Ross v. Clark Prop. Mgmt., LLC

• Decision Date: 12 March 2021
• Docket Number: 2190916
• Citation: 345 So.3d 671
• Parties: Howard ROSS and Mary Dunne v. CLARK PROPERTY MANAGEMENT, LLC
• Court: Alabama Court of Civil Appeals

345 So.3d 671

Howard ROSS and Mary Dunne

v.CLARK PROPERTY MANAGEMENT, LLC

2190916

Court of Civil Appeals of Alabama.

March 12, 2021

Rehearing Denied April 30, 2021

Certiorari Denied July 9, 2021

Alabama Supreme Court 1200577

Howard Ross, appellant, pro se.

Mary Dunne, appellant, pro se.

Jason P. Bailey, Tuscaloosa, for appellee.

THOMPSON, Presiding Judge.

Howard Ross and Mary Dunne appeal a judgment entered by the Madison Circuit Court ("the trial court") quieting title to certain real property in Clark Property Management, LLC ("Clark Property"). We dismiss the appeal insofar as it is asserted on behalf of Dunne and affirm the trial court's judgment.

Facts and Procedural History

In 2003, Ross purchased a several-acre parcel of undeveloped land in Huntsville ("the property") at a tax sale and received a tax-sale certificate. In 2007, Ross received a tax deed for the property. In 2008, Dunne purchased the property at a tax sale and received a tax-sale certificate. In 2009, the State acquired the property at a tax sale and Robert Clark, who by profession purchases tax-sale properties, subsequently purchased the tax-sale certificate for the property. On June 25, 2016, Clark was issued a tax deed for the property, and on June 29, 2016, Clark, the sole member and manager of Clark Property, transferred the property to Clark Property.

On February 14, 2019, Clark Property filed a complaint in the trial court to quiet title to the property. Ross and Dunne, as interested parties, answered, denying that the State had acquired title to the property in 2009, that Clark had acquired title to the property in 2016, that Clark Property or its predecessor in title has been in actual peaceable possession of the property since 2009, that Clark Property's title is superior to their claims to the property, and that Clark Property or its predecessor in title has possessed the property against all other claims of right for more than three years. Neither Ross nor Dunn sought to redeem the property.

On May 26, 2020, the trial court conducted a trial. Clark Property appeared with counsel; Ross appeared pro se; Dunne appeared pro se, but because of Dunne's health issues and her fear of catching COVID-19, the trial court did not require her to attend in person. The only issue presented to the trial court for determination was whether Clark Property had adversely possessed the property for the requisite three-year period so as to cut off any redemption rights Ross or Dunne possessed. At trial, Clark testified that he and Clark Property had exercised possession, ownership, and dominion over the property, valued at $34,100, by mowing or having mowed the property every other week for 9 months of each year since 2011 at a cost of $4,050 per year; that he and Clark Property had paid the property taxes ($337.56 per year) on the property every year since 2010; that he and Clark Property had removed storm debris from the property in 2011, 2012, and 2019; that he had discussed with entities opportunities for developing the property; that he had discussed the property's zoning with the City of Huntsville; and that he or Clark Property has been in possession of the property since 2009. Clark further testified that he had not received a demand for lawful charges or redemption from Ross, Dunne, or any other person or entity. On cross-examination, Clark admitted that he had not used the property for "personal purposes."

Ross testified that the property appeared to him to be a vacant lot, stating: "There was nothing I saw that would indicate someone was using it or there was any particular ownership of the property." He admitted that since 2008 he had not paid the taxes on the property, had not mowed the grass or removed debris on the property, had not sought to develop the property, and had not done anything to exercise any sort of dominion or control over the property.

The trial court admitted into evidence the relevant deeds to the property as well as a photograph of the property. The property, which appears to consist of 2.25 acres, is bordered on two sides by streets, on one side by several homes in a neighboring subdivision, and on one side by another vacant lot. The property is undeveloped and contains three or four clumps of trees surrounded by grass. From a map of the general area submitted by Clark Property and admitted into evidence, there appear to be several vacant lots in the area.

