate to the benefit received by the landowner seeking

enforcement, a court may decline to afford the landowner seeking

enforcement the equitable relief of an injunction to redress a breach of

the restrictive covenant.' " (quoting Grove Hill Homeowners' Ass'n v. Rice,

90 So. 3d 731, 737 (Ala. Civ. App. 2011))). The Dendy defendants also

argue that the doctrine of laches bars the relief sought by the River

Pointe plaintiffs.

In response, the River Pointe plaintiffs argue that the Dendy

defendants waived application of both the relative-hardship test and the

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doctrine of laches by failing to properly assert them as affirmative

defenses in the trial court. See Cole, 383 So. 3d at 654 ("[T]he relative-

hardship defense is an affirmative one, and, thus, the burden is on the

party asserting the defense."); and Sims v. Lewis, 374 So. 2d 298, 301

(Ala. 1979)(explaining that the doctrine of laches is an affirmative

defense).

Before considering the merits of the Dendy defendants' substantive

arguments on appeal, we must consider the River Pointe plaintiffs'

contention that those arguments have been waived.

I. Waiver

" 'The language of Rule 8(c)[, Ala. R. Civ. P.,] is
mandatory. This court has held:

" ' "[An affirmative defense] is required to be
specially pleaded under Rule 8(c). See Nash v.
Vann, 390 So. 2d 301, 303 (Ala. Civ. App. 1980).
Under the Federal Rules of Civil Procedure, after
which our rules are modeled, the consequences of
a party's failure to plead an affirmative defense
have been explained as follows:

" ' " 'If an affirmative defense is not
pleaded it is waived to the extent that
the party who should have pleaded the
affirmative defense may not introduce
evidence in support thereof, unless the
adverse party makes no objection in
which case the issues are enlarged, or
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unless an amendment to set forth the
affirmative defense is properly made.'

" ' "2A J. Moore, Federal Practice § 8.27[3] at 8-251
(2d Ed. 1948). See Funding Systems Leasing
Corporation v. Pugh, 530 F.2d 91 (5th Cir. 1976)."

" 'Smith v. Combustion Resources Engineering, 431 So. 2d
1249 (Ala. 1983). See, also, Columbia Engineering
International, Ltd. v. Espey, 429 So. 2d 955 (Ala. 1983).' "

Newman v. Howard, 239 So. 3d 1147, 1150 (Ala. 2017)(quoting Bechtel

v. Crown Cent. Petroleum Corp., 451 So. 2d 793, 796 (Ala.

1984))(emphasis added). We first consider the River Pointe plaintiffs'

waiver argument with regard to the relative-hardship test before turning

to the doctrine of laches.

A. The Relative-Hardship Test

The Dendy defendants did not assert the applicability of the

relative-hardship test in an answer. Instead, they raised the defense for

the first time in a pretrial brief. The Dendy defendants' pretrial brief

included more than four pages of argument regarding this Court's

relevant precedent, including this Court's recent decision in Cole, supra.

The Dendy defendants also attached to their pretrial brief a copy of a

Court of Civil Appeals' decision that they contended supported their

relative-hardship-test argument.
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In Hayes v. Payne, 523 So. 2d 333, 334 (Ala. 1987), this Court

explained:

" ' "[T]he substance of many unpleaded affirmative defenses
may be asserted by pretrial motions. … Even as late as trial,
if evidence relating to an unpleaded defense is introduced
without objection, Rule 15(b)[, Ala. R. Civ. P.,] requires the
pleadings to be treated as if they actually had raised the issue.
However, if the record indicates that the unpleaded
affirmative defense has not been tried by the 'express or
implied consent' of the parties, the pleadings will not be
treated as if they actually had raised the defense, and the
court may decide not to permit the issue to be litigated."
(Footnotes omitted.)' "

(Quoting Robinson v. Morse, 352 So.2d 1355 (Ala. 1977), quoting in turn

5 Wright & Miller, Federal Practice & Procedure § 1278).

On appeal, the River Pointe plaintiffs assert that the Dendy

defendants' principal appellate brief "does not cite any specific sections

of testimony in the transcript where testimony was given regarding

relative-hardship discussion." The River Pointe plaintiffs' brief at 14.

However, in their own posttrial brief, the River Pointe plaintiffs

summarized the evidence presented at trial and included an argument

based on the Court of Civil Appeals' decision in Maxwell v. Boyd, 66 So.

