Opinion
2100222.
2012-04-6
Daniel Lawrence EDWARDS and Earl Parker v. Melester FORD, Karen Rene Ford, and Melesian A. Ford Allen.
John W. Kelly III of Kelly & Kelly, Selma; Charles H. Sims III, Selma; and Marvin H. Campbell, Montgomery, for appellants. Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, L.L.C., Selma, for appellees.
Alabama Supreme Court 1110509.
John W. Kelly III of Kelly & Kelly, Selma; Charles H. Sims III, Selma; and Marvin H. Campbell, Montgomery, for appellants. Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, L.L.C., Selma, for appellees.
BRYAN, Judge.
Daniel Lawrence Edwards and Earl Parker appeal from a judgment establishing the location of a boundary line. We dismiss the appeal with respect to Parker and affirm the judgment of the trial court.
Edwards owns a parcel of land that is coterminous with parcels owned by Melester Ford (“Melester”) and Melesian A. Ford Allen (“Melesian”). Edwards's parcel, which is in Section 17 in Perry County, lies immediately south of Melester's and Melesian's parcels, which are in Section 8 in Perry County. Edwards, Melester, and Melesian agree that a segment of the section line separating Section 17 from Section 8 (“the section line”) constitutes their common boundary line; however, they disagree regarding the location of the section line. Edwards contends that the section line is located north of a gravel road that runs generally east and west (“the gravel road”). Melester and Melesian contend that the section line is located south of the gravel road.
Karen Rene Ford (“Rene”) owns a parcel of land located in Section 8 that does not abut Edwards's parcel. Parker owns a parcel of land located in Perry County that is in the vicinity of the parcels owned by Edwards, Melester, Melesian, and Rene but does not abut any of them.
On October 30, 2001, Melester, Melesian, and Rene sued Edwards and Parker, alleging that Edwards and Parker had trespassed on their land and attempted to erect a fence on the parcels of Melester and Melesian. Their complaint stated (1) a claim seeking a judgment declaring the location of the boundary line separating Melester's and Melesian's parcels from Edwards's parcel and (2) a claim of trespass. Edwards and Parker answered the complaint with a general denial and asserted a counterclaim seeking an attorney fee pursuant to the Alabama Litigation Accountability Act (“the ALAA”), § 12–19–270 et seq., Ala.Code 1975.
The trial court, sitting without a jury, received evidence ore tenus on February 19 and July 7, 2004. On December 1, 2006, the trial court entered an order stating that the primary issue for determination was the location of the section line and appointing Glen McCord, a registered land surveyor, to determine the location of the section line. On March 5, 2008, the trial court entered an order stating that McCord had completed his survey, ordering the parties to obtain copies of the survey from McCord, ordering the parties to file any objections to McCord's survey on or before March 31, 2008, and scheduling a final hearing for April 9, 2008. McCord's survey depicted the section line as being located south of the gravel road.
When no objection to McCord's survey was filed in accordance with the trial court's March 5, 2008, order, the trial court, on November 3, 2008, entered an order stating:
“This matter has been before the Court pending completion of the court ordered survey and the same having been received by the parties and filed with the Court it is hereby ORDERED, ADJUDGED AND DECREED that the survey filed by Mr. Glen McCord is hereby adopted, approved, and incorporated in this order as the official boundary between the parties, their heirs, assignees and/or successors.”
On November 19, 2008, Edwards and Parker filed a motion to vacate the trial court's November 3, 2008, order. As grounds, Edwards and Parker asserted, among other things:
“1. That Glen McCord has not shown the parties where the property lines are on the ground which is necessary for the benefit of the parties.
“2. That the parties deserve a hearing in this matter and to have the right to take testimony from Glen McCord under oath relative to comparing his survey to the other surveys which have been done in this case.”
On November 24, 2008, Melester, Melesian, and Rene objected to Edwards and Parker's motion to vacate the trial court's November 3, 2008, order. On January 13, 2009, the parties jointly filed a pleading in which they expressly consented to extend the time for the trial court to rule on Edwards and Parker's motion to vacate the November 3, 2008, order until the trial court could hear the motion and enter an order ruling on it.
On October 13, 2010, the trial court held an evidentiary hearing regarding Edwards and Parker's motion to vacate the trial court's November 3, 2008, order. On October 25, 2010, the trial court entered an order stating:
“This matter came before the Court on [Edwards and Parker's] motion to set aside the November 3, 2008, order and, having considered the same, it is ORDERED, ADJUDGED AND DECREED said motion is denied and the boundaries established by the survey of Mr. Glen McCord shall be marked and set as the identifying lines.”
On November 29, 2010, Edwards and Parker appealed to the supreme court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975.
