O'Conner v. Furman

• Decision Date: 01 September 2017
• Docket Number: 2160364
• Citation: 248 So.3d 975
• Parties: Paul O'CONNER v. Herbert J. FURMAN, Jr., and Marian Furman
• Court: Alabama Court of Civil Appeals

248 So.3d 975

Paul O'CONNER

v.Herbert J. FURMAN, Jr., and Marian Furman

2160364

Court of Civil Appeals of Alabama.

September 1, 2017

Virginia R. Lucci, Montgomery, for appellant.

John Furman, Loxley, for appellees.

MOORE, Judge.

Paul O'Conner¹ appeals from a judgment of the Wilcox Circuit Court ("the trial court") granting a motion for a summary judgment, see discussion, infra, filed by Herbert J. Furman, Jr., and Marian Furman.² We reverse the trial court's judgment.

Facts and Procedural History

On September 19, 2014, O'Conner filed a complaint against the Furmans, asserting that they had trespassed on his property by cutting the timber on that property ("the civil trespass action"). O'Conner included in the complaint a description of his property on which the Furmans had allegedly cut timber. On October 31, 2014, the Furmans filed a motion to dismiss O'Conner's complaint. They asserted, among other things, that the parties had previously been before the trial court for a determination of the boundary line between the property belonging to O'Conner and the property belonging to the Furmans in case no. CV–03–79 ("the boundary-line action"); that the boundary line between the parties' properties had been determined by a judgment entered on April 9, 2007, in the boundary-line action; that O'Conner had not appealed that judgment, but had filed more than four motions to set aside that judgment, each of which had been denied; that, on March 21, 2009, O'Conner had been found in contempt of a portion of the judgment entered in the boundary-line action directing the parties not to trespass against one another; and that, in a criminal proceeding conducted in the Wilcox District Court ("the district-court action"), Herbert had been found innocent of criminal trespass on May 1, 2013, with regard to the same allegations as those asserted by O'Conner in his complaint in the civil trespass action. The Furmans attached to their motion to dismiss the judgment entered in the boundary-line action; in that judgment, Judge Marvin W. Wiggins had made the following conclusions:

"1. That the boundary line between [the] parties is hereby established as the West and South lines displayed on Exhibit One as the Resurvey of Olivia Martin Property.

"2. That the [re]survey of Olivia Martin property labeled as Exhibit One is hereby incorporated into the Order and made an exhibit hereto.

"3. That the claim for damages is hereby DENIED."

O'Conner filed a response to the Furmans' motion to dismiss on January 12, 2015, asserting, among other things, that the trial court's judgment in the boundary-line action was not a final judgment and, thus, that the doctrine of res judicata was inapplicable to his claim in the civil trespass action. He attached to his response certain filings or portions thereof from the boundary-line action. On January 13, 2015, the trial court denied, without prejudice, the Furmans' motion to dismiss. In that same order, the trial court transferred the case to Judge Wiggins.³

On February 3, 2015, the Furmans filed a second motion to dismiss;⁴ they attached to their motion a number of filings from the boundary-line action and asserted that the judgment in the boundary-line action barred O'Conner's complaint in the civil trespass action, based on the doctrines of res judicata and equitable estoppel. Following the recusal of Judge Wiggins and the remaining judges of the Wilcox Circuit Court, the Alabama Supreme Court entered an order assigning the case to Judge C. Robert Montgomery, a circuit-court judge in Washington County.

On January 4, 2017, the Furmans submitted a number of supplementary exhibits to their second motion to dismiss, including, among other things, exhibits from the boundary-line action and the district-court action. A hearing was held on January 25, 2017. On January 31, 2017, the trial court entered an order indicating that it had reviewed the file in the boundary-line action and all the pleadings, motions, and exhibits that had been filed in the civil trespass action and had considered the arguments of counsel presented at a hearing conducted on January 31, 2017. The trial court concluded that the doctrines of res judicata and collateral estoppel barred O'Conner's claim in the civil trespass action, and it "dismissed" O'Conner's complaint, with prejudice. Additionally, the trial court noted: "Because of the repeated abuse of the legal process demonstrated by ... O'Conner, it is further ordered that any further frivolous filings by ... O'Conner will constitute contempt of this Court, and a violation of this Order." O'Conner filed his notice of appeal to the Alabama Supreme Court on February 21, 2017; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12–2–7(6).

