Anthony Powers and Gweneth Powers v. Chadwell Homes, LLC (Appeal from Jefferson Circuit Court: CV-23-901047).

Rel: September 20, 2024

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,
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024

_________________________

SC-2024-0269
_________________________

Anthony Powers and Gweneth Powers

v.

Chadwell Homes, LLC

Appeal from Jefferson Circuit Court
(CV-23-901047)

SELLERS, Justice.
SC-2024-0269

Anthony Powers and Gweneth Powers appeal from a summary

judgment entered by the Jefferson Circuit Court in favor of Chadwell

Homes, LLC ("Chadwell"), in Chadwell's action seeking a judgment

declaring that Chadwell has a right to possession of a parcel of residential

real property and directing the Powerses to vacate the property. We

affirm the trial court's judgment, and we award Chadwell damages for

having to defend against a frivolous appeal.

In October 2009, the Powerses purchased a residence in Fultondale.

In connection with the purchase, the Powerses executed a promissory

note in the amount of $129,900 in favor of Chadwell and granted

Chadwell a mortgage on the property to secure payment of the

promissory note.

The Powerses defaulted on the loan. The record suggests that they

have paid Chadwell a total of $400 since executing the promissory note

in 2009. In 2015, Gweneth Powers filed for bankruptcy protection. In

April 2019, after Chadwell had obtained leave from the automatic stay

arising from the bankruptcy proceeding, Chadwell commenced an action

in the Jefferson Circuit Court seeking a judicial foreclosure of the

property ("the 2019 action"). The trial court in the 2019 action entered a

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judgment in favor of Chadwell, expressly declaring that the Powerses had

executed a promissory note and a mortgage in favor of Chadwell in 2009,

that the mortgage was valid and had been recorded in the appropriate

probate records, that the Powerses were in default under the promissory

note and owed $129,500 to Chadwell, that the Powerses had been

properly served with process in the 2019 action, and that Chadwell was

entitled to judicially foreclose on the property. In May 2022, the

Powerses appealed from the judgment entered in the 2019 action. The

Court of Civil Appeals affirmed that judgment, without an opinion, in

March 2023, Powers v. Chadwell Homes of Alabama, LLC (No. CL-2022-

0796, Mar. 17, 2023), ___ So. 3d ___ (Ala. Civ. App. 2023) (table), and this

Court denied the Powerses' petition for a writ of certiorari. Ex parte

Powers (No. SC-2023-0369, July 7, 2023), ___ So. 3d ___ (Ala. 2023)

(table).

In the meantime, in July 2022, Chadwell foreclosed on the property,

purchased it at the foreclosure sale, and recorded a foreclosure deed in

the probate records. Shortly after the foreclosure, the Powerses

commenced a separate civil action in the Jefferson Circuit Court against

Chadwell, in which they challenged Chadwell's authority to foreclose on

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the property ("the 2022 action"). The trial court in the 2022 action

entered a judgment in favor of Chadwell, and this Court affirmed that

judgment, without an opinion. Powers v. Chadwell Homes, LLC (No. SC-

2023-0348, Oct. 13, 2023), ___ So. 3d ___ (Ala. 2023) (table). The record

in the present case suggests that, in March 2024, the Powerses sought

certiorari review from the United States Supreme Court regarding the

rulings in the 2022 action.1

Even after the foreclosure and the foreclosure sale in July 2022,

after multiple judgments had been entered against them and after

Chadwell had demanded that they vacate the property, the Powerses

have nevertheless refused to relinquish possession of the property. In

March 2023, Chadwell commenced the present action in the Jefferson

Circuit Court, seeking a judgment declaring that Chadwell has a right to

possession of the property, directing the Powerses to vacate the property,

1The Powerses represent to this Court that their petition for a writ

of certiorari "remains pending" in the United States Supreme Court.
Nothing in the record or the parties' briefs indicates that the Supreme
Court agreed to issue the writ of certiorari and consider the Powerses'
case. The only item in the record to which the Powerses refer with respect
to their certiorari petition in the United States Supreme Court is
correspondence from the clerk of that Court, dated March 14, 2024,
informing the Powerses that their certiorari petition failed to comply
with the Supreme Court's procedural rules.
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and directing the Jefferson County Sheriff to remove the Powerses from

the property, if necessary. Chadwell filed a motion for a summary

judgment, asserting that the validity of the promissory note and the

mortgage in favor of Chadwell and of the foreclosure have already been

established in prior actions. The trial court granted Chadwell's motion.

