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Treadwell v. Farrow

Alabama Court of Civil Appeals

October 27, 2017

Kristie Jones Treadwell
v.
Tom Farrow and Wylene Farrow

         Appeal from Tallapoosa Circuit Court (CV-16-900124)

          THOMPSON, PRESIDING JUDGE.

         Kristie Jones Treadwell appeals from the judgment of the Tallapoosa Circuit Court ("the trial court") disposing of her conversion and unjust-enrichment action against Tom Farrow and Wylene Farrow.

         The facts in this case are not in dispute. Treadwell filed this civil action on December 15, 2016. In her verified complaint, Treadwell asserted that her two brothers, Kenneth Jones and Kevin Jones, and she were the sole heirs of their mother, Bobbie B. Jones ("Bobbie"). Bobbie had owned certain real property ("the property") in Camp Hill. The property was foreclosed upon, and, on April 9, 2010, the Farrows purchased it at the foreclosure sale.

         Treadwell alleged in the complaint that "personal property, vehicles, removable buildings, business property, and nonattached dwellings" (all of which she thereafter characterized as personal property and which we will hereinafter refer to as "the personal property") belonging to her brothers and her remained on the property. She stated that the Farrows had barred her from retrieving the personal property and had converted it to their own use. Treadwell also claimed that she had a reasonable expectation of being compensated for the personal property and that the Farrows' retention of it would be unjust and inequitable. Treadwell also alleged that the Farrows had "secured [her] personal property through improper means."

         The Farrows filed a motion to dismiss Treadwell's complaint on the ground that the complaint was barred by the applicable statute of limitations. In their motion, the Farrows pointed out that, pursuant to § 6-2-34, Ala. Code 1975, a conversion action must be commenced within six years. They had acquired the property by means of a foreclosure deed on April 9, 2010, and Treadwell had waited more than six years later, until December 16, 2016, to bring this action. Accordingly, the Farrows argued, Treadwell's complaint was due to be dismissed.[1]

         In her response to the Farrows' motion, Treadwell submitted her affidavit in which she stated that she did not vacate the property until March 2012. She said that she moved and then "rented out" the property, but she did not state for how long. She also stated that her attorney had sent a letter to the Farrows' attorney on September 28, 2015, requesting the return of the personal property contained in a list accompanying the letter. The Farrows sent a return letter dated October 9, 2015, denying her access to the property. She also pointed out in her response that "her family" had attempted to redeem the property through a civil action, which had been unsuccessful. In her affidavit, she said that an appeal in that action was not concluded until August 26, 2015.[2]

         On March 1, 2017, after a hearing during which the trial court heard the arguments of the parties, the trial court entered a judgment dismissing Treadwell's action. Treadwell filed a timely motion to alter, amend, or vacate the judgment, which the trial court denied on April 26, 2017. Treadwell then filed a timely notice of appeal on May 22, 2017.

"[T]he standard for granting a motion to dismiss based upon the expiration of the statute of limitations is whether the existence of the affirmative defense appears clearly on the face of the pleading. Sims v. Lewis, 374 So.2d 298 (Ala. 1979); Browning v. City of Gadsden, 359 So.2d 361 (Ala. 1978); Wright & Miller, Federal Practice and Procedure, Civil & 1357 [sic], at 605 (1969)."

Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala. 1981). However, in opposing the Farrows' motion to dismiss, Treadwell attached documentary evidence in the form of her affidavit, in which she said that she had been in possession of the property as late as March 2012.

"When a plaintiff presents evidence to the trial court in opposition to a defendant's motion to dismiss and the trial court does not specifically exclude that evidence, we must assume that the trial court considered that evidence in ruling on the motion, which automatically converts the motion to dismiss into a summary-judgment motion, and we must review the trial court's judgment granting that motion under the standard of review applicable to a summary judgment. See Travis v. Ziter, 681 So.2d 1348, 1351 (Ala. 1996). In Travis v. Ziter, 681 So.2d at 1351, the supreme court stated:
"'If the court considers matters outside the pleadings in ruling on the defendant's motion to dismiss, then the motion is converted into a motion for summary judgment, regardless of how the motion was styled. Rule 12(b), Ala. R. Civ. P.; Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala. 1978). The circuit court held a hearing to consider the defendants' motions to dismiss, and the [plaintiffs] presented affidavits from Steve Travis and the clinical psychologist who had been treating him. Because there was no indication during the course of the hearing, or in the circuit court's order dismissing the plaintiff[s'] claims, that the court had excluded the affidavits, we must assume that the circuit court considered them when it ruled on the motions. Thus, we must analyze the motions to dismiss under the summary judgment standard. Rule 12(b), Ala. R. Civ. P.'
"The supreme court recited the standard of review applicable to a summary judgment in Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala. 2004):
"'This Court's review of a summary judgment is de novo. Williams v. State Farm Mut. Auto. Ins. Co., 886 So.2d 72, 74 (Ala. 2003). We apply the same standard of review as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala. 2004). In making such a determination, we must review the evidence in the light most favorable to the nonmovant. Wilson v. Brown, 496 So.2d 756, 758 (Ala. 1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce "substantial evidence" as to the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala. 1989); Ala. Code 1975, ยง 12-21-12. "[S]ubstantial evidence is evidence of such ...

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