Daniel Lawrence Edwards and Earl Parker v. Melester Ford, Karen Rene Ford, and Melesian A. Ford Allen (Appeal from Perry Circuit Court: CV-01-121) Application For Rehearing Overruled.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2011-2012
_________________________
2100222
_________________________
Daniel Lawrence Edwards and Earl Parker
v.
Melester Ford, Karen Rene Ford, and Melesian A. Ford Allen
Appeal from Perry Circuit Court
(CV-01-121)
On Application for Rehearing
BRYAN, Judge.
At trial, the parties referred to a judgment the Perry
Circuit Court had entered in 1996 in a civil action docketed
by that court as Eugene Darden v. Eva Smith Edwards, CV-95-15
2100222
("the Darden case"). The judgment entered in the Darden case
("the Darden judgment") had determined the location of a
segment of the section line that was different from the one at
issue in the present case. Neither Melester Ford nor Melesian
A. Ford Allen were parties to the Darden case.
In his initial brief to this court, Daniel Lawrence
Edwards stated:
"Previously an adjacent segment of this section line
was adjudicated in Eugene Darden, et al., v. Eva
Smith Edwards, et al., Case Number CV-95-15, in the
Circuit Court of Perry County, Alabama, and that
segment of the section line was established by order
of the Circuit Court of Perry County dated September
25, 1996.5 It was done without prejudice to persons
not parties to that case, and does not apply to the
705.47 foot segment of the line which is the
boundary between Ford and Edwards.
____________________
"5 The Court judgment and order in the Darden
case were not admitted into evidence in the instant
case but the order was discussed during examination
of witnesses, and the trial court did look at the
order and was aware of it. However, the surveys
attached to the order were admitted into evidence."
Edwards's initial brief at pp. 10-11 (emphasis added). Edwards
did not argue in his initial brief that the trial court had
erred on the ground that it was bound by the judgment in the
Darden case and had entered a judgment that was inconsistent
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2100222
with it. However, in his reply brief to this court, Edwards
did make that argument for the first time. On application for
rehearing,
Edwards
argues
that
we
erroneously
failed
to
address that argument in our opinion on original submission.
However, "[i]t is a well-established principle of appellate
review that we will not consider an issue not raised in an
appellant's initial brief, but raised only in the reply
brief." Lloyd Noland Hosp. v. Durham, 906 So. 2d 157, 173
(Ala.
2005).
Therefore,
Edwards's
first
argument
on
application for rehearing has no merit.
Edwards's second argument on application for rehearing is
that this court should have applied the de novo standard of
review to his argument that the trial court erred on the
ground that it was bound by the judgment in the Darden case
and had entered a judgment inconsistent with it. However,
Edwards's second argument has no merit because it erroneously
presupposes that we could consider an argument he raised for
the first time in his reply brief.
Finally, Edwards cites Walters v. Commons, 2 Port. 38
(Ala. 1835), as additional authority for a subargument he made
on original submission. On original submission, he argued that
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2100222
the trial court's judgment was unsupported by the evidence
because, he said, he proved that Glen McCord's survey is
inaccurate and unreliable. One of the subarguments he made in
support of that argument was (1) that, because the parties
agreed that a segment of the section line separating Section
8 from Section 17 in Perry County constituted their common
boundary line, the boundary line is a segment of a straight
line running east and west between two points that constitute
the pertinent corners of those two sections as established by
the original survey performed by the United States and (2)
that McCord's survey is inaccurate and unreliable because,
Edwards says, it does not depict the section line separating
Sections 8 and 17 as a straight line running between the
pertinent corners of those two sections as established by the
original
survey
performed
by
the
United
States.
Walters
supports the proposition that the section corners of Sections
8 and 17 were definitively established by the original survey
performed by the United States and cannot be altered.
However,
Walters.
We
our
original
rejected
decision
Edwards's
is
consistent
subargument
on
with
original
submission because, as we will explain below, there was
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2100222
evidence before the trial court from which it could have found
that McCord's survey depicts the section line separating
Sections 8 and 17 as a straight line running east and west
between the pertinent section corners as established by the
original United States survey.
Because Section 17 is immediately south of Section 8,
Section 17 and Section 8 share a common boundary line, which
is a section line. The eastern terminus of the section line is
a point that constitutes both the southeast corner of Section
8 and the northeast corner of Section 17. The western terminus
of the section line is a point that constitutes both the
southwest corner of Section 8 and the northwest corner of
Section 17. McCord's survey depicts the eastern terminus of
the section line as a monument he describes as an automobile
camshaft in the south bank of a creek that is locally accepted
as marking the southeast corner of Section 8. His survey
depicts the western terminus of the section line as a monument
he describes as a flat iron that is locally accepted as
marking the southwest corner of Section 8. His survey depicts
the
section
line
as
a
straight
line
running
from
the
automobile camshaft to the flat iron on a bearing of South 87
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2100222
degrees, 4 minutes, 18 seconds West.
Edwards relies on two surveys, one that was prepared for
him by a licensed surveyor named Robert H. McMillan and a
second one that was prepared for him by a licensed surveyor
named
Mitchell
P.
Hayden.
McMillan's
survey
depicts
the
eastern terminus of the section line as a monument that he
describes as a camshaft in the southerly bank of a ditch that
is locally accepted as marking the northeast corner of Section
17. As noted above, the northeast corner of Section 17 is a
point that also constitutes the southeast corner of Section 8.