3d 657 (Ala. Civ. App. 2010). In particular, the River Pointe plaintiffs

argued that, "[in Maxwell, t]he Court of Civil Appeals rejected the

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undue[-]hardship claim[,] stating, 'a specific application of the clean-

hands doctrine is that a restrictive covenant should be enforced if a

[d]efendant had knowledge of it before constructing an improvement

contrary to its provisions, even if harm is disproportionate.' " The River

Pointe plaintiffs did not object to the Dendy defendants' assertion of the

relative-hardship test as an affirmative defense; they argued only that it

did not apply, based on the evidence presented at trial.

As noted above, in its judgment, the trial court cited the Court of

Civil Appeals' decision in Maxwell when reasoning as follows:

"[I]f there is no inconsistency or ambiguity within a restrictive
covenant, the clear and plain language of the covenant is
enforceable by injunctive relief. That proposition of law is to
take precedence over the disfavor that courts harbor toward
restrictions of the use of land as a general matter."

The central issue in Maxwell involved the relative-hardship test. See id.

at 261-63.

In their postjudgment motion, the Dendy defendants again

included an argument regarding the relative-hardship test. In their

response to the Dendy defendants' motion, the River Pointe plaintiffs

argued as follows:

"[The] Dendy [defendants] raise the equitable princip[le]
of the 'relative[-]hardship' doctrine as a defense. To invoke
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the equitable defense of relative hardship, [the] Dendy
[defendants] require[] the possession of clean hands. This
defense is not available to [the] Dendy [defendants] because
[their] own wrongful conduct renders the assertion of the
defense contrary to equity and good consci[ence]. Maxwell v.
Boyd ….

"….

"… The relative[-]hardship defense is not available in
this case because all the evidence on the trial of the case
regarding relative[]hardship was within [the] Dendy
[defendants'] own control. [The] Dendy [defendants] could
have sought [the AC]'s approval before beginning any
construction. [They] could have stopped the construction at
any time; [they] could have submitted additional or new
complete sets of construction plans and specifications at any
time; but [they] did not, even with both actual and
constructive knowledge of the violation of the [c]ovenant."

(Emphasis added.) Thus, the River Pointe plaintiffs did not argue that

the Dendy defendants had waived the relative-hardship test by failing to

properly plead it as an affirmative defense. Indeed, as noted, the River

Pointe plaintiffs acknowledged that the defense had been "raise[d]."

Based on the foregoing, we conclude that, although the Dendy

defendants did not assert the relative-hardship test as an affirmative

defense in an answer, they raised the defense in their pretrial brief.

Because the River Pointe plaintiffs did not object to the Dendy

defendants' assertion of the defense at that time, the issues to be tried

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were "enlarged" to include the applicability of the relative-hardship test.

See Newman, 239 So. 3d at 1150. Therefore, the Dendy defendants did

not waive the relative-hardship test as an affirmative defense.

B. The Doctrine of Laches

Unlike the relative-hardship test, the record indicates that the

Dendy defendants raised the doctrine of laches for the first time in their

postjudgment motion. Although the trial court had discretion to consider

the Dendy defendants' laches defense, it was not required to do. See

Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 So. 2d 668, 677-

78 (Ala. 2007)("Although the trial court had the discretion to consider the

merits of the statute-of-limitations defense, there is no indication that it

did so, and we will not presume to the contrary. See Green Tree

Acceptance, Inc. v. Blalock, 525 So. 2d 1366, 1369 (Ala. 1988)('[A] trial

court has the discretion to consider a new legal argument in a post-

judgment motion, but is not required to do so.')."). Accordingly, we will

not consider the merits of the Dendy defendants' laches defense on

appeal.

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II. The Clean-Hands Doctrine

The Dendy defendants' argument regarding the relative-hardship

test relies heavily on this Court's decision in Cole, supra. After the

parties to this appeal had completed their briefing, this Court released

its decision in Englund v. Dauphin Island Property Owners Ass'n [Ms.

SC-2024-0414, Aug. 29, 2025] ____ So. 3d ____ (Ala. 2025).

In Englund, we discussed Cole as follows:

"Regarding permanent injunctions involving restrictive
covenants, we have recently explained:

" 'Our Court has previously recognized that,
as a general matter, "restrictive covenants are not
favored in the law and will therefore be strictly
construed by this Court." Lange v. Scofield, 567
So. 2d 1299, 1301 (Ala. 1990). "All doubts must be
resolved against the restriction and in favor of free
and unrestricted use of the property." Id.

