from Lauderdale Circuit Court (CV-14-900463)
Newman and Brenda Newman appeal from a judgment entered by
the Lauderdale Circuit Court ("the trial court") in
favor of Skypark Properties, LLC ("Skypark"). We
affirm the judgment in part, reverse it in part, and remand
this cause for further proceedings consistent with this
and the Newmans own adjacent parcels of real estate; the
Newmans own the eastern parcel, and Skypark owns the western
parcel. A public road, Skypark Drive, runs parallel to the
southern borders of the parties' parcels. A strip of land
that is described in the record as a "public
right-of-way" ("the public right-of-way") is
situated between the southern borders of the parties'
parcels and Skypark Drive.
2010, Skypark initiated an action ("the 2010
action") against the Newmans alleging that they had
constructed certain improvements on their parcel that had
encroached on its parcel; Skypark sought injunctive relief.
In response, the Newmans alleged that they had adversely
possessed a portion of Skypark's parcel. On May 24, 2011,
the trial court entered a judgment in favor of the Newmans
and attached to its judgment a September 8, 2010, survey
("the September 2010 survey") depicting the portion
of Skypark's parcel that the Newmans had adversely
possessed, as demarcated by a specified "possession
line." The September 2010 survey had been performed by
White, Lynn, Collins & Associates, Inc.
("WLC"), and was signed by Rick Collins. Although
it did not specifically reference the public right-of-way,
the trial court's judgment also determined that, in
addition to their own parcel and the portion of Skypark's
parcel that they had adversely possessed, the Newmans
"own[ed] and possess[ed]" a roughly 325-square-foot
portion of real property, the description of which was
included in the judgment and, as is discussed later in this
opinion, corresponds with the description of a portion of the
public right-of-way that is southwardly adjacent to the
Newmans' parcel. The trial court's judgment also
specified that the Newmans' interest in the portion of
the public right-of-way that they "own[ed] and
possess[ed]" was "subject to any easements of
record or easements existing on site."
other things, the trial court specifically found:
"In this case, there was sufficient evidence
establishing the [Newmans'] actual possession of the
disputed area for the required length of time. Among other
things, there was testimony and photographs of landscaping,
clearing, the cutting and removal of trees, and general
maintenance by the [Newmans] throughout the disputed strip.
In addition, there was evidence of the construction of a
driveway, steps, concrete pad, the installation of a utility
building in the disputed area in 1989 and 1990 as well as the
construction of a portion of a two-story garage with a bath
and recreational room sometime thereafter."
October 2014, Skypark initiated a second action against the
Newmans alleging that they had encroached upon its parcel
beyond the new boundary line established in the 2010 action
by constructing a fence and by removing "brush, debris,
and trees." In its verified complaint, Skypark asserted
claims of trespass, the tort of outrage, and negligence, the
latter of which related to the Newmans' installation of
the fence. Skypark sought compensatory damages, punitive
damages, attorney fees, and costs and asked the trial court
to order the Newmans to move the fence to the
"possession line" established in the 2010 action.
Newmans answered Skypark's complaint, asserting various
defenses and a counterclaim under the Alabama Litigation
Accountability Act, § 12-19-270 et seq., Ala. Code 1975
("the ALAA"). Among the defenses set out in their
answer was an assertion that Skypark's claims were barred
by the doctrine of res judicata, claim preclusion,
"and/or" issue preclusion. Skypark filed a reply to
the Newmans' counterclaim.
