author: MOORE, Judge.

text:
    Walkanita H. PARKER, individually and as personal representative of the estate of William L. Parker, deceased v. Wesley Glen RHOADES and Peggy Rhoades
    2150579
    Court of Civil Appeals of Alabama.
    Dec. 16, 2016

      R. Rainer Cotter III of Marsh ■& Cotter, LLP, Enterprise, for appellant.
    Jodee R. Thompson, Enterprise, for ap-pellees.
   MOORE, Judge.

Walkanita H. Parker, individually and as personal representative of the estate of William L. Parker, deceased, appeals from a judgment of the Coffee Circuit Court (“the trial court”) in favor, of Wesley Glen Rhoades (“Glen”) and Peggy Rhoades. We affirm the trial court’s judgment.

Procedural History

This case involves a boundary-line dispute and was initiated when Walkanita H. Parker and William L. Parker (“Larry”) filed a complaint against the Rhoadeses, who owned property to the south of the Parkers’ property, on November 1, 2011. The Parkers sought, among other things, a judgment establishing the boundary line between the properties owned by the parties. The Parkers asserted, among other things, that a “stob” that had been accepted as the boundary line for over 20 years had been pulled up by Glen and that Glen had then claimed the property that lied north of the stob and south of the Parkers’ property as designated by the Parkers’ deed (“the disputed property”); the Par-kers specifically asserted that they had acquired title to the disputed property by agreement or by adverse possession. The Rhoadeses filed an answer to the complaint on December 2, 2011, and asserted a counterclaim against the Parkers, pursuant to the Alabama Litigation Accountability Act, Ala. Code 1975, § 12-19-270 et seq. The Parkers filed a reply to the Rhoadeses’ counterclaim. On May 9, 2012, a suggestion of death was filed, notifying the trial court that Larry had died on March 15, 2012. On September 17, 2012, Walkanita filed a motion seeking to substitute her, as the personal representative of Larry’s estate, as a party for Larry; the trial court granted that motion on September 24, 2012, and Walkanita, in her capacity as personal representative of Larry’s estate, was substituted as a party. (For the remainder of this opinion, any reference to “the Parkers” refers to Walkanita and Larry before Larry’s death. Any reference to “Parker” refers to Walkanita, both individually and as personal representative of Larry’s estate. Finally, any reference to “Walkanita” refers to only Walkanita, without reference to Larry or his estate.)

A bench trial was conducted on October 1, 2014, and, on November 9, 2015, the trial court entered a judgment, which included findings of fact and concluded that the boundary line between the parties’ properties was as established in their respective deeds and that there was no evidence to establish adverse possession of the disputed property by the Parkers. The trial court denied all other requested relief. On December 8, 2015, Parker filed an objection to the trial court’s findings and a motion to alter, amend, or vacate the judgment; that motion was denied by operation of law on March 7, 2016. See Rule 59.1, Ala. R. Civ. P. Parker timely filed a notice of appeal to the Alabama Supreme Court on March 10, 2016; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6).

Facts

Glen testified that he purchased his property in 1983. He stated that, in 1984 or 1985, he had hired someone to have an old fence removed, which, he said, he had previously recognized as the boundary line between his property and the property owned by “Ms. Cain,” who had owned the Parkers’ property before it was sold to the Parkers in 1994. According to Glen, when he and Cain, who had contributed to the removal of the fence in part, had had the fence removed, they had failed to mark the boundary line between the two properties. Thus, Glen stated, he did not know where the boundary line was because it had not been demarcated, although, he said, he considered it to be within several feet of the property line as stated in the parties’ deeds, in accordance with a survey he later had had performed. Glen testified that there had not been a concrete stob where the old fence had been located, but he testified that there was a “State right-of-way marker,” which was also apparently made of concrete, that had been in the way of the bulldozer as the old fence was being removed, and that he had moved the marker, which had been approximately six or eight feet from the old fence line, to get it out of the way of the bulldozer. According to Glen, after the Parkers purchased the property from Cain in 1994, they had used the disputed property for ingress and egress to their property. Glen stated that he had also used the disputed property to enter his property, that he had never told the Parkers not to use the disputed property or that they were trespassing, and that he did not have a problem with them using the disputed property in such a manner. Although he admitted that he had never given the Parkers permission to use the disputed property, he testified that he had allowed them to use it. He testified that he had kept the disputed property “bush-hogged” or mowed and had kept a drainage ditch along the boundary line “dipped out” as well.