The Powerses later submitted an additional filing styled as a

postjudgment motion to alter, amend, or vacate the trial court's judgment

under Rule 59, Ala. R. Civ. P. The trial court denied that motion, and the

Powerses appealed.

"We apply the same standard of review the trial court used in
determining whether the evidence presented to the trial court
created a genuine issue of material fact. Jefferson County
Comm'n v. ECO Preservation Services, L.L.C., 788 So. 2d 121
(Ala. 2000) (quoting Bussey v. John Deere Co., 531 So. 2d 860,
862 (Ala. 1988)). Once a party moving for a summary
judgment establishes that no genuine issue of material fact
exists, the burden shifts to the nonmovant to present
substantial evidence creating a genuine issue of material fact.
Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala.1989). 'Substantial evidence' is 'evidence of such
weight and quality that fair-minded persons in the exercise of
impartial judgment can reasonably infer the existence of the
fact sought to be proved.' West v. Founders Life Assur. Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989). In reviewing a
summary judgment, we view the evidence in the light most
favorable to the nonmovant and entertain such reasonable
inferences as the jury would have been free to draw. Jefferson
County Comm'n v. ECO Preservation Servs., L.L.C., supra

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(citing Renfro v. Georgia Power Co., 604 So. 2d 408 (Ala.
1992))."

Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So. 2d 369,

372 (Ala. 2000).

We agree with the trial court that there is no question of material

fact regarding Chadwell's right to possession of the property and the

Powerses' duty to vacate the property. See generally § 6-6-280, Ala. Code

1975 (providing that an ejectment claim may succeed on proof that the

plaintiff has legal title to the premises in question and that the defendant

unlawfully withholds and detains the premises); Steele v. Federal Nat'l

Mortg. Ass'n, 69 So. 3d 89, 93 (Ala. 2010) (applying the plain language of

§ 6-6-280 and holding that a mortgagee had stated a valid claim for

ejectment by alleging that it held legal title to the property and that the

mortgagors unlawfully withheld possession of the property). The validity

of the promissory note and the mortgage the Powerses executed in favor

of Chadwell, the existence of the Powerses' default and the debt they owe

to Chadwell, Chadwell's authority to foreclose, and the validity of the

foreclosure have already been established in prior civil actions. And the

Powerses have not demonstrated that Chadwell's purchase of the

property at the foreclosure sale and its foreclosure deed, which the
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Powerses unsuccessfully attacked in the 2022 action, were ineffective for

any reason. Thus, the undisputed evidence shows that Chadwell holds

legal title to the property and that the Powerses have unlawfully

withheld possession of the property.

The arguments the Powerses attempt to make in their brief to this

Court are rambling, confusing, without proper context, and not properly

supported by adequate explanation, citations to evidence, or relevant

legal authority. At times, their brief is nearly incoherent. What is

reasonably clear, however, is that they are attempting to challenge

Chadwell's authority to foreclose and the validity of the foreclosure.

Those challenges, which are largely based on unsupported factual

assertions and confusing unpersuasive arguments, have been previously

raised and rejected more than once in previous actions. The same is true

with respect to the Powerses' suggestion that the trial court in this case

or in the previous cases between these parties did not have jurisdiction

because, they say, they are entitled to bankruptcy protection. That

argument is unpersuasive on the merits and has already been raised and

rejected in a prior action between these parties involving the same

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subject matter. 2 "Res judicata and collateral estoppel are two closely

related, judicially created doctrines that preclude the relitigation of

matters that have been previously adjudicated or, in the case of res

judicata, that could have been adjudicated in a prior action." Lee L. Saad

Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516 (Ala. 2002). The

Powerses are not free to continue making the same arguments in action

after action in an effort to delay surrendering possession of Chadwell's

property. We affirm the trial court's judgment.

