Heaven’s Gate Ministries International, Inc. v. Burnett et al., [Ms. 2180075, Apr. 19, 2019] __ So. 3d __ (Ala. Civ. App. 2019). In a close decision, the court (Thompson, P.J.; Moore and Donaldson, JJ., concur; Edwards and Hanson, JJ., dissent) holds that the Madison Circuit Court never obtained subject matter jurisdiction over a declaratory judgment action filed by a developer seeking to terminate restrictive covenants on property to be developed as a Dollar General store. The court concludes that there was no justiciable controversy because the record showed “the construction of the Dollar General store in the subdivision .... would [not] violate the restrictive covenants.” Ms. *15.
The dissent concludes that a justiciable controversy existed because the parties took differing positions on the continuing enforceability of the restrictive covenants and “[t]hose restrictive covenants are no less an encumbrance on the property at issue, or the subject of dispute, merely because the covenants might not need to be violated for purposes of potential development of the property at issue for a particular tenant.” Ms. *24-25.