Dunn v. Williams

• Decision Date: 24 July 2009
• Docket Number: 2080190.
• Citation: 28 So.3d 807
• Parties: Nellie M. DUNN v. Sharon McCall WILLIAMS and Anthony G. Williams.
• Court: Alabama Court of Civil Appeals

28 So.3d 807

Nellie M. DUNN v. Sharon McCall WILLIAMS and Anthony G. Williams.

2080190.

Court of Civil Appeals of Alabama.

July 24, 2009.

Mitch Damsky, Birmingham, for appellant.

Charles N. Reese of Reese & Reese Attorneys, Daleville, for appellees.

PER CURIAM.

Nellie M. Dunn appeals from a summary judgment entered by the Geneva Circuit Court in favor of Sharon McCall Williams and Anthony G. Williams on her claims arising out of a conveyance of real property. We reverse the trial court's judgment as to Dunn's claim seeking a declaration that her conveyance was voidable pursuant to Ala.Code 1975, § 8-9-12, and as to Dunn's claim of conversion. We affirm as to all other claims.

Background

On August 28, 2007, Dunn sued Sharon and Anthony (Dunn's daughter and son-in-law) and various fictitiously named defendants. In her complaint, Dunn alleged that she had owned a tract of real property comprising approximately 120 acres of land and containing a dwelling (hereinafter referred to as "the property") since 1962. Dunn alleged that on May 16, 2007, while she was gravely ill, she had conveyed the property to Sharon and Anthony by warranty deed. According to Dunn's complaint, after she had recovered from her illness, Sharon and Anthony informed Dunn she would no longer be allowed to live on the property. Dunn alleged that Sharon and Anthony had thereafter driven her to a local police station, where Dunn was dropped off with only a few of her personal items.

In her complaint, Dunn asserted that the conveyance should be invalidated because it had been obtained through undue influence and coercion (count one) and because it had not been supported by material consideration (count two). Dunn also sought to quiet title to the property in herself (count three). Dunn also asserted that Sharon and Anthony had converted items of her personal property to their own use (count four) and had conspired to wrongfully take possession of the property (count five). Finally, Dunn sought a temporary restraining order to enjoin Sharon and Anthony from selling, destroying, or otherwise disposing of any real and personal property made the basis of the action. As an exhibit to her complaint, Dunn attached a copy of the deed she had executed; that deed recited that the conveyance had been supported by a payment of "$10.00 and other valuable consideration." Dunn also filed a notice of lis pendens against the property based on the allegations stated in her complaint.

In October 2007, Sharon and Anthony answered the complaint, denying all wrongdoing and averring that, on an unidentified date, they had offered Dunn the opportunity to retrieve her personal property by sending movers to the property but that Dunn had failed to act on their offer.¹ In June 2008, Sharon and Anthony moved for a summary judgment. In support of their summary-judgment motion, they submitted an affidavit from Henry F. Lee III, the attorney who had overseen the closing of a loan transaction involving Sharon, Anthony, Dunn, and the Samson Banking Company; an affidavit from Stephanie W. Chesteen, the notary public who had witnessed Dunn's signature on the pertinent deed; affidavits from Sharon and Anthony; and transcribed excerpts from Dunn's deposition. On August 13, 2008, Dunn filed a response in opposition to the summary-judgment motion in which she contended that Ala.Code 1975, § 8-9-12, amounted to authority for deeming the conveyance invalid. In support of her response to the summary-judgment motion, Dunn submitted, among other things, copies of opinions interpreting and applying § 8-9-12 and excerpts from Anthony's and Sharon's deposition transcripts that indicated that, in consideration for Dunn's conveyance of the property to Anthony and Sharon, they had promised Dunn that she could live on the property for as long as she wished and that Dunn would have "no bills" as long as she lived there.²

After hearing arguments from counsel, the trial court granted the summary-judgment motion filed by Sharon and Anthony as to the claims asserted in Dunn's complaint. In addition, the trial court specifically stated:

"The court further finds that [Dunn] has no cause of action under § 8-9-12 ... based upon the evidence set forth in her `Notice in Opposition to Motion for Summary Judgment.' In making this decision, the court relies on the case of Tolver v. Tolver, 585 So.2d 1 (Ala.1991)."

