Green v. Cottrell

• Citation: 188 So.3d 668
• Decision Date: 27 March 2015
• Docket Number: 2100920,2101086.
• Parties: Johnnie Mae Alexander GREEN et al. v. E'Stella Alexander Webb COTTRELL. Frank Stokes, Jr. v. E'Stella Alexander Webb Cottrell et al.
• Court: Alabama Court of Civil Appeals

188 So.3d 668

Johnnie Mae Alexander GREEN et al.

v.E'Stella Alexander Webb COTTRELL.

Frank Stokes, Jr.

v.E'Stella Alexander Webb Cottrell et al.

2100920

2101086.

Court of Civil Appeals of Alabama.

March 27, 2015.

Aug. 7, 2015

Alabama Supreme Court 1140728.

Joseph T. Scarborough, Jr., and Stephen S. Weldon of Scarborough & Weldon, LLC, Tallassee, for appellants/cross-appellees Johnnie Mae Alexander Green, Lillie Robinson, Oscar C. Alexander, Bertha Mae Humphrey, Shirley Alexander, Cathy Alexander, Johnny Alexander, Jr., and Althea Alexander.

Joseph W. Warren, Montgomery; and Theron Stokes, Montgomery, for appellant Frank Stokes, Jr.

John Cottle of Becker & Poliakoff, P.A., Fort Walton Beach, Florida, for appellee E'Stella Alexander Webb Cottrell.

On Application for Rehearing in Case No. 2100920 and After Remand from the Alabama Supreme Court

MOORE, Judge.

This court's opinion of January 16, 2015, is withdrawn, and the following is substituted therefor.

This court's prior judgment was reversed, and the cause was remanded to this court, with instructions, by the Supreme Court of Alabama. See Ex parte Cottrell, 188 So.3d 661 (Ala.2014) (reversing Green v. Cottrell, 188 So.3d 656 (Ala.Civ.App.2012) ). On remand to this court, and in compliance with the supreme court's opinion and instructions, we now affirm the trial court's judgment in appeal no. 2100920 and appeal no. 2101086.

Background

The parties and this action have been before this court on multiple occasions. For the detailed history of this case, see Stokes v. Cottrell, 58 So.3d 123 (Ala.Civ.App.2008) ("Stokes I ") (affirming in part and reversing in part the trial court's judgment and remanding the cause with instructions), judgment vacated in part, writ quashed in part, and cause remanded with instructions by Ex parte Green, 58 So.3d 135 (Ala.2010) (plurality opinion in part); Stokes v. Cottrell, 58 So.3d 166 (Ala.Civ.App.2010) ("Stokes II ") (opinion on remand from the supreme court, dismissing appeals in part and remanding with instructions); and Green v. Cottrell, 188 So.3d 656 (Ala.Civ.App.2012) ("Green I ") (reversing judgment in part and dismissing appeal no. 2100920 as moot), judgment reversed and cause remanded with instructions by Ex parte Cottrell, 188 So.3d 661 (Ala.2014). The background of this case is sufficiently set forth in those previous decisions and, for the sake of brevity, will not be restated here.

In 2010, after this court remanded the cause to the trial court to address the remaining issues and to enter a final judgment, see Stokes II, the trial court conducted an evidentiary hearing on March 21, 2011; ore tenus evidence was presented at that hearing. The purpose of that hearing was to determine if E'Stella Alexander Webb Cottrell ("Cottrell") had acquired any interest in the three non-farmed parcels ("the three parcels") and, if so, the extent of her interest.¹ At the conclusion of the ore tenus hearing, the trial court requested that the parties submit posttrial briefs.

On May 4, 2011, the trial court entered a final judgment finding that Johnny Alexander, Sr. ("Johnny Sr."), and then Johnnie Mae Alexander Green, Lillie Robinson, Oscar C. Alexander, Bertha Mae Humphrey, Shirley Alexander, Cathy Alexander, Johnny Alexander, Jr. ("Johnny Jr."), and Althea Alexander (hereinafter referred to collectively as "the Alexander plaintiffs") had jointly possessed the three parcels for the benefit of both themselves and Cottrell; the trial court also found that Johnny Sr. and Cottrell had engaged in a joint enterprise in possessing the three parcels after the death of Estelle Haggerty Alexander ("Estelle") in 1962. The trial court concluded that, as of 1982, 20 years after Estelle's death, Johnny Sr. and Cottrell had acquired joint title to the three parcels through adverse possession. The Alexander plaintiffs and Frank Stokes, Jr. ("Stokes"), timely filed their notices of appeal.