On June 3, 2020, the trial court, after considering the ore tenus testimony of the witnesses and the other evidence, entered a judgment finding that Clark Property had adversely possessed the property and quieting title in Clark Property. In its judgment, the trial court found that, in 2009, the property had been sold to the State pursuant to a tax sale; that Clark Property's interest in the property arises from the State's interest in the property; that, in 2016, Clark Property became the owner of the property via a warranty deed issued by Clark; that Ross's interest in the property is pursuant to a 2007 tax deed; that Dunne's interest in the property is pursuant to a 2008 tax-sale certificate; and that, since 2009, Clark Property or its predecessor in title has adversely possessed the property. In light of its findings, the trial court held that Clark Property is vested with all right, title, and interest in the property and that any other party is divested of any right, title, or interest in the property.

On July 2, 2020, Ross and Dunne each filed, pursuant to Rule 59, Ala. R. Civ. P., a "motion to vacate judgment and grant new trial," arguing that Clark Property is not entitled to clear title to the property because it did not present sufficient evidence of adverse possession of the property for at least three years. On July 16, 2020, the trial court denied Ross's motion and issued an amended judgment, clarifying that Dunne had not been "physically" present in the courtroom because of the COVID-19 pandemic. Dunne's motion was denied by operation of law on September 30, 2020. See Rule 59.1, Ala. R. Civ. P.

On August 25, 2020, Ross and Dunne filed a joint notice of appeal to the Alabama Supreme Court,¹ and on November 3, 2020, that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

" ‘Where ore tenus evidence is presented to the trial court, a presumption of correctness exists as to the court's findings of fact. This presumption is especially applicable in cases involving claims of adverse possession, because the evidence in such cases is usually difficult to assess from the vantage point of the appellate court. Unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence, the trial court's determination of fact will not be disturbed. Gaston v. Ames, 514 So. 2d 877, 878 (Ala. 1987). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Gaston, supra. ’

" Brackin v. King, 585 So. 2d 37, 40 (Ala. 1991) (some citations omitted). Also, as the supreme court stated in Thomas v. Davis, 410 So. 2d 889 (Ala. 1982) :

" ‘[T]he trier of fact, the trial court without a jury, unlike an appellate court later reviewing the matter from a written record, occupies a position of peculiar advantage enabling it to see and hear firsthand the evidence as it is presented. From that vantage point the trier of fact can observe the demeanor of the witnesses, listen to the inflections and intonations of their voices during oral testimony, and study their eyes, facial expressions, and gestures -- all of these sensory perceptions which play a critical role in the factfinder's determination of which witnesses are to be afforded credibility when conflicting testimony is given. Consequently, this court will rarely disturb the judgment of the trial court in a boundary line dispute or adverse possession case which turns on issues of disputed facts.’ " Id. at 892."

Kennedy v. Conner, 291 So. 3d 867, 876 (Ala. Civ. App. 2019).

Analysis

A pro se litigant may represent only himself or herself before a trial court or an appellate court. See § 34-3-6(a), Ala. Code 1975. Ross and Dunne appear pro se before this court. Ross and Dunne executed and filed a joint notice of appeal. On May 30, 2020, Ross, acting pro se and in compliance with Rule 31, Ala. R. App. P, filed an appellant's brief with the clerk of this court. Dunne, however, did not file an appellant's brief in compliance with Rule 31. Because Ross cannot represent Dunne and Dunne did not file a brief with this court in compliance with Rule 31, the appeal insofar as it is asserted on behalf of Dunne, is dismissed. See Rule 2(A), Ala. R. App. P. (providing for dismissal of an appeal if the appellant fails to file a brief in compliance with Rule 31 ).

Ross contends on appeal that the trial court's finding that Clark Property or its predecessor had adversely possessed the property for more than three years is not supported by clear and convincing evidence. Specifically, he argues that the evidence of adverse possession is insufficient because the evidence indicates that Clark Property and its predecessor mowed the grass only to avoid liens by the City of Huntsville but did not use the property personally. Accordingly, he reasons that, because Clark Property did not present evidence of "the posting of signs, erection of fences, staking or surveying of the boundaries, making of improvements, bailing of hay, cultivation, or pasturing of livestock," the evidence of adverse possession of the property by Clark Property and its predecessor is not clear and convincing.

A party claiming adverse possession must prove by clear and convincing evidence that there was " ‘hostile possession of the land under a claim of right that was actual, exclusive, open, notorious and continuous’ " for the required period. Kennedy, 291 So. 3d at 876 (quoting Cambron v. Kirkland, 287 Ala. 531,...