Chadwell has filed a motion for sanctions, requesting an award of

damages for having to defend this appeal.

"[T]he appellate courts of this State are authorized under the
[Alabama Litigation Accountability Act ('the ALAA'), § 12-19-
270, Ala. Code 1975,] and Rule 38, Ala. R. App. P., to award
attorney fees as a sanction for certain filings. Section 12-19-
272(a), Ala. Code 1975, a part of the ALAA, provides, in
relevant part:

" '(a) Except as otherwise provided in [the
ALAA], in any civil action commenced or appealed
in any court of record in this state, the court shall
award, as part of its judgment and in addition to
any other costs otherwise assessed, reasonable
attorneys' fees and costs against any attorney or

2Because of their misuse of the bankruptcy process, the bankruptcy

court has specifically held that the Powerses are not entitled to the
benefit of the automatic stay with respect to their dispute with Chadwell
in any current or future bankruptcy proceeding.
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party, or both, who has brought a civil action, or
asserted a claim therein, or interposed a defense,
that a court determines to be without substantial
justification, either in whole or part;

" '....

" '(c) The court shall assess attorneys' fees
and costs against any party or attorney if the
court, upon the motion of any party or on its own
motion, finds that an attorney or party brought an
action or any part thereof, or asserted any claim or
defense therein, that is without substantial
justification, or that the action or any part thereof,
or any claim or defense therein, was interposed for
delay or harassment, or if it finds that an attorney
or party unnecessarily expanded the proceedings
by other improper conduct ....'

"(Emphasis added.) See Williams v. Capps Trailer Sales, Inc.,
607 So. 2d 1272 (Ala. Civ. App. 1992) (awarding attorney fees
for defendants under ALAA for appeal brought without
substantial justification); see also § 12-19-276, Ala. Code 1975
(noting that the provisions of the ALAA 'are cumulative and
in addition to the damages which may be awarded for a
frivolous appeal pursuant to Rule 38, Alabama Rules of
Appellate Procedure'). Rule 38, Ala. R. App. P., authorizes an
appellate court, ex mero motu, to 'award just damages and
single or double costs to the appellee' if the court determines
that an appeal is frivolous. See Walker[ v. Blackwell, 800 So.
2d 582 (Ala. 2001)] (imposing Rule 38, Ala. R. App. P.,
sanctions against pro se litigant for frivolous appeal), and
May v. May, 292 So. 3d 385 (Ala. Civ. App. 2019) (awarding
attorney fees to wife under Rule 38, Ala. R. App. P., for
husband's frivolous appeal that presented the wife and
appellate court with no legal argument for reversal)."

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Guthrie v. Fanning, 329 So. 3d 1, 3-4 (Ala. 2020) (last emphasis added;

footnote omitted).

It is clear that the Powerses, who have lived on the property for

more than 10 years while paying only $400 toward their loan, are

misusing and abusing the judicial system in an effort to delay and deny

Chadwell possession of the property. For example, in response to

Chadwell's request for damages, the Powerses submitted a filing to this

Court indicating that Anthony Powers has recently filed for bankruptcy

protection and suggesting that the automatic stay arising from the

bankruptcy proceeding precludes this Court from considering Chadwell's

request. Likewise, the Powerses have repeatedly suggested that a

bankruptcy stay precluded the trial courts from exercising jurisdiction.

The Powerses fail to acknowledge, however, that the bankruptcy court

has specifically held that the Powerses are not entitled to the benefit of

the automatic stay with respect to their dispute with Chadwell in any

current or future bankruptcy proceeding. See note 2, supra. In fact, the

bankruptcy court has made clear that the Powerses have intentionally

abused the bankruptcy process in an effort to delay litigation of their

dispute with Chadwell.

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The present frivolous appeal is just the latest example of the

Powerses' dilatory tactics. Therefore, this Court grants Chadwell's

motion for sanctions and awards Chadwell "just damages," see Rule 38,

in the amount of $7,070.54.

MOTION FOR SANCTIONS GRANTED; AFFIRMED.

Parker, C.J., and Stewart, Mitchell, and Cook, JJ., concur.

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