According to Glen, in 2008 or 2009, the stob, or marker, began getting run over by vehicles that used the disputed property and Larry had continued to replace the stob where it had been despite Glen’s having told him that the stob did not have any relevance. Glen testified that he had told Larry that the stob did not indicate the boundary line between the properties but that, after the stob had continued to be displaced by vehicles, Larry had driven an iron rod into the ground where the stob had been, which, Glen said, he had later removed. Glen stated that the confusion regarding the boundary line and the stob’s relation thereto had begun in 2009 or 2010, when Glen had removed the stob from the ground. According to Glen, at that time, Larry had claimed that the stob was the boundary line between the parties’ properties. Glen testified that he and Larry had agreed to have the properties surveyed to determine the boundary line between the properties. He stated that he had had a survey performed in 2009 and that that survey revealed that the disputed property was a part of the Rhoadeses’ property.

Tindell Adams, a professional land surveyor, testified that Glen had retained him to perform a survey regarding the boundary line between the Rhoadeses’ property and the Parkers’ property in July 2009. According to Adams, the boundary line between the two properties was in accordance with the boundary line set out in the Rhoadeses’ deed. He stated that he had not located a concrete marker or evidence indicating that there had been one, although he indicated that a state right-of-way marker would have been placed to indicate the point where a curve of the right-of-way begins or ends and that, in the present case, the curve on the nearby State highway would begin further north or south of the disputed property. Adams also testified that he had lined up his boundary line on the survey with an old fence line and that, if the boundary line had been where the Parkers had indicated the concrete marker had been, the boundary line would have “had a kink to it vee’ing south” and that that would be unusual. He stated that the concrete marker would have disagreed with older evidence indicating the boundary line, which was in the woods and included the old fence line and would not have lined up with the concrete marker.

Larry Parker, Jr., testified that he had helped his father work the farm on the Parkers’ property his entire life and that they had accessed the portion of their field that was next to the Rhoadeses’ property by noting the placement of the concrete stob. Larry Jr. stated that the Parkers had regularly used the disputed property since 1994, that they had never asked permission to use it, and that nobody had ever told them to stop using it. He testified that he had also seen Glen using the disputed property since 1994, parking vehicles, planting, and using it for harvesting as the Parkers had, and, he said, the Parkers had never told Glen not to use the disputed property because they were being neighborly. Larry Jr. testified that the Parkers had considered the stob to be the boundary line between the parties’ properties, that Larry had cautioned the rest of the family not to disturb the stob, and that the stob had vanished in 2011. Jeff Parker, Larry’s brother, also testified that Larry had believed the disputed property was part of his property before he had died. Walkanita testified that Larry had maintained that the stob represented the boundary line between the parties’ properties and that he had told her that he, Glen, and Cain had agreed that the stob represented the boundary line. Larry Jr. testified that the Parkers had had a survey performed and that their survey had included the disputed property in the Rhoadeses’ property.

Jon Robert Chancey, a land surveyor, testified that he had performed a survey for Larry in 2011 and that he had come up with the same boundary line as Adams, in accordance with the deeds to the properties; Chancey testified that he had not seen a concrete marker or post or evidence of the same, and he agreed with Adams that a State right-of-way marker would not exist where the properties adjoined because that point is in the curve rather than the beginning or end of the curve. He testified, however, that, if he had used the boundary asserted by Larry, the point where the properties adjoined would have lined up more with the fence across the highway.

Standard of Review

‘“Where a trial court hears ore tenus testimony [in a boundary-line case], ... its findings based upon that testimony are presumed correct, and its judgment based on those findings will be reversed only if, after a consideration of all.the evidence and after making all inferences that can logically be drawn from the evidence, the judgment is found.to be plainly and palpably erroneous.’ Bearden v. Ellison, 560 So.2d 1042, 1043 (Ala. 1990). The presumption of correctness accorded to the trial court’s findings based on evidence presented ore tenus ‘is particularly strong in boundary line disputes and adverse possession cases, and the presumption is further enhanced if the trial court personally views the property, in dispute. Wallace v. Putman, 495 So.2d 1072, 1075 (Ala. 1986).’ Bell v. Jackson, 530 So.2d 42, 44 (Ala. 1988).
“‘The [ore tenus] presumption developed in our law because the trial court has the benefit of seeing and hearing the evidence presented, and, therefore, is a better judge of the credibility of witnesses and the accuracy of certain evidence presented than is an appellate court. The cold record before an appellate court, no matter how meticulous its transcription, is incapable of truly reflecting certain human actions. and reactions that occur during a trial. The special nuances of. the human voice and the infinite number of human facial expressions are incapable of transcription, and, yet, we recognize them as frequently highly indicative of credibility. In addition, in adverse possession cases, the special nature of much of the evidence presented makes clear transcription difficult. Witnesses frequently testify to the existence of “lines, locations, distances, monuments, culverts, fences and the like” by pointing or verbally referring to a diagram. Barnett v. Millis, 286 Ala. 681, 684, 246 So.2d 78, 80 (1971).... An appellate court is without the benefit of the “pointing finger or any information which enables [it] to determine the particular line, location, distance, monument, culvert or fence to which the witness referred.” Id. Accordingly,, the ore tenus presumption of correctness as to the trial court’s findings of fact is “especially strong in adverse possession cases.” Scarbrough [v. Smith, 445 So.2d 553] at 556 [ (Ala. 1984) ].’
“Lilly v. Palmer, 495 So.2d 522, 525-26 (Ala. 1986).”

