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Simpson v. Fowler

Alabama Court of Civil Appeals

September 12, 2014

Alex Simpson, Jr.
v.
Amanda Simpson Fowler et al

Released for Publication May 15, 2015.

Appeal from Calhoun Circuit Court. (CV-11-242). John Thomason, Trial Judge.

For Appellant: Bruce N. Adams, Adams, Turner & Miller, LLC, Anniston.

For Appellees: Ruth S. Sullivan, Dadeville.

DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

OPINION

Page 1032

DONALDSON, Judge.

Alex Simpson, Jr., appeals from a judgment of the Calhoun Circuit Court (" the trial court" ) in which the trial court partitioned parcels of real estate located in Calhoun County among Alex Simpson and Amanda Simpson Fowler, Gerald C. Fowler, John T. Simpson, Ruth S. Sullivan, Sam Paul Simpson, Jr., and Robbie S. Diamond (hereinafter referred to collectively as " the defendants" ). Because the judgment appealed from is not final, we dismiss the appeal.

At issue in this appeal are three parcels of real property located near the Coosa River in Calhoun County, which have been identified by the parties and the trial court as Tract No. 1, Tract No. 2, and Tract No. 3 (hereinafter sometimes referred to collectively as " the Simpson estate" ). The parties all claim an ownership interest in the Simpson estate. In its judgment, the trial court provided the following factual background concerning the Simpson estate:

" Defendant Ruth [S.] Sullivan, who is an attorney, a member of the Simpson family and a cotenant of the subject property, attempted to reach a resolution for an equitable division of the property for all parties. To that end and by agreement, she engaged the services of surveyor James W. Barry, Sr., who surveyed the lands and drafted a plat on June 16, 2007. The survey divided the lands into three tracts, and at the bottom of the survey, each tract contained the names of the respective cotenants. Tract No. 1 had the name of Robbie Simpson Diamond. Tract No. 2 had the names of Ruth Simpson Sullivan and Sam Paul Simpson, Jr., and Tract No. 3 had the names of Amanda Simpson Fowler, Gerald Curtis Fowler, Alex R. Simpson, Jr., and John T. Simpson.
" Ruth Sullivan presented the survey to each cotenant with the notation that it established only the exterior lines and did not mean it was an agreement to any ... interest. All parties signed the survey under their respective names and tract numbers. Thereafter, Mr. Barry was employed to resurvey the property and equitably divide the land according to each owner's respective interest. He did so and the survey was completed on November 23, 2009. The survey and property descriptions provided by him set forth [Alex Simpson's portion of Tract No. 3] along the waterfront where

Page 1033

the land had been improved with a slew, a boat dock and a drilled well. The property was likewise accessible by road. As noted by Mr. Barry on his survey and by his testimony in Court, the other properties outside of Tract No. 3 were unimproved with much of it covered by beaver dams and undergrowth. He testified that he used his land records and prior survey when dividing the property in a manner [that] he believed to be fair to all. He noted that he used landmarks on the ground showing previous use as a guide to survey the division."

After the survey was completed, the parties were unable to reach an agreement to partition the Simpson estate. Alex Simpson disputed the surveyor's conclusion that Robbie S. Diamond was the sole owner of Tract No. 1 and that Ruth S. Sullivan and Sam Paul Simpson, Jr., owned Tract No. 2. He claimed that he had a 1/12 ownership interest in the entire Simpson estate, not just Tract No. 3.

A fourth tract of land (" Tract No. 4" ) located near the Simpson estate was also at issue before the trial court. Alex Simpson contended that he also had an ownership interest in Tract No. 4 as a tenant in common with Amanda Simpson Fowler, Gerald C. Fowler, John T. Simpson, and Robbie S. Diamond. There is no indication in the record that Barry surveyed Tract No. 4.

On July 15, 2011, Alex Simpson filed a complaint in the trial court to establish the respective interests of the parties to the Simpson estate and to Tract No. 4. Alex Simpson further requested that the trial court partition the land. The caption of the complaint named the defendants and also listed the four separate tracts of property as defendants. In the complaint, Alex Simpson alleged:

" 1. This action is brought pursuant to the Code of Alabama, 1975, as amended § 35-6-20, et seq.

" 2. That the Defendants herein are the lands described in the caption to this Complaint and the individually named Defendants, all of whom are of legal age and are tenants in common in the land set forth in the caption to this Complaint. Said lands are situated in Calhoun County, Alabama. Plaintiff is not aware of any other persons claiming an ownership interest in this property not individually named herein as a Defendant.

" 3. A dispute has arisen between the parties with respect to the fractional interest of each, which Plaintiff asks the Court to determine and establish their respective interest in and to the lands and thereafter to equitably partition same.
" 4. Plaintiff avers that the parties own the following fractional interest in said properties:
" [Tract No.] 1:
Alex R. Simpson, Jr., a 8.33% interest Amanda S. Fowler & Gerald C. Fowler, jointly, a 8.33% interest John T. Simpson, a 8.33% interest Ruth Sullivan, a 25% interest Sam Paul Simpson, Jr., ...

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