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Green v. Cottrell

Alabama Court of Civil Appeals

March 27, 2015

Johnnie Mae Alexander Green et al.
v.
E'Stella Alexander Webb Cottrell; Frank Stokes, Jr.
v.
E'Stella Alexander Webb Cottrell et al

          Appeals from Elmore Circuit Court. (CV-03-321).

         MOORE, Judge. Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.

          OPINION

Page 669

          On Application for Rehearing in Case No. 2100920 and After Remand from the Alabama Supreme Court

         MOORE, Judge.

         This court's opinion of January 16, 2015, is withdrawn, and the following is substituted therefor.

         This court's prior judgment was reversed, and the cause was remanded to this court, with instructions, by the Supreme Court of Alabama. See Ex parte Cottrell, [Ms. 1111006, Feb. 28, 2014] 188 So.3d 661, (Ala. 2014) (reversing Green v. Cottrell, [Ms. 2100920, Feb. 10, 2012] 188 So.3d 656, (Ala.Civ.App. 2012)). On remand to this court, and in compliance with the supreme court's opinion and instructions, we now affirm the trial court's judgment in appeal no. 2100920 and appeal no. 2101086.

         Background

         The parties and this action have been before this court on multiple occasions. For the detailed history of this case, see Stokes v. Cottrell, 58 So.3d 123 (Ala.Civ.App. 2008) (" Stokes I" ) (affirming in part and reversing in part the trial court's judgment and remanding the cause with instructions), judgment vacated in part, writ quashed in part, and cause remanded with instructions by Ex parte Green, 58 So.3d 135 (Ala. 2010) (plurality opinion in part); Stokes v. Cottrell, 58 So.3d 166 (Ala.Civ.App. 2010) (" Stokes II" ) (opinion on remand from the supreme court, dismissing appeals in part and remanding with instructions); and Green v. Cottrell, [Ms. 2100920, Feb. 10, 2012] 188 So.3d 656, (Ala.Civ.App. 2012) (" Green I" ) (reversing judgment in part and dismissing appeal no. 2100920 as moot), judgment reversed and cause remanded with instructions by Ex parte Cottrell, [Ms. 1111006, Feb. 28, 2014] 188 So.3d 661, (Ala. 2014). The background of this case is sufficiently set forth in those previous decisions and, for the sake of brevity, will not be restated here.

         In 2010, after this court remanded the cause to the trial court to address the remaining issues and to enter a final judgment, see Stokes II, the trial court conducted an evidentiary hearing on March 21, 2011; ore tenus evidence was presented at that hearing. The purpose of that hearing was to determine if E'Stella Alexander Webb Cottrell (" Cottrell" ) had acquired any interest in the three non-farmed parcels (" the three parcels" ) and, if

Page 670

so, the extent of her interest.[1] At the conclusion of the ore tenus hearing, the trial court requested that the parties submit posttrial briefs.

         On May 4, 2011, the trial court entered a final judgment finding that Johnny Alexander, Sr. (" Johnny Sr." ), and then Johnnie Mae Alexander Green, Lillie Robinson, Oscar C. Alexander, Bertha Mae Humphrey, Shirley Alexander, Cathy Alexander, Johnny Alexander, Jr. (" Johnny Jr." ), and Althea Alexander (hereinafter referred to collectively as " the Alexander plaintiffs" ) had jointly possessed the three parcels for the benefit of both themselves and Cottrell; the trial court also found that Johnny Sr. and Cottrell had engaged in a joint enterprise in possessing the three parcels after the death of Estelle Haggerty Alexander (" Estelle" ) in 1962. The trial court concluded that, as of 1982, 20 years after Estelle's death, Johnny Sr. and Cottrell had acquired joint title to the three parcels through adverse possession. The Alexander plaintiffs and Frank Stokes, Jr. (" Stokes" ), timely filed their notices of appeal.

         In appeal no. 2101086, Stokes challenges the trial court's finding that, through adverse possession, the Alexander plaintiffs and Cottrell had established a claim to the three parcels superior to that held by Stokes, one of the heirs of Larenda Jenkins, who was Estelle's only living heir at the time of her death. In appeal no. 2100920, the Alexander plaintiffs assert that the trial court erred in finding that they and Johnny Sr. had acted on behalf of Cottrell in adversely possessing the three parcels and that the trial court erred in finding the existence of a " joint enterprise" in which Johnny Sr. and Cottrell had acquired title to the three parcels through adverse possession.

         Standard of Review

" Where a trial court hears ore tenus testimony, as in this case, its findings [of fact] based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found to be plainly and palpably erroneous. The trial court's judgment will be affirmed if there is credible evidence to support the judgment. Furthermore, where the trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment unless such findings would be clearly erroneous. The presumption of correctness is particularly strong in boundary line disputes and adverse possession cases, because the evidence in such cases is difficult for an appellate court to review."

Bearden v. Ellison, 560 So.2d 1042, 1043-44 (Ala. 1990) (citations omitted).

         Appeal ...


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