Smith v. Dunn

343 So.3d 523

Jeremy SMITH

v.Connie DUNN and Henry Burton

2200106

Court of Civil Appeals of Alabama.

June 25, 2021

J. Clay Maddox, Clanton, for appellant.

Joseph M. Maloney of Law Offices at Ten Oaks, P.C., Jacksonville, for appellees.

EDWARDS, Judge.

In October 2019, Jeremy Smith filed a complaint in the Calhoun Circuit Court ("the trial court") seeking to eject Connie Dunn and Henry Burton from a parcel of real property that Smith had purchased at a tax sale held in December 2018. Smith also sought mesne profits and damages based on Dunn and Barton's refusal to vacate the property after receiving notice to do so. Dunn and Burton answered the complaint, indicating in their answer that they were pursuing redemption of the property. Although several status hearings were held, the action was not set for a trial.

On June 5, 2020, Dunn and Burton filed what they entitled a "motion to dismiss" Smith's ejectment action on the ground that they had redeemed the property. Although the motion purported to be one made pursuant to Rule 12(b)(6), Ala. R. Civ. P., Smith and Dunn attached to the motion an order granting their application for redemption that was entered by the Calhoun Probate Court ("the probate court") on May 19, 2020. On the same day, only one hour later, the trial court entered an order dismissing Smith's ejectment action "with prejudice." Smith filed a postjudgment motion on June 28, 2020, which the trial court set for a hearing to be held on September 30, 2020, which date was after the expiration of the 90-day period for ruling on the motion. See Rule 59.1, Ala. R. Civ. P. Although the trial court held the scheduled hearing, it concluded that it lacked jurisdiction because Smith's postjudgment motion had been denied by operation of law. Smith then filed a notice of appeal to this court; however, because the appeal was not within our appellate jurisdiction, see Ala. Code 1975, § 12-3-10 (setting out the appellate jurisdiction of the Court of Civil Appeals), we transferred the appeal to the Alabama Supreme Court, which, in turn, transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

We must first determine the standard of review applicable to this matter. See Riddle v. Everett, 332 So. 3d 430 (Ala. Civ. App. 2021). Relying on a case involving an appeal from a denial of a motion to compel arbitration, Smith contends that the only question before the trial court was a legal issue and that, therefore, our review of the trial court's June 5, 2020, order is de novo.

Dunn and Barton contend, inexplicably, that the ore tenus rule applies to this appeal, despite the fact that the trial court took no evidence and, in fact, granted their motion to dismiss one hour after it was filed; they also assert that the correct standard of review is whether the trial court abused its discretion.

Neither party appears to realize that the motion to dismiss was converted to a motion for a summary judgment by virtue of the attachment of the probate court's order granting the application for redemption. Riddle, 332 So. 3d at 435–36 (explaining that, generally, an attachment to a motion to dismiss that is considered by the trial court converts a Rule 12(b)(6) motion into a summary-judgment motion). Because Dunn and Barton asserted in their motion to dismiss that Smith was no longer entitled to possession of the property by virtue of their redemption of the property, as supposedly evidenced by the probate court's order, the trial court necessarily relied on that attachment in concluding that Smith's ejectment action should be dismissed. Thus, the standard of review applicable to this appeal is that applicable to appeals from a summary judgment.

Our review of a summary judgment is de novo; that is, we apply the same standard as was applied in the trial court. Ex parte Ballew, 771 So. 2d 1040, 1041 (Ala. 2000). Rule 56(c)(3), Ala. R. Civ. P., provides that a motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Generally, a party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3) ; see Lee v. City of Gadsden, 592 So. 2d 1036, 1038 (Ala. 1992). If the movant meets that burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by ‘substantial evidence.’ " Lee, 592 So. 2d at 1038. "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). Furthermore, when considering a motion for a summary judgment, "the court must view the evidence in the light most favorable to the nonmoving party and must resolve all reasonable doubts against the moving party." Waits v. Crown Dodge Chrysler Plymouth, Inc., 770 So. 2d 618, 618 (Ala. Civ. App. 1999).

On appeal, Smith appears to concede that he has no right to possession of the property as a result of the redemption. However, as he points out, an ejectment action is not solely concerned with restoring possession of property. Smith requested mesne profits and damages in his complaint, as permitted by Ala. Code 1975, § 6-6-280(b) ("The plaintiff may recover in [an ejectment] action mesne profits and damages for waste or any other injury to the lands, as the plaintiff's interests in the lands entitled him to recover ...."). As we explained in Prescott v. Milne, 308 So. 3d 906, 912 (Ala. Civ. App. 2019), the termination of an ejectment plaintiff's right to possession by redemption of the property does not prevent the ejectment plaintiff from being awarded mesne profits or damages resulting from the wrongful possession of the property during the period the ejectment plaintiff had the right of possession. In so deciding, we explained:

"[O]ur supreme court held [in Hairston v. Dobbs, 80 Ala. 589, 2 So. 147 (1887),] that[, even after termination of their right to possession,] the plaintiffs were still entitled to prosecute their claim for mesne profits, explaining:

" ‘It is contended for the [defendant] that, to maintain the action of ejectment, or our statutory substitute for it, the plaintiff must not only have a right of recovery at the commencement of the suit, but that right must continue to the trial. That is certainly the rule, so far as the recovery of possession is concerned. But ejectment, or its corresponding statutory action, under our system, has a two-fold object. It recovers possession, and also rents, or mesne profits. If it fails in its primary object, by reason of the termination of the title from natural causes, or inherent imperfection pendente lite, being sufficient when the suit was brought, it may nevertheless be continued for the recovery of mesne profits, or damages. The plaintiffs in this case have shown a prima facie right to recover mesne profits and costs ....’

" 80 Ala. at 592, 2 So. at 149 (citations omitted;

...