" 'However, when the language of a
restrictive covenant is not "of doubtful meaning
[or] ambiguous," the language of that covenant "is
entitled to be given the effect of its plain and
manifest meaning." Laney v. Early, 292 Ala. 227,
231-32, 292 So. 2d 103, 107 (1974). "If 'there is no
inconsistency or ambiguity within a restrictive
covenant, the clear and plain language of the
covenant is enforceable by injunctive relief.' "
Hipsh v. Graham Creek Estates Owners Ass'n, 927
So. 2d 846, 848 (Ala. Civ. App. 2005)(quoting
Carpenter v. Davis, 688 So. 2d 256, 258 (Ala.
1997)). That proposition of law takes precedence
22
SC-2025-0024

over the disfavor that our Court has previously
shown toward restrictions of the use of land.
Laney, 292 Ala. at 231, 292 So. 2d at 106-07.

" 'In Tubbs v. Brandon, 374 So. 2d 1358, 1361
(Ala. 1979), this Court stated:
" ' "When a restrictive covenant is
broken, ... an injunction should be
issued because the mere breach of the
covenant is a sufficient basis for
interference by injunction. The right to
enjoin such a breach will not depend
upon whether the covenantee will be
damaged by the breach. Reetz v. Ellis,
279 Ala. 453, 186 So. 2d 915 (1966)." '

"Cole v. Davis, 383 So. 3d 646, 653 (Ala. 2023)(emphasis
omitted).

"….

"This Court recently summarized the relative-hardship
test as follows:

" 'Although, as noted earlier, the breach of a
restrictive covenant is, by itself, enough to warrant
the issuance of an injunction, in Lange [v. Scofield,
567 So. 2d 1299 (Ala. 1990),] this Court stated that
enforcement of covenants running with land " 'is
governed by equitable principles, and will not be
decreed if, under the facts of the particular case, it
would be inequitable and unjust.' " 567 So. 2d at
1302 (quoting 20 Am. Jur. 2d Covenants,
Conditions & Restrictions § 313 (1965)).

" '....

23
SC-2025-0024

" 'If " 'the restrictive covenant has ceased to
have any beneficial or substantial value' " or " 'the
defendant will be subject to great hardship or the
consequences would be inequitable,' " a court,
applying equitable principles, of equity will not
enforce the covenant. Id. (citation omitted).

" 'In Lange, this Court explained:

" ' " 'The equitable enforcement of
a restriction can be invoked only for the
purpose of protecting the benefit which
it was the object of the covenant to
afford. If the restrictive covenant has
ceased to have any beneficial or
substantial value to the ... property, it
can form no ground for equitable relief
.... [I]f the defendant will be subject to
great hardship or the consequences
would be inequitable, relief will be
denied.' "

" 'Id. (citation omitted).'

"Cole, 383 So. 3d at 653-54.

"….

"Before this Court's decision in Cole, supra, the Court of
Civil Appeals had used evidence of a party's knowledge of a
restrictive covenant, whether actual or constructive, as a
reason to deny application of the relative-hardship test. See,
e.g., Grove Hill Homeowners' Ass'n v. Rice, 90 So. 3d 731, 739
(Ala. Civ. App. 2011); Maxwell v. Boyd, 66 So. 3d 257 (Ala.
Civ. App. 2010). Those decisions indicating that knowledge
could preclude consideration of the parties' relative hardships
were based on application of the clean-hands doctrine. See
Grove Hill, 90 So. 3d at 739; Maxwell, 66 So. 3d at 261. …
24
SC-2025-0024

"….

"In Cole, this Court explained that a party's knowledge
is merely one factor for consideration in applying principles of
equity to balance the relative hardships between the parties.

" '[T]his Court has not developed or applied a hard
and fast rule preventing a party from relying on
the relative-hardship defense in situations in
which that party violated a covenant of which it
had notice. Instead, a party's knowledge --
constructive or actual -- of a restrictive covenant
should simply be one factor for a trial court's
consideration in determining whether the
resultant harm from enforcement of a restrictive
covenant "would be considerably disproportionate
to the benefit received by the landowner seeking
enforcement" of the covenant. Grove Hill, 90 So.
3d at 737. See, e.g., id. at 742 (Bryan, J.,
dissenting)("I would hold that a trial court should
consider a party's knowledge of a restrictive
covenant as a factor in applying the relative-
hardship test rather than holding that such
knowledge precludes the application of the test.").
Indeed, under virtually every circumstance, a
property owner would have at least constructive
notice of a recorded restrictive covenant, and thus
the bright-line rule adopted by the Court of Civil
Appeals would read the relative-hardship defense
out of existence.'