Shirey v. Pittman, 985 So.2d 484, 486-87 (Ala. Civ. App. 2007).

Analysis

Parker first argues on appeal that the trial court erred in concluding that the Parkers had not acquired title to the disputed property by agreement or by adverse possession.

“Our supreme court has long recognized that a boundary-line dispute between coterminous landowners is subject to ‘ “a unique set of requirements that is a hybrid of the elements of adverse possession by prescription and statutory adverse possession.’” See McCallister v. Jones, 432 So.2d 489, 491 (Ala. 1983) (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala. 1980)).
“ ‘ “In the past there has been some confusion in this area, but thé basic requirements are ascertainable from the applicable case law. In a boundary dispute, the coterminous landowners may alter the boundary line between their tracts of land by agreement plus possession for ten years, or by adverse possession for ten years. See Reynolds v. Rutland, 365 So.2d 656 (Ala. 1978); Carpenter v. Huffman, 294 Ala. 189, 314 So.2d 65 (1975); Smith v. Brown, 282 Ala. 528, 213 So.2d 374 (1968); Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); Duke v. Wimberly, 245 Ala. 639, 18 So.2d 554 (1944); Smith v. Bachus, 201 Ala. 534, 78 So. 888 (1918). But see, Davis v. Grant, 173 Ala. 4, 55 So. 210 (1911). See also Code 1975, § 6-5-200(c). The rules governing this type of dispute are, in actuality, a form of statutory adverse possession. See Code 1975, § 6-5-200(c); Berry v. Guyton, 288 Ala. 475, 262 So.2d 593 (1972).” ’
“McCallister, 432 So.2d at 491 (quoting Kerlin, 390 So.2d at 618-19). See also Wadkins v. Melton, 852 So.2d 760, 764 (Ala. Civ. App. 2002). In any event, ‘[t]he burden rests upon the party asserting the adverse claim to prove actual, hostile, open, notorious, exclusive, and continuous possession for the statutory period, ... and such proof must be by clear and convincing evidence.’ Tidwell v. Strickler, 457 So.2d 365, 368 (Ala. 1984); see also Cooper v. Cate, 591 So.2d68, 70 .(Ala. 1991).” ■

Gilbreath v. Harbour, 24 So.3d 473, 478 (Ala. Civ. App. 2009).

Parker first asserts that' the Par-kers had acquired title to the disputed property by agreement plus possession for 10 years. Specifically, she “contends that the parties’ long-standing recognition of the concrete marker as the boundary line was an agreement, that lasted for at least ten (10) years.” The only indication of any agreement between the parties regarding the boundary line was Walkanita’s testimony that Larry had told her that he, Glen, and Cain, the Parkers’ predecessor in title, had agreed that the concrete marker was the boundary line. No evidence of any formal agreement was presented to the trial court, and Glen testified that no such agreement had been reached, noting particularly that, at the time the Parkers purchased their property, Cain suffered from dementia and' no longer lived on the property. We conclude that the trial court’s determination that “the evidence does not establish an agreement between the parties to alter the boundary line” is supported by the ore tenus evidence presented, and we affirm the trial court’s judgment as to that issue.

Parker also argues on appeal that the trial court erred in declining to conclude that the Parkers had acquired title to the disputed property by adverse possession. As stated above, in order to prove that the boundary line between the parties’ properties had been altered by adverse possession, clear and convincing evidence of actual, hostile, open, notorious, exclusive, and continuous possession for 10 years was required. See Gilbreath, supra.

