United States District Court, M.D. Alabama, Eastern Division
REPORT AND RECOMMENDATION
A. BAKER UNITED STATES MAGISTRATE JUDGE.
Brandon Ball, who is proceeding pro se, alleges he
is the owner of real property located at 327 N. Donahue Drive
and 347 N. Donahue Drive, Auburn, Florida. He sues
Defendant, Roar III, LLC, for ejectment from the property on
which The Cottages at Donahue were built by Defendant. (Doc.
1). Plaintiff also seeks damages in excess of $75, 000. This
matter is before the court on the Defendant's motion for
summary judgment, memorandum in support, and evidentiary
submission (Docs. 41, 42, 43), and Plaintiffs response and
evidentiary submission in opposition (Docs. 45, 46, 47, 48).
The parties have been afforded an opportunity to fully brief
the matter. For the reasons stated herein, it is the
RECOMMENDATION of the undersigned that the
motion for summary judgment be granted.
court has diversity of citizenship subject matter
jurisdiction pursuant to 28 U.S.C. § 1332(a) as to
Plaintiffs cause of action. The parties do not contest
personal jurisdiction or venue, and the court finds
sufficient information of record to support both.
See 28 U.S.C. § 1391. On December 20, 2017, the
above-styled matter was referred to the undersigned for
recommendation on all pretrial matters by United States
District Chief Judge William K. Watkins. See 28
U.S.C. § 636(b); Rule 72, Fed. R. Civ. P.; United
States v. Raddatz, 447 U.S. 667 (1980); Jeffrey S v.
State Bd of Educ. of State of Ga., 896 F.2d 507 (11th
STANDARD OF REVIEW
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). In ruling on a motion for summary
judgment, the Court construes the facts and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). However, when faced with
a "properly supported motion for summary judgment, [the
nonmoving party] must come forward with specific factual
evidence, presenting more than mere allegations."
Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999(11th
judgment is mandated "against a party who fails to make
a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
"Summary judgment may be granted if the non-moving
party's evidence is merely colorable or is not
significantly probative." Sawyer v. Southwest
Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250-51 (1986)).
the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial." Anderson, 477 U.S. at 249.
"Essentially, the inquiry is 'whether the evidence
presents a sufficient disagreement to require submission to
the jury or whether it is so one-sided that one party must
prevail as a matter of law.'" Sawyer, 243
F.Supp.2d at 1263 (quoting Anderson, 477 U.S. at
BACKGROUND AND STATEMENT OF MATERIAL FACTS
parties agree the facts are largely undisputed and a matter
of public record. (Docs. 42 at 1; 46 at 1; 47 at 1). The
residential development that is located on the real property
at issue is known as "The Cottages at Donahue." It
is a 10-cottage, 34-bedroom student housing facility located
in Auburn, Lee County, Alabama. (Doc. 42, ¶ 2). Prior to
construction of The Cottages at Donahue, Kathy Mathews
("Mathews") owned the real property in dispute
("Subject Property"). (Doc. 43-1 at 2-5). Public
records reveal a June 18, 2003 Warranty Deed from James
Pollard vesting title in the Subject Property to Mathews.
9, 2008, Mathews recorded a quit claim deed conveying a small
parcel of real property to her daughter, LaKeshi Robinson
("Robinson"). (Doc. 43-1 at 6-10). The parcel
conveyed by the deed was a 371-square foot parcel of
residential property (the "0.0086 Acre Parcel").
Id. The 0.0086 Acre Parcel is unrelated to the
Subject Property and is not a part of The Cottages at
Donahue. (Doc. 43-5 at 2). The 2008 Quitclaim Deed conveying
the 0.0086 Acre Parcel was witnessed by Plaintiffs mother,
Carolyn A. Ball. (Doc. 43-1 at 7). Plaintiff submits that the
conveyance from Mathews to Robinson was a gift and that due
to a mistake made in the description of the property
conveyed, the deed could be reformed to correct the mutual
mistake to include the Subject Property as the property that
was intended to be gifted by Mathews to her daughter. (Doc.