"Cole, 383 So. 3d at 654-55."

____ So. 3d at ____.

On appeal, the Dendy defendants admit that they "knowingly

violated [the River Pointe covenants] by not obtaining [the AC's] approval
25
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for two $800,000+ houses' altered construction plans." The Dendy

defendants' brief at 4. They also assert that "everyone agrees that 'none

of the plans' the [AC] originally approved 'match[] the houses' Mr. Dendy

built." The Dendy defendants' brief at 15. However, they argue that the

trial court erred by relying on the Court of Civil Appeals' decision in

Maxwell, given what this Court held in Cole. The Dendy defendants

assert:

"[W]hether a party had 'knowledge -- constructive or actual --
of a restrictive covenant' remains but 'one factor' in the
equation. Cole, 383 So.3d at 655. With that in mind, this
Court in Cole applied a 'relative-hardship test' even though
the lot owner 'had actual knowledge' of the restrictive
covenants. Id. at 650, 655. What mattered was well-rounded
equity, not strict liability for a knowing violation.

"At bottom, the [trial] court erred by applying strict
liability for Mr. Dendy's knowing violation, ignoring the
equity that Cole injected back into the equation. To correct it,
this Court should vacate the [trial] court's ordered relief
prescribing that inequity."

The Dendy defendants' brief at 14-15 (emphasis in original).

In Englund, we articulated Cole's pertinent holding as follows:

"[I]n relevant part, Cole stands for the proposition that a
party's knowledge of a restrictive covenant does not, as matter
of law, foreclose that party from invoking the relative-
hardship test as a defense to a claim seeking permanent
injunctive relief. Put another way, such knowledge alone does
not demonstrate unclean hands as a matter of law so as to
26
SC-2025-0024

prevent a balancing of the factors under the relative-hardship
test.

"In J & M Bail Bonding Co. v. Hayes, 748 So. 2d 198,
199 (Ala. 1999), we explained the following regarding the
clean-hands doctrine:

" 'This Court has recognized that one "who
seek[s] equity must do equity" and "one that comes
into equity must come with clean hands." Levine
v. Levine, 262 Ala. 491, 494, 80 So. 2d 235, 237
(1955). The purpose of the clean hands doctrine is
to prevent a party from asserting his, her, or its
rights under the law when that party's own
wrongful conduct renders the assertion of such
legal rights "contrary to equity and good
conscience." Draughon v. General Fin. Credit
Corp., 362 So. 2d 880, 884 (Ala. 1978). The
application of the clean hands doctrine is a matter
within the sound discretion of the trial court.
Lowe v. Lowe, 466 So. 2d 969 (Ala. Civ. App.
1985).'

"In Weaver v. Pool, 249 Ala. 644, 648, 32 So. 2d 765, 768
(1947), this Court stated:

" '[T]he [clean-hands] maxim refers to willful
misconduct rather than merely negligent
misconduct and must be morally reprehensible as
to known facts. Furthermore, equity will consider
the conduct of the adversary, the requirements of
public policy and the relation of the misconduct to
the subject matter of the suit and to defendant. 30
C.J.S., Equity, § 98.'

"See also Retail Devs. of Alabama, LLC v. East Gadsden Golf
Club, Inc., 985 So. 2d 924, 932 (Ala. 2007)(' "[T]he doctrine of
unclean hands ... finds expression in specific acts of willful
27
SC-2025-0024

misconduct" ' that are ' "morally reprehensible as to known
facts." Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727,
746, 287 So. 2d 847, 864 (1973)(citing Weaver v. Pool, 249 Ala.
644, 32 So. 2d 765 (1947)).').

"Thus, regarding whether the defendants can invoke the
relative-hardship test as a matter of equity under the clean-
hands doctrine, the question presented is not simply whether
[the defendants] had knowledge of the restrictive covenants
at issue or even whether [they] engaged in negligent
misconduct. Instead, the question is whether the defendants'
actions 'r[o]se to the level of morally reprehensible, willful
misconduct.' Retail Devs., 985 So. 2d at 932. Moreover, the
[plaintiff]'s conduct and its relation to the subject matter of
the action are also relevant to the clean-hands inquiry. See
Weaver, 249 Ala. at 648, 32 So. 2d at 768."