“To fulfill the requirement of ‘exclusivity of possession,’ a party must assert possessory rights distinct from those of others. The rule is generally stated that ‘“[t]wo persons cannot hold the same property adversely to each other at the same time.”’ Beason v. Bowlin, 274 Ala. 450, 454, 149 So.2d 283, 286 (1962), quoting Stiff v. Cobb, 126 Ala. 381, 386, 28 So. 402, 404 (1899). Exclusivity of possession ‘is generally demonstrated by acts that comport with ownership.’ Brown v. Alabama Great Southern R. [Co.], 544 So.2d 926, 931 (Ala. 1989). These are ‘acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use, and in preventing others from the use of it as far as reasonably practicable.’ Goodson v. Brothers, 111 Ala. 589, 596, 20 So. 443, 445 (1896).”

Sparks v. Byrd, 562 So.2d 211, 215 (Ala. 1990). Parker cites Strickland v. Markos, 566 So.2d 229 (Ala. 1990), for the proposition that “ ‘[ejxclusiveness of possession is often evidenced by the erection of physical improvements on the property, such as fences, houses or other structures, and, in their absence, substantial activity on the land is required.’” Id. at 235 (quoting 2 C.J.S. Adverse Possession § 54 at 726-27). With regard to exclusivity, this court observed in Wadsworth v. Thompson, 912 So.2d 529, 533 (Ala. Civ. App. 2005), that, “[i]n Dees v. Pennington, 561 So.2d 1065, 1068 (Ala. 1990), our Supreme Court reversed a judgment in favor of the party alleging adverse possession of land because both parties had repeatedly cut timber on the disputed property, thus preventing the party asserting ownership by adverse possession from proving exclusive possession for the requisite period.”

In the present case, both Glen and Larry Jr. testified that they had seen the other using the disputed property in the same manner as it had been used by the other, beginning in 1994. Both also indicated that they had allowed the other party to use the disputed property and had never told the other party not to use it because, both said, they had been being neighborly. To the extent the Parkers’ activity on the land was sufficiently substantial such that it could support a claim of exclusive possession, we note that the undisputed evidence also indicated that the Rhoadeses had used the disputed property in the same manner as the Parkers, and Glen testified that, in addition to using the disputed property for ingress and egress, he had “bush-hogged” or mowed the disputed property and, following his obtaining a survey of the disputed property, had begun planting on the disputed property. Accordingly, the Parkers did not prevent others from the use of the disputed property such that they had appropriated the land for their own use. Because the Par-kers’ use of the disputed property was not exclusive as to the Rhoadeses, in particular, we conclude that the Parkers failed to meet their burden of proving that element of adverse possession. Accordingly, the trial court’s conclusion that the Parkers had not proved their claim of adverse possession of the disputed property was not plainly and palpably wrong, and we affirm the trial court’s judgment in favor of the Rhoadeses.

Parker also argues on appeal that the trial court erred in declining to find that she had a perpetual easement over the disputed property for ingress and egress for vehicular and pedestrian traffic. Although Parker recognizes that the complaint did not include a request for a perpetual easement, she refers in her appellate brief to testimony by Glen that he had no objection to Parker’s having an easement over the disputed property for those uses. Citing Rule 15(b), Ala. R. Civ. P., which allows for issues not raised by the pleadings to be tried by the express or implied consent of the parties, Parker argues on appeal that Glen’s statements before the trial court, without objection, resulted in the issue regarding her request for a perpetual easement having been raised. Glen testified in response to questioning by the Parkers’ attorney as follows:

“Q. So the last line of questions—few questions I want to ask you is this: You said several times ... that you really didn’t have a problem with the Parkers using [the disputed property]?
“A. No. We could share it for a driveway.
“Q. Okay. So let’s just say for the sake of argument that I said, Mr. Rhoades, that’s your property. In exchange, give us a permanent easement over that driveway. Would you object to that?
“A. I would probably let them use it, you know.
“Q. You’d agree to that?
“A. Well, could I just think on it?
“Q. Yes, sir.
“A. I mean, you know. I mean, I can’t spit you out one like that, but—but why would you want that?
“Q. Well, I’m just asking if that were the case—if I said, Mr. Rhoades, that’s your property—
“A. Sure. I’ll be a neighbor to them.
“Q. And—and would you give them a permanent easement for that strip?
“A. Yes. I’ll be a neighbor to them, but they’ve got a half a mile access all the way around the place. Why would they want that?
“Q. I understand what you’re—I understand what you’re saying, but under my hypothetical, you wouldn’t object to that?
“A. No. I’d—I’d—I’d try to live and let live.”

