Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 13, 2026 Get Citation Alerts Download PDF Add Note

Cynthia Gerhard and Elkton S. Gerhard III v. Elkton S. Gerhard, Jr.

Supreme Court of Alabama

• Citations: None known
• Docket Number: SC-2025-0633

• Judges: Sellers, J.

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.7K)

• PDF

Combined Opinion

Rel: March 13, 2026

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,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

---

SC-2025-0633

---

Cynthia Gerhard and Elkton S. Gerhard III

v.

Elkton S. Gerhard, Jr.

Appeal from Mobile Circuit Court
(CV-21-900331)

SELLERS, Justice.

Cynthia Gerhard and her husband Elkton S. Gerhard III ("Elkton

III") appeal from a judgment of the Mobile Circuit Court ("the trial court")
SC-2025-0633

authorizing by stipulation that certain property located on Harmon

Williams Road in Mobile ("the property") be sold for a division of the

proceeds, pursuant to § 35-6-20 et seq., Ala. Code 1975. We dismiss the

appeal.

I. Facts and Procedural History

Elkton Gerhard, Jr. ("the father"), has two sons, Russ Gerhard and

Elkton III. In 2013, the father and Russ acquired the property by

warranty deed, and they owned it jointly with rights of survivorship. The

father thereafter leased the property to Elkton III and Cynthia on a

month-to-month basis. After Elkton III and Cynthia defaulted under the

lease, the father commenced an action seeking to eject them from the

property. Before the scheduled bench trial, the father learned that,

during the pendency of the ejectment action, Russ had executed an

unrecorded quitclaim deed conveying his interest in the property to

Elkton III and Cynthia. The father thereafter filed a motion for leave to

amend the complaint to recast his ejection claim as a "Sale for Division"

claim. In his complaint, the father alleged that the property was

incapable of being equitably partitioned, and he requested that the

property be sold and that the proceeds be divided among the rightful

2
SC-2025-0633

owners. The father also sought to add Russ as a defendant and to include

a claim against him to set aside, as void, the deed purporting to convey

his interest in the property.

On July 10, 2025, the trial court conducted a hearing on the father's

claim seeking a sale for division, at which the parties stipulated to

several matters. On August 1, 2025, the trial court entered the following

order based on those stipulations:

"This case came before the Court on the [father's]
Complaint for a Sale for Division of the subject property. In
open Court, the parties were able to stipulate as to several
matters as follows:

"1. The [father's] count in [his] Complaint seeking to set
aside a deed from [Russ] to [Elkton III and Cynthia] was
voluntarily dismissed by [the father] and [Russ] is hereby
dismissed as a party defendant.

"2. The remaining parties, [the father] and [Elkton III
and Cynthia] stipulated that [Elkton III and Cynthia] are
unable to purchase the 1/2 interest of [the father] and that the
property, therefore, must be sold for a division of the net
proceeds.

"3. The parties also stipulated that Jennifer Kirkland,
at Remax Realty shall be selected to list the subject property
for sale, and that the listing price for the property should be
$66,000, which comports with the current fair market value
set forth in the records of the Mobile County Revenue
Commissioner. The Court so orders and Jennifer Kirkland of
Remax Real Estate is hereby appointed to list the property at
the aforesaid price of $66,000.
3
SC-2025-0633

"4. The parties also stipulated that the net proceeds
from the subject property shall be deposited with the Clerk of
the Court and that upon receiving notice from the parties that
the sale has been concluded, the Court will set an evidentiary
hearing wherein the parties can testify as to what
adjustments on the distribution of the net proceeds shall be
made for payment of ad valorem taxes, with interest, made by
[the father] during the years that the parties have held title
to the subject property, and other matters concerning the
division of proceeds which the Court determines are relevant
and should be taken into consideration.

"5. At said hearing, the Court will also determine a
reasonable attorney[']s fee for [the father's] counsel for the
prosecution of this action, which attorney's fee shall be shared
equally between [the father and Elkton III and Cynthia].

"6. [Elkton III and Cynthia] agreed to cooperate with
the listing agent for purpose of showing the property to
prospective purchasers and understand that all three of the
parties are required to attend the closing and execute such
documents as are required to effect the sale.

"7. The Court retains jurisdiction of this matter to make
such other, further orders, as may be necessary."

Elkton III and Cynthia failed to comply with the order and, instead,

acting pro se, filed this appeal.