Initially, we note that the judgment of the trial court did not expressly rule on the trespass claim of Melester, Melesian, and Rene or the ALAA counterclaim of Edwards and Parker. We also note that Parker concedes in his brief to this court that he does not own an interest in any of the parcels of land affected by the trial court's determination regarding the location of the boundary line. Although the parties have not raised the issue whether this court has jurisdiction over the appeal, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ ” Stone v. Haley, 812 So.2d 1245, 1245–46 (Ala.Civ.App.2001) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997)).
The absence from the trial court's judgment of an express ruling regarding the trespass claim and the ALAA counterclaim raises an issue regarding this court's jurisdiction because, “[o]rdinarily, only a final judgment will support an appeal” and “[a]n order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is generally not final.” Stone, 812 So.2d at 1246. However, in Hingle v. Gann, 368 So.2d 22, 24 (Ala.1979), the supreme court treated a judgment that established a boundary line but did not expressly rule on the parties' trespass claims as impliedly denying those trespass claims. Accordingly, based on Hingle v. Gann, we treat the judgment of the trial court in the case now before us as having impliedly denied Melester, Melesian, and Rene's trespass claim. Moreover, Alabama courts have held that a trial court's entry of a judgment without specifically reserving jurisdiction over an ALAA claim constitutes an implied denial of that claim. See McGough v. G & A, Inc., 999 So.2d 898, 903 (Ala.Civ.App.2007). Therefore, in the case now before us, the absence of any mention of Edwards and Parker's ALAA counterclaim in the trial court's judgment constituted an implied denial of that counterclaim. Accordingly, we conclude that the judgment of the trial court is a final, appealable judgment.
Melester, Melesian, and Rene have not cross-appealed the implied denial of their trespass claim. Therefore, the propriety of that ruling is not before us.
Edwards and Parker have not argued that the trial court erred in impliedly denying their ALAA counterclaim. Therefore, they have waived that issue. 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.”).
However, Parker's concession that he does not own an interest in any of the parcels of land affected by the trial court's determination regarding the boundary line establishes that he was not aggrieved by that determination. A party that is not aggrieved by a trial court's judgment lacks standing to appeal from that judgment, and this court lacks jurisdiction over such an appeal. See Buco Bldg. Constructors, Inc. v. Mayer Elec. Supply Co., 960 So.2d 707, 711–12 (Ala.Civ.App.2006). Accordingly, we conclude that, because Parker was not aggrieved by the trial court's determination regarding the boundary line, we lack jurisdiction over the appeal insofar as he purports to appeal that determination, and, therefore, we dismiss the appeal with respect to Parker.
We will now consider Edwards's argument that the trial court erred in determining the boundary line. In Todd v. Owens, 592 So.2d 534, 535 (Ala.1991), the supreme court stated the applicable standard of review:
“ ‘ “[A] judgment establishing a boundary line between coterminous landowners on evidence submitted ore tenus is presumed to be correct and need only be supported by credible evidence. If so supported, the trial court's conclusions will not be disturbed on appeal unless plainly erroneous or manifestly unjust.” Tidwell v. Strickler, 457 So.2d 365, 367 (Ala.1984) (citations omitted).’
“Garringer v. Wingard, 585 So.2d 898, 899 (Ala.1991). The presumption of correctness is especially strong in boundary line dispute cases because it is difficult for the appellate court to review the evidence in such cases. Bearden v. Ellison, 560 So.2d 1042 (Ala.1990).”
Edwards argues that the judgment of the trial court establishing the boundary line where it is located on McCord's survey is not supported by credible evidence and is plainly and palpably erroneous.
During the ore tenus proceeding in 2004, the parties introduced a number of surveys and maps prepared over the years by registered land surveyors. Some of the surveys and maps do not depict the gravel road and, therefore, shed no light on the issue whether the section line is located north or south of the gravel road. Some of the surveys and maps depict the section line as being located north of the gravel road, while others depict the section line as being located south of the gravel road. There was testimony indicating that some of the landmarks used by some of the earlier surveyors in locating the section line have been removed. Presumably because the surveys that had been introduced into evidence during the 2004 ore tenus proceeding were in conflict regarding the location of the section line, the trial court appointed McCord to prepare a survey. The McCord survey depicted the section line as being located south of the road and thus supported Melester and Melesian's contention regarding the location of the section line. Although Edwards contends on appeal that his questioning of McCord at the October 13, 2010, hearing indicates that McCord's survey was not reliable, whether McCord's survey is reliable is a question of fact. In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses. Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994). McCord testified that his survey was accurate and reliable. Consequently, the trial court, as the sole judge of the facts and of the credibility of the witnesses, could have, and presumably did, find that McCord's testimony that his survey was accurate and reliable was credible, and this court cannot substitute its judgment for that of the trial court in that regard. See Gladden v. Gladden, 942 So.2d 362, 369 (Ala.Civ.App.2005).