Assuming, without deciding, that Glen’s testimony amounted to the issue of an easement being tried by the consent of the parties, we decline to reverse the trial court’s judgment on this basis.

“‘Rule 28(a)(10), Ala. R. App. P., requires that arguments in an appellant’s brief contain “citations to the cases, statutes, other authorities, and parts of the record relied on.”’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala. 2007). ‘When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research.’ City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998).”

Salter v. Moseley, 101 So.3d 242, 247 (Ala. Civ. App. 2012). On appeal, the only citation to authority in support of Parker’s argument that the trial court erred in failing to award her an easement over the disputed property is her citation to Rule 15, Ala. R. Civ. P. Parker has failed to cite any authority whatsoever regarding the granting of an easement or any elements that must be met for such an award. Even assuming that Glen’s testimony that he would not object to Parker’s attorney’s “hypothetical” request for an easement amounted to his consent to the same, we cannot agree that Glen’s statements necessarily require the trial court to have granted an easement in Parker’s favor over the disputed property. Because Parker has failed to cite to any authority in support of that proposition, we are precluded from considering the issue further. McGriff v. Eastern Shore Travel, Inc., 592 So.2d 1065, 1066 (Ala. Civ. App. 1992).

Because Parker has failed to present an argument on appeal that merits reversal, we affirm the trial court’s judgment.

AFFIRMED.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    EX PARTE Jannette BATES (In re: Jannette Bates v. Otis Donzreal Bates)
    2160081
    Court of Civil Appeals of Alabama.
    Dec. 16, 2016
    Mary Lee Abele, Birmingham, for petitioner.
   THOMPSON, Presiding Judge.

Jannette Bates (“the wife”) petitions this court for a writ of mandamus directing the Jefferson Circuit Court (“the trial court”) to vacate an order setting aside a default judgment..

The materials submitted in support of the petition for a writ of mandamus indicate that the underlying action was initiated by the wife, who filed a complaint seeking a divorce from Otis Donzreal Bates (“the husband”). The wife moved for a default judgment, and on April 6, 2016, the trial court made an entry of default and set the matter for a hearing on May 9, 2016. On May 23, 2016, the trial court entered a judgment that divorced the parties, divided their marital property, and awarded the wife alimony. In that judgment, the trial court noted that the husband had failed to appear at the May 9, 2016, hearing.

On May 11, 2016, the husband filed a motion seeking to set aside the default judgment. We recognize that the husband’s motion to set aside the divorce judgment was filed before that judgment was entered. As is explained later in this opinion, that motion is treated as having been filed immediately following the entry of the judgment from which it was taken. New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala. 2004).

In his May 11, 2016, motion, the husband alleged that the wife had previously filed two separate divorce actions, apparently concurrently, in an effort to “judge shop,” and that he had successfully had one of those actions dismissed. The husband alleged that the wife had filed a third divorce complaint that initiated the underlying action, and that he had believed that documents pertaining to the third divorce action were related to the remaining pending divorce action. The husband also argued that he had a meritorious defense to the wife’s third divorce action.

“This Court will look at the substance of a motion, rather than its title, to determine how that motion is to be considered under the Alabama Rules of Civil Procedure.” Pontius v. State Farm Mut. Auto. Ins. Co., 915 So.2d 557, 562-63 (Ala. 2005). Rule 55(c), Ala. R. Civ. P., provides:

“In its discretion, ’the court may set aside an entry of default at any time before judgment. The court may on its own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not, later than thirty (30) days after the entry of the judgment.”

The husband’s May 11, 2016, motion was titled “motion to set aside default judgment,” it was filed “not later than” 30 days after the entry of the default judgment, see Rule 55 (c), and it set forth bases and allegations pertinent to seeking relief under Rule 55(c). See Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988) (discussing the requirements for setting aside a default judgment under Rule 55(c)). Accordingly, we conclude that the husband’s May 11, 2016, motion was one filed pursuant to Rule 55(c). Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 897 (Ala. 2005).

A Rule 55(c) motion may remain pending for 90 days; after that time, if the trial court has not ruled, it is deemed denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. In this case, the husband’s May 11, 2016, postjudgment motion became effective on the date of the entry of the judgment from which it sought relief, i.e., May 23, 2016. New Addition Club, Inc. v. Vaughn, 903 So.2d at 72. That motion was denied by operation of law on August 22, 2016. See Rule 59.1; and Richburg v. Cromwell, 428 So.2d 621, 622 note (Ala. 1983) (“Rule 59.1, [Ala. R. Civ. P.], provides that such motions, if not. ruled upon by the trial judge, are deemed denied by operation of law as of the ninetieth day; in this case, the ninetieth day was a Sunday, and under Rule 6, [Ala. R. Civ. P.], the motion would have been carried over to the ninety-first day.”).

