Shirley Denise Turner v. Carl Angelo Green.

85 So. 3d 1016, 2011 Ala. Civ. App. LEXIS 326, 2011 WL 6004625
CourtCourt of Civil Appeals of Alabama
DecidedDecember 2, 2011
Docket2100998
StatusPublished

This text of 85 So. 3d 1016 (Shirley Denise Turner v. Carl Angelo Green.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shirley Denise Turner v. Carl Angelo Green., 85 So. 3d 1016, 2011 Ala. Civ. App. LEXIS 326, 2011 WL 6004625 (Ala. Ct. App. 2011).

Opinion

BRYAN, Judge.

Shirley Denise Turner (“Shirley”) appeals from a judgment in favor of Carl Angelo Green (“Carl”). We dismiss the appeal.

On January 14, 2009, Carl, acting pro se, sued Shirley, who is one of Carl’s siblings, in the Etowah Circuit Court (“the trial court”). Carl’s complaint alleged that his and Shirley’s deceased mother, Helen Aurtmishell Green (“Helen”), had devised a parcel of real property located in Etowah County (“the property”) to him in her will (“the will”), that the will had been probated, and that Shirley had subsequently had Jane Ann Devereaux (“Jane”), who was also a child of Helen, execute a quitclaim deed purporting to convey any interest she might have in the property to Shirley. The complaint sought a determination that Carl owned the property.

The record indicates that Shirley was served with process on January 22, 2009. Acting pro se, Shirley answered the complaint on February 17, 2009. In her answer, Shirley denied that she had done [1018]*1018anything improper, averred that Jane had known what she was signing when she signed the quitclaim deed, and averred that Helen was very sick when she executed the will.

On February 20, 2009, Carl moved for a summary judgment. On May 7, 2009, the trial court held a hearing regarding Carl’s summary-judgment motion. On May 8, 2009, the trial court entered an order stating that it was reserving its ruling on Carl’s summary-judgment motion and granting Carl 30 days to amend his complaint to state a quiet-title claim and to add any additional necessary parties.

On June 3, 2009, Carl requested that the sheriff serve process on the rest of Helen’s next of kin, i.e., Jane; Dale Bernard Green (“Dale”), one of Helen’s two surviving sons other than Carl; Alonzo H. Green (“Alonzo”), Helen’s other surviving son; and Tiffany Radford (“Tiffany”)1 and Terrence Radford (“Terrence”), the children of Walter Lee Bell, a son of Helen who had predeceased her. Thereafter, the sheriff attempted unsuccessfully to serve Jane, Dale, Alonzo, Tiffany, and Terrence.

On June 8, 2009, Shirley filed a pleading titled “Objection” in which she asserted that Helen had been mentally incompetent when she executed the will, that Carl had procured Helen’s execution of the will by exercising undue influence over her, and, therefore, that Carl was not entitled to a judgment determining that he was the sole owner of the property.

On November 9, 2009, an attorney filed a notice of appearance on behalf of Carl. On December 14, 2009, the trial court set the action for trial on February 1, 2010.

On February 1, 2010, the trial court held a bench trial. Although the record does not indicate that Carl had amended his complaint in accordance with the trial court’s instruction in its May 9, 2009, order, and although the record indicates that Jane, Dale, Alonzo, Tiffany, and Terrence had not yet been served with process, the trial court, on February 2, 2010, entered a judgment, which stated, in pertinent part:

“This matter having come before the Court on the 1st day of February, 2010 on the Complaint of [Carl] seeking to quiet title to [the property] and the objection filed by [Shirley] and the Court having taken testimony, ore tenus, the Court hereby finds as follows:
“1. Title to the [property] is hereby vested in the name of the [Carl]....
“2. The Court finds that [Shirley], [Alonzo], [Dale], [Jane], [Tiffany], and [Terrence] have no interest in the above described property.
“3. The Tax Assessor is directed to assess the property into the name of [Carl]....”

Shirley neither filed a Rule 59(e), Ala. R. Civ. P., postjudgment motion within 30 days after the entry of the February 2, 2010, judgment nor filed a notice of appeal within 42 days after the entry of the February 2, 2010, judgment.

