Pearl M. Lindsey v. Jerry Pollard and Tammy Pollard.Pearl M. Lindsey v. Jerry Pollard and Tammy Pollard.
Appeal from Cherokee Circuit Court (CV-20-900070)
THOMPSON, Presiding Judge.
Pearl M. Lindsey appeals from a judgment entered by the Cherokee Circuit Court (“the trial court“) awarding ownership of a strip of land (“the disputed property“) to Jerry Pollard and Tammy Pollard. We reverse the judgment insofar as it denied Lindsey‘s claim of adverse
On August 13, 2020, Lindsey filed a complaint against the Pollards, seeking a determination as to the boundary line between the Pollards’ and her coterminous properties.1 She also sought compensation for the cost of a fence the Pollards had removed. The record reflects that Lindsey claimed that she owned all the property east of the fence. The Pollards claimed that they owned property west of the fence, the fence, and the disputed property, a triangular strip of land (approximately 94’ x 87’ x 9.50‘) located just east of the fence. On September 2, 2020, the Pollards filed an answer denying Lindsey‘s claim and a counterclaim alleging trespass against Lindsey and seeking a determination of their ownership of the disputed property. On December 1, 2020, Lindsey filed a reply to the Pollards’ counterclaim.
Lindsey testified that in 1999 she and her now deceased husband purchased Lot 38 and the house located thereon from Hudson. She stated that, since the purchase, she had been an adjacent landowner to Cooper,
Angela Garrison, who Lindsey employed to maintain her yard, testified that Lindsey had paid her to mow the disputed property. Ben Morris, Lindsey‘s brother, and Mary Jean Green, Lindsey‘s sister, testified that Lindsey had treated the disputed property as her own for
Jerry Pollard testified that, in October 2016, he and his wife purchased Lot 37 and the house thereon. He explained that, before he purchased the property and again in 2020, he had his property surveyed. Jerry testified that both surveys indicated that the boundary line between Lindsey‘s and his properties was not the fence and that his property included the disputed property. Jerry stated that, when he purchased Lot 37, he believed the disputed property was included in his property. Jerry admitted that, before he and his wife removed the fence in July 2020, Lindsey had prevented his wife and him from accessing the disputed property. Specifically, when asked if he had maintained the disputed property, he responded: “There was not access for me to get on it with the lawn mower.” Likewise, when asked if he had performed “any physical activities on the [disputed property] from 2016 until he started removing the fence in July 2020,” Jerry responded: “I told you I didn‘t have access to it.” Jerry admitted that his wife had asked the gas department to remove the propane tank located on the disputed property.
The trial court admitted into evidence numerous photographs submitted by both sides depicting the disputed property before and after the fence was removed. The trial court also admitted into evidence the parties’ deeds, the surveys conducted for the Pollards setting forth the boundary line as designated in the deeds, and a survey conducted for Lindsey establishing the fence erected by Cooper as the boundary line.
On March 8, 2021, the trial court entered its judgment denying Lindsey‘s claim to the disputed property and awarding the disputed property to the Pollards. On March 12, 2021, the trial court amended its judgment to clarify “[t]hat the true boundary line between the parties is the subdivision lot line as depicted on the plat of Roscoe Smith Estates.” On March 28, 2021, Lindsey filed a postjudgment motion, alleging,
“When evidence is presented ore tenus, the trial court is ‘“unique[ly] position[ed] to directly observe the witnesses and to assess their demeanor and credibility.“’ Ex parte T.V., 971 So. 2d 1, 4 (Ala. 2007)(quoting Ex parte Fann, 810 So. 2d 631, 633 (Ala.2001)). Therefore, a presumption of correctness attaches to a trial court‘s factual findings premised on conflicting ore tenus evidence. Ex parte J.E., 1 So. 3d 1002, 1008 (Ala. 2008). However, ‘“[w]here the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court‘s application of the law to those facts.“’ State v. Hill, 690 So. 2d 1201, 1203 (Ala.1996)(quoting Stiles v. Brown, 380 So. 2d 792, 794 (Ala.1980)). ...