After the May 11, 2016, motion was denied by operation of law on August 22, 2016, the trial court lost jurisdiction to rule on that motion. Sibley v. Sibley, 90 So.3d 191, 193 (Ala. Civ. App. 2012); Smith v. Smith, 4 So.3d 1178, 1181 (Ala. Civ. App. 2008). The trial court purported to enter an order on October 7, 2016, granting the husband’s Rule 55(c) motion. However, because the trial court had lost jurisdiction to rule on the Rule 55(c) motion after the expiration of 90 days, the trial court was without jurisdiction to enter that October 7, 2016, order, and that order was void. Sibley v. Sibley, 90 So.3d at 193.

A writ of mandamus will be granted where there is

“ ‘ “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
“Ex parte Ocwen Federal Bank, FSB, 872 So.2d 810, 813 (Ala. 2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991)). Mandamus will lie to direct a trial court to vacate a void judgment or'order. Ex parte Chamblee, 899 So.2d 244, 249 (Ala. 2004).”

Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala. 2004).

The October 7, 2016, order was void for want of jurisdiction. Accordingly, we grant the wife’s petition for a writ of mandamus and order that the trial court vacate that order.

PETITION GRANTED; WRIT ISSUED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      . In his May 11, 2016, motion, the husband alleges that the wife informed him, apparently in anticipation of the entry of the judgment, that she had been awarded possession of the parties' marital home.

      . We cannot interpret the husband's May 11, 2016, motion as seeking relief from the divorce judgment under Rule 60(b), Ala. R. Civ. P. The motion was filed “not later than” 30 days after the entry of the default judgment, as required for a Rule 55(c) motion, and did not allege or seek relief on any grounds available under Rule 60(b).


author: WELCH, Judge.

text:
    C.H. v. STATE of Alabama
    CR-15-1059
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2016

      Gustavo Antonio Heudebert, Birmingham, for appellant.
    Luther Strange, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   WELCH, Judge.

C.H. appeals from the judgment of the Jefferson Juvenile Court adjudicating him to be a delinquent based on the underlying charges of disorderly conduct and third-degree theft of property. See §§ 13A-11-7 and 13A-8-5, Ala. Code 1975, respectively. C.H. was committed to the Department of Youth Services (“DYS”) for a period to be determined by DYS. This appeal followed.

Facts

On April 21, 2015, Officer Roddy Howell filed a delinquency petition alleging that C.H. committed third-degree theft of prop-, erty by knowingly obtaining or exerting unauthorized control over a pair of handcuffs owned by the City of Birmingham Police Department. (C. 6.) Officer Howell also filed a delinquency petition alleging disorderly conduct based on the allegation that C.H. “inten[ded] to cause [a] public inconvenience, annoyance or alarm, or recklessly creat[ed] a risk thereof,” when C.H. “engag[ed] in fighting or in violent tumultuous or threatening behavior” by running from the “police through a residential area” and thereby “causing residents to run into their homes in alarm.” (C. 7.)

On May 3, 2016, a hearing was conducted on the delinquency petitions. Officer Zachary Scott Osborn with the Birmingham Police Department was the sole witness, and he testified to the following.

On April 20, 2015, at approximately 10:00 p.m., Officer Osborn and his partner, Officer Howell, were on patrol in an area near the Tom Brown Village housing project in Birmingham. From their patrol vehicle, the officers determined that an automobile was displaying an incorrect license plate. After the officers activated the emergency lights on their patrol vehicle, the suspect automobile engaged in measures to evade the police and then entered the Tom Brown Village housing project. Once the- vehicle was inside the.housing project, the individual seated in the passenger seat,.who was later identified as 17-year-old C.H., “bailed” out of the still-moving vehicle. (R. 6.) C.H. ran through the housing project, followed on foot first by Officer Osborn and then by Officer Howell, until C.H. fell and was apprehended by Officer Howell. C.H.’s hands were placed in handcuffs behind his back, and he was placed in the backseat of the officers’ police vehicle. C.H. requested that the windows of the vehicle be rolled down because he was very hot. C.H. “spontaneous[ly]” told the officers that he had run from them because he had had a pistol, but lost it somewhere while running from the officers. (R. 13.) Officers retraced the path of their chase with C.H. and found a loaded pistol near where C.H. had fallen. C.H. asked the officers how long he would be incarcerated, and the officers respo'nded that they did not know. Leaving C.H. in the patrol vehicle, the officers turned their attention to the driver of the automobile in which C.H. had been a passenger. When the officers returned to their vehicle, they discovered that C.H. had fled—while still handcuffed. C.H. was not apprehended the night he fled. Officer Osborn did not know when C.H. was apprehended, but he was not wearing the handcuffs when he was apprehended. The handcuffs were not recovered.. Officer Osborn stated that it cost officers $35.00 to replace the handcuffs.

