Newman v. Skypark Properties, LLC

266 So.3d 724

Joel NEWMAN and Brenda Newman

v.SKYPARK PROPERTIES, LLC

2161084

Court of Civil Appeals of Alabama.

June 15, 2018

Rodney B. Slusher, Florence, for appellants.

Jeffrey B. Austin, Florence, for appellee.

THOMAS, Judge.

Joel Newman and Brenda Newman appeal from a judgment entered by the Lauderdale Circuit Court ("the trial court") in favor of Skypark Properties, LLC ("Skypark"). We affirm the judgment in part, reverse it in part, and remand this cause for further proceedings consistent with this opinion.

Background

Skypark and the Newmans own adjacent parcels of real estate; the Newmans own the eastern parcel, and Skypark owns the western parcel. A public road, Skypark Drive, runs parallel to the southern borders of the parties' parcels. A strip of land that is described in the record as a "public right-of-way" ("the public right-of-way") is situated between the southern borders of the parties' parcels and Skypark Drive.

In 2010, Skypark initiated an action ("the 2010 action") against the Newmans alleging that they had constructed certain improvements on their parcel that had encroached on its parcel; Skypark sought injunctive relief. In response, the Newmans alleged that they had adversely possessed a portion of Skypark's parcel. On May 24, 2011, the trial court entered a judgment in favor of the Newmans and attached to its judgment a September 8, 2010, survey ("the September 2010 survey") depicting the portion of Skypark's parcel that the Newmans had adversely possessed, as demarcated by a specified "possession line." The September 2010 survey had been performed by White, Lynn, Collins & Associates, Inc. ("WLC"), and was signed by Rick Collins. Although it did not specifically reference the public right-of-way, the trial court's judgment also determined that, in addition to their own parcel and the portion of Skypark's parcel that they had adversely possessed, the Newmans "own[ed] and possess[ed]" a roughly 325–square–foot portion of real property, the description of which was included in the judgment and, as is discussed later in this opinion, corresponds with the description of a portion of the public right-of-way that is southwardly adjacent to the Newmans' parcel. The trial court's judgment also specified that the Newmans' interest in the portion of the public right-of-way that they "own[ed] and possess[ed]" was "subject to any easements of record or easements existing on site."

Among other things, the trial court specifically found:

"In this case, there was sufficient evidence establishing the [Newmans'] actual possession of the disputed area for the required length of time. Among other things, there was testimony and photographs of landscaping, clearing, the cutting and removal of trees, and general maintenance by the [Newmans] throughout the disputed strip. In addition, there was evidence of the construction of a driveway, steps, concrete pad, the installation of a utility building in the disputed area in 1989 and 1990 as well as the construction of a portion of a two-story garage with a bath and recreational room sometime thereafter."

In October 2014, Skypark initiated a second action against the Newmans alleging that they had encroached upon its parcel beyond the new boundary line established in the 2010 action by constructing a fence and by removing "brush, debris, and trees." In its verified complaint, Skypark asserted claims of trespass, the tort of outrage, and negligence, the latter of which related to the Newmans' installation of the fence. Skypark sought compensatory damages, punitive damages, attorney fees, and costs and asked the trial court to order the Newmans to move the fence to the "possession line" established in the 2010 action.

The Newmans answered Skypark's complaint, asserting various defenses and a counterclaim under the Alabama Litigation Accountability Act, § 12–19–270 et seq., Ala. Code 1975 ("the ALAA"). Among the defenses set out in their answer was an assertion that Skypark's claims were barred by the doctrine of res judicata, claim preclusion, "and/or" issue preclusion. Skypark filed a reply to the Newmans' counterclaim.¹

In April 2015, Skypark filed a "motion for emergency relief" alleging that the Newmans had begun constructing a concrete walkway that further encroached upon its parcel beyond the fence that they had already allegedly constructed, and on May 4, 2015, the trial court conducted an evidentiary hearing regarding Skypark's motion; a transcript of the hearing is in the record.

At the hearing, Kelly Allen briefly testified. Allen said that he owned Skypark with his brother and his sister. Allen also testified that the parties' parcels had originally been platted out as part of a subdivision.