Standard of Review

Although the Furmans styled their second motion as a motion to dismiss, the trial court expressly stated in its judgment that it had considered all the pleadings, motions, and exhibits filed in the civil trespass action. Accordingly, that motion was converted from a motion to dismiss into a motion for a summary judgment. See Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 792 (Ala. 2007) (concluding that, because the trial court had considered matters outside the pleadings, because the face of the complaint did not reference the prior litigation, and because the doctrines of res judicata and collateral estoppel were at issue, a motion to dismiss should have been treated as one seeking a summary judgment); and Ex parte Price, 244 So.3d 949 (Ala. 2017).⁵

"Our standard of review for a summary judgment is as follows:

" ‘We review the trial court's grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala. 2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id."We review the evidence in a light most favorable to the nonmovant." 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala. 2006).’ "

Lloyd Noland, 979 So.2d at 793 (quoting Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006) ).

Analysis

O'Conner argues on appeal that the trial court erred by granting the Furmans' second motion to dismiss, which, as noted, was converted into a motion for a summary judgment. We agree. The Furmans argued in their second motion that O'Conner's trespass claim was barred by the doctrines of res judicata and collateral estoppel.

" ‘The elements of res judicata are " ‘(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.’ " Chapman Nursing Home, Inc. v. McDonald, 985 So.2d 914, 919 (Ala. 2007) (quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala. 1998) ).’

" Ex parte Chesnut, 208 So.3d 624, 635 (Ala. 2016)."

Osborne v. Osborne, 216 So.3d 1237, 1240 (Ala. Civ. App. 2016). With regard to collateral estoppel, our supreme court explained in Lee L. Saad Construction Co. v. DPF Architects, P.C., 851 So.2d 507, 520 (Ala. 2002) :

"For the doctrine of collateral estoppel to apply, the following elements must be established:

" ‘ "(1) that an issue in a prior action was identical to the issue litigated in the present action; (2) that the issue was actually litigated in the prior action; (3) that resolution of the issue was necessary to the prior judgment; and (4) that the same parties are involved in the two actions."

" ‘ Smith v. Union Bank & Trust Co., 653 So.2d 933, 934 (Ala. 1995). " ‘Where these elements are present, the parties are barred from relitigating issues actually litigated in a prior [action].’ " Smith, 653 So.2d at 934 (quoting Lott v. Toomey, 477 So.2d 316, 319 (Ala. 1985) ).’

" Biles v. Sullivan, 793 So.2d 708, 712 (Ala. 2000). ‘Only issues actually decided in a former action are subject to collateral estoppel.’ Leverette ex rel. Gilmore v. Leverette, 479 So.2d 1229, 1237 (Ala. 1985) (emphasis added). The burden is on the party asserting collateral estoppel to prove that the issue it is seeking to bar was determined in the prior adjudication. See Adams v. Sanders, 811 So.2d 542, 545 (Ala. Civ. App. 2001) (‘Because we have no transcript of the trial in the district court, the burden is on Sanders to show that the district court determined that he was not negligent.’).

See also United States v. Cala, 521 F.2d 605, 608 (2d Cir. 1975) (‘The burden ... is on [the one asserting collateral estoppel] to establish that the issue he seeks to foreclose from litigation in the present prosecution was necessarily decided in his favor by the prior verdict.’)."

O'Conner argues on appeal that the trial court erred in granting the Furmans' second motion because, he asserts, among other things, the judgment in the boundary-line action was not final and, thus, the doctrines of res judicata and collateral estoppel did not apply. He asserts that the judgment entered in the boundary-line action failed to adjudicate a complete border for his property. We note, however, that, for all that appears in the record on appeal in this action, the judgment in the boundary-line action clearly determined the boundary line between the property belonging to O'Conner and the property belonging to the Furmans and denied the Furmans' trespass claim, thus addressing both claims asserted in the Furmans' complaint in the boundary-line action. O'Conner's assertion regarding the failure of the trial court to demarcate the remainder of his property is inapposite; that issue was not before the trial court in the boundary-line action. Accordingly, O'Conner's argument that the judgment in the...