FAIRHOPE, Ala. - Shortly after the Dec. 15 print edition of the Fairhope Courier went to press today [see below], reporting that a motion for summary judgment in the "Dyas triangle" litigation had been pending since Nov. 5, the court ruled on the motion, dismissing some claims and letting others stand. 

The lawsuit will now go to trial in February on those remaining claims, unless the parties settle or the case is continued. 

Additional reporting on the court's motion entered today, Dec. 14, will follow in the Dec. 17 print edition of the Courier.

Editor's note: The story below that will run in the Dec. 15 print edition of the Fairhope Courier will be updated in the Dec. 17 edition to reflect the court's ruling on the summary judgment motion that was issued after the Dec. 15 edition went to press earlier today. 

After more than two years of pretrial litigation, including 37 depositions of current and former city officials, staff and others, the lawsuit filed by the Dyas family against the city of Fairhope and Mayor Timothy M. Kant over unsuccessful efforts to develop the so-called “Dyas triangle” property on U.S. 98 is less than two months away from a federal jury trial in Mobile. 

The case is set for jury selection the first week of February with trial to occur later that month, according to court records.

Before that trial can occur, however, U.S. District Judge William H. Steele must rule on a summary judgment motion filed by defendants that could dismiss the entire case. 

The motion contends the lawsuit should be dismissed “because there is no genuine issue as to any material fact, and defendants are entitled to judgment as a matter of law.”

The Sept. 24 motion filed for the defendants by attorneys Caine O’Rear and Lisa Cooper included a 51-page supporting memorandum.

“This case concerns a municipal rezoning dispute which Plaintiffs (“the Dyases”) have shotgunned into seven causes of action, none of which should survive summary judgment,” the defendants’ memo states. “Actually, their entire case is premised on the notion that they are entitled to a larger grocery store space than they originally agreed to in 2002 within a planned unit development (PUD) in Fairhope, which for eight years they have yet to develop. Generally, zoning disputes are resolved at the local level, not in federal court. The size of a grocery store building is a particularly unsuitable issue for federal court intervention.”

The plaintiffs opposed the defendant’s motion with a 63-page Oct. 22 response filed by their attorneys Matthew McDonald and Kirkland Reid.

“The Dyases’ claims are based upon hotly disputed issues of material fact,” the plaintiffs’ response stated. “That is why during over two years of discovery the parties deposed some thirty-seven (37) witnesses and exchanged thousands of documents. What emerged from this discovery, unsurprisingly, are two dramatically different versions and characterizations of the events leading up to this lawsuit.”

The defendant’s responded to plaintiffs’ with a 20-page reply brief filed Nov. 4. 

“Amid 38 pages of facts cited in Plaintiffs’ brief (the “Dyas Brief”), there is very little which even attempts to dispute the material facts cited by Defendants pertaining to the elements of the causes of action at issue,” the defendants’ reply brief stated. “There were 37 depositions taken, and one would not expect every witness to testify identically. The few factual ‘disputes’ postured by Plaintiffs, however, do not create an issue of material fact, and Defendants are thus due summary judgment.”

The summary judgment motion has been pending before the federal court since Nov. 5, and the court has not yet ruled on defendants’ request for oral argument on the motion. 

A pretrial hearing in the lawsuit is scheduled for Jan. 13.