Poulin v. Norwood

• Citation: 143 So.3d 818
• Decision Date: 31 December 2013
• Docket Number: 2120041.
• Parties: Fred POULIN v. Howard J. NORWOOD, Jr.
• Court: Alabama Court of Civil Appeals

143 So.3d 818

Fred POULIN

v.Howard J. NORWOOD, Jr.

2120041.

Court of Civil Appeals of Alabama.

Dec. 31, 2013.

Andrew Laplante, Bessemer, for appellant.

Robert L. Austin, Hoover, for appellee.

DONALDSON, Judge.

Fred Poulin appeals from a final judgment of the Jefferson Circuit Court assessing damages against him in favor of Howard J. Norwood, Jr. (“Norwood”), in the amount of $2,040 for unlawful possession of real property and ruling against him on his counterclaim for damages against Norwood. We affirm the judgment in favor of Norwood on Poulin's counterclaim, reverse the judgment in favor of Norwood on his claim against Poulin, and remand the cause with instructions.

Facts and Procedural History

The parties stipulated to the facts of the case; the following facts are pertinent. Brenda J. Snider, Poulin's wife, died on or about May 11, 2010. Her will was admitted to probate. In the will, she named her son Dudley Hunley as the personal representative of her estate and as the beneficiary of most of her assets. At the time of her death, Snider owned certain real property (“the property”) located in Birmingham. The property was titled in her name alone. Before Snider's death, Snider and Poulin had resided on the property together. Although Poulin was not a record title holder of the property, it is undisputed that he had a right to remain in possession of the property as Snider's surviving spouse, pursuant to § 43–8–114, Ala.Code 1975:

“The spouse may retain possession of the dwelling house where the surviving spouse resided with the decedent, with the offices and buildings appurtenant thereto and the plantation connected therewith until homestead is assigned, free from the payment of rent. The obligation to pay rent, if any, on the dwelling shall be an obligation of the decedent's estate.”

It is undisputed that the property falls within the purview of this section.

Hunley, as the personal representative of Snider's estate, executed a real-estate contract on or about November 24, 2010, agreeing to sell the property to Norwood, Snider's brother and Hunley's uncle. Although Poulin was not a party to the contract, it is undisputed that he signed the second page of the contract in the following manner:

“Approved by:

“/s/ Fredrick C. Poulin

“Fred Poulin.”

Poulin claims that he was told by Norwood and Hunley, before and after he signed the contract, that he had to vacate the property. Norwood denied telling Poulin that he had to vacate the property before the execution of the contract.

Hunley, as the personal representative of Snider's estate, executed a deed dated December 20, 2010, conveying the property to Norwood. Poulin refused to sign the deed and, at least initially, refused to vacate the property. Poulin claims that he received threats to vacate the property “or else.” Poulin did not specify who made any alleged threats. Norwood denied threatening Poulin or knowing of any threats made to him.

Poulin continued to reside on the property after Snider's death and after the conveyance of the property to Norwood. On February 3, 2011, Norwood sued Poulin seeking an order removing Poulin from the property and a judgment for damages against him for wrongful possession of the property. Norwood claimed that Poulin had signed the real-estate contract, indicating that he approved of the sale of the property, and that he had orally agreed to vacate the property before closing the sale of the property. Norwood sought damages of $40 for each day Poulin remained on the property following the sale to Norwood. Poulin filed an answer denying the allegations of the complaint and asserting his right to possession of the property pursuant to § 43–8–114. On or about March 11, 2011, however, while Norwood's suit was pending, Poulin vacated the property and delivered the keys to the house on the property to Norwood. Several months later, on August 8, 2011, Poulin filed a counterclaim against Norwood asserting the following claims for damages:

“[Poulin] would show that his possession [of the property] has been interfered with by [Norwood] or persons acting as agent of or on behalf of [Norwood].

“....

“[Poulin] would show that [Norwood]'s actions in filing the above lawsuit against [Poulin] herein constitute an abuse of process, malicious prosecution and were designed to harass and force [Poulin] out of property to which he was legally entitled to possess[ion] of.

“[Poulin] would show that because of the harassment of [Norwood] and/or persons acting on his behalf, [Poulin] gave up physical possession of the property to which he was legally entitled to possession of and has been caused to suffer damages in that he does not have possession of the real estate he is legally entitled to possession of and has been forced to pay rent when otherwise he could be in possession of the real estate without having an obligation to pay rent.”

