from Tallapoosa Circuit Court (CV-16-900124)
THOMPSON, PRESIDING JUDGE.
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.
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.
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."
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.
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.
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
"'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, § 12-21-12. "[S]ubstantial
evidence is evidence of such ...