In their appellate brief, the River Pointe plaintiffs argue that, based

on the evidence presented at trial, the trial court could have reasonably

concluded that the Dendy defendants did not have clean hands and that,

"[g]iven Dendy's actions, it would have been within the sound discretion

of the trial court to deny [the Dendy defendants'] claims for equitable

relief." River Pointe plaintiffs' brief at 21.

The Dendy defendants argue: "In today's world, Alabama courts

must consider the relative hardship that enforcing a covenant will impose

on a person, regardless of the person's state of mind when the violation

happened." The Dendy defendants' brief at 2-3. To the extent that the

Dendy defendants argue that the clean-hands doctrine has no bearing on
28
SC-2025-0024

the availability of the relative-hardship test as an affirmative defense,

our decision in Englund demonstrates otherwise.

In Englund, this Court reversed a circuit court's judgment that had

improperly failed to apply the relative-hardship test. In so doing, we

noted that the circuit court had not expressly found that the defendants

had had unclean hands, but we "evaluate[d] the evidence presented to

determine whether it could have supported such an implicit

determination by the [circuit] court." ____ So. 3d at ____. We stated:

"[B]ased on the evidence presented, the [circuit] court could
not have properly concluded that the defendants were barred
by the clean-hands doctrine from invoking the relative-
hardship test in defense of the [plaintiff]'s action seeking a
permanent injunction. Although, as already noted, the
[circuit] court's judgment did not expressly make such a
determination, to the extent that it did so implicitly, we
conclude that its judgment in that regard is palpably
erroneous or manifestly unjust. See Merchants Bank [v.
Head], 161 So. 3d [1151,] 1154 [(Ala. 2014)]."

Id. at ____.

Like the circuit court's judgment in Englund, the trial court's

judgment in this case did not expressly determine that the Dendy

defendants' relative-hardship defense was barred by the clean-hands

doctrine in those specific terms. However, it does appear that the trial

court's judgment did determine that, based on the Dendy defendants'
29
SC-2025-0024

conduct, they could not invoke the relative-hardship test as a defense to

the River Pointe plaintiffs' request for injunctive relief.

Thus, we will evaluate the trial court's findings in this case and the

evidence presented to ascertain whether it was within the trial court's

discretion to deny application of the relative-hardship defense based on

the clean-hands doctrine. In so doing, we remain mindful of the following

standard of review:

" 'The ore tenus standard of review generally applies to
judgments entered following a bench trial.' R & G, LLC v.
RCH IV-WB, LLC, 122 So. 3d 1253, 1256 (Ala. 2013).

" ' Under the ore tenus standard of review, findings
on disputed facts are presumed correct, and the
trial court's judgment based on those findings will
not be reversed unless the judgment is palpably
erroneous or manifestly unjust. Southside Cmty.
Dev. Corp. v. White, 10 So. 3d 990, 991 (Ala. 2008).
" ' " 'The presumption of correctness, however, is
rebuttable and may be overcome where there is
insufficient evidence presented to the trial court to
sustain its judgment.' " ' " 10 So. 3d at 991-92
(quoting Retail Developers of Alabama, LLC v.
East Gadsden Golf Club, Inc., 985 So. 2d 924, 929
(Ala. 2007), quoting in turn Waltman v. Rowell,
913 So. 2d 1083, 1086 (Ala. 2005), quoting in turn
Dennis v. Dobbs, 474 So. 2d 77, 79 (Ala. 1985)).'

"Lawson v. Harris Culinary Enters., LLC, 83 So. 3d 483, 491
(Ala. 2011)."

Merchants Bank v. Head, 161 So. 3d 1151, 1153-54 (Ala. 2014).
30
SC-2025-0024

After consideration of the trial court's findings and the evidence

presented in this case, we conclude that the circumstances here are

materially distinguishable from the circumstances of Englund and that,

in this case, the evidence adequately supports a determination that the

clean-hands doctrine barred any application of the relative-hardship test.

In Englund, it was undisputed that the defendants had obtained a

permit from the Town of Dauphin Island ("the Town") to construct a

house. However, the defendants had not obtained the approval of the

Dauphin Island Property Owners Association ("the DIPOA") to build the

house. Evidence was presented regarding the history of a "one-stop

agreement" between the Town and the DIPOA, whereby the Town would

deliver building-permit applications to the DIPOA for its review as well.