Given the surveys supporting the trial court's judgment, including the McCord survey itself, we cannot hold that the trial court's determination regarding the location of the boundary line is either unsupported by credible evidence or plainly erroneous and manifestly unjust. Accordingly, we affirm the judgment of the trial court.
APPEAL DISMISSED AS TO EARL PARKER; AFFIRMED. PITTMAN and MOORE, JJ., concur.
THOMPSON, P.J., and THOMAS, J., concur in the result, without writings.
On Application for Rehearing
BRYAN, Judge.
At trial, the parties referred to a judgment the Perry Circuit Court had entered in 1996 in a civil action docketed by that court as Eugene Darden v. Eva Smith Edwards, CV–95–15 (“the Darden case”). The judgment entered in the Darden case (“the Darden judgment”) had determined the location of a segment of the section line that was different from the one at issue in the present case. Neither Melester Ford nor Melesian A. Ford Allen were parties to the Darden case.
In his initial brief to this court, Daniel Lawrence Edwards stated:
“Previously an adjacent segment of this section line was adjudicated in Eugene Darden, et al., v. Eva Smith Edwards, et al., Case Number CV–95–15, in the Circuit Court of Perry County, Alabama, and that segment of the section line was established by order of the Circuit Court of Perry County dated September 25, 1996.5 It was done without prejudice to persons not parties to that case, and does not apply to the 705.47 foot segment of the line which is the boundary between Ford and Edwards.
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FN“ 5 The Court judgment and order in the Darden case were not admitted into evidence in the instant case but the order was discussed during examination of witnesses, and the trial court did look at the order and was aware of it. However, the surveys attached to the order were admitted into evidence.”Edwards's initial brief at pp. 10–11 (emphasis added). Edwards did not argue in his initial brief that the trial court had erred on the ground that it was bound by the judgment in the Darden case and had entered a judgment that was inconsistent with it. However, in his reply brief to this court, Edwards did make that argument for the first time. On application for rehearing, Edwards argues that we erroneously failed to address that argument in our opinion on original submission. However, “[i]t is a well-established principle of appellate review that we will not consider an issue not raised in an appellant's initial brief, but raised only in the reply brief.” Lloyd Noland Hosp. v. Durham, 906 So.2d 157, 173 (Ala.2005). Therefore, Edwards's first argument on application for rehearing has no merit.
Edwards's second argument on application for rehearing is that this court should have applied the de novo standard of review to his argument that the trial court erred on the ground that it was bound by the judgment in the Darden case and had entered a judgment inconsistent with it. However, Edwards's second argument has no merit because it erroneously presupposes that we could consider an argument he raised for the first time in his reply brief.
Finally, Edwards cites Walters v. Commons, 2 Port. 38 (Ala.1835), as additional authority for a subargument he made on original submission. On original submission, he argued that the trial court's judgment was unsupported by the evidence because, he said, he proved that Glen McCord's survey is inaccurate and unreliable. One of the subarguments he made in support of that argument was (1) that, because the parties agreed that a segment of the section line separating Section 8 from Section 17 in Perry County constituted their common boundary line, the boundary line is a segment of a straight line running east and west between two points that constitute the pertinent corners of those two sections as established by the original survey performed by the United States and (2) that McCord's survey is inaccurate and unreliable because, Edwards says, it does not depict the section line separating Sections 8 and 17 as a straight line running between the pertinent corners of those two sections as established by the original survey performed by the United States. Walters supports the proposition that the section corners of Sections 8 and 17 were definitively established by the original survey performed by the United States and cannot be altered.
However, our original decision is consistent with Walters. We rejected Edwards's subargument on original submission because, as we will explain below, there was evidence before the trial court from which it could have found that McCord's survey depicts the section line separating Sections 8 and 17 as a straight line running east and west between the pertinent section corners as established by the original United States survey.
Because Section 17 is immediately south of Section 8, Section 17 and Section 8 share a common boundary line, which is a section line. The eastern terminus of the section line is a point that constitutes both the southeast corner of Section 8 and the northeast corner of Section 17. The western terminus of the section line is a point that constitutes both the southwest corner of Section 8 and the northwest corner of Section 17. McCord's survey depicts the eastern terminus of the section line as a monument he describes as an automobile camshaft in the south bank of a creek that is locally accepted as marking the southeast corner of Section 8. His survey depicts the western terminus of the section line as a monument he describes as a flat iron that is locally accepted as marking the southwest corner of Section 8. His survey depicts the section line as a straight line running from the automobile camshaft to the flat iron on a bearing of South 87 degrees, 4 minutes, 18 seconds West.