In appeal no. 2101086, Stokes challenges the trial court's finding that, through adverse possession, the Alexander plaintiffs and Cottrell had established a claim to the three parcels superior to that held by Stokes, one of the heirs of Larenda Jenkins, who was Estelle's only living heir at the time of her death. In appeal no. 2100920, the Alexander plaintiffs assert that the trial court erred in finding that they and Johnny Sr. had acted on behalf of Cottrell in adversely possessing the three parcels and that the trial court erred in finding the existence of a "joint enterprise" in which Johnny Sr. and Cottrell had acquired title to the three parcels through adverse possession.

Standard of Review

"Where a trial court hears ore tenus testimony, as in this case, its findings [of fact] based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous. The trial court's judgment will be affirmed if there is credible evidence to support the judgment. Furthermore, where the trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment unless such findings would be clearly erroneous. The presumption of correctness is particularly strong in boundary line disputes and adverse possession cases, because the evidence in such cases is difficult for an appellate court to review."

Bearden v. Ellison, 560 So.2d 1042, 1043–44 (Ala.1990) (citations omitted).

Appeal No. 2101086

In appeal no. 2101086, Stokes asserts that he established superior legal title to the three parcels and that the Alexander plaintiffs and Cottrell failed to overcome that showing by establishing the necessary elements of adverse possession. He asserts that Johnny Sr. and Cottrell were first put into possession of the three parcels with permission from Estelle and that, thereafter, their possession was at all times permissive by the administrator of Estelle's estate. Because Stokes's argument is equally applicable regardless of how we resolve the dispute between the Alexander plaintiffs and Cottrell, we address his appeal first.

We need not address the merits of Stokes's argument in detail because, in Ex parte Cottrell, supra, our supreme court concluded that sufficient evidence had been presented to support the trial court's "allotment to the [Alexander] plaintiffs [and Cottrell] of the three parcels." 188 So.3d at 667. Thus, that conclusion is now the law of the case and is binding on this court. See Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987) ( "[W]hatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.").

The supreme court's determination that the evidence sufficiently supported the trial court's award of the three parcels to Cottrell and the Alexander plaintiffs disposes of all issues raised in Stokes's appeal. Therefore, in appeal no. 2101086, we affirm the trial court's judgment to the extent it found that Cottrell and the Alexander plaintiffs had acquired the three parcels through adverse possession.

Appeal No. 2100920

In appeal no. 2100920, the Alexander plaintiffs assert the following issues:

"I. Whether the trial court erred in determining that legal principles flowing from caselaw ‘establish that where there is an understanding between claimants of real property that one's possession of the property is for the benefit of both claimants, such possession can result in the acquisition of title through adverse possession by the absentee claimant, if the occupant's possession is with the understanding that the absentee claimant owner is a true owner, or in this case, a joint owner of the property.’

"II. Whether the trial court was within its discretion in determining that ... Cottrell established that Johnny Alexander, Sr., could have acted as her agent in his adverse possession of the [three parcels] of the subject land.

"III. Whether the trial court was within its discretion in finding that Cottrell's and [Johnny Sr.'s] possession of the [three parcels] was a joint enterprise."

We address issues I and II together. The Alexander plaintiffs assert that neither they nor Johnny Sr. acted on behalf of Cottrell in adversely possessing the three parcels and that the law applicable to adverse possession does not support the trial court's finding. They argue that "[v]irtually all prior reported cases of adverse possession by an absentee claimant involve the landlord-tenant relationship" and that, because she never acted as Johnny Sr.'s or their landlord, Cottrell could not obtain title to the three parcels through Johnny Sr.'s or their adverse possession of the three parcels. We disagree.

"It is not necessary to physically reside upon the property in order to adversely possess it." Crowden v. Grantland, 510 So.2d 238, 239 (Ala.1987). " ‘ "Actual possession, or possession in fact, exists when the thing is in the immediate occupancy of the party, or his agent or tenant," [and] is synonymous with pedis possessio.

’ " Childers v. Darby, 163 So.3d 323, 328 (Ala.2014) (quoting Southern Ry. Co. v. Hall, 145 Ala. 224, 226, 41 So. 135, 136 (1906), quoting in turn 28 Am. & Eng. Ency. Law 238 (2d ed.)). See also Shannon v. Long, 180 Ala. 128, 137, 60 So. 273, 276 (1912) (same).

"What one may do personally in the matter of taking and holding possession of real estate for adverse possession purposes may be done by or through another. Thus, the requirement of actual possession of property necessary to acquire title by adverse possession need not be met by acts of the adverse claimant but may be met through acts of another, who actually possesses and occupies the land for, and in subordination to, the adverse cla

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