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Ball v. Roar III, LLC

United States District Court, M.D. Alabama, Eastern Division

May 8, 2018

BRANDON BALL, Plaintiff,
v.
ROAR III, LLC, Defendant.

          REPORT AND RECOMMENDATION

          DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.[1] 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.

         I. JURISDICTION

         This 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 Cir. 1990).

         II. STANDARD OF REVIEW

         "The 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 Cir. 1997).

         Summary 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)).

         "[A]t 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 251-52).

         III. BACKGROUND AND STATEMENT OF MATERIAL FACTS

         The 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. Id.

         On July 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).

         In 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 (1975).[2]

         On 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 re-notarized. Id.

         On 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.

         On 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 sale. Id.

         On 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).

         On 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 ...


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