... When evidence is presented ore tenus and the trial court makes no express findings of fact, this Court will assume that the trial court made those findings necessary to
support its judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala. 1992)(citing Fitzner Pontiac-Buick-Cadillac, Inc. v. Perkins & Assocs., 578 So. 2d 1061 (Ala. 1991)). “We further note that ‘the ore tenus standard of review has no application to a trial court‘s conclusions of law or its application of law to the facts; a trial court‘s ruling on a question of law carries no presumption of correctness on appeal.’ Ex parte J.E., 1 So. 3d at 1008 (citing Ex parte Perkins, 646 So. 2d 46, 47 (Ala.1994), and Eubanks v. Hale, 752 So. 2d 1113, 1144-45 (Ala. 1999)). This Court ‘“review[s] the trial court‘s conclusions of law and its application of law to the facts under the de novo standard of review.“’ Id. (quoting Washington v. State, 922 So. 2d 145, 158 (Ala. Crim. App. 2005)).”
Key v. Allison, 70 So. 3d 277, 281 (Ala. 2010).
On appeal, the Pollards contend that because Lindsey did not file a notice of appeal in each of the consolidated cases, below (see note 1, supra) she is not entitled to relief in this appeal. In the trial court, Lindsey filed three actions naming the Pollards as defendants: two petitions for protection from abuse (case nos. DR-20-900063.90 and DR-20-900064.90) and a boundary-line-dispute action (case no. CV-20-900070). The trial court consolidated the three actions for trial, and the trial court entered the same judgment, which determined all the claims presented, in each of the consolidated cases. In her notice of appeal, Lindsey appealed the judgment entered in the boundary-line-dispute
“This court may have appellate jurisdiction [over the boundary-line-dispute action], but it has no jurisdiction to alter, amend, reverse, or remand the identical judgments and orders in [the two protection-from-abuse actions], which are now final and binding on the parties. It would be an inconsistent result should this court reverse the trial court‘s [judgment] in [the boundary-line-dispute action], and the same order be valid in the other two related cases.”
The Pollards’ argument that this court does not have jurisdiction over Lindsey‘s appeal of the trial court‘s judgment entered in the boundary-line-dispute action is misplaced. “Res judicata and collateral estoppel are two closely related, judicially created doctrines that preclude the relitigation of matters that have been previously adjudicated or, in the case of res judicata, that could have been adjudicated in a prior action.” Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516 (Ala. 2002). The claims in each of the three actions were litigated
Our caselaw is well established that,
“‘[w]hen two or more actions are consolidated under
Rule 42, Ala. R. Civ. P. , the actions do not lose their separate identities. League v. McDonald, 355 So. 2d 695, 697 (Ala. 1978). Moreover, “[a]n order of consolidation does not merge the actions into a single [action], change the rights or the parties, or make those who are parties to one [action] parties to another.” Jerome A. Hoffman, Alabama Civil Procedure § 5.71 (2d ed. 2001) (citing Evers v. Link Enters., Inc., 386 So. 2d 1177 (Ala. Civ. App. 1980)). Finally, “‘in consolidated actions ... the parties and pleadings in one action do not become parties and pleadings in the other.‘” Ex parte Flexible Prods. Co., 915 So. 2d 34, 50 (Ala. 2005) (quoting Teague v. Motes, 57 Ala. App. 609, 613, 330 So. 2d 434, 438 (Civ. 1976)).’”Solomon v. Liberty Nat‘l Life Ins. Co., 953 So. 2d 1211, 1222 (Ala. 2006). When actions are ordered consolidated, ‘each action retains its separate identity and thus requires the entry of a separate judgment.’ League v. McDonald, 355 So. 2d 695, 697 (Ala. 1978).”
H.J.T. v. State ex rel. M.S.M., 34 So. 3d 1276, 1278 (Ala. Civ. App. 2009). See also
“An appellant‘s designation of a judgment or order on his notice of appeal does not limit the scope of appellate review, see
Rule [3(c)], Ala. R. App. P. ,3 and this court may treat a notice of appeal that is filed in one consolidated case as being effective as to the other consolidated case when the intention to appeal the judgments in both cases is clear, see R.J.G. v. S.S.W., 42 So. 3d 747, 751 n.2 (Ala. Civ. App. 2009).”
Our review of the record in this case leads us to the conclusion that we do have jurisdiction over Lindsey‘s appeal. The case on appeal is one of three consolidated cases, and the trial court entered a final judgment
On appeal, Lindsey contends that the trial court erred in determining that she did not prove by clear and convincing evidence that she had adversely possessed the disputed property.
“Essentially there are two forms of adverse possession in Alabama: 1) adverse possession by prescription; and 2) statutory adverse possession. Adverse possession by prescription requires actual, exclusive, open, notorious, and hostile possession under a claim of right for a 20-year period. Fitts v. Alexander, 277 Ala. 372, 170 So. 2d 808 (1965).
“‘“Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor, he may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription.
