Hopson v. State, 2180157

292 So.3d 389

Betty HOPSON

v.STATE of Alabama

2180157

Court of Civil Appeals of Alabama.

June 21, 2019

Margaret Y. Brown, Auburn, for appellant.

Submitted on appellant’s brief only.

EDWARDS, Judge.

Betty Hopson ("Betty") appeals from a judgment entered by the Lee Circuit Court ("the trial court") ordering the forfeiture of a 2002 Chevrolet Tahoe sport-utility vehicle ("the Tahoe") that the Opelika Police Department ("the OPD") seized from the possession of Betty's 33-year-old grandson, Bryan Patrick Hopson ("Bryan").

On September 16, 2015, after the OPD received information that Bryan allegedly was selling methamphetamine from the Tahoe, an officer from the OPD stopped Bryan for changing lanes without using a signal. Thereafter, Bryan consented to a search of the Tahoe. That search allegedly revealed

"a white sock hidden inside a McDonald's [fast-food restaurant] bag in the front passenger floorboard. The sock contained a black digital scale, a plastic bag with numerous small plastic baggies, a plastic bag containing suspected methamphetamine and [a] black plastic bag which contained two plastic bags of suspected methamphetamine and loose pieces of suspected methamphetamine."

On September 22, 2015, the State filed a complaint for forfeiture of the Tahoe ("the forfeiture action"); Bryan, who allegedly had title to the Tahoe, was served with a copy of the complaint. In the complaint, the State alleged that the Tahoe had been used to transport a controlled substance, that the State had possession of the Tahoe, and that, pursuant to Ala. Code 1975, § 20-2-93, the State was entitled to have the Tahoe forfeited to it. The State also pursued criminal charges against Bryan.

On August 10, 2016, before a grand jury considered the proposed criminal charges against Bryan, Bryan informed the trial court that someone else allegedly owned the Tahoe. On August 10, 2016, the trial court entered an order in the forfeiture action requiring Bryan to "provide the State with any title information he has" and requiring the State to "amend its pleadings to include any necessary parties." The record does not reflect that Bryan provided any information to the State in response to the August 2016 order.

The forfeiture action was delayed pending resolution of the criminal charges against Bryan. On June 16, 2017, Bryan entered a guilty plea on those charges. Included in his guilty plea was a statement that he "agree[d] to forfeiture" of the Tahoe.

On July 21, 2017, the State filed a motion for a summary judgment in the forfeiture action. That motion stated, in pertinent part:

"The parties have reached a plea agreement in the companion criminal matter, CC 2016-738. Through this plea, [Bryan] acknowledges that the [Tahoe] is due to be declared contraband and forfeited pursuant to Section 20-2-93, Code of Alabama (1975). See Guilty Plea attached as State's Exhibit 1."

The trial court entered an order granting the State's motion for a summary judgment on August 10, 2017.

Pursuant to Rule 59(e), Ala. R. Civ. P., Bryan filed a motion to alter, amend, or vacate the order granting the State's motion for a summary judgment.¹ He alleged that the Tahoe was owned by Betty, who had not been made a party to the State's forfeiture action or served with process, that Bryan had not contributed financially to the purchase of the Tahoe, and that the Tahoe, "titled in [Betty's] name, was purchased by her from provable funds withdrawn from her bank for the purpose of purchase of the [Tahoe] and [Betty] had no knowledge that Bryan ... [was] in possession of drugs while in the [Tahoe]."² The motion continues:

"4. That the motion for summary judgment was filed and ruled on prior to setting of any hearing. That there is no order other than an order granting summary judgment which order is not clear as being dispositive of the ownership of the [Tahoe] at this time.

"5. That ... Betty ... is still the owner of the [Tahoe] as [Bryan] could not agree to extinguish or relinquish her interest. Therefore, it appears that the State's motion for summary judgment, while due to be granted as to [Bryan], is not dispositive of the case as to any final forfeiture of the [Tahoe]."

Bryan requested that the summary judgment be vacated and that Betty be served with process before any hearing on the State's motion for a summary judgment.

The trial court set Bryan's motion for a hearing, and, after that hearing, it entered an order on October 26, 2017, vacating its summary judgment. The trial court then set the State's forfeiture action for trial. Thereafter, Bryan filed a motion to add Betty as a necessary party to the forfeiture action, and the trial court entered an order granting that motion.