At the conclusion .of the hearing, the juvenile court found the underlying charges to be true and adjudicated C.H. to be a delinquent on each charge.

Appeal

C.H. appealed challenging the sufficiency of the evidence to support his adjudications of delinquency based on the offenses of disorderly conduct and 'third-degree theft of property. In Ex parte Woodall, 730 So.2d 652 (Ala. 1998), the Alabama Supreme Court set forth the appropriate standard of review concerning the sufficiency of the evidence in criminal cases.

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by. the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr. App. 1984), aff'd, 471 So.2d 493 (Ala. 1985).’ Powe v. State, 597 So.2d 721, 724 (Ala. 1991). It. is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt. Pennington v. State, 421 So.2d 1361 (Ala.Cr.App. 1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr.App. 1992). Thus, ‘[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to . allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala. 1978) (emphasis original).”

730 So.2d at 658.

C.H. contends on appeal, as he did at the conclusion of the State’s case, that the State did not prove that he committed the offense of disorderly conduct. The State, on appeal, agrees with C.H.

C.H. was charged under § 13A-11-7, Ala. Code 1975, with disorderly conduct by

“doing any of the following with intent to eause public inconvenience, annoyance; or alarm, or recklessly creating a risk thereof: (X) engaging in fighting or in violent tumultuous or threatening behavior, to-wit: defendant ran from police through a residential area causing] residents to run into their homes in alarm, in violation of section 13A-11-7, of the Code of Alabama 1975.”

(CR. 7.)

Disorderly conduct is defined.in § 13A-11—7(a)(1), Ala. Code 1975, as follows:

“(a) A person commits the crime of disorderly . conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
“(1) Engages in fighting or in violent tumultuous or threatening behavior.”

Officer Osborn testified at the delinquency hearing that even though it .was somewhat late in the evening, it was a hot evening and there were numerous individuals out and about at the time of the alleged offense. According to Officer Osborn “[i]t causes a certain amount of disturbance .., when you see a police ear and lights and someone running from the police and police officers chasing them. So, you know,' it tends to gain a crowd and, you know, all the factors.” (R. 8.) However, Officer Osborn testified that he did not “observe anything else about the people that were gathering and observing this situation.” (R. 8.) Moreover, on cross-examination, Officer Osborn testified that as he and Officer Howell pursued C.H. “within the housing project,” C.H. was not “engaging in fighting at that time,” Officer Osborn “[njever saw. violent, tumultuous behavior,” from C.H., and he “never saw threatening behavior from [C.H.] ” (R. 20.) Officer Osborn testified that all he saw was C.H. “just running.” (R. 20.)

The evidence presented at the delinquency hearing did not disclose that C.H. engaged in fighting or in violent, tumultuous, or threatening behavior. The State concedes on appeal, and the evidence confirms, that the juvenile court’s finding that C.H. was delinquent based on the offense of disorderly conduct is due to be reversed because the evidence is insufficient to support the charge.

C.H. contends on appeal, as he did in his motion for a judgment of acquittal, that the State failed to present a prima facie case of theft of property. Specifically, C.H. asserts on appeal, as he did in the juvenile court, that there was no evidence establishing the element of intent to commit a theft.

C.H. was charged as follows:

“[C.H.] did: (X) knowingly obtain or exert unauthorized control over the following- property,' to-wit: one pair of handcuffs, the property of, to-wit: Bir-. minghanr police dept., B’ham. AL, of the value of $35.00, with intent to deprive the owner of his dr her property; in violation of section 13A-008-005 of the Code of Alabama 1975.”

(CR. 6.)

Section 13A-8-2(1), Ala. Code 1975, defines “theft of property” .as “[a] person commits the crime, of theft of property if he ... [kjnowingly obtains or exerts unauthorized control over the property of another, with.intent to deprive the owner of his property.” Section 13A-8-5, Ala. Code 1975, defines third-degree theft of property as a theft which does not exceed $500 in value and the property is not taken from the person of another. Third-degree theft of property is a Class A misdemeanor.

