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Ex parte Alabama Power Co.

Supreme Court of Alabama

March 2, 2018

Ex parte Alabama Power Company
Michael C. Armstrong et al. In re: Alabama Power Company

         St. Clair Circuit Court, CV-17-96


          STUART, Chief Justice.

         Alabama Power Company petitions this Court for a writ of mandamus directing the St. Clair Circuit Court ("the circuit court") to dismiss an appeal filed by Michael C. Armstrong, Donna Armstrong, Victoria Gendron, Robert Gendron, and Annalise Gendron (hereinafter referred to collectively as "the property owners") challenging a judgment entered by the St. Clair County Probate Court ("the probate court") in a condemnation proceeding brought by Alabama Power. We deny the petition.


         On March 13, 2017, Alabama Power initiated condemnation proceedings in the probate court seeking to obtain easements across three parcels of property in St. Clair County for the purpose of erecting new power-transmission lines. The property owners were served notice of the complaint for condemnation and, at hearings conducted on April 25, 2017, and May 10, 2017, the probate court heard the arguments of the parties and received evidence. See § 18-1A-276, Ala. Code 1975 ("The probate court shall conduct a hearing within 45 days after the filing of the complaint [for condemnation] ... and, within 10 days after the hearing, shall make an order granting or refusing the complaint."). On May 18, 2017, the probate court granted Alabama Power's complaint and appointed three commissioners to determine the compensation Alabama Power would be required to pay the property owners to complete the condemnation process (this order is hereinafter referred to as "the May 18 order granting the complaint"). The commissioners thereafter submitted their report to the probate court recommending awards of $44, 961 in favor of Michael and Donna Armstrong, $66, 284 in favor of Victoria Gendron, and $48, 787 in favor of Robert and Annalise Gendron. On June 8, 2017, the probate court entered an order, consistent with § 18-1A-282, Ala. Code 1975, adopting the report filed by the commissioners and declaring that Alabama Power would obtain the desired easements upon its payment of the assessed amounts (this order is hereinafter referred to as "the June 8 order of condemnation").[1] The June 8 order of condemnation also notified the parties of their right to appeal the probate court's decision pursuant to § 18-1A-283, Ala. Code 1975, which provides, in relevant part, that "[a]ny of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days from the making of the order of condemnation by filing in the probate court rendering that judgment a written notice of appeal."

         On June 15, 2017, the property owners filed a notice of appeal in the probate court. That notice described itself as "the parties' notice of appeal of the order of this Court, dated May 18, 2017, granting [Alabama Power's] petition for condemnation, " and further stated that it was "brought in accord with ... [§] 18-1A-283." On July 5, 2017, the probate court transferred the case to the circuit court for the trial de novo contemplated by § 18-1A-283, stating in its order of transfer:

"This court, having received timely notices of appeal[2] filed on June 15, 2017, by [the property owners] in accord with [§ 18-1A-283] on this court's condemnation order of May 18, 2017, and the court's subsequent order confirming report of commissioners of June [8], 2017, hereby transfers this action in its entirety and on all issues to be adjudicated de novo, to the circuit court of St. Clair County, Alabama."

         On July 11, 2017, Alabama Power moved the circuit court to dismiss the property owners' appeal, arguing that the property owners had failed to comply strictly with § 18-1A-283. Specifically, Alabama Power argued that the notice of appeal filed by the property owners indicated that they sought review of the May 18 order granting the complaint; however, Alabama Power argued, § 18-1A-283 and controlling caselaw, see, e.g., Ex parte City of Irondale, 686 So.2d 1127 (Ala. 1996), indicate that only the June 8 order of condemnation is appealable. Accordingly, Alabama Power argued, the circuit court lacked jurisdiction over the appeal. The circuit court subsequently conducted a hearing on Alabama Power's motion and, on August 15, 2017, denied the motion by written order, explaining:

"The court finds that the reference to the [May 18 order granting the complaint] in [the property owners'] notice of appeal was inadvertent. This is not a case where [the property owners] failed to file a notice of appeal or missed the filing deadline. This is a case where [the property owners] fully complied with applicable law and filed a notice of appeal that arguably included a reference to the wrong order -- which this court deems inconsequential and not fatal to [the property owners'] compliance with the requirements of § 18-1A-283.
"Upon consideration of the entire record and facts presented to this court, it is abundantly clear that [the property owners] intended to appeal from the [June 8] order of condemnation in compliance with § 18-1A-283. It is also abundantly clear that the probate court's order of transfer of appeal confirms that the notice of appeal applied to the [June 8] order of condemnation and was 'in accord with § 18-1A-283.'"

         On September 26, 2017, Alabama Power petitioned this Court for mandamus review, and, on November 15, 2017, this Court entered an order staying all proceedings in the circuit court while Alabama Power's petition was under review.


         Alabama Power argues that the circuit court should have granted its motion to dismiss because, it says, the property owners' failure to strictly comply with § 18-1A-283 leaves the circuit court with no jurisdiction over the appeal. As explained in Ex parte Hampton, 189 So.3d 14 (Ala. 2015), this matter is an appropriate subject for mandamus review; we accordingly apply the standard of review set forth in that opinion:

"'"'The writ of mandamus is a drastic and extraordinary writ, to be "issued only when there is:
1) a clear legal right in the petitioner to the order sought;
2)an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993); see also Ex parte Ziglar, 669 So.2d 133, 134 (Ala. 1995).' Ex ...

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