46 at 11).
2009, Donald H. Allen Development, Inc. (DAD) filed a lawsuit
to collect a debt arising from a failed real estate deal
(unrelated to the Subject Property) against Mathews and
others in Lee County, Alabama ("First Case"). (Doc.
43-2 at 2-5). On May 8, 2012, a verdict was entered in favor
of DAD and against Mathews and the other defendants in the
amount of $1, 500, 000 in the First Case. (Doc. 43-1 at 11).
The next day a certificate of judgment for $1, 500, 000 was
recorded in the public records against Mathews and the other
defendants. (Doc. 43-2 at 6-8). Upon recording of the
judgment lien, the judgment attached to all real property
owned by Mathews in Lee County, Alabama, including the
Subject Property, pursuant to Alabama Code § 6-9-211
December 14, 2012, the "corrected" copy of the July
9, 2008 quitclaim deed, conveying the 0.0086 Acre Parcel was
re-recorded in Lee County. (43-1 at 12-18). The re-recorded
deed contained the handwritten note: "this deed is being
rerecorded to correct the error in the legal
description." Id. at 12. A copy of the 2006
deed containing the description of the 0.0086 Acre Parcel was
attached as Exhibit "A". Id. at 15. A new
Exhibit "B" was attached, which was a copy of a
2003 deed which describes the Subject Property. Id.
at 16-17. The 2012 re-recorded deed makes no mention that the
property on Exhibit "B" was being conveyed. See
Id. at 12. The corrected deed was not re-executed or
March 1, 2013, the Lee County Circuit Court served a Writ of
Execution on Mathews directing the Lee County Sheriff to sell
the Subject Property to the highest bidder at a Sheriff's
Sale pursuant to § 6-9-149, Code of Alabama. (Doc. 43-2
at 6-8). On March 6, 2013, Robinson filed a. pro se
"Motion to Intervene" and "Motion to Quash the
Writ of Execution." Id. at 9-12. She sought to
intervene to contest the Writ of Execution regarding the
Subject Property. Id. at 10. In her motion to quash
execution of the writ, she asserted as follows: "said
property is not owned by Kathy Mathews and is in fact owned
by the Movant (Robinson) as shown by a copy of the deeds
which is (sic) recorded in the Office of the Judge of Probate
of Lee County." Id. at 12.
March 21, 2013, DAD responded to the motion to intervene
arguing that the re-recorded deed appears to be a collusive
effort of Robinson and Mathews to avoid the property being
sold at auction. Id. at 19-20. DAD further contended
that the re-recorded deed did not constitute a valid, legal
transfer, and in any event, the corrective deed (even if
valid) was not recorded prior to DAD's rights as a
judgment creditor accrued. Id. at 20-22. While her
motion to intervene was pending in the First Case, Robinson
filed a separate lawsuit on March 25, 2013, against DAD
alleging slander of title ("Second Case"). (Doc.
43-3 at 2-4). The Complaint in the Second Case contained the
same allegations asserted in the Motion to Intervene that
Robinson, not Mathews, was the owner of the Subject Property
and that DAD had slandered and clouded her title by
attempting to have the Subject Property sold at a Sheriffs
April 12, 2013, Mathews filed Chapter 7 bankruptcy in the
Middle District of Alabama. (Doc. 43-4 at 8-13). Among the
debts listed in her Petition was the judgment in favor of DAD
against her. Id. at 28. On the same date, she filed
a Suggestion of Bankruptcy in the Lee County circuit court in
the First Case. (Doc. 43-2 at 24).
April 19, 2013, DAD filed a supplement to its response to
Robinson's motion to intervene and quash execution of the
writ in the First Case. Id. at 25-29. DAD argued
that even if the 2012 re-recorded deed could be considered a
recordable conveyance and even if it constituted a
reformation of the 2008 deed, Robinson's entitlement
would still be subordinate to the perfected lien of a
judgment creditor such as DAD. Id. In June 2013 DAD
sought relief from the automatic stay ...