from Wilcox Circuit Court (CV-14-900074)
O'Conner appeals from a judgment of the Wilcox
Circuit Court ("the trial court") granting a motion
for a summary judgment, see discussion, infra, filed
by Herbert J. Furman, Jr., and Marian Furman. We reverse the
trial court's judgment.
and Procedural History
September 19, 2014, O'Conner filed a complaint against
the Furmans, asserting that they had trespassed on his
property by cutting the timber on that property ("the
civil trespass action"). O'Conner included in the
complaint a description of his property on which the Furmans
had allegedly cut timber. On October 31, 2014, the Furmans
filed a motion to dismiss O'Conner's complaint. They
asserted, among other things, that the parties had previously
been before the trial court for a determination of the
boundary line between the property belonging to O'Conner
and the property belonging to the Furmans in case no.
CV-03-79 ("the boundary-line action"); that the
boundary line between the parties' properties had been
determined by a judgment entered on April 9, 2007, in the
boundary-line action; that O'Conner had not appealed that
judgment, but had filed more than four motions to set aside
that judgment, each of which had been denied; that, on March
21, 2009, O'Conner had been found in contempt of a
portion of the judgment entered in the boundary-line action
directing the parties not to trespass against one another;
and that, in a criminal proceeding conducted in the Wilcox
District Court ("the district-court action"),
Herbert had been found innocent of criminal trespass on May
1, 2013, with regard to the same allegations as those
asserted by O'Conner in his complaint in the civil
trespass action. The Furmans attached to their motion to
dismiss the judgment entered in the boundary-line action; in
that judgment, Judge Marvin W. Wiggins had made the following
"1. That the boundary line between [the] parties is
hereby established as the West and South lines displayed on
Exhibit One as the Resurvey of Olivia Martin Property.
"2. That the [re]survey of Olivia Martin property
labeled as Exhibit One is hereby incorporated into the Order
and made an exhibit hereto.
"3. That the claim for damages is hereby DENIED."
filed a response to the Furmans' motion to dismiss on
January 12, 2015, asserting, among other things, that the
trial court's judgment in the boundary-line action was
not a final judgment and, thus, that the doctrine of res
judicata was inapplicable to his claim in the civil trespass
action. He attached to his response certain filings or
portions thereof from the boundary-line action. On January
13, 2015, the trial court denied, without prejudice, the
Furmans' motion to dismiss. In that same order, the trial
court transferred the case to Judge Wiggins.
February 3, 2015, the Furmans filed a second motion to
dismiss; they attached to their motion a number of
filings from the boundary-line action and asserted that the
judgment in the boundary-line action barred
O'Conner's complaint in the civil trespass action,
based on the doctrines of res judicata and equitable
estoppel. Following the recusal of Judge Wiggins and the
remaining judges of the Wilcox Circuit Court, the Alabama
Supreme Court entered an order assigning the case to Judge C.
Robert Montgomery, a circuit-court judge in Washington
January 4, 2017, the Furmans submitted a number of
supplementary exhibits to their second motion to dismiss,
including, among other things, exhibits from the
boundary-line action and the district-court action. A hearing
was held on January 25, 2017. On January 31, 2017, the trial
court entered an order indicating that it had reviewed the
file in the boundary-line action and all the pleadings,
motions, and exhibits that had been filed in the civil
trespass action and had considered the arguments of counsel
presented at a hearing conducted on January 31, 2017. The
trial court concluded that the doctrines of res judicata and
collateral estoppel barred O'Conner's claim in the
civil trespass action, and it "dismissed"
O'Conner's complaint, with prejudice. Additionally,
the trial court noted: "Because of the repeated abuse of
the legal process demonstrated by ... O'Conner, it is
further ordered that any further frivolous filings by ...
O'Conner will constitute contempt of this Court, and a
violation of this Order." O'Conner filed his notice
of appeal to the Alabama Supreme Court on February 21, 2017;
that court transferred the appeal to this court, pursuant to
Ala. Code 1975, § 12-2-7(6).
the Furmans styled their second motion as a motion to
dismiss, the trial court expressly stated in its judgment
that it had considered all the pleadings, motions, and
exhibits filed in the civil trespass action. Accordingly,
that motion was converted from a motion to dismiss into a
motion for a summary judgment. See Lloyd Noland Found.,
Inc. v. HealthSouth Corp., 979 So.2d 784, 792 (Ala.
2007) (concluding that, because the trial court had
considered matters outside the pleadings, because the face of
the complaint did not reference the prior litigation, and
because the doctrines of res judicata and collateral estoppel
were at ...