The opinion
Rel: October 11, 2024
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________
CL-2024-0552
_________________________
Sharon Parrish
v.
Pat Ratliff; U.S. Bank National Association (Inc.); Mortgage
Electronic Registration Systems, Inc.; Federal National
Mortgage Association; PennyMac Loan Services, LLC; Hopper
Telecommunications, LLC; Alabama Power Company; Blount
County; Town of Snead; Jennifer Walker; and First American
Title Insurance Company
Appeal from Blount Circuit Court
(CV-21-135)
CL-2024-0552
LEWIS, Judge.
Sharon Parrish appeals from a summary judgment entered by the
Blount Circuit Court ("the trial court") in favor of, among other parties,1
Pat Ratliff; U.S. Bank National Association (Inc.); Mortgage Electronic
Registration Systems, Inc.; Federal National Mortgage Association;
PennyMac Loan Services, LLC; 2 Hopper Telecommunications, LLC;
Alabama Power Company; Blount County; Town of Snead; Jennifer
Walker; and First American Title Insurance Company ("First American
Title"). We reverse the judgment and remand the cause for further
proceedings.
1The trial court also entered a summary judgment in favor of
Dennis Oldham and Brock Haynes. However, Parrish did not name
Oldham and Haynes as appellees on her notice of appeal. Therefore, this
court will not decide any issue with respect to Oldham and Haynes. See
Alabama Plating Tech., LLC v. Georgia Plating Tech., LLC, [Ms. SC-
2023-0250, June 21, 2024] ___ So. 3d ___, ___ n.5 (Ala. 2024).
2PennyMac Loan Services, LLC, filed a motion seeking an order
dismissing it from this appeal. It argued that its mortgage has been
released, satisfied, and canceled; therefore, it no longer has an interest
in this litigation. That motion is granted, and PennyMac Loan Services,
LLC, is dismissed as a party to this appeal by separate order. See
Young's Realty, Inc. v. Brabham, 896 So. 2d 581, 583 (Ala. Civ. App.
2004).
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CL-2024-0552
Procedural History
This case concerns a boundary-line dispute. Ratliff and Parrish are
coterminous landowners who both claim to own a portion of property
("the disputed property") upon which a shed is located. On August 26,
2021, Ratliff filed a complaint against Parrish alleging claims of trespass
and quiet title concerning the disputed property. On October 25, 2021,
Parrish filed a motion to dismiss or for a more definite statement.
Thereafter, Ratliff filed an amended complaint alleging that the parties
had a dispute with respect to their boundary line and requesting that the
trial court set the boundary line between their properties. On November
19, 2021, Parrish answered the first amended complaint.
On January 26, 2022, Ratliff filed a second amended complaint,
again asserting that the parties had a dispute with respect to their
boundary line and requesting that the trial court set the boundary line
between their properties. Parrish filed an answer to the second amended
complaint on February 15, 2022.
On July 27, 2022, Parrish filed an amended answer to the second
amended complaint, as well as a counterclaim and a third-party
complaint. Parrish asserted the following claims: (1) a request to set the
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boundary lines against Ratliff, Brock Haynes, CB&S Bank, Inc.,
Mortgage Electronic Registration Systems, Inc., U.S. Bank National
Association (Inc.), Federal National Mortgage Association, Hopper
Telecommunications, LLC, Alabama Power Company, the Town of
Snead, Blount County, and PennyMac Loan Services, LLC; (2) a claim for
slander of title against Ratliff; (3) claims for conversion and trespass to
chattels against Ratliff and Dennis Oldham; (4) claims for trespass to real
property against Ratliff and Oldham; (5) claims for quiet title against
Ratliff, Brock Haynes, Mortgage Electronic Registration Systems, Inc.,
(as nominee for Hometown Lenders, LLC and its successors and assigns),
and PennyMac Loan Services, LLC; (6) a claim of breach of warranty in
deed against Jennifer Walker; and (7) a claim of negligent title search
against First American Title.
On August 26, 2022, Alabama Power Company answered Parrish's
third-party complaint. That same day, Ratliff replied to Parrish's
counterclaim. Thereafter, U.S. Bank National Association, CB&S Bank,
and Federal National Mortgage Association all filed separate answers to
the third-party complaint. On September 9, 2022, First American Title
moved to dismiss the third-party complaint. Then, Walker and Mortgage
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CL-2024-0552
Electronic Registration Systems filed separate answers to the third-party
complaint.