Code 1975, § 6-5-200 . See, Long v. Ladd, 273 Ala. 410, 142 So. 2d 660 (1962).”“’Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616, 618 (Ala. 1980); see, also, Morgan v. Alabama Power Co., 469 So. 2d 100 (Ala. 1985).’
“With respect to statutory adverse possession, this Court in Brown v. Alabama Great Southern R.R., 544 So. 2d 926, 931 (Ala. 1989), stated:
“‘In Carpenter v. Huffman, 294 Ala. 189, 314 So. 2d 65 (1975), Justice Jones summarized the applicability of our adverse possession statute, now
Ala. Code 1975, § 6-5-200 , as it relates to coterminous landowners:“‘“The three alternative prerequisites 1) deed or other color of title, 2) annual listing of land for taxation, or 3) title by descent cast or devise from a predecessor, therefore, are not necessary to sustain a claim to title by a coterminous owner. Lay v. Phillips, 276 Ala. 273, 161 So. 2d 477 (1964); Sylvest v. Stowers, 276 Ala. 695, 166 So. 2d 423 (1964). That is to say, although the claimant is relieved of these three alternative conditions prescribed by
[§ 6-5-200] , he may still acquire title by the exercise of adverse possession for a period of ten years. Cambron v. Kirkland, 287 Ala. 531, 253 So. 2d 180 (1971); Lay v. Phillips, supra; McNeil v. Hadden, 261 Ala. 691, 76 So. 2d 160 (1954). However, the requirements that possession be open, notorious, hostile, continuous and exclusive are still applicable. Thompson v. Odom, 279 Ala. 211, 184 So. 2d 120 (1966).“’ (Emphasis added in Brown.)“See, also, McCollum v. Reaves, 547 So. 2d 433, 435-36 (Ala. 1989), special concurrence by Jones, J., wherein the author
stated that ‘[t]he statutory procedure for determining disputed boundaries between coterminous owners is found in
[Code 1975,] § 35-3-1 et seq. ; and the applicable period of limitations is found in the general statute of limitations on actions,[Code 1975] § 6-2-33(2) .’ It should be emphasized that the claimant has the burden of proving that all of the requisites of statutory adverse possession have been satisfied for a ten-year period. Lilly v. Palmer, 495 So. 2d 522 (Ala. 1986).“OPEN AND NOTORIOUS POSSESSION
“Open and notorious possession are essential elements of adverse possession, because the landowner is thereby afforded notice of the adverse claim against his land. Thus, to satisfy these two elements, the claimant must provide evidence tending to show that his acts of dominion and control over the property were of such character and distinction as would reasonably notify the landowner that an adverse claim is being asserted against his land. Sparks v. Byrd, 562 So. 2d 211 (Ala. 1990). ...
“HOSTILE POSSESSION
“Another essential element of adverse possession relates to the claimant‘s intent to assert dominion and control over the disputed property. Reynolds v. Rutland, 365 So. 2d 656 (Ala. 1978). The Reynolds court emphasized, however, that although ‘intent to claim the disputed strip is required, there is no requirement that the intent be to claim property of another, as such a rule would make adverse possession dependent upon bad faith. Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully. Smith v. Brown, [282 Ala. 528, 213 So. 2d 374 (1968) ].’ Id. at 657-58. ...
“CONTINUOUS POSSESSION
“To satisfy the element of continuous possession, the claimant must prove uninterrupted possession for 10 or more years. Prestwood v. Gilbreath, 293 Ala. 379, 304 So. 2d 175 (1974). ...
“….
“EXCLUSIVE POSSESSION
“To satisfy the final element of adverse possession, a claimant ‘must assert possessory rights distinct from those of others. The rule is generally stated that “‘[t]wo persons cannot hold the same property adversely to each other at the same time.‘” Beason v. Bowlin, 274 Ala. 450, 454, 149 So. 2d 283, 286 (1962), quoting Stiff v. Cobb, 126 Ala. 381, 386, 28 So. 402, 404 (1899). Exclusivity of possession “is generally demonstrated by acts that comport with ownership.” Brown v. Alabama Great Southern R.R., 544 So. 2d 926, 931 (Ala. 1989). These are “acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use, and in preventing others from the use of it as far as reasonably practicable.” Goodson v. Brothers, 111 Ala. 589, 596, 20 So. 443, 445 (1896).’ Sparks v. Byrd, supra, at 215.
