FAIRHOPE,Ala. — The city lawsuit against Fairhope resident and Mobile attorney Gene Warhurst, which alleges that the pier he built next to the White Avenue municipal pier is trespassing on city parkland, that was set for trial next month has been rescheduled for June 14, 2010.

“We thought we’d be able to resolve it, but that’s been put off,” Mayor Tim Kant said during Monday’s City Council meeting. “(Warhurst) wants 20 depositions, and I’m not sure where (the case) is going now.”

Warhurst said recently he sought to enter into mediation with the city this summer to resolve the lawsuit, but the city refused. City Attorney Marion “Tut” Wynne said the city had refused to enter into mediation with Warhurst, but also stated the case was then two years old, and the city was having trouble scheduling a deposition with Warhurst. The lead counsel for the city, Brad Smith of the Hand Arendall law firm, did not return a phone call for comment.

“I am not trying to avoid service,” said Warhurst, referring to an Oct. 19 motion filed by the city to compel his attendance at a deposition, stating that it was not customary for parties in litigation to be subpoenaed for a deposition.

“I’m not a witness, so the way a deposition is taken is you coordinate with the other side’s lawyer and coordinate a date and take it,” he said

Warhurst said he is represented by Julian “Buddy” Brackin, and that he is also doing some of his own legal work, which included filing a motion earlier this month to add the Fairhope Single Tax Corp. as a plaintiff in the case.

“Counsel for Fairhope contacted counsel for Mr. Warhurst by phone and by letter proposing multiple dates for (his) deposition,” the city’s Oct. 16 motion to compel deposition testimony stated. “Given the impending trial date set on Aug. 17, 2009, Fairhope was forced to seek a subpoena … . A process server was unable to serve Mr. Warhurst after repeated attempts, and it appeared that Mr. Warhurst was avoiding service of the subpoena and the deposition notice.”

The trial date was moved to Nov. 30 and a new judge was assigned, who recused himself in September. The case is currently assigned to Judge J. Langford Floyd.

“The other judge’s orders said, ‘we are recusing ourselves because Mr. Warhurst is a lawyer who practices in our courts’,” Warhurst said. “I can only assume (Floyd) is going to follow the same pattern that the other judges have and recuse himself.”

The case was recently rescheduled for a status hearing to June 14 next year but with no trial date scheduled, according an employee Tuesday in the Baldwin County Circuit Clerk’s office.

The city sued Warhurst in Baldwin County Circuit Court in June 2007, alleging that the initial approval he received from the State Lands Division of the Alabama Department of Conservation of Natural Resources to build a pier on Mobile Bay in front of his house on South Mobile Street was based on an affidavit he signed that contained inaccurate information.

“He signed an affidavit stating that his property ‘is immediately adjacent to and abuts public waters’ and that he had ‘legal riparian rights’,” the complaint against Warhurst states. “Some of the statements in the Warhurst affidavit are inaccurate in that his property is not immediately adjacent to public waters. Neither does it abut public waters.”

The city’s complaint also states that public park land is adjacent to public waters and abuts public waters, and that public park land is between Warhurst’s property and Mobile Bay.

“That is not my signature on that affidavit,” Warhurst said. “My secretary apparently got in the mail and thought she was helping me and signed it and sent it back in order not to slow down the process. That’s all I can assume at this point. I haven’t talked to her about it.”

The lawsuit further alleges that the state revoked its approval in February 2007, which was about a month after the city issued a stop-work order for the pier that Warhurst was building.

“The pier was complete, way complete,” said Warhurst, referring to his contention that the pier had already been completed when the city issued a stop-work order, which followed its earlier permit for the pier to be built.

The city claims, however, that Warhurst continued to build “and improve” his pier after the stop-work order was issued, and that “he ran electrical wire and water lines across public property without permission.”

The “parkland” in question was deeded to the city by the Fairhope Single Tax Corp. in 1931 to “be forever used as public parks,” with the condition that it would “revert” to the FSTC if that land stop being used for that purpose.

The land runs along the bluff and down to the water in front of several private residences north and south of the White Avenue municipal pier. Although the pier is designated as city property the parkland is not. Several residents of those houses said recently that they maintain the property in front of their houses, and that the city does not.

In addition, most of the houses also have private piers that were built at various times, but most if not all were built after the land was deeded to the city, they said.

Warhurst has been the only person sued by the city for building a pier in that area, he said.

“(The city) alleges that the defendant is trespassing on the (city’s) riparian rights and city’s real property without a legal right to do so,” the city’s initial complaint filed against Warhurst on June 12, 2007, states.

Warhurst has answered that the land between his house and Mobile Bay is no longer city parkland and has reverted to the FSTC. His motion to add the FSTC as a plaintiff in the case includes letters and other documentary information in support of his motion.

“These parklands, to the best of anyone’s knowledge have never really been used as parkland,” stated a Feb. 3, 2000, letter from Charles Ingersoll for the FSTC to then-Mayor James P. Nix, which was attached to the Warhurst motion. “They were too small or too close to the private leaseholds for most people to feel comfortable using them.”

The letter stated that the city should return the land to the FSTC.

“The city portion of taxes would increase approximately $10,000 per year,” Ingersoll wrote. “The FSTC would give the city a parcel of land at the Stimpson Street adjacent to city parkland already given to the city by FSTC. Please give this solution consideration. We believe it is the answer to his problem.”