April 2015, Skypark filed a "motion for emergency
relief" alleging that the Newmans had begun constructing
a concrete walkway that further encroached upon its parcel
beyond the fence that they had already allegedly constructed,
and on May 4, 2015, the trial court conducted an evidentiary
hearing regarding Skypark's motion; a transcript of the
hearing is in the record.
hearing, Kelly Allen briefly testified. Allen said that he
owned Skypark with his brother and his sister. Allen also
testified that the parties' parcels had originally been
platted out as part of a subdivision.
also called as a witness Ronny Wiggington, who is a land
surveyor employed by Price and Ryder Engineering. Wiggington
testified that he had been hired by Allen "to locate the
corners where the judicial line had been set [in the 2010
action] ...." Wiggington testified extensively regarding
the procedures he had used to determine the location of what,
he said, is the boundary line between the parties'
parcels. The overall takeaway from Wiggington's
testimony, however, was that the Newmans had constructed a
fence and other improvements that encroached upon
during cross-examination, the Newmans' attorney presented
Wiggington with the trial court's judgment in the 2010
action and questioned him regarding the property description
set out therein, Wiggington said that the description
referred to only real property that was "out in the
right-of-way of the road." He elaborated: "[T]hat
description only covers a portion of the deeded part of the
settlement line, settlement area. ... [F]rom the right-of-way
to the edge of the pavement." Wiggington also testified
regarding a particular concrete pad that, he said, had been
constructed in the public right-of-way.
Newman also testified. She said that the Newmans had lived in
the house located on their parcel for 17 years. Regarding the
concrete pad noted above, she said that it had been in the
same location since the Newmans had lived on their parcel.
During cross-examination by Skypark's attorney, Brenda
said that, since the 2010 action, the Newmans had been making
efforts to "improve" their parcel and that, as part
of that process, the concrete pad had been
"resurfaced"; she said the "length" of
the concrete pad had not changed. Brenda testified that the
concrete pad abutted Skypark Drive.
the conclusion of the hearing, the trial-court judge stated,
in relevant part:
"I'm granting the motion for emergency relief. And
one thing that worked to Mr. Newman's advantage last time
was my desire not to create waste, you know, he had built
things that encroached, and he was awarded certain property
by virtue of adverse possession because somebody allowed it
to get built, et cetera, correct? I mean, I'm going back
five years when we tried that but that was ....
"That was the testimony. ...
"... [I]f it ultimately concludes that that fence after
all the parties have been through, I've been through,
orders, prior stuff, if that fence is an inch over the line
I'm going to have it removed.
"What's over the line will be removed.
"Nothing more, nothing less. And it appears to me from
the survey and the maps that there are portions of it that
are over the line so, I mean, either you're going to have
to rescue that situation or I'm going to have that
section of the fence removed and the footing that's
already out there and other stuff. So I'm just signaling
to you now but I want to be right, you know? And Collins went
out there. [WLC is] a respected surveying firm like Price
Ryder is and Mr. Wiggington is, I mean, a respected firm. But
if Mr. Collins testifies that that pin -- that that's his
pin, then that fence is over the line. I mean, it's just
"I'm not interested in re-staking it. I want to know
if that's his pin, is that where he placed the pin? If he
put that pin right there, then that fence is over the
trial court entered an order on May 7, 2015, that, among
other things, required the Newmans to stop all construction
near the disputed boundary line and ordered that the boundary
line between the parties' parcels be verified by WLC.
26, 2015, Skypark amended its complaint to include claims of
conversion and nuisance, which were respectively based on,
among other things, allegations that the Newmans had
unlawfully cut down a tree and that the Newmans had
"allowed or caused construction workers to discard
construction debris onto [Skypark]'s property." The
Newmans answered Skypark's amended complaint and later
amended their answer. On March 25, 2016, Skypark filed a
motion in which it also requested an award of attorney fees
under the ALAA.
trial court conducted another hearing on July 26, 2016, at
which Rick Collins testified. Collins first testified
regarding the September 2010 survey, which had been attached
to the trial court's judgment in the 2010 action to
demonstrate the new boundary line between the parties'
parcels. The following exchange occurred between
Skypark's attorney and Collins during direct examination:
"Q. Do you remember back before [Joel Newman] made some
improvement[s] to his property, you were called out to do a
"A. Well the first thing we ever did, we marked the west
boundary line of [the Newmans'] property.
"Q. And when you marked the west boundary line did you
discover that there was some encroachments past the western
"Q. And as a result of that did you eventually at
[Joel]'s direction draw and mark what he described and
what showed up on your surveys -- the previous surveys is a