“The definition of ‘exclusive possession,’ as found in 2 C.J.S. Adverse Possession § 54 at 726-27, reads as follows:
“‘“Exclusive possession” means that claimant must hold possession of the land for himself, as his own, and not for another, or must maintain exclusive dominion over the property and appropriation of it to his own use and benefit. To establish exclusive possession, there must be an intention to possess and hold land to the exclusion of, and in opposition to, the claims of all others, and the claimant‘s conduct must afford an
unequivocal indication that he is exercising dominion of a sole owner. Exclusiveness essential to adverse possession may or must be shown by acts which comport with ownership and would ordinarily be done by an owner for his own use to the exclusion of others, and all such acts must be considered collectively in determining the sufficiency of possession. Exclusiveness of possession is often evidenced by the erection of physical improvements on the property, such as fences, houses or other structures, and, in their absence, substantial activity on the land is required.’
“The same principle is stated in different language in 4 H. Tiffany, The Law of Real Property, § 1141 at 735-36 (3d ed. 1975):
“‘In order that one may acquire rights in land by possession for the statutory period, the possession must, it is frequently said, be exclusive. It must be exclusive of the true owner and also of third persons. If the true owner is on the land as owner, the possession is, in the eye of the law, in such owner, and another person who is on the land has not only no adverse possession, but no possession whatsoever ... If, however, the true owner is shown to be on the land merely as a licensee, not asserting, by word or act, any right of ownership or possession, his presence on the land does not amount to an actual possession, and the possession may properly be attributed to him who is on the land exercising or claiming exclusive control thereof. In the same vein, acts of the record owner with respect to the premises indicative of ownership, but not of possession, impair the exclusiveness of adverse possession.‘”
To establish a claim of adverse possession, a party must present clear and convincing evidence, which is
“[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”
In their appellate brief, the Pollards contend that “[t]he hybrid form of adverse possession does not apply as [Lindsey‘s] adverse possession claim is to a ‘significant portion’ of [their] land.” In McCallister v. Jones, 432 So. 2d 489, 492 (Ala. 1983), our supreme court rejected the alleged
The Pollards contend that the trial court, by citing Connell v. Moody, 98 So. 3d 549 (Ala. Civ. App. 2012), in its judgment, held correctly that Lindsey‘s possession of the disputed property was permissive, not adverse. In Connell, this court considered whether the predecessors in title to conterminous landowners had altered the boundary line between their properties by agreement or, in the alternative, whether the boundary line had been altered by adverse possession. Evidence was presented that in 1971 P.F. Connell and Bula Mae Connell (“the Connells“) had purchased property from Ada Kirkpatrick. The Connells and Kirkpatrick‘s son erected a barbed-wire fence along a tree line and not along the boundary line set forth in the deeds. According to
In 2006, Joseph Moody and Laura Moody purchased Kirkpatrick‘s property, and at some point the Connells’ children became the owners of the Connells’ property. Laura Moody testified that, although she found some rusty nails and broken pieces of barbed wire when she was cleaning up the land, she did not find a barbed-wire fence on her property. In 2008, the Moodys had their property surveyed. The surveyor‘s line ran through an old shed. When the Moodys asked Carlos Connell, another son of the Connells, about the shed, Carlos informed them that the line as surveyed was not the correct property line. The Moodys sued the Connells’ children, seeking a judicial determination of the boundary line. At trial, the Connells’ children argued that the Connells had acquired
When considering whether the evidence established that Kirkpatrick and the Connells had altered the boundary line by agreement, we recognized:
“‘Coterminous landowners may locate a boundary by agreement, provided one of them holds to the boundary so agreed upon for a period of 10 years after the agreement is reached. Similarly, one coterminous owner may engage in conduct which may form the basis of an estoppel against him or her and has the same practical effect as an agreement. For example, if a party represents the location of a boundary to his neighbor who, in reliance on the representation, makes valuable improvements on the property, or acts detrimentally, the owner making the representation will not be heard later to claim that his statements concerning the boundary were
untrue. In essence, the representation and reliance upon it forms an estoppel which operates to fix the boundary.’ “I Jesse P. Evans III, Alabama Property Rights and Remedies § 12.4[a] (3d ed. 2004) (footnotes omitted). See also Moss v. Woodrow Reynolds & Son Timber Co., 592 So. 2d 1029, 1031 (Ala. 1992); Wallace v. Putman, 495 So. 2d 1072, 1076 (Ala. 1986); Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616, 618 (Ala. 1980); Smith v. Cook, 220 Ala. 338, 341, 124 So. 898, 900 (1929); Jacks v. Taylor, 27 So. 3d 504, 508-09 (Ala. Civ. App. 2008). Although Alabama cases have not always emphasized it, there is a requirement that the boundary line be uncertain or in dispute before the parties may reach an agreement to alter it. See generally Alan Stephens, Annot., Sufficiency of Showing, in Establishing Boundary by Parol Agreement, that Boundary was Uncertain or in Dispute Before Agreement, 72 A.L.R. 4th 132 (1989).”