The parties participated in a pretrial conference and ultimately agreed to stipulate to all the material facts relevant to the litigation. On August 27, 2012, the trial court entered a judgment adopting the following stipulated facts, among others:

“25. The Real Estate Sales Contract states in part as follows:

“ ‘A Possession is to be given on delivery of deed if property is then vacant; otherwise possession shall be delivered thirty days after closing.’

“26. Thirty days after December 20, 2010 is January 19, 2011.

“27. The number of days between March 11, 2011 when [Norwood] states [Poulin] turned over the keys to the property to [Norwood] and January 19, 2011 is 51 days.

“28. 51 multiplied by the $40.00 per day [Norwood] seeks damages for the wrongfully possession [sic] of the property by [Poulin] amounts to $2,040.00.

“29. The number of days between March 11, 2011, when [Norwood] states [Poulin] turned over the keys to the property to [Norwood] and April 30, 2012, the date this case was called for hearing is 415 days and is the number of days that [Poulin] contends he lost the use and occupancy of the property due to being forced out of the property.

“30. 415 multiplied by the $40.00 per day [Norwood] contends the rental value of the property was worth amounts to $16,600.00 which is the lost value to [Poulin] by being forced out of the property.

“31. [Poulin] pays $350.00 per month rent for his current residence.

“32. The number of months between March 11, 2011, when [Norwood] states [Poulin] turned over the keys to the property to [Norwood] and April 30, 2012, the date this case was called for hearing is 13 1/2 months.

“33. 13 [1/2] months multiplied by $350.00 amounts to $4,725.00 in rent [Poulin] contends that he was required to pay, which he should not have had to pay, because he was forced out of the marital home place.

“34. In addition, [Poulin] contends that he is entitled to compensation for the harassment, abuse of prosecution and malicious prosecution that he has endured due to [Norwood's] bringing this case against him and the threats against him.

“35. [Norwood] contends, among other things, that [Poulin]'s signing of the Real Estate Sales Contract constitutes a waiver of [Poulin]'s rights under [§] 43–8–114[, Ala.Code 1975].

“36. [Poulin] contends that his agreement to a sale of the property, as reflected in the contract, does not constitute a waiver of his rights under [§] 43–8–114[, Ala.Code 1975,] and that he was still entitled to possession of subject property.

“37. The probate estate of Brenda J. Snider, deceased is still pending.

“38. There is presently pending in said probate case, a Petition to Set Aside Family Allowance During Administration and a Petition to Set Aside Homestead Allowance and Exempt Property During Administration which have been filed by [Poulin] and have yet to be ruled upon by the probate court.”

Based on the stipulations, the trial court entered the following judgment finding in favor of Norwood and against Poulin:

“Based upon the pleadings and the ... stipulated facts, it is hereby Ordered, Adjudged and Decreed as follows:

“Judgment in the amount of Two Thousand forty & no/100 Dollars ($2,040.00) is entered in favor of the Plaintiff [Norwood] and against the Defendant [Poulin] for which let execution issue. Costs of this action are hereby taxed against the Defendant [Poulin].”

Poulin filed a timely appeal to this court on October 9, 2012. After reviewing the judgment, we determined that it was not sufficient to support an appeal because it did not expressly adjudicate Poulin's counterclaim for damages against Norwood. See Sanders v. Campbell, 123 So.3d 531 (Ala.Civ.App.2013) (ordinarily, a final judgment capable of supporting an appeal must adjudicate all pending claims). We reinvested the trial court with jurisdiction to consider whether it wished to address Poulin's counterclaim. An amended order was entered by the trial court expressly finding in favor of Norwood on Poulin's counterclaim. Therefore, the judgment is now final for purposes of an appeal. This court has appellate jurisdiction of the case under § 12–3–10, Ala.Code 1975.

The central issue presented for review on appeal is succinctly stated in the stipulations of the parties:

“35. [Norwood] contends, among other things, that [Poulin]'s signing of the Real Estate Sales Contract constitutes a waiver of [Poulin]'s rights under [§] 43–8–114[, Ala.Code 1975].

“36. [Poulin] contends that his agreement to a sale of the property, as reflected in the contract, does not constitute a waiver of his rights under [§] 43–8–114[, Ala.Code 1975,] and that he was still entitled to possession of subject property.”

Standard of Review

The facts were presented to the trial court by stipulation and through documentary evidence. No ore tenus testimony was taken.

“ ‘[W]hen the trial court hears no oral testimony, and the evidence presented to the trial court consists of stipulations, depositions, and exhibits, the ore tenus rule does not apply.’ Holy Family Catholic School v. Boley, 847 So.2d 371, 374 (Ala.Civ.App...