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12/15/95 ALBERT KEMPER DAVIS III v. HARRY ANDERSON

December 15, 1995

ALBERT KEMPER DAVIS III
v.
HARRY ANDERSON AND MARCELLA ANDERSON



Appeal from Montgomery Circuit Court. (CV-93-2254). Eugene W. Reese, TRIAL JUDGE.

Application For Rehearing Overruled January 26, 1996; . S.C. Denied May 24, 1996. Released for Publication August 22, 1996.

Monroe, Judge. Robertson, P.j., and Thigpen, Yates, and Crawley, JJ., concur.

The opinion of the court was delivered by: Monroe

MONROE, Judge

The plaintiff appeals from a summary judgment for the defendants in an action involving the statutory redemption of real property.

On October 28, 1992, Commercial Credit Corporation purchased a parcel of property described as Lot 12, Block B, Perry Homes 3, from Landmark Financial Services of Alabama, Inc., at a foreclosure sale. On October 29, 1992, Albert Kemper Davis III purchased the statutory right of redemption on the property from Blazer Financial Services, Inc., the holder of a second mortgage. On November 5, 1992, Harry and Marcella Anderson purchased the property from Commercial Credit.

On September 22, 1993, Davis notified the Andersons of his intent to redeem the property. On October 1, 1993, the Andersons responded by sending Davis a letter itemizing the redemption charges and establishing the redemption price at $43,200. Davis disputed the value of several of the permanent improvements listed in the Andersons' itemization and contended that improper or questionable charges were also included on the list. Claiming that it was impossible for him to ascertain the true amount required to be tendered to redeem the property, Davis appointed a referee to determine the proper amount of tender, pursuant to § 6-5-254(a), Ala. Code 1975. The Andersons rejected the referee appointed by Davis and appointed their own referee on October 15, 1993. Davis claims that the referees were unable, or unwilling, to meet and determine the proper amount of tender within the required statutory time, so he filed an action in the circuit court, as required by § 6-5-254(b), Ala. Code 1975, to determine the amount required to be tendered to redeem the property.

In his complaint, Davis claimed that he was excused from tendering the $43,200 established by the Andersons as the amount required to redeem the property because, he said, he was unable to ascertain the proper amount of tender, because of the dispute over the value of many of the permanent improvements and whether some of the charges were improper. He offered to pay $22,723.90, which he said he had determined to be the proper redemption price, or, in the alternative, requested the court to determine the lawful charges due. On January 25, 1994, the trial court ordered Davis to deposit into the court $22,723.90, which was the amount Davis contended was needed to redeem the property, until the court determined the proper amount of tender required.

On October 5, 1994, Davis filed a motion for a temporary restraining order to enjoin the Andersons from making any further improvements to the property until the amount of tender was established by the court. Davis also filed a motion to hold in escrow any rental income the Andersons had received from the property. On that same day, the Andersons filed a motion for summary judgment. In response to the Andersons' motion for summary judgment, Davis filed the affidavit of David Lisenby, the owner of a construction company, in which Lisenby estimated the cost of replacing the roof on the property at $800, far less than the amount claimed by the Andersons.

On November 8, 1994, the trial court held a hearing on these pending motions. On February 1, 1995, after each side had submitted memorandum briefs in support of their positions and the Andersons had filed a motion to strike the affidavit filed by Davis in response to their motion for summary judgment, the trial court denied Davis's motions for a temporary restraining order and to hold rental income in escrow and granted the Andersons' motion for summary judgment. The trial court then determined that the amount required to redeem the property was $43,200.

The trial court found that Davis had no valid excuse for failing to tender the $43,200 when he filed his complaint; that he had not exercised due diligence to determine the true amount of tender required; that he was not entitled to an offset of the rental income; and that he had not shown a willingness to tender funds into the court. Davis appealed to the Supreme Court, which deflected the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Davis contends that the trial court erred in entering the summary judgment. He says that there was a genuine dispute as to the value of the permanent improvements to the property made by the Andersons. He also contends that some of the items claimed by the Andersons on their list of "lawful charges" are actually personal property and not the subject of redemption. He says that he exercised due diligence in attempting to determine the redemption price for the property.

A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. Rule 56 is read in conjunction with the "substantial evidence rule," § 12-21-12, Ala. Code 1975, for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala. 1989).

"To defeat a defendant's properly supported motion for summary judgment, the plaintiff must present 'substantial evidence,' i.e., '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.'" Altadena Valley Golf & Country Club ...


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