On March 30, 2010, 56 days after the entry of the February 2, 2010, judgment, an attorney filed a motion titled “Motion to Reconsider” on behalf of Shirley. In pertinent part, that motion stated:

“COMES NOW, [Shirley], by and through her legal counsel, and hereby submits this Motion to Reconsider and for leave of court to assert [a] counterclaim. In support thereof, [Shirley] avers as follows:
[1019]*1019“1) On February 2, 2010, this Court entered an Order which established rights to [the property].
“2) At the time of said hearing, [Jane], [Dale], [Alonzo], [Tiffany], and [Terrence] had not been served. Despite said fact, a hearing was held on February 1, 2010. After said hearing, this Court entered an Order which provided that the Defendants, including those who were not yet served, did not have any interest in the above described property.
“3) Due to the fact that there are still claims pending against the non-served parties, [Shirley] asserts that the Order dated February 2, 2010 is non-final. As a result, this Motion to Reconsider is timely filed.
“4) [Shirley] respectfully requests that this Court will reconsider its Order dated February 2, 2010 to consider the following facts and counterclaims which appear to have not been asserted during the previous hearing.
“5) [Shirley] respectfully requests this Court to grant leave to assert [a] counterclaim.”

(Emphasis added.) The motion then asserted a counterclaim stating claims of adverse possession and unjust enrichment against Carl. The gravamen of Shirley’s adverse-possession claim was that she owned the property because, she alleged, she had been in adverse possession of it for more than 10 years. The gravamen of her unjust-enrichment claim was that, if the property was owned by Carl, she was entitled to be compensated for improvements she had made to the property that Carl had allowed her to make without objection.

Carl filed a response in which he (1) asserted that Shirley’s motion to reconsider was untimely; (2) moved the trial court to set aside the February 2, 2010, judgment only insofar as it purported to adjudicate the rights of Jane, Dale, Alonzo, Tiffany, and Terrence on the ground that they had not been served with process before the entry of the February 2, 2010, order; and (3) sought an order authorizing service by publication on Jane, Dale, Alonzo, Tiffany, and Terrence.

The trial court held a hearing regarding Shirley’s motion on June 2, 2010. On June 3, 2010, the trial court entered an order that stated:

“THIS CAUSE coming before the Court on the 2nd day of June, 2010 on [Shirley’s] Motion to Reconsider filed herein, with the Court having heard arguments of counsel the following is hereby ORDERED, ADJUDGED, and DECREED:
“1. The Court’s Order of February 2, 2010 is hereby SET ASIDE and held for naught.
“2. [Carl] is hereby ORDERED and DIRECTED to get all Defendants served pursuant to the appropriate method under Ala. R. Civ. P. 4.2.”

(Capitalization in original.)

On June 14, 2010, Carl moved for an order authorizing service on Jane, Dale, Alonzo, Tiffany, and Terrence by publication. The trial court granted that motion on June 21, 2010.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. FOX TEL. STATIONS OF BIRMINGHAM, INC.
959 So. 2d 1120 (Court of Civil Appeals of Alabama, 2006)
Luker v. Carrell
25 So. 3d 1152 (Supreme Court of Alabama, 2007)
Ex Parte Pate IV
673 So. 2d 427 (Supreme Court of Alabama, 1995)
Sanders v. First Bank of Grove Hill
564 So. 2d 869 (Supreme Court of Alabama, 1990)
Rush v. Heflin
411 So. 2d 1295 (Court of Civil Appeals of Alabama, 1982)
Brooks v. Peoples Nat. Bank of Huntsville
414 So. 2d 917 (Supreme Court of Alabama, 1982)
Ex Parte Canal Ins. Co.
534 So. 2d 582 (Supreme Court of Alabama, 1988)
Ex Parte Cincinnati Ins. Companies
806 So. 2d 376 (Supreme Court of Alabama, 2001)
Pierce v. American General Finance, Inc.
991 So. 2d 212 (Supreme Court of Alabama, 2008)
Buco Bldg. Constr., Inc. v. Mayer Ele. Supply Co.
960 So. 2d 707 (Court of Civil Appeals of Alabama, 2006)
Northbrook Indem. Co. v. Westgate, Ltd.
769 So. 2d 890 (Supreme Court of Alabama, 2000)
S.W.M. v. D.W.M.
723 So. 2d 1271 (Court of Civil Appeals of Alabama, 1998)
Bedell v. Quality Casualty Insurance Co.
958 So. 2d 344 (Court of Civil Appeals of Alabama, 2006)
Owens v. Blue Tee Corp.
177 F.R.D. 673 (M.D. Alabama, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
85 So. 3d 1016, 2011 Ala. Civ. App. LEXIS 326, 2011 WL 6004625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shirley-denise-turner-v-carl-angelo-green-alacivapp-2011.