The only issue before this Court is whether there was sufficient evidence to allow the' fact-finder to determine that C.H. intended to commit theft of property. This Court finds that there was sufficient evidence to establish intent to commit theft of property.

C.H. cites J.B. v. State, 6 So.3d 659 (Fla. Dist. Ct. App. 2009), as persuasive authority supporting a reversal of his theft conviction. J.B. ran away from an off-duty police officer who had placed handcuffs on J.B. in an attempt to arrest J.B. A Florida circuit court adjudicated J.B. guilty of delinquency based on theft of the handcuffs. J.B. appealed. In reversing the conviction in the circuit court, the Florida District Court of Appeal set forth the following:

“A person commits theft if he or she knowingly obtains or uses another person’s property with the intent to temporarily or permanently: (a) deprive the other person of the right to use the property or benefit from the property or (b) appropriate the property for his or her own use. See § 812.014(1)(a)-(b), Fla. Stat. (2007). Further, because petit theft is a specific intent crime, see C.G. v. State, 981 So.2d 1224, 1225 (Fla. 1st DCA 2008), the State is required to prove that J.B. intended to deprive the officer of her right to use the handcuffs or benefit from them, or that he intended to appropriate the handcuffs for his own use.
“Here, the State presented evidence of J.B.’s intent to flee from the police officer. However, the State did not present any evidence that J.B. intended to steal the handcuffs or deprive the police officer of her property. Instead, J.B.’s act of taking the handcuffs was incidental to his flight from an officer’s unlawful arrest. Actually, we are sure that J.B. would have gladly relinquished any dominion, control, or possessory rights to the handcuffs if he only had the key to release them.
“Because the evidence was not sufficient to support the adjudication of delinquency, we reverse with instructions to dismiss the petit theft charge.”

J.B. v. State, 6 So.3d at 659-60.

This Court is not persuaded by the J.B. analysis. “A person acts intentionally with respect to a result or to conduct described by a statute defining an offense, when his purpose is to cause that result or to engage in that conduct.” § 13A-2-2(1), Ala. Code 1975 (emphasis added). The specific intent required to support a conviction for theft may be proven by direct evidence or by circumstantial evidence. Smith v. State, 665 So.2d 1002 (Ala. Crim. App. 1995). “The question of a defendant’s intent at the time of the crime is usually an issue for the [trier of fact] to resolve.” Rowell v. State, 570 So.2d 848, 850 (Ala. Crim. App. 1990).

Here, the evidence before the trier of fact was that C.H. attempted to evade pursuing police officers because he was illegally in possession of a pistol. The officers apprehended, arrested, and placed C.H. in handcuffs. C.H. inquired about the length of his incarceration. He was placed in a police vehicle and when an opportunity arose, he fled from custody—while wearing the handcuffs. At some point before his apprehension, C.H. was able to remove the handcuffs, but he did not return them to the officer to whom they belonged. This Court believes that C.H. not returning the handcuffs to the owner at the time the handcuffs were removed from his wrists allowed the fact-finder to believe, that at that time, C.H. formed the intent to exert unauthorized control over the handcuffs and to deprive the officer of his property. Thus, this Court cannot find reversible error as to the adjudication based on theft of property.

Conclusion

The juvenile court’s judgment adjudicating C.H. delinquent based on the underlying offense of theft of property is affirmed. However, because the evidence was not sufficient to support finding that C.H. committed disorderly conduct, the judgment adjudicating him delinquent based on that underlying offense must be reversed and a judgment rendered in his favor.

AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.

Windom, P.J., and Burke and Joiner, JJ., concur. Kellum, J., not sitting.

      . C.H. was also found to have committed an attempt to escape from custody, § 13A-10-32, Ala. Code 1975, and possession of a pistol without a permit, § 13A-11-73, Ala. Code 1975; however, he did not challenge those adjudications.

      . In Dedmon v. State, 478 S.W.2d 486 (Tex. Crim. App. 1972), Dedmon escaped from police custody while wearing an officer’s handcuffs. Dedmon was charged and convicted for the theft of the handcuffs. On appeal, the issue presented for appellate review was whether a theft was actually committed, because, Dedmon argued, he was in lawful possession of the handcuffs by virtue of the arresting officer placing the handcuffs on Dedmon. The Dedmon Court held that there was a theft of property because under the relevant Texas statutes, an officer does not relinquish possession of his handcuffs by placing them on a suspect. The specific element of "intent” was not discussed in Dedmon.