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01/13/95 MARY R. BROTHERS v. STATE

January 13, 1995

MARY R. BROTHERS
v.
STATE



Appeal from Blount Circuit Court. (CC-93-032). Robert Austin, TRIAL JUDGE.

Released for Publication April 22, 1995.

Taylor, Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Mary R. Brothers, was convicted of criminal trespass in the third degree, a violation of § 13A-7-4, Code of Alabama 1975. She was sentenced to 30 days in jail, and her sentence was split and she was ordered to serve 10 days in jail and was placed on probation for 2 years.

The state's evidence tended to show that the appellant was arrested for criminal trespass in the third degree on March 18, 1993. The facts of this case arise out of a previous civil action between the appellant and her daughter and son-in-law, Linda Ann Brothers Fuller and Doug Fuller. The facts as set out in Brothers v. Fuller, 607 So.2d 135, 136 (Ala. 1992), were essentially proven in this criminal case and are helpful in understanding the background of this case:

"The plaintiff, Mary Ruth Brothers, appeals from a judgment entered by the trial court, after hearing ore tenus evidence, in favor of the defendants, Linda Ann Brothers Fuller and her husband, Doug Fuller, on Brother's demand that a constructive trust be imposed so as to require a conveyance of property owned by the Fullers to her.

"The record indicates the following facts:

"After a series of conveyances, the Fullers came to hold title to property that had been owned by the Brothers and her husband. Linda Fuller is the daughter of the Brotherses and the record indicates that the subject property was conveyed to the Fullers because the Brotherses were experiencing financial difficulties.

"The record also indicates that in 1987, at Mr. Brothers's request, Linda Fuller borrowed $6560 from Community Bank, secured by a mortgage on the subject property, and gave the loan proceeds to the Brotherses. Mrs. Brothers testified that she made payments on this loan 'for a while.'

"The record also indicates that in May 1989 Linda Fuller paid off that loan's balance of approximately $5000 with proceeds of a second loan for $15,000.

"As to this $15,000 loan, the record indicates that the Fullers borrowed this amount, secured by the subject property, to pay off the earlier loan and to use the balance of the proceeds for making improvements to the property. Specifically, an old building was located on the property, and with proceeds from the loan the Fullers began renovating the building for use as a restaurant.

"Mrs. Brothers testified that she was on the subject property every day after the renovation work started and was aware of the $15,000 loan. She stated that she never made any payment on this loan. Also, she testified that until the work was nearly complete, she did not express any disapproval of the Fullers' action in altering the property. The record indicates that around that time, a dispute erupted between the Fullers and the Brotherses and that Mrs. Brothers requested that the property by reconveyed to her. The Fullers refused to reconvey. Subsequently, Mr. Brothers died. Mrs. Brothers sued the Fullers, seeking the imposition of a constructive trust in her favor.

"It is undisputed that the Fullers did not directly pay the Brotherses for the subject property. It is clear that they did pay approximately $5000 to the Brotherses, indirectly, by paying off a loan balance in this ...


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