Thus, McCord's and McMillan's survey both depict a camshaft as
the landmark marking the point that constitutes both the
southeast corner of Section 8 and the northeast corner of
Section 17. Moreover, both McCord's and McMillan's surveys
depict that camshaft as the eastern terminus of the section
line. McMillan's survey depicts the western terminus of the
section line as a monument that he describes as a flat bar
that is locally accepted as marking the northwest corner of
Section 17. As noted above, the northwest corner of Section 17
is a point that also constitutes the southwest corner of
Section 8. Thus, both McCord's and McMillan's surveys depict
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2100222
a flat iron or bar as the landmark marking the point that
constitutes both the southwest corner of Section 8 and the
northwest corner of Section 17. Moreover, both McCord's and
McMillan's surveys depict that flat bar or iron as the western
terminus of the section line.
Hayden's survey depicts the eastern terminus of the
section line as a monument that he describes as a camshaft
accepted as the southeast corner of Section 8. Hayden's survey
depicts the western terminus of the section line as a one-inch
flat bar accepted as the southwest corner of Section 8.
Moreover, Hayden testified that, by using global-positioningsatellite
technology,
he
had
verified
that
the
camshaft
accurately marked the location of the southeast corner of
Section 8 as established by the original survey performed by
the United States and that the one-inch flat bar accurately
marked the location of the southwest corner of Section 8 as
established by the original survey performed by the United
States. Hayden also testified that his survey, McMillan's
survey, and McCord's survey all depicted the same camshaft as
the eastern terminus of the section line and that his survey,
McMillan's survey, and McCord's survey all depicted the same
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2100222
flat bar as the western terminus of the section line.
McCord's survey depicts the section line as a straight
line running from the camshaft to the flat bar and depicts the
gravel road as being located north of the section line.
McMillan's and Hayden's surveys depict the section line as a
straight line running from the camshaft to the flat bar and
depict the gravel road as being located south of the section
line.
In this case, the trial court made no specific findings
of fact in its judgment.
"[W]hen a trial court makes no specific findings of
fact, 'this Court will assume that the trial judge
made those findings necessary to support the
judgment.' Transamerica Commercial Fin. Corp. v.
AmSouth Bank, N.A., 608 So. 2d 375, 378 (Ala. 1992).
Under the ore tenus rule, '"appellate courts are not
allowed to substitute their own judgment for that of
the trial court if the trial court's decision is
supported by reasonable inferences to be drawn from
the evidence."' Yates v. El Bethel Primitive Baptist
Church, 847 So. 2d 331, 345 (Ala. 2002) (quoting Ex
parte Pielach, 681 So. 2d 154, 155 (Ala.1996))."
New Props., L.L.C. v. Stewart, 905 So. 2d 797, 799 (Ala.
2004).
The evidence described above would support findings by
the
trial
court
that
McCord's,
McMillan's,
and
Hayden's
surveys all depicted the same landmarks as marking the eastern
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2100222
and western termini of the section line and that the location
of
those
landmarks
coincided
with
the
location
of
the
pertinent section corners established by the original survey
performed
by
the
United
States.
Moreover,
the
evidence
described above would support a finding that McCord's survey
depicted the section line as a straight line running between
those section corners. Furthermore, the trial court, as the
finder of fact, was authorized to resolve the conflict between
McCord's survey, on the one hand, and McMillan's and Hayden's
surveys, on the other, regarding the location of the gravel
road in relation to the section line by finding that McCord's
depiction of the gravel road as being located north of the
section line was accurate and that McMillan's and Hayden's
depictions of the gravel road as being located south of the
section line were inaccurate. See Woods v. Woods, 653 So. 2d
312, 314 (Ala. Civ. App. 1994) ("In ore tenus proceedings, the
trial
court is the sole judge of the facts and of the
credibility of witnesses, and the trial court should accept
only that testimony it considers to be worthy of belief.");
Born v. Clark, 662 So. 2d 669, 672 (Ala. 1995)("When a trial
court, sitting without a jury, hears ore tenus evidence and
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2100222
determines disputed questions of fact, whether those questions
come into dispute orally or by the written word, we must apply
the ore tenus rule of review, and, under this rule, we must
indulge all reasonable presumptions in favor of the trial
court's findings."); accord Yeager v. Lucy, 998 So. 2d 460,
463 (Ala. 2008) ("'The [ore tenus] rule applies to "disputed
issues of fact," whether the dispute is based entirely upon
oral testimony or upon a combination of oral testimony and
documentary evidence.'" (quoting Reed v. Board of Trs. for
Alabama State Univ., 778 So. 2d 791, 795 (Ala. 2000))).
Because (1) the findings described above would support the
trial court's determination that McCord's survey accurately
depicted the location of the section line and the segment of
the section line that constituted the boundary line separating
Edwards's parcel from Melester's and Melesian's parcels and
(2) the trial court made no specific findings, we must assume
that the trial court made those findings. See New Properties.
Based on the analysis described above, we concluded on
original submission that there is no merit to Edwards's
subargument that the trial court's judgment is not supported
by the evidence on the ground that McCord's survey does not
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2100222
depict the section line separating Sections 8 and 17 as a
straight line running between the pertinent section corners
established by the original survey performed by the United
States. The analysis described above also indicates that the
trial court's judgment is consistent with Walters. Therefore,
Edwards's citation of Walters does not warrant granting his
application for rehearing.
Accordingly,
we
overrule
Edwards's
application
for
rehearing.
APPLICATION OVERRULED.
Thompson, P.J., and Pittman, Thomas, and Moore, JJ.,
concur.
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