Skypark also called as a witness Ronny Wiggington, who is a land surveyor employed by Price and Ryder Engineering. Wiggington testified that he had been hired by Allen "to locate the corners where the judicial line had been set [in the 2010 action] ...." Wiggington testified extensively regarding the procedures he had used to determine the location of what, he said, is the boundary line between the parties' parcels. The overall takeaway from Wiggington's testimony, however, was that the Newmans had constructed a fence and other improvements that encroached upon Skypark's parcel.

When, during cross-examination, the Newmans' attorney presented Wiggington with the trial court's judgment in the 2010 action and questioned him regarding the property description set out therein, Wiggington said that the description referred to only real property that was "out in the right-of-way of the road." He elaborated: "[T]hat description only covers a portion of the deeded part of the settlement line, settlement area.... [F]rom the right-of-way to the edge of the pavement." Wiggington also testified regarding a particular concrete pad that, he said, had been constructed in the public right-of-way.

Brenda Newman also testified. She said that the Newmans had lived in the house located on their parcel for 17 years. Regarding the concrete pad noted above, she said that it had been in the same location since the Newmans had lived on their parcel. During cross-examination by Skypark's attorney, Brenda said that, since the 2010 action, the Newmans had been making efforts to "improve" their parcel and that, as part of that process, the concrete pad had been "resurfaced"; she said the "length" of the concrete pad had not changed. Brenda testified that the concrete pad abutted Skypark Drive.

Near the conclusion of the hearing, the trial-court judge stated, in relevant part:

"I'm granting the motion for emergency relief. And one thing that worked to Mr. Newman's advantage last time was my desire not to create waste, you know, he had built things that encroached, and he was awarded certain property by virtue of adverse possession because somebody allowed it to get built, et cetera, correct? I mean, I'm going back five years when we tried that but that was ....

"....

"That was the testimony....

"....

"... [I]f it ultimately concludes that that fence after all the parties have been through, I've been through, orders, prior stuff, if that fence is an inch over the line I'm going to have it removed.

"....

"What's over the line will be removed.

"....

"Nothing more, nothing less. And it appears to me from the survey and the maps that there are portions of it that are over the line so, I mean, either you're going to have to rescue that situation or I'm going to have that section of the fence removed and the footing that's already out there and other stuff. So I'm just signaling to you now but I want to be right, you know? And Collins went out there. [WLC is] a respected surveying firm like Price Ryder is and Mr. Wiggington is, I mean, a respected firm. But if Mr. Collins testifies that that pin—that that's his pin, then that fence is over the line. I mean, it's just that simple.

"....

"I'm not interested in re-staking it. I want to know if that's his pin, is that where he placed the pin? If he put that pin right there, then that fence is over the line."

The trial court entered an order on May 7, 2015, that, among other things, required the Newmans to stop all construction near the disputed boundary line and ordered that the boundary line between the parties' parcels be verified by WLC.

On May 26, 2015, Skypark amended its complaint to include claims of conversion and nuisance, which were respectively based on, among other things, allegations that the Newmans had unlawfully cut down a tree and that the Newmans had "allowed or caused construction workers to discard construction debris onto [Skypark]'s property." The Newmans answered Skypark's amended complaint and later amended their answer. On March 25, 2016, Skypark filed a motion in which it also requested an award of attorney fees under the ALAA.

The trial court conducted another hearing on July 26, 2016, at which Rick Collins testified. Collins first testified regarding the September 2010 survey, which had been attached to the trial court's judgment in the 2010 action to demonstrate the new boundary line between the parties' parcels. The following exchange occurred between Skypark's attorney and Collins during direct examination:

"Q. Do you remember back before [Joel Newman] made some improvement[s] to his property, you were called out to do a survey, right?

"A. Well the first thing we ever did, we marked the west boundary line of [the Newmans'] property.

"Q. And when you marked the west boundary line did you discover that there was some encroachments past the western boundary line?

"A. Yes.

"Q. And as a result of that did you eventually at [Joel]'s direction draw and mark what he described and what showed up on your surveys—the previous surveys is a possession line as pointed out by [Joel]?

"A. We did but that exact—they needed a plot plan for the City Building Department and [the person] in charge of the building department asked us to do that and show a possession line because

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