Daily Development for Thursday, August 8, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

COTENANCIES; PARTITION; ATTORNEY'S FEES: Although court may assess attorney's fees of one party in partition action against whole fund resulting from partition sale, assessment must be limited to fees that have been generated in the interest of all affected co-owners, and if claims of one set of co-owners are diminished by the action, then their share of proceeds cannot be assessed for the relevant costs.

Godwin v. Dogran, 811 So.2d 503 (Ala. 2001)

This little case arises on unique and interesting facts, and comes to an interesting conclusion. In 1872, 14 bar pilots along Alabama's Gulf coast, in an area known as Navy Cove, were awarded a fee interest as tenants in common, with the right of each to stake out a portion of the property and build a house on it. One hundred years later, the descendants of these pilots battled over the ownership rights in the conveyed property.

Some of the descendants argued that their ancestor, by building a house and enclosing land around it, became outright owners of the enclosed property due to adverse possession. Other descendants brought a quiet title and partition action, claiming that the cotenancy title remained intact. These cases originated in the 1960's, but litigation has extended, Dickens-like, until today.

In 1986, a trial judge found in favor of the adverse possession claimants, but this ruling later was reversed by the Alabama Supreme Court. The property was sold and almost $900,000 was placed into a common fund for the benefit of all parties, but in 1991 certain of the parties who disputed the adverse possession claims discovered, in some cases, that their attorney's fees exceeded the amount of their share. They then asserted that they should be paid attorney's fees out of the common fund.

The matter was turned over to a special master who, eight years later, reported back a recommendation that the fees be paid from the fund. This was appealed, in 1999, to the Alabama Supreme Court, which, more than two years after that, 42 years after the original complaints were filed, issued this opinion.

The Supreme Court acknowledged that Alabama statutes give broad discretion to a trial judge in a partition action to award fees from the common fund, and do not provide any direct limits on the equitable discretion of the court. Nevertheless, the Supreme Court, noted, Alabama precedent has in fact established certain limits.

The court stated that although attorney's fees can be awarded in favor of parties to a partition action that the attorneys in question did not represent, the fees must have been expended in the establishment of a "common benefit." In this case, certain of the cotenants were arguing that they owned the property outright due to adverse possession, and thus their interest in the property actually was diminished as a result of the suit, so they were not required to contribute to the cost of producing this outcome, even though they remained cotenants in the subject property thus preserved.

Comment: The outcome seems anomalous until we remember that in general parties to adverse possession litigation must always bear their own fees. The only basis for an exception is where the common owners all share the same interest in the litigation, and that clearly was not the case here. The decision is correct.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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