This court affirmed the trial court‘s judgment, holding that a review of the record supported the trial court‘s determination that the Connells’ children had failed to establish that the boundary line had been altered by agreement. We observed that no evidence was presented indicating that the boundary line was uncertain or in dispute when Kirkpatrick and the Connells allegedly agreed to alter the boundary line. Additionally, we noted that testimony was presented that W.A. Connell had stated that “the property line between the two parcels goes through the [Connells‘] shed,” from which the trial court could have inferred that
We next considered whether the trial court properly rejected the alternative argument of the Connells’ children that the boundary line had been altered through the Connells’ adverse possession of the disputed property. We noted:
“‘Generally, possession of land entered into with permission of the owner will not ripen into title.... In order to change possession from permissive to adverse, the possessor must make a clear and positive disclaimer or repudiation of the true owner‘s title. The possessor must give the true owner actual notice of such disavowal, or he must manifest acts or make a declaration of adverseness so notorious that actual notice will be presumed....
“‘....
“‘The trial court found that [the defendant‘s] possession had not been hostile but had been with the permission of the landowner. There was evidence to support that finding. Therefore, [the defendant] failed to establish the elements necessary to prove that his possession of the disputed property was adverse.’
”Moss v. Woodrow Reynolds & Son Timber Co., 592 So. 2d [1029,] 1031 [(Ala. 1992)].”
We agree with the Pollards that, insofar as Lindsey may contend that the parties’ predecessors in title, i.e., Cooper and Hudson, agreed to alter the boundary line when they agreed to erect the fence, the evidence does not support an alteration of the boundary line by agreement because no evidence was presented that, at the time the fence was erected, the boundary line was in dispute. However, we cannot agree with the Pollards that Lindsey failed to establish by clear and convincing evidence that her possession of the disputed property was adverse. Clear and convincing evidence was presented by Lindsey, Garrison, Morris, and Green that Lindsey had maintained the disputed property and had claimed it as her own. Additionally, Jerry Pollard‘s admissions that Lindsey had denied others access to the disputed property and that he had not maintained the disputed property evidence Lindsey‘s intent to
In the alternative, the evidence supports the conclusion that Hudson and, subsequently, Lindsey relied upon Cooper‘s representation that the fence evidenced the boundary line between their properties and, thus, that estoppel operates to fix the fence as the boundary line. After Cooper erected the fence, Hudson placed a propane tank and a portion of his sprinkler system on the disputed property. Later, Lindsey planted flowers and shrubs on the disputed property and maintained the disputed property. Additionally, she prevented others from accessing the disputed property. Lindsey‘s reliance on the fence as the boundary line between the Pollards’ and her properties was for a period of more than 10 years. Thus, Hudson and Lindsey‘s acts of ownership and possession of the disputed property based on Cooper‘s representations support the determination that the Pollards, Cooper‘s successors in interest, are
Lastly, the Pollards contend that trial court did not err by concluding that they owned the disputed property because, they say, a finding that Lindsey, through adverse possession, owns the disputed property would constitute a subdivision of their lot and would therefore violate a restrictive covenant applicable to properties located in Roscoe Smith Estates. The parties’ deeds incorporate a “protective covenant and restriction for Roscoe Smith Estates” providing that “[n]o lot may be subdivided or in any way made into two or more separate lots.”4 According to the Pollards, a plain reading of the covenant means “no lot can be reduced in size in any way.”
“Where the language in a restrictive covenant is clear and unambiguous, it will be given its manifest meaning, but its construction will not be extended by implication to include anything not plainly prohibited. Cox v. Walter, 348 So. 2d 454 (Ala. 1977).” Cooper v. Powell, 659 So. 2d 93, 95 (Ala. 1995).
Based on the evidence at trial, the trial court‘s judgment denying Lindsey‘s claim of adverse possession of the disputed property is plainly
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, Edwards, Hanson, and Fridy, JJ., concur.
Notes
“The notice of appeal shall specify all parties taking the appeal and each adverse party against whom the appeal is taken; shall designate the judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken. Such designation of judgment or order shall not, however, limit the scope of appellate review.”