We stated:

"Rodney[, one of the defendants,] testified that he asked the
Town's permit clerk whether it was necessary for him to
deliver materials separately to the DIPOA. Rodney testified
that she stated that the Town would deliver his materials to
the DIPOA and that the DIPOA would be in touch with him.
Although the DIPOA notes that the trial court could have
disbelieved Rodney's testimony in this regard, we also note
that the DIPOA did not present evidence that conflicted with
Rodney's testimony. Indeed, other evidence confirmed
Rodney's testimony. The head of the Town's permit
department testified that it was, in fact, Town policy at the
time to collect two sets of plans from applicants, one for the
31
SC-2025-0024

Town and one for the DIPOA. He also stated that it was
possible that a permit clerk had told Rodney that the Town
would send a copy of his permit application to the DIPOA."

Englund, ____ So. 3d at ____.

We reasoned that the one-stop agreement had not wholly relieved

the defendants from obtaining the DIPOA's approval in accordance with

the applicable restrictive covenants, but we concluded that the totality of

the evidence regarding the one-stop agreement did "not support a

determination that the defendants' actions 'r[o]se to the level of morally

reprehensible, willful misconduct.' Retail Devs. [of Alabama, LLC v. East

Gadsden Golf Club, Inc.], 985 So. 2d [924,] 932 [(Ala. 2007)]." Id. at ____.

We stated:

"Even if the relevant evidence presented would support a
conclusion that Rodney had acted carelessly and without
sufficient diligence to obtain the DIPOA's approval before
beginning construction and had, therefore, engaged in
negligent misconduct, such misconduct is insufficient to
support a finding of unclean hands. See Weaver [v. Pool], 249
Ala. [644,] 648, 32 So. 2d [765,] 768 [(1947)]."

Id. at ____.

By contrast, in this case, the trial court found that the Dendy

defendants took the position that, after obtaining the AC's approval for a

particular construction plan, they were instead free to construct

32
SC-2025-0024

whatever they desired, without regard to the original construction plan

approved by the AC and with awareness of the River Pointe covenants

and the requirement that the AC approve any construction within River

Pointe. The trial court characterized the Dendy defendants' position as

"totally absurd" and stated that, "[c]learly, one cannot seek approval,

obtain approval of a specific set of construction plans, and then build any

structure without reference to the approved plans."

We acknowledge that evidence was presented in this case

indicating that the original construction plan approved by the AC could

not be precisely completed due to the misidentified location of an adjacent

road and the location of certain setback lines required by the City of

Guntersville. However, Dendy admitted at trial that the houses

constructed on Lots 7 and 8 did not even resemble the original plans

approved by the AC. We conclude that evidence of such intentional and

deliberate actions by the Dendy defendants to obtain approval for one

structure but to actually build an entirely different structure supports a

determination that they had engaged in willful misconduct that was

morally reprehensible as to known facts, as opposed to only careless or

negligent misconduct. See Englund, ____ So. 3d at ____.

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SC-2025-0024

In Englund, we also noted that "the defendants' construction

activities were not hidden or concealed from the DIPOA and the DIPOA

did not immediately issue a stop-work order." Id. at ____. We further

noted that, after receiving the stop-work order from the DIPOA, the

defendants had engaged in minimal additional construction to prevent

loss of materials but had otherwise stopped work on the house:

"After the DIPOA filed suit, Rodney asked the Court's
permission to proceed with limited additional work to prevent
damage to the house. The DIPOA conceded, and the trial
court granted that permission. Otherwise, the defendants
have complied with DIPOA's stop-work order, such that the
house has deteriorated during the progress of the court
proceedings."

Id. at ____.

By contrast, in this case, the trial court's judgment stated:

"… It was established at trial that, as construction
progressed on Lots 7 and 8, it became apparent that the
structures under construction on Lots 7 and 8 did not conform
to the construction plans submitted and approved; the
construction had not been approved by the [AC]; and … did
not resemble any plan submitted to the City or the [AC. The
AC] put [the Dendy] defendants on notice and asked that [the
Dendy] defendants stop construction."