On October 19, 2022, the parties filed a joint stipulation of dismissal
with respect to CB&S Bank. That stipulation was granted. The motion
to dismiss filed by First American Title was denied. Thereafter, Hopper
Telecommunication, the Town of Snead, First American Title, and
PennyMac Loan Services, LLC, all filed separate answers to the third-
party complaint.
On June 2, 2023, Ratliff filed a motion for a summary judgment
with respect to his claim to establish the boundary line between the
properties owned by Parrish and Ratliff. Ratliff thereafter filed an
argument in support of his summary judgment motion, along with
evidentiary materials in support thereof. Ratliff asserted that all the
counterclaims asserted by Parrish against him were tied to the issue of
the determination of the boundary line.
On July 28, 2023, Parrish filed a response to the summary-
judgment motion, along with evidentiary materials in support thereof,
which included her own affidavit. Ratliff thereafter moved to strike
Parrish's affidavit. The trial court did not rule on that motion. On
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CL-2024-0552
August 3, 2023, the trial court entered an order granting the summary-
judgment motion, stating:
"This matter came before the court on the Plaintiff Pat
Ratliffs' motion for summary judgment. The Parties were
present and represented by counsel of record in this matter.
After review of the pleadings and the arguments of counsel
the Court is of the opinion that the following is due to be
entered therefore the court enters the following:
"FINDINGS OF FACT
"1. The Court finds that the survey or multiple surveys
completed by Clarence Hopper is valid and accurately defines
the property boundaries between the parties.
"2. That no material issue of fact exists about the description
of or the identified and marked boundaries of the property
owned by [Ratliff] and [Parrish].
"3. That even though the rebar property marker may have lost
its cap identifying it as a property corner marker such does
not fail to make it such a marker. Particularly when it is found
in such a place and confirmed to be in said place by proper
surveying techniques and measurements.
"4. The Court further finds that no reasonable trier of fact
could interpret the facts presented in any other manner than
those outlined by the Court.
" 5. The Court has considered all the arguments of Counsel for
… Parrish, and finds that the survey submitted and testified
to under oath by Clarence Hopper is not ambiguous or in error
and does indeed accurately and specifically describe and mark
[Parrish's] property boundary as well as the limitation
thereof.
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CL-2024-0552
"6. … Parrish has committed a trespass on the property of …
Ratliff.
"7. The question of damages was not addressed in said
hearing and insufficient testimony was given for the court to
address the issue [of] damages in this order.
"The Court having made the preceding finding of facts [is]
further of the opinion that … Ratliff is entitled to judgment as
a matter of law in this action therefore it is: ORDERED AND
ADJUDGED AS FOLLOWS:
"1. The Summary Judgment motion of … Ratliff is hereby
GRANTED.
"2. The Court adopts the boundaries as defined and identified
by Clarence Hopper for the property owned by … Parrish.
"3. … Ratliff is entitled to the relief requested in Count 2 of
his complaint and title is establish[ed] as requested by …
Ratliff.
"4. The Court finds that … Parrish has trespassed on the
property of … Ratliff.
"5. [Parrish] is enjoined from further trespass on the property
of [Ratliff].
"6. [Ratliff] is allowed 14 days to request a hearing to address
the issue of damages in said case, absent said request from
[Ratliff] the issue of damage will be held as moot."
(Capitalization in original.)
On August 16, 2023, Ratliff filed a motion to tax costs and fees
against Parrish, specifically, attorney fees in the amount of $7,082;
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CL-2024-0552
subpoena fees in the amount of $13; deposition transcript fees in the
amount of $604; labor costs to remove material and fencing that Parrish
placed along Ratliff's property line in the amount of $525; and a land
survey in the amount of $450.
On August 21, 2023, Parrish moved to set aside the summary
judgment, stating in part: "(1) the summary judgment … appears to be
based on superseded claims: trespass and quiet title, (2) the order does
not specify which Hopper Survey shows the boundary line; [and] (3) the
order appears to weigh conflicting evidence."
On October 17, 2023, Parrish responded to Ratliff's motion to tax
costs and fees. That same day, she filed an objection to an evidentiary
hearing regarding the motion for taxation of costs and fees. Parrish
thereafter filed a supplement to her motion to set aside the summary
judgment.
On October 20, 2023, the trial court entered an order setting forth
a legal description of the property. The trial court also stated that the
order was dispositive as to the following parties: Brock Haynes, CB&S
Bank Inc., U.S., National Bank Association, Mortgage Electronic
Registration Systems, Federal National Mortgage Association,
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CL-2024-0552
PennyMac Loan Servicing, LLC, Alabama Power Company, Hopper
Telecommunications, LLC, Blount County, the Town of Snead, Oldham,
Walker, and First American Title. Thus, the trial court dismissed those
claims with prejudice. Finally, the trial court awarded Ratliff $4,750 for
costs.
