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Equity Ventures, LLC v. Cheaha Bank

Alabama Court of Civil Appeals

July 20, 2018

Equity Ventures, LLC
v.
Cheaha Bank and Alice K. Martin, in her capacity as Probate Judge of Calhoun County

          Appeal from Calhoun Circuit Court (CV-17-900139)

          THOMPSON, PRESIDING JUDGE.

         Equity Ventures, LLC, appeals from a judgment of the Calhoun Circuit Court ("the circuit court") dismissing its petition for a writ of mandamus in connection with the administrative redemption of certain property for which it had acquired a tax deed.

         The record indicates that Superior Home Construction, LLC ("Superior"), owned a parcel of property in Calhoun County ("the property"). Cheaha Bank held a mortgage on the property. Taxes on the property were not paid, and on May 8, 2012, the State of Alabama purchased the tax lien on the property at a tax sale. The state received a certificate of purchase on May 18, 2012. On January 16, 2015, the state conveyed its interest in the property and assigned the certificate of purchase to Equity Ventures.

         In December 2015, more than three years after the date of the tax sale, Equity Ventures surrendered the certificate of purchase. The Calhoun Probate Court ("the probate court") issued Equity Ventures a tax deed for the property on December 28, 2015.[1]

         On October 19, 2016, Cheaha Bank sent Equity Ventures a written demand "for a statement of the value of all permanent or preservation improvements" made on the property since the date of the tax sale. The letter explicitly stated that the demand was being made pursuant to § 40-10-122, Ala. Code 1975. In response, Equity Ventures wrote a letter to Cheaha Bank explaining its position that Cheaha Bank was "not entitled to a response to a written demand made pursuant to Ala. Code § 40-10-122 (1975)" because, Equity Ventures explained, the tax sale had occurred more than three years before and the only form of redemption now available was pursuant to § 40-10-83, Ala. Code 1975. In other words, Equity Ventures' position was that judicial redemption was the only allowable form of redemption permitted by law at that time and that administrative redemption was no longer an option for Cheaha Bank.

         Equity Ventures went on to advise Cheaha Bank that, pursuant to § 40-10-83, it would accept redemption in the amount of $15, 989.67, which included $3, 129.96 for the tax lien, interest in the amount of $569.64, and an attorney fee of $12, 290.88.[2] If the payment was not received by October 28, 2016, Equity Ventures said, the amount owed would need to be recalculated.

         On November 4, 2016, Cheaha Bank filed in the probate court a petition for administrative redemption pursuant to § 40-10-120 et seq., Ala. Code 1975, and attached the correspondence between it and Equity Ventures. In the petition, Cheaha Bank asserted that an attorney fee was not recoverable pursuant to § 40-10-122 and that it was prepared to pay $4, 776.24 to redeem the property.

         That same day, the probate court entered a judgment granting Cheaha Bank's petition for administrative redemption. In the judgment, the probate court found that, because Cheaha Bank's written demand for a statement of value was made within one year of the date Equity Ventures provided Cheaha Bank with notice of its purchase of the property, its request for administrative redemption was timely. The probate court further found that Equity Ventures's "refusal to participate in the redemption process set forth under § 40-10-122 ... creates and operates as an implied forfeiture and waiver of its right to claim any value for permanent or preservation improvements to [the property] since the time of the tax sale, as well as any other allowable charges." The probate court also noted that an attorney fee was not recoverable under § 40-10-120 et seq. Finally, the probate court ordered the Calhoun County revenue commissioner to issue a certificate of redemption to Cheaha Bank upon Cheaha Bank's payment of $4, 776.24. The certificate of redemption was issued on November 4, 2016, the same day Cheaha Bank had filed its petition for administrative redemption.

         On November 30, 2016, the revenue commissioner notified Equity Ventures that the property had been redeemed and that, "upon surrender of your certificate of purchase to this office," it could obtain a check in the amount Equity Ventures had paid the state, plus interest. On December 2, 2016, Equity Ventures filed a motion to vacate the November 4, 2016, judgment and to quash the certificate of redemption. The probate court denied the postjudgment motion on February 21, 2017.

         On March 15, 2017, Equity Ventures filed a petition for a writ of mandamus in the circuit court. In its petition, Equity Ventures asked the circuit court to issue a writ directing the probate court to quash or to vacate the certificate of redemption issued on November 4, 2016, on the ground that the probate court did not have subject-matter jurisdiction to grant the administrative redemption.

         On April 12, 2017, Cheaha Bank filed in the circuit court a motion to dismiss Equity Ventures's petition for a writ of mandamus. In support of its motion, Cheaha Bank stated that Equity Ventures had not appealed from the November 4, 2016, judgment or obtained a stay of that judgment. Cheaha Bank argued that the probate court no longer had jurisdiction over the matter and that, therefore, the petition was moot. A hearing was held on Cheaha Bank's motion, after which, on July 21, 2017, the circuit court dismissed the petition for a writ of mandamus. On August 21, 2017, Equity Ventures filed a motion to alter, amend, or vacate the judgment dismissing the petition. The circuit court did not rule on the postjudgment motion, which was thus deemed denied on November 20, 2017, pursuant to Rule 59.1, Ala. R. Civ. P.[3] On December 28, 2017, Equity Ventures timely appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

         Equity Ventures first contends that the circuit court erred in dismissing the petition for a writ of mandamus. The circuit court did not set forth a reason for its decision to dismiss the petition. At the hearing on Cheaha Bank's motion to dismiss, and in response to Equity Ventures's contention on appeal, Cheaha Bank has asserted that the petition for a writ of mandamus is moot. In support of its assertion, Cheaha Bank relies on the following language from State v. Webber, 892 So.2d 869, 871 (Ala. 2004):

"The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case. See Ex parte St. John, 805 So.2d 684 (Ala. 2001); State ex rel. S.N. v. W.Y., 622 So.2d 378, 381 (Ala. Civ. App. 1993); and Continental Oil Co. v. Williams, 370 So.2d 953, 954 (Ala. 1979). The petition for a writ of mandamus, if meritorious, merely prompts the appellate court to exercise its supervisory power to tell the trial judge, as an official, as distinguished from the trial court itself, to do his or her duty when that duty is so clear that there are no two ways about it. Ex parte Little, 837 So.2d 822, 824 (Ala. 2002). Further, a petition ...

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