Henry K. Morrison v. Doug Walley

• Court: Court of Civil Appeals of Alabama
• Decided: April 10, 2026
• Docket: CL-2025-0867
• Status: Published

Opinion

Rel: April 10, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2025-2026 _________________________

CL-2025-0867 _________________________

Henry K. Morrison

v.

Doug Walley

Appeal from Mobile Circuit Court (CV-23-902703)

HANSON, Judge.

This appeal is taken from a summary judgment entered by the

Mobile Circuit Court on an ejectment claim asserted by Doug Walley

against Henry K. Morrison. In his December 2023 complaint, Walley

alleged that he was the owner of a parcel of real property in Mobile CL-2025-0867

County where Morrison had continued to reside, despite having been

given notice to vacate, and that Walley was entitled to be placed in

immediate possession of the property; according to an exhibit to his

complaint, Walley received from Mary L. Dyess a warranty deed to the

property indicating a purchase price of $22,000. Morrison answered the

complaint, averring, among other things, that Dyess had not held lawful

title to the property, and he asserted a third-party complaint against

Dyess and Henderson Pippens, whom he alleged had induced him to

execute a deed to the property in favor of Dyess instead of an instrument

evidencing a mortgage or a lien representing a $5,000 loan.

In August 2024, Walley moved for a summary judgment on his

claim, supported by a brief and his affidavit, after which Morrison filed a

response in opposition, supported by his own affidavit, in which he

posited that the deed from him to Dyess had been procured by fraud and

that he had lacked the capacity to execute it. Walley moved in February

2025 for the case to be set for trial, noting that no party had demanded a

jury trial; however, on March 18, 2025, the circuit court entered an order

granting Walley's summary-judgment motion. Morrison filed a notice of

appeal as to that order; however, because the third-party claims

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remained pending, this court entered an order dismissing that appeal,

and a second appeal was also dismissed because the circuit court had

purported to dismiss the third-party claims before the issuance of this

court's certificate of judgment. Finally, on October 3, 2025, on the motion

of Walley, the circuit court entered an order dismissing the third-party

claims, and Morrison timely appealed to this court on October 10, 2025.

In his appellant's brief, Morrison observes that this court is to

review a summary judgment de novo, applying the same standard as the

trial court; that a summary judgment is appropriate only if there is no

genuine issue of material fact and the moving party is entitled to

judgment as a matter of law; and that the evidence adduced in the trial

court is to be viewed in a light most favorable to the nonmovant. He cites

Cumberland Capital Corp. v. Robinette, 57 Ala. App. 697, 331 So. 2d 709

(Civ. App. 1976), for the propositions that a deed is void when the

grantor's signature is obtained by fraud involving the nature of the

instrument itself and that subsequent purchasers of the property are not

protected against such a void instrument. He asserts that his own

affidavit regarding the circumstances of his execution of the deed to

Dyess amounts to substantial evidence that, he says, renders the circuit

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court's summary judgment erroneous; that that judgment should be

reversed; and that this court should remand the case for trial.

In response to the brief filed by counsel for Morrison, new counsel

for Walley, rather than filing a brief pursuant to Rule 28(b), Ala. R. App.

P., arguing that the summary judgment was correctly entered, has

instead filed a document labeled "Brief of Appellee Conceding Appeal"

containing the following statements:

"COMES NOW the Appellee, DOUG WALLEY, by and through his undersigned counsel, and concedes the appeal of Appellant, Henry K. Morrison, insomuch as [Walley] concedes that additional findings of fact by the trial court are necessary to adjudicate this matter. [Walley] does not make any concessions regarding matters at the trial court level.

"WHEREFORE, [Walley] prays that this Honorable Court will enter an order vacating the trial court's … Summary Judgment and remanding … for further proceedings, and for such other relief as is appropriate in the circumstances."

As our supreme court noted in Lowe v. Nationwide Insurance Co., 521

So. 2d 1309 (Ala. 1988), such a confession of error rises to the level of "an

admirable degree of professional candor" that is "consistent with the

highest standards of the profession" (521 So. 2d at 1309, 1310); accord

Rule 3.2, Ala. R. Prof. Conduct (noting duty of attorneys to "make

reasonable efforts to expedite litigation consistent with the interests of

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the client"). We further note that Morrison has filed no brief in reply

contesting Walley's statements in his concessionary "brief."

Although, as this court recently noted in Professional Education

Services Group, LLC v. Ford, [Ms. CL-2025-0215, Feb. 13, 2026] ___ So.

3d ___ (Ala. Civ. App. 2026), a confession of error does not absolutely bind

an appellate court, it is properly acted upon when it is well grounded, as

in this appeal. "The summary judgment procedure is not a substitute for

a trial on disputed issues of fact and cannot be used to deprive a litigant

of a proper trial to resolve genuine issues of material fact." Duckett v.

Wilson Hotel Mgmt. Co., 669 So. 2d 977, 979 (Ala. Civ. App. 1995). If the

circuit court, after such a "proper trial," believes Morrison's testimonial

account of the circumstances of his having conveyed the property to

Dyess, it may well determine that Walley is not entitled to relief on his

ejectment claim; conversely, the circuit court may determine that

Morrison's testimony is not due to be credited. However, we deem the

appropriate disposition of this appeal to be that which the parties

themselves have suggested.

The summary judgment entered by the Mobile Circuit Court is

reversed, and the cause is remanded for further proceedings consistent

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with this opinion.

REVERSED AND REMANDED.

Moore, P.J., and Edwards, Fridy, and Bowden, JJ., concur.