On November 20, 2023, Parrish filed a motion to correct a clerical
error in the legal description of her property. The trial court did not rule
on that motion. Parrish filed her notice of appeal to the Alabama
Supreme Court on December 1, 2023. That court transferred the appeal
to this court on July 16, 2024, because the appeal is within this court's
appellate jurisdiction.
Standard of Review
" ' "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
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CL-2024-0552
(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
weight and quality that fair minded persons in the
exercise of impartial judgment can reasonably
infer the existence of the fact sought to be proved.'
West v. Founders Life Assur. Co. of Fla., 547 So.
2d 870, 871 (Ala. 1989)." '
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
Discussion
On appeal, Parrish argues that the trial court improperly weighed
conflicting evidence in ruling on the summary-judgment motion.
Specifically, she asserts that the deposition testimony of C.E. Hopper, a
surveyor, and the surveys presented as exhibits to his deposition, were
contradictory.
In Ratliff's summary-judgment motion, he relied on Hopper's
deposition testimony to establish the boundary line between his property
and the property of Parrish. Hopper testified concerning his knowledge
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CL-2024-0552
of the boundary line and referenced multiple surveys during his
testimony. Hopper unequivocally testified that he did not know on which
side of the boundary line the shed, which was located on the disputed
property, fell, and the only survey in evidence that indicated the location
of the shed was a survey completed by Terry Gilliland dated November
24, 2021.
According to Hopper, in 2005, he created the parcel of property
owned by Parrish upon the request of Parrish's predecessor in title,
Marion Ratliff Fowler. He testified that he had written a legal
description for Parrish's property and that he had marked the four
corners of Parrish's property line with 18-inch long half-inch thick rebar
pins with a red plastic cap bearing his stamp and registration number.
Hopper testified that he had surveyed the Parrish property recently and
had found the four corners marked with the red-capped pins.
Hopper referenced the Gilliland survey, which indicates two
different northeastern points along the north side of Parrish's property.
Using the more westward of those points as the northeastern corner of
Parrish's property, the disputed property would lie to the east of Parrish's
property. Using the more eastward of those points as the northeastern
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CL-2024-0552
corner of Parrish's property, the disputed property would lie within
Parrish's property. Hopper noted that Gilliland had found rebar at the
more westward of the two points but that he had found no red-capped
iron pin at that point. Hopper stated that Gilliland had possibly
overlooked the red-capped iron pin that had been set at that point or that
the red cap had possibly been knocked off. Hopper admitted that
Gilliland's survey indicated that a red-capped pin had been found in the
more eastward of the two points. As previously stated, according to the
Gilliland survey, if the more eastward of the two points is the
northeastern corner of Parrish's property, the disputed property would
lie within Parrish's property. Hopper also testified that the more
eastward of the two points was the same point designated on a survey
that he completed on September 26, 2018, wherein a red-capped iron pin
was found.
Parrish points out that "[w]here a nonparty witness gives
contradictory testimony, a portion of which is favorable to the nonmovant
in a summary judgment context, the trial court must leave to the jury's
prerogative the resolution of the factual issue." Parr v. Champion Int'l
Corp., 667 So. 2d 36, 40 (Ala. 1995). Here, the surveys attached as
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CL-2024-0552
exhibits to Hopper's deposition, as explained by Hopper, were conflicting
with respect to the location of the northeastern corner of Parrish's
property. According to Gilliland's survey, the discrepancy was
dispositive of whether the disputed property was within Parrish's
property. Notably, Hopper did not testify that the disputed property was
part of either Parrish's or Ratliff's property.
Based on the foregoing, we conclude that a genuine issue of
material fact existed with respect to the boundary line between Parrish's
and Ratliff's properties, and the trial court erred in entering a summary
judgment as to the issue of the boundary line. Moreover, because the
trial court based its entry of a summary judgment on all other claims
upon the disposition of the boundary-line issue, the trial court's judgment
with respect to all claims concerning the parties to this appeal is due to
be reversed.
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CL-2024-0552
Conclusion
Based on the foregoing, we reverse the trial court's judgment with
respect to the parties to this appeal 3, and we remand this cause for
further proceedings.
REVERSED AND REMANDED.
Moore, P.J., and Edwards, Hanson, and Fridy, JJ., concur.
3The judgment is unaffected as to Dennis Oldham and Brock
Haynes, who were not named as appellees in the notice of appeal.
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