II. Discussion

We first address the father's argument that the appeal should be

dismissed because, he says, the order authorizing the sale of the property

for a division of proceeds is not a final judgment that will support an
4
SC-2025-0633

appeal. Although we agree with the father that the appeal is due to be

dismissed, our reasoning for the dismissal is unrelated to the finality of

the order. It is well established in Alabama that, in a sale-for-division

case, both the order directing the sale and the subsequent order

confirming the sale are considered final judgments for purposes of

appeal. Jetton v. Jetton, 502 So. 2d 756, 758-59 (Ala. 1987). See also

Carter v. Mitchell, 225 Ala. 287, 293, 142 So. 514, 519 (1932) ("The test

of the finality of a decree sufficient to support an appeal is that it

ascertains and declares the rights of the parties and settles the

equities."). Here, the order appealed from declared the rights of the

parties and settled the equities regarding the sale for division. The trial

court retained jurisdiction to conduct further proceedings to determine

how the proceeds from the sale should be deducted, offset, and ultimately

divided and distributed -- to make the order effective. Accordingly, the

order was final for purposes of appeal. Jetton, supra. Nonetheless, the

appeal is due to be dismissed because Elkton III and Cynthia stipulated

to the sale for division. See Jetton, 502 So. 2d at 759 ("This Court has

held that generally consent judgments are not reviewable on appeal

because the consent of the parties waives prior irregularities and

5
SC-2025-0633

constitutes a release of errors."), and Hanson v. Hearn, 521 So. 2d 953,

954 (Ala. 1988) ("[A] consent judgment is in the nature of a contract or a

binding obligation between parties and can be set aside only upon a

showing of fraud or mistake.") In this case, the order appealed from was

premised on stipulations mutually consented to by the parties, without

expressly reserving any rights to appeal. Further, Elkton III and

Cynthia did not file any motion in the trial court seeking to aside the

order based on fraud or mistake. Rather, within two weeks of the entry

of the order, they filed their notice of appeal. Under the circumstances

presented, Elkton III and Cynthia have waived their right to appeal from

the August 1, 2025, order.

In their reply brief, which, in many respects, fails to comply with

Rule 28, Ala. R. App. P., Elkton III and Cynthia appear to concede that

there is a problem with their appeal. Nonetheless, they ask this Court to

"consider" that their "reading and learning disabilities affect their ability

to understand court filings," that they "did not know that [they] were

expected to file a motion to reconsider or amend before filing an appeal,"

that they "did not receive proper notice of the intent to sell the property"

before the July 10, 2025 hearing, and that they "did not receive all of the

6
SC-2025-0633

documents referenced in the [father's] brief." Elkton III and Cynthia's

reply brief at 3. While we are not unsympathetic to pro se litigants such

as Elkton III and Cynthia, it is well settled that "[t]he operation of the

courts of this state is governed by rules which are no more forgiving to a

pro se litigant than to one represented by counsel." Black v. Allen, 587

So. 2d 349, 349 (Ala. Civ. App. 1991). Moreover, the assertion of Elkton

III and Cynthia that they did not receive proper notice of the father's

intent to sell the property before the July 10, 2025 hearing is refuted by

the record. Specifically, Elkton III and Cynthia were served with the

father's motion for leave to amend his complaint as well as the amended

complaint, both of which expressly indicate that the father was

abandoning his ejection claim and, instead, seeking a sale of the property

for a division of the proceeds. Finally, the transcript of the July 10, 2025,

hearing makes clear that Elkton III and Cynthia understood that the

property had to be sold:

"THE COURT: Mr. and Mrs. Gerhard, do you all know
of any other way to proceed with this case other than a sale
for the division of the property?

"[Cynthia]: No, I can't think of no other way[]. …

"….

7
SC-2025-0633

"THE COURT: But you are in agreement that the
property should be listed, should be sold, and that you should
receive what you believe to be your fair share and [the father]
should receive his fair share; is that right?

"[Cynthia]: Yes, ma'am.

"….

"[Cynthia]: We'll just get it all done and get it over and
done with. We went on too many years.

"THE COURT: It has. I've been seeing y'all for a long
time now.

"[Cynthia]: Yes, ma'am, almost five years."

The August 1, 2025, order approving the sale of the property by

stipulation does not provide for a reservation of rights to appeal, and

Elkton III and Cynthia did not move the trial court to set aside the order

based on fraud or mistake. Thus, Elkton III and Cynthia waived their

right to appeal the order.

III. Conclusion

Because Elkton III and Cynthia waived their right to appeal the

August 1, 2025, order, their appeal is dismissed.

APPEAL DISMISSED.

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

8