Dungan v. Early

• Decision Date: 13 December 2013
• Docket Number: 2120495.
• Citation: 142 So.3d 1135
• Parties: Robert DUNGAN v. Thomas W. EARLY and Tanya S. Early.
• Court: Alabama Court of Civil Appeals

142 So.3d 1135

Robert DUNGAN

v.Thomas W. EARLY and Tanya S. Early.

2120495.

Court of Civil Appeals of Alabama.

Oct. 11, 2013.

Certiorari Denied Dec. 13, 2013

Alabama Supreme Court 1130095.

Robert Dungan, pro se.

Lloyd E. Taylor of Taylor & Taylor, LLC, Robertsdale, for appellees.

On Application for a Rehearing

THOMAS, Judge.

The no-opinion affirmance of August 2, 2013, is withdrawn, and the following is substituted therefor.

Robert Dungan appeals from a judgment of the Baldwin Circuit Court establishing a boundary line between his property and that of Thomas W. Early and Tanya S. Early. We affirm the trial court's judgment.

On February 8, 2012, the Earlys filed a complaint to establish a boundary line; the complaint listed Robert and his daughter, Christina Dungan, as defendants because the Earlys' property adjoined property owned by the Dungans. On March 14, 2012, Robert answered the complaint. On May 10, 2012, Robert filed a motion for an injunction against the Earlys, and he also filed discovery requests.¹ On June 8, 2012, the Earlys filed a motion for a default judgment against Christina, who had failed to answer the complaint at that time. Christina filed an answer to the complaint on July 10, 2012, and, that same day, the trial court denied the motion for a default judgment. On July 11, 2012, the trial court conducted a trial at which it heard ore tenus evidence and at which documentary evidence was presented. The parties agree in their respective briefs that Robert was dismissed as a defendant before the trial date, and, thus, Christina was the only defendant at the start of trial. The record also supports this fact. However, the record also indicates that, during the trial, Christina transferred her interest in the Dungans' property to Robert and that the parties stipulated to allow Robert to be substituted as a defendant in the action pursuant to Rule 25(c), Ala. R. Civ. P. Therefore, Robert was the only defendant to the action at the close of trial and, thus, is the only appellant in this appeal.

The testimony revealed the following facts. Christina testified that Robert had purchased the land upon which the disputed boundary lies for her benefit. She testified that Robert had had a survey and title search of the property prepared and that he and the Earlys had had disagreements regarding the boundary line separating their properties. She testified that Robert had removed “the pig fence” that the Earlys asserted in their complaint marked the boundary line between the parties' properties. She also stated at the start of the trial that the pig fence had been located on her land as detailed in the survey and that a newly built privacy fence marked where the boundary line is located. She further testified that it was her understanding that the Earlys had not paid the property taxes on the disputed property—i.e., the property between the pig fence and the privacy fence—for ten consecutive years and, thus, that they could not rely upon that fact to support their claim that the pig fence was the true boundary line.

The survey was entered into evidence. Christina testified that parcel “C” on the survey showed the property Robert had purchased for her, which adjoined the Earlys' property. She also testified that a line on the survey, located in the southeast corner of parcel C, depicted the pig fence that had been torn down. She testified that she had never viewed the property when the pig fence was still there. She further testified that the pig fence was there when Robert purchased the property but that it was not a true fence but merely a piece of a fence.

Thomas testified that he first noticed the pig fence in October 1999 when he was doing business with Howard Price, a person that had owned the Earlys' property before they purchased it. Thomas testified that he and Tanya took possession of the property in the middle of 2001 and that he had paid the down payment with a deal to trade cars and had also paid a monthly payment of $300; he testified that he had entered into this purchase agreement with Brandy Price, a predecessor in interest in the property. Thomas testified that Aaron Early, his father, had moved onto the property in 2001 and had continually lived in his motor home on the property since that time. Thomas testified that in 2001, when he took possession of the property, Lorie Leiterman had held title to the adjoining property that Robert now owns. He said that Leiterman mentioned to him that the pig fence was the boundary line between the properties. Thomas offered into evidence pictures of the pig fence before its removal and testified that renters he had allowed on his property had planted gardenias and barbequed on the disputed property next to the pig fence. He also testified that a post with a “no trespassing” sign next to the pig fence had been placed there by one of his renters and that there was a metal stake along the pig fence that also marked the boundary he had used for over 10 years.

Thomas further testified that Robert had erected a privacy fence across a portion of the driveway that supplies the only passageway for the trailers his renters use; he said that there is a septic tank beneath another passageway to the property but that vehicles cannot be allowed to drive over the septic tank because they might damage it. He testified that Robert had also ceased allowing him to access a well on the disputed property that supplies water to two buildings located on his property. He testified that the well was there before he purchased his property, that it is on the disputed property that he is claiming to own, and that it has furnished water only to the buildings on his property since 2001. Thomas further testified that there is no other area of his property on which he could place a well due to the location of the septic tank.

Thomas testified that Robert had destroyed the pig fence, which, Thomas contended, marked the boundary line he had been told separated his property from the Dungans' property. He testified that, following the removal of the pig fence, Robert had erected a privacy fence along the line Robert contended was the boundary line. Thomas testified that, according to the placement of the privacy fence and the survey upon which Robert had relied in erecting the privacy fence, Robert was claiming three feet of a building that sits on what Thomas alleged had been his or his predecessors' property since 1990. He further testified that his father had resided on his property for more than 10 years preceding the filing of the lawsuit and that his father, along with other renters, had occupied and used the property up to the area marked by the pig fence that had been destroyed. Thomas also testified that he had paid the taxes on the entire property he purports to own, which includes the disputed property, along with the taxes associated with the three buildings located on his property and/or the disputed property, each year since 2001 with the exception of several years in which he had accidently missed making the payments due to a misunderstanding with his sister. However, he testified that he had subsequently paid the taxes associated with the property for the entire 10–year period.

Aaron Early, Thomas's father, testified that he had lived on the Earlys' property since Thomas had purchased it. He further testified that he had a clear memory that he had lived on the property on September 11, 2001, because, he said, he remembers watching footage of the terrorist attacks that occurred on that date. He further testified that he had continuously lived on the property from about six months before the September 11, 2001, terrorist attacks until the date of the trial. Aaron testified that, during the entire time he had lived on the property, he had understood that the boundary line between the Earlys' property and the Dungans' property was marked by the pig fence, which Robert had destroyed after buying the adjoining property. He further testified that the driveway that he had continually used the entire time he had lived on the Earlys' property had been blocked by Robert's privacy fence.

On July 26, 2012, the trial court entered a judgment establishing the boundary as the place where the pig fence had been, as requested by the Earlys in their complaint, thereby implicitly denying the relief Robert had requested in his motion for injunctive relief. On August 24, 2012, Robert filed a postjudgment motion alleging that the evidence was insufficient to support the trial court's judgment and that newly discovered evidence supported a judgment in his favor and noting that he had appeared pro se at trial. On November 20, 2012, the parties filed a joint agreement to waive the operation of Rule 59.1, Ala. R. Civ. P. On February 19, 2013, the trial court denied Robert's postjudgment motion. Robert filed a timely notice of appeal with our supreme court on March 4, 2013. Our supreme court transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.

Because the trial judge received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ' Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in turn Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). ‘ “The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge's...