AVERY ALEXANDER, TINA RENEE ALEXANDER, AND CAROLYN VASSAR APPELLANTS
CURTIS ALEXANDER APPELLEE
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO.
35-CV-2011-704-2] HONORABLE ROBERT H. WYATT, JR., JUDGE.
IN PART; REVERSED IN PART
& Kearney, PLLC, by: Othello C. Cross, for appellants.
Victor Harper, for appellee.
PHILLIP T. WHITEAKER, Judge.
subject of this appeal is a parcel of property in Jefferson
County. The parties to this dispute are siblings. Appellants
Avery Alexander and Carolyn Vassar contend that the Jefferson
County Circuit Court erred in reforming a deed to a portion
of the property; in addition, the appellants challenge the
circuit court's decision to award attorney's fees to
appellee Curtis Alexander. We affirm in part and reverse in
Alexander and Jessie Alexander were the parents of fourteen
children, including Avery, Carolyn, and Curtis. In 1967, C.G.
and Jessie acquired a tract of land that encompassed roughly
eighteen acres from George and Lillie Alexander. In 1968,
C.G. and Jessie conveyed a small parcel at the northern edge
of that tract of land to Clayborn and Elizabeth Carroll. In
1990, Curtis decided to build a new house for his parents on
a parcel of property adjacent to, and to the west of, the
parcel that C.G. and Jessie had conveyed to the Carrolls.
Curtis contracted with L.J. Randle to build the home. In
order to accomplish the construction, C.G. and Jessie issued
a deed to Curtis and his sister, Olga. Unknown to C.G.,
Jessie, Curtis, and Olga at the time, however, the deed
contained an erroneous property description. It contained the
same legal description as the property that C.G. and Jessie
had deeded to the Carrolls in 1968, instead of the legal
description of the adjacent parcel on which the house was
built. Curtis then executed a construction mortgage and
promissory note to Randle for the construction of the home.
Unknown to Curtis and Randle, these documents also contained
the same erroneous property description from the deed. Randle
completed construction of the home in 1992. It is undisputed
that C.G. and Jessie lived in the home after its completion
until their deaths.
1996, Randle sued Curtis for nonpayment on the promissory
note and for foreclosure on the mortgage. Randle obtained a
default judgment against Curtis. In the process of this
litigation, notice of the erroneous property description
arose for the first time. As a result, Randle filed an
unjust-enrichment action against Curtis, C.G., and Jessie and
was awarded a judgment in November 2000.
2010, several events of significance occurred. Jessie died
intestate in January 2010, and C.G. died intestate five
months later in June. In between these two events, in March
2010, Avery recorded a quitclaim deed conveying C.G.'s
real estate to Avery and Carolyn as joint tenants in common.
The same day, an affidavit of death terminating C.G. and
Jessie's tenancy by the entirety was recorded. Avery took
these actions based on a general durable power of attorney
purportedly executed by C.G. in April 2008.
instant litigation began in November 2011. Curtis filed suit
seeking two forms of relief: (1) reformation of the 1990 deed
from his parents to him and Olga in order to reflect the
correct legal property description; and (2) an order of the
court setting aside the March 2010 quitclaim deed. With
respect to the latter relief, Curtis alleged that Avery had
abused his power of attorney by conveying C.G.'s property
"to himself and his sister in an attempt to exclude the
remaining siblings from inheriting the remainder of the
property." Avery and Carolyn filed an answer generally
denying Curtis's allegations and reserving the right to
plead further, including pleading affirmative defenses. They
subsequently filed an amended answer asserting the
affirmative defense of laches, contending that Curtis had
"stood idle [sic] by for nearly twenty-two
years before he filed his claim to reform the
trial, the circuit court entered judgment granting Curtis
both of his requests for relief. As to the reformation of the
1990 deed, the court found that none of the parties contested
the fact that the deed contained an erroneous
description. The court further found that, despite
Avery's pleading of the affirmative defenses of laches
and adverse possession, he presented no proof to support
those defenses. Accordingly, the court granted Curtis's
request to reform the deed, and the judgment set forth the
correct legal description thereof. As to the 2010 quitclaim
deed, the court first found that the power of attorney that
Avery used to quitclaim the property to himself and his
sister was invalid. As a result, the court found the
quitclaim deed itself to be void. The circuit court also
awarded Curtis attorney's fees, travel expenses, and
costs totaling $5841.88.
timely appealed. On appeal, however, Avery does not challenge
the circuit court's decision to reform the deed, nor does
he argue that the circuit court erred in finding the power of
attorney to be void. Rather, he argues that the court lacked
jurisdiction to enter the order in the absence of all
necessary parties and that the court erred in finding that he
presented no proof of his affirmative ...