Ex Parte Ralph Eustace et al.
James Ray Wilbourn et al. In re: Ralph Eustace et al.
Jackson Circuit Court, CV-04-150, Court of Civil Appeals,
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
Eustace, Linda Eustace, and Daryl Eustace sued James Ray
("Ray") Wilbourn and his wife Karen Wilbourn in the
Jackson Circuit Court ("the trial court"), alleging
a trespass to land and conversion of timber. The Wilbourns
filed a counterclaim, seeking to establish title to the
subject land and to recover in tort for intentional
interference with a contractual relationship. The trial court
entered a judgment in favor of the Eustaces on the trespass
and conversion-of-timber claims and determined that the
Eustaces were entitled to recover compensatory damages on
those claims. The trial court also entered a judgment in
favor of the Wilbourns on the claim asserting an intentional
interference with a contractual relationship and determined
that the Wilbourns were entitled to an award of compensatory
damages on that claim.
Court of Civil Appeals affirmed the judgment of the trial
court, without an opinion. Eustace v. Wilbourn (No.
2161079, July 13, 2018), ___ So.3d ___ (Ala. Civ. App.
2018)(table). The Eustaces petitioned this Court for a writ
of certiorari, asserting that the Court of Civil Appeals'
decision affirming the trial court's judgment on the
Wilbourns' claim of tortious interference with a
contractual relationship was in conflict with this
Court's decision in Merchants National Bank of Mobile
v. Steiner, 404 So.2d 14 (Ala. 1981). We granted the
petition and, upon review, determine that the Court of Civil
Appeals lacked jurisdiction over the case, because the appeal
was taken from a nonfinal judgment.
and Procedural History
2002, the Wilbourns purchased approximately 300 acres of land
from Ollie Fowler. Before the Wilbourns purchased the
property, Fowler had showed the Wilbourns what Fowler thought
were the boundary lines of the property. The land purchased
by the Wilbourns adjoined land owned by Ralph Eustace. Ralph
Eustace had lived on his property for 82 years, excepting the
time he spent in the military.
2004, the Wilbourns entered into an auction contract with
Fowler Auction and Real Estate Service, Inc. ("Fowler
Auction Company"), pursuant to which Fowler Auction
Company agreed to auction the Wilbourns' property for a
fee of $14, 000. Before the property was auctioned, the
Wilbourns had the timber on their property cut. Ray Wilbourn
testified that he told the loggers to stay 150 feet away from
what he thought was the property line between his property
and the Eustaces' property. While Wilbourn was having the
timber cut from his property, he also had a surveyor on the
property surveying it for the upcoming auction. Ray Wilbourn
testified that one evening the surveyor informed him that Ray
Wilbourn had a "problem," because Wilbourn had cut
timber on land owned by Ralph Eustace. Wilbourn immediately
ceased cutting timber that evening and contacted Ralph
Eustace the following morning to explain that his crew had
cut a significant amount of timber on Ralph Eustace's
side of the property line. In order to survey the area
together, Ray Wilbourn testified that he and Ralph Eustace
rode to the area where the timber had been cut. After
learning of the error, Ray Wilbourn did not cut any
additional timber on Ralph Eustace's property.
Eustace testified that approximately $40, 000 worth of timber
had been mistakenly cut from his property. The Eustaces
presented testimony from a certified forester that indicated
that the value of the timber removed from the property was
approximately $35, 810. Ralph Eustace further testified that
his property was valued at approximately $97, 000 before the
timber was cut from the property and that the property was
valued at approximately $48, 000 after the timber had been
removed from his property.
April 13, 2004, Ray Wilbourn entered into an auction sales
contract with Morris Sherlis for the sale of his
approximately 300 acres of land. The closing on the sale was
set for May 13, 2004. Before closing, Ray Wilbourn and
Sherlis had agreed that the Wilbourns would "clean up
the roads ... and put in some gates" on the property.
Ralph Eustace testified that, in the process of selling the
property, the Wilbourns restricted the access to his property
by rerouting a road, pushing up a berm, and erecting a gate.
Ralph Eustace testified that it would cost approximately $2,
500 to remediate the road allowing access to the
13, 2004, the date the Wilbourns and Sherlis were scheduled
to close on the sale of the Wilbourns' land, the Eustaces
sued the Wilbourns, alleging a trespass to their property and
conversion of timber. The Eustaces also sought a declaration
of the parties' respective rights as to a right-of-way
that traversed the Wilbourns' property to the
Eustaces' property. On that same date, the Eustaces also
filed a lis pendens notice in the Jackson Probate Court
pursuant to § 35-4-131(a), Ala. Code 1975. The lis
pendens notice described only that portion of the
Eustaces' property from which Ray Wilbourn had cut the
timber. Ray Wilbourn testified that he received a telephone
call from the closing attorney on the day of closing,
notifying him that the closing could not proceed because of
the lis pendens notice filed by the Eustaces. Subsequently,
Sherlis backed out of the purchase of the Wilbourns'
property. The Wilbourns eventually sold the property to a
second purchaser for the same sale price they had contracted
with Sherlis for the purchase of the property. However, Ray
Wilbourn testified that the canceled sale of the property
caused him to incur additional expenses related to the sale
of the property to a second purchaser.
16, 2004, the Wilbourns filed a counterclaim against the
Eustaces, asserting a claim of intentional interference with
a contractual relationship. The Wilbourns alleged that the
Eustaces refused to acknowledge to the closing attorney that
no property outside the land specifically described in the
lis pendens notice was subject to the notice. In other words,
the Wilbourns claimed that the Eustaces
"weaponized" the lis pendens notice by allowing the
closing attorney to believe and/or to be convinced that the
Wilbourns' property as a whole was subject to the lis
pendens notice, rather than just the portion of the
Eustaces' property described in the lis pendens notice.
an ore tenus proceeding, the trial court, on May 5, 2017,
entered the following order, which states, in relevant part:
"The Court finds that [the Eustaces are] entitled to an
award of compensatory damages for [the Wilbourns']
trespass upon the property owned by [the Eustaces] and the
cutting and selling of timber thereon without [the
"The Court further finds that [the Eustaces are]
entitled to an award of compensatory damages for the
conversion of the timber cut and sold by [the Wilbourns] ...