Sharon and Anthony filed a motion to alter or amend the judgment to seek a declaration that the lis pendens that had been filed against the property simultaneously with the complaint had been satisfied. The trial court granted that motion. Dunn timely appealed; the Alabama Supreme Court transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7.

Standard of Review

"`"We review the trial court's grant or denial of a summary judgment motion de novo." Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006) (citing Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present "substantial evidence" of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala. 1993)."'"

Harris v. Health Care Auth., 6 So.3d 468, 472 (Ala.2008) (quoting McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala. 2008)).

Analysis

On appeal, Dunn has not specifically challenged the judgment entered in favor of Sharon and Anthony on her conspiracy claim, her request to quiet title, or her request for a temporary restraining order. We, therefore, need not consider any error as to those claims. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived."); see also Lyons v. Vaughan Reg'l Med. Ctr., LLC, 23 So.3d 23 (Ala.2009) (accord). Dunn has, however, specifically challenged the trial court's judgment as it relates to her claim seeking to void her conveyance and her claim of conversion. We, therefore, confine our analysis to the correctness of the judgment as to those claims.

As a preliminary matter, we first address Sharon and Anthony's assertion that, because § 8-9-12 was not specifically pleaded in her complaint, Dunn may not now rely on that statute in challenging the trial court's summary judgment. We disagree. "Under Rule 8, Ala. R. Civ. P., a complaint is sufficient if it puts the defendant on notice of the claims asserted against him or her." Martin v. Martin, 998 So.2d 1081, 1084 (Ala.Civ.App.2008). Although Dunn did not cite or expressly plead the applicability of § 8-9-12 in her complaint, or specifically allege that Sharon and Anthony had promised to allow her to live on the property after the conveyance, she alleged that the deed was void because she had "received no material consideration from Defendants for the conveyance of said property." In her response in opposition to the summary-judgment motion, Dunn argued that a promise to allow her to live on the property and to support her was a material part of the consideration for the conveyance but that the alleged promise had not been honored. Moreover, as our supreme court noted in Ex parte Alexander, 806 So.2d 1222, 1225 (Ala.2001), the enactment of § 8-9-12 "has superseded other theories for voiding ... a conveyance to redress the grantor's dissatisfaction with the consideration" when a promise of lifetime support is involved. Thus, count two of Dunn's complaint, which asserted a failure of material consideration for the conveyance, constituted a short and plain statement of entitlement to relief under § 8-9-12. See Martin, 998 So.2d at 1084 (plaintiff, who clarified on the day of trial that her cause of action to invalidate a deed for lack of consideration was asserted under § 8-9-12, Ala.Code 1975, had provided adequate notice, pursuant to Rule 8, Ala. R. Civ. P., of her claim to defendants).

Additionally, Dunn clearly stated in her response, filed in opposition to Sharon and Anthony's summary-judgment motion, that she was proceeding under § 8-9-12, Ala. Code 1975, thereby placing Sharon and Anthony on notice of such claim before the summary-judgment hearing. See Boackle v. Jefferson Mem'l Co., 408 So.2d 518, 520 (Ala.Civ.App.1981) (noting that issues framed by formal pleadings are not controlling on a motion for summary judgment and that a court considering whether to grant such a motion is to consider the issues presented by the parties in their supporting and opposing submissions).³ Sharon and Anthony did not move to strike or otherwise oppose Dunn's allegations. Moreover, Dunn submitted evidence to the trial court in support of her § 8-9-12 claim, and Sharon and Anthony did not move to strike that evidence.

As established in the trial court's summary-judgment order, the trial court considered Dunn's § 8-9-12 claim and her supporting evidence at the summary-judgment hearing, along with Dunn's other claims. We find no indication in the record that Sharon and Anthony ever objected to the trial court's consideration of that claim or Dunn's evidence in support of that claim at that time. Because Dunn's § 8-9-12 theory is arguably subsumed under count two of her complaint, because the trial court...