The Dendy defendants, however, kept building. During direct

examination, counsel for the Dendy defendants asked Dendy what he had

done after the AC rejected his handwritten proposed alteration to his
34
SC-2025-0024

construction plans. In referencing the location of the road that Dendy

contended had been recorded incorrectly, thereby necessitating changes

to his construction plans, Dendy replied: "Well, I knew the road was

wrong. I tried to fix the problem, and I just built. That's what I did."

(Emphasis added.)

On appeal, the Dendy defendants suggest to this Court that "no one

ever said [that Dendy] should stop constructing" and so Dendy "kept

building. For over two years he built these homes." The Dendy

defendants' brief at 5. However, in support of this assertion, the Dendy

defendants cite a letter from Ryan, the chairman of the AC, dated August

11, 2022. In the letter, Ryan stated, among other things:

"The approval is required before construction is started. You
are framing in a house without approval. … Any change must
be presented to the AC for further approval. We are very
concerned that you have not followed the procedures as
outlined in the Covenant …. We strongly urge you to follow
our Covenant …."

The Dendy defendants' assertion that the contents of Ryan's letter did

not suggest that Dendy "should stop constructing" is, at the very least, a

strained interpretation of the letter.

The Dendy defendants acknowledge that the River Pointe plaintiffs

"su[ed] relatively quickly on Lot 8's construction" but state that they
35
SC-2025-0024

"waited over a year after construction began before eventually suing

about Lot 7." The Dendy defendants' brief at 18 (emphasis in original). 1

In support of this argument, the Dendy defendants cite the River Pointe

plaintiffs' third amended complaint, which added allegations and

requests for relief concerning Lot 7.

It is undisputed that the Dendy defendants were aware that the AC

had not approved the house being constructed on Lot 7 and that the AC's

approval was required for the construction of both houses. Thus, it is

apparent that the Dendy defendants were aware of the AC's desire to

enforce that restrictive covenant "relatively quickly." The Dendy

defendants' brief at 18.

As noted, it is also undisputed that, during the pendency of this

action concerning both Lot 7 and Lot 8, the Dendy defendants continued

their construction activities. Unlike the defendants in Englund, who had

"asked the Court's permission to proceed with limited additional work to

1The Dendy defendants make this argument in the context of a
laches defense, which, as explained above, has been waived. However, in
Englund, this Court noted that "the [plaintiff]'s conduct and its relation
to the subject matter of the action are also relevant to the clean-hands
inquiry." ____ So. 3d at ____. Therefore, we also consider the Dendy
defendants' contentions concerning the River Pointe plaintiffs' conduct in
our analysis regarding the clean-hands doctrine.
36
SC-2025-0024

prevent damage to the house," ____ So. 3d at ____, the Dendy defendants

contend that the River Pointe plaintiffs "let [Dendy] continue to

construct" the houses here by failing to request a preliminary injunction,

and they accuse the trial court of "greenlighting" a delay. The Dendy

defendants' brief at 19.

In their reply brief, the Dendy defendants assert: "[P]unishing Mr.

Dendy for not voluntarily incurring [a] pause's liability [to buyers and

subcontractors] makes no sense and prejudices him for the [AC]'s failure

to use the available litigation tools. At the end, voluntary cessation is a

strategy, not a requirement." The Dendy defendants' reply brief at 13

(emphasis in original).

We emphasize yet again that, in making these arguments, the

Dendy defendants concede that they were knowingly building structures

that did not resemble the construction plans approved by the AC. In

other words, not only did the Dendy defendants argue, as the trial court

observed, that they should be permitted to construct whatever houses

they choose despite having obtained approval for specific houses, they

also insist to this Court that their decision to engage in such intentional

misconduct amid ongoing litigation to enforce the covenants is irrelevant.

37
SC-2025-0024

Furthermore, the Dendy defendants seem to suggest that the trial court's

failure to stop them justifies their intentional misconduct.

Our consideration of the foregoing contentions and their

implications do not undermine our conclusion that it was within the trial

court's discretion to determine that the Dendy defendants' conduct in this

case rose to the level of willful misconduct that was morally reprehensible

as to known facts. See Englund, ____ So. 3d at ____.

Finally, we also note that, in Englund, we stated:

"The DIPOA argues on appeal that the Englunds
intended to build wherever they wanted on Lot 23, regardless
of any covenants enforced by the DIPOA. This certainly was
the speculation of the DIPOA's own witnesses about Rodney's
motives. However, they did not testify to anything they
observed Rodney say or do that supported their opinions
beyond the bare fact that he had knowledge that the DIPOA
required an application. Thus, no other evidence shows that
the Englunds' motive was to purposely and willfully violate
the Silver Cay II setback requirement."