Edwards relies on two surveys, one that was prepared for him by a licensed surveyor named Robert H. McMillan and a second one that was prepared for him by a licensed surveyor named Mitchell P. Hayden. McMillan's survey depicts the eastern terminus of the section line as a monument that he describes as a camshaft in the southerly bank of a ditch that is locally accepted as marking the northeast corner of Section 17. As noted above, the northeast corner of Section 17 is a point that also constitutes the southeast corner of Section 8. Thus, McCord's and McMillan's survey both depict a camshaft as the landmark marking the point that constitutes both the southeast corner of Section 8 and the northeast corner of Section 17. Moreover, both McCord's and McMillan's surveys depict that camshaft as the eastern terminus of the section line. McMillan's survey depicts the western terminus of the section line as a monument that he describes as a flat bar that is locally accepted as marking the northwest corner of Section 17. As noted above, the northwest corner of Section 17 is a point that also constitutes the southwest corner of Section 8. Thus, both McCord's and McMillan's surveys depict a flat iron or bar as the landmark marking the point that constitutes both the southwest corner of Section 8 and the northwest corner of Section 17. Moreover, both McCord's and McMillan's surveys depict that flat bar or iron as the western terminus of the section line.
Hayden's survey depicts the eastern terminus of the section line as a monument that he describes as a camshaft accepted as the southeast corner of Section 8. Hayden's survey depicts the western terminus of the section line as a one-inch flat bar accepted as the southwest corner of Section 8. Moreover, Hayden testified that, by using global-positioning-satellite technology, he had verified that the camshaft accurately marked the location of the southeast corner of Section 8 as established by the original survey performed by the United States and that the one-inch flat bar accurately marked the location of the southwest corner of Section 8 as established by the original survey performed by the United States. Hayden also testified that his survey, McMillan's survey, and McCord's survey all depicted the same camshaft as the eastern terminus of the section line and that his survey, McMillan's survey, and McCord's survey all depicted the same flat bar as the western terminus of the section line.
McCord's survey depicts the section line as a straight line running from the camshaft to the flat bar and depicts the gravel road as being located north of the section line. McMillan's and Hayden's surveys depict the section line as a straight line running from the camshaft to the flat bar and depict the gravel road as being located south of the section line.
In this case, the trial court made no specific findings of fact in its judgment.
“[W]hen a trial court makes no specific findings of fact, ‘this Court will assume that the trial judge made those findings necessary to support the judgment.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Under the ore tenus rule, ‘ “appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court's decision is supported by reasonable inferences to be drawn from the evidence.” ’ Yates v. El Bethel Primitive Baptist Church, 847 So.2d 331, 345 (Ala.2002) (quoting Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996)).”
New Props., L.L.C. v. Stewart, 905 So.2d 797, 799 (Ala.2004).
The evidence described above would support findings by the trial court that McCord's, McMillan's, and Hayden's surveys all depicted the same landmarks as marking the eastern and western termini of the section line and that the location of those landmarks coincided with the location of the pertinent section corners established by the original survey performed by the United States. Moreover, the evidence described above would support a finding that McCord's survey depicted the section line as a straight line running between those section corners. Furthermore, the trial court, as the finder of fact, was authorized to resolve the conflict between McCord's survey, on the one hand, and McMillan's and Hayden's surveys, on the other, regarding the location of the gravel road in relation to the section line by finding that McCord's depiction of the gravel road as being located north of the section line was accurate and that McMillan's and Hayden's depictions of the gravel road as being located south of the section line were inaccurate. See Woods v. Woods, 653 So.2d 312, 314 (Ala.Civ.App.1994) (“In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of witnesses, and the trial court should accept only that testimony it considers to be worthy of belief.”); Born v. Clark, 662 So.2d 669, 672 (Ala.1995) (“When a trial court, sitting without a jury, hears ore tenus evidence and determines disputed questions of fact, whether those questions come into dispute orally or by the written word, we must apply the ore tenus rule of review, and, under this rule, we must indulge all reasonable presumptions in favor of the trial court's findings.”); accord Yeager v. Lucy, 998 So.2d 460, 463 (Ala.2008) (“ ‘The [ore tenus] rule applies to “disputed issues of fact,” whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.’ ” (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000))). Because (1) the findings described above would support the trial court's determination that McCord's survey accurately depicted the location of the section line and the segment of the section line that constituted the boundary line separating Edwards's parcel from Melester's and Melesian's parcels and (2) the trial court made no specific findings, we must assume that the trial court made those findings. See New Properties.
Based on the analysis described above, we concluded on original submission that there is no merit to Edwards's subargument that the trial court's judgment is not supported by the evidence on the ground that McCord's survey does not depict the section line separating Sections 8 and 17 as a straight line running between the pertinent section corners established by the original survey performed by the United States. The analysis described above also indicates that the trial court's judgment is consistent with Walters. Therefore, Edwards's citation of Walters does not warrant granting his application for rehearing.
Accordingly, we overrule Edwards's application for rehearing.
APPLICATION OVERRULED.