On August 21, 2018, Betty filed an answer alleging that she had purchased the Tahoe with her own funds, that the Tahoe was titled "briefly in the name of Bryan," that she had title to and was entitled to possession of the Tahoe, and that she had had no knowledge that Bryan was in possession of drugs in the Tahoe. After ore tenus proceedings, the trial court entered an order on September 27, 2018, making the following findings:

"It is undisputed that Bryan ... was driving the [Tahoe] and was stopped by the police. The police searched the [Tahoe] and found two plastic bags containing methamphetamine, in a sock in a McDonald's [fast-food restaurant] bag, in the passenger floorboard. [Bryan] was arrested for unlawful possession with intent to distribute a controlled substance. He was ultimately indicted for, and pleaded guilty to, unlawful possession of a controlled substance. He consented to forfeiture of the [Tahoe].

"There was considerable evidence presented as to whether [Bryan] or [Betty] owned the [Tahoe]. That evidence indicates that [Betty] inherited some money and gave each of her sons $10,000. She testified that she wanted to provide a similar gift to Bryan ... and that, instead of giving him $10,000[,] she bought the [Tahoe] with $7,500 of her funds. On August 17, 2015[,] title was issued to Bryan .... That title indicates that he purchased the vehicle on August 4, 2015. The tag receipt in Bryan['s] ... name reflects the same date. [Betty] testified that Bryan had the Tahoe for about a month prior to the subject arrest, which occurred on September 16, 2015.

"[Betty] testified that Bryan was supposed to pay the insurance premium on the [Tahoe] and that, when he did not, she took it back. She testified, in fact, that she took it back ‘a couple times’ when Bryan demonstrated that in her opinion he was not acting in a responsible manner.

"This led to admission of a ‘Bill of Sale’ dated September 3, 2015, from Bryan to [Betty]. [Bryan and Betty] admit there was no consideration paid for the [Tahoe]. The bill of sale reflects that it was not notarized until September 21, 2015 (and then incorrectly, notarizing only Bryan's signature twice). Obviously, the bill of sale predated Bryan's arrest and the [Tahoe]'s seizure, and the notarization occurred subsequent thereto. Also admitted was [Betty's] application for a certificate of title dated October 19, 2015.

"In addition to the aforementioned discrepancies, [Betty]'s testimony to the effect that ‘all he had to do was keep up expenses, but he didn't’ and that she took back the vehicle because of it, is belied by the fact that Bryan was in fact in possession of and driving the [Tahoe] when arrested due to the drugs in the floorboard. The evidence indicates that Bryan owned the [Tahoe] at the time of his arrest.

"Applying the burden of proof, the evidence presented, the language of the applicable statute and intent of it, the Court finds the State has met its burden of proof."

The September 2018 order further stated that the State was to submit a proposed order reflecting the forfeiture of the Tahoe to the State.

The State submitted a proposed order, and, on November 5, 2018, the trial court entered an "Order Disposing of Property." That judgment states that the Tahoe was "forfeited from the owner, Bryan ..., to the State of Alabama" and, tracking the request for relief from the State's complaint, that the Tahoe was to

"be used by the [OPD] for enforcement of the law pursuant to the provisions of [§] 20-2-93, Code of Alabama, 1975. If [the Tahoe] is sold, then such monetary proceeds are to be provided to the Clerk of Lee County Court who will disperse seventy-percent (70%) to the [OPD] Seizure Fund, twenty-percent (20%) to the Lee County District Attorney's Fund, and ten-percent (10%) to the Alabama Department of Forensic Sciences, Auburn Laboratory."

On November 8, 2018, Betty filed a notice of appeal to this court.

Betty's limited argument essentially is that the trial court's determination that Bryan owned the Tahoe at the time of his arrest and the seizure of that vehicle on September 16, 2015, is erroneous. According to Betty, the trial court should have concluded that she was the owner of the Tahoe, or a bona fide lienholder regarding the Tahoe, for purposes of the defense provided to owners and bona fide lienholders under Ala. Code 1975, § 20-2-93(h).³ Betty does not argue that the trial court lacked evidence to support its conclusion that Bryan was the owner of the Tahoe when that vehicle was seized. Indeed the evidence clearly supports that conclusion.

Bryan testified that Betty offered to buy him the Tahoe, that she was in attendance for the purchase of the Tahoe, and that she was aware that he took title to the Tahoe at the time of its purchase. See Ala. Code 1975, § 32–8–39(d) ("A certificate of title issued by the [Department of Revenue] is prima facie evidence of the facts appearing on it."). It is undisputed that Bryan was the owner of the Tahoe at least until September 3, 2015, the date on the bill of sale from Bryan to Betty.⁴ Bryan further admitted that Betty did not take the Tahoe from him after he purportedly transferred it back to her pursuant to the bill of sale, and it is undisputed that Bryan was in possession of, and exercising dominion and...