____ So. 3d at ____.

By contrast, as noted in the trial court's judgment in this case,

Dendy himself testified regarding his position that he could obtain the

AC's approval for one construction plan but instead build something

entirely different. Thus, Dendy's own testimony supports a conclusion

38
SC-2025-0024

that his motive was to purposely and willfully violate the River Pointe

covenants.

Conclusion

The Dendy defendants did not waive the relative-hardship test as

an affirmative defense because the record indicates that they raised the

defense before trial without objection from the River Pointe plaintiffs;

therefore, the issues to be tried were expanded to include the

applicability of the relative-hardship test.

However, the trial court's judgment indicates that it declined to

apply the relative-hardship test based on the Dendy defendants' actions

in this case. Based on our review of the trial court's findings and the

totality of the evidence presented, we conclude that the evidence supports

a determination that application of the relative-hardship test should

have been barred in this case based on the Dendy defendants' willful

misconduct that was morally reprehensible as to known facts.

Accordingly, the trial court acted within its discretion in declining to

apply the relative-hardship test under the circumstances of this case.

Therefore, the trial court's judgment is due to be affirmed.

AFFIRMED.

39
SC-2025-0024

Stewart, C.J., and Shaw, Wise, Mendheim, Cook, and McCool, JJ.,

concur.

Parker, J., concurs specially, with opinion.

Sellers, J., concurs in the result.

40
SC-2025-0024

PARKER, Justice (concurring specially).

I agree that we should affirm the trial court's injunction ordering

the Dendy defendants to obtain approval for their construction on Lots 7

and 8 or else remove any unapproved structures. I write specially to note

a doctrinal question for future consideration: Is the relative-hardship test

truly an affirmative defense? Or is it instead merely an element of a

plaintiff's required showing to obtain an injunction?

To obtain a permanent injunction in Alabama, a plaintiff must

show: (1) success on the merits, (2) irreparable injury in the absence of

an injunction, (3) that the injunction will be compatible with the public

interest, and -- critically, here -- (4) that the balance of the equities (that

is, the relative hardships) favors issuance of an injunction. See, e.g., Tipp

v. JPMC Specialty Mortg., LLC, 367 So. 3d 357, 363 (Ala. 2021) (quoting

Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So. 3d 90, 93 (Ala.

2010)). I assume this well-established framework applies to injunctions

enforcing a restrictive covenant just the same as any other injunction.

Several of this Court's recent decisions, however, refer to the

relative-hardship test as an affirmative defense -- at least in the context

of restrictive-covenant enforcement. See, e.g., Cole v. Davis, 383 So. 3d

41
SC-2025-0024

646, 654 (Ala. 2023). One such decision even notes the similarity between

the relative-hardship test (as an affirmative defense) and the relevant

"prong of the requirements for a permanent injunction." Englund v.

Dauphin Island Prop. Owners Ass'n, [Ms. SC-2024-0414, Aug. 29, 2025]

___ So. 3d ___, ___ (Ala. 2025).

I am not sure that this characterization of the relative-hardship test

as an affirmative defense accords with proper equity practice. I have been

unable to find any Alabama cases decided before 2023 that describe the

test as an affirmative defense. See Cole, 383 So. 3d at 654. I also have

struggled to find any cases outside Alabama describing the relative-

hardship test as an affirmative defense.

Whether to characterize the relative-hardship test as an element of

the plaintiff's case or as an affirmative defense matters in the abstract

because it is important that our law remain consistent over time. But this

distinction could also matter tremendously -- in real-world, practical

terms -- to a particular litigant in any given case because it will dictate

who bears the burden of pleading and persuasion. In some cases, no

doubt, this distinction could prove case-dispositive.

42
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Here, the parties do not challenge the characterization of the

relative-hardship test as an affirmative defense. Nor am I convinced that

the outcome of this case would turn on such a characterization. For these

reasons, I agree with the main opinion's conclusion that the Dendy

defendants have not shown any abuse of discretion by the trial court. In

an appropriate future case, however, I would be open to arguments that

the relative-hardship test is not truly an affirmative defense as well as

any other arguments to maintain the coherence and consistency of our

equity jurisprudence across the range of substantive areas to which it

applies.

43