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Nest Two Ventures, LLC v. Capps

Alabama Court of Civil Appeals

October 11, 2019

Nest Two Ventures, LLC
v.
Joshua Capps and Rachel Capps

          Appeal from Jefferson Circuit Court (CV-16-337)

          EDWARDS, Judge

         Nest Two Ventures, LLC ("NTV"), an Oregon limited liability company, appeals from orders entered by the Jefferson Circuit Court ("the trial court") purporting to dismiss NTV's unlawful-detainer claim against Joshua Capps and Rachel Capps ("the Cappses") and declaring that NTV's motion for a summary judgment was moot.

         The real property at issue in this case is located in Jefferson County in the city of Leeds. Based on the allegations in the record, the property was conveyed to Lynn Brantley pursuant to a general warranty deed that was recorded in the Jefferson Probate Court ("the probate court") on September 30, 2010. Brantley purchased the property using the proceeds from a loan from The Hometown Bank of Alabama ("the HBA"). Payment of the loan was secured by a mortgage that Brantley executed in favor of the HBA and that was recorded in the probate court.

         Brantley purportedly failed to pay the ad valorem taxes on the property for 2011. The property was sold to the State of Alabama for the nonpayment of taxes on May 22, 2012. Notice of the sale allegedly was sent to Brantley at the address for the property.

         On January 31, 2014, NTV purportedly purchased the tax-sale certificate for the property from the State of Alabama. Thereafter, NTV allegedly sent a letter to the Cappses, who were purportedly leasing the property from Brantley, who is Rachel Capps's mother. The letter stated that NTV owned the property and that the monthly rental payments should thereafter be paid to NTV. NTV also provided the Cappses with a proposed lease to the property at a monthly rental rate of $950. According to NTV, the Cappses did not execute the lease or make any arrangement to pay rent to NTV.

         On September 16, 2015, NTV allegedly sent Brantley a demand for possession. The demand for possession was sent to the address of the property via certified mail, and NTV also sent a notice regarding the demand for possession to the HBA via certified mail. The demand for possession addressed to the HBA was delivered, but the demand for possession addressed to Brantley was returned by the United States Postal Service as "undelivered."

         On October 8, 2015, NTV attempted to serve the "Current Tenant" of the property with a notice stating that past-due rent totaled $7, 600 and warning that the tenancy would terminate on October 16, 2015, if the past-due rent was not paid to NTV by that date. The notice allegedly was posted at the property, and a copy of the notice was allegedly mailed to the "Current Tenant" via certified mail, although that mailing was returned as "undelivered." Also on October 8, 2015, Joshua Capps sent an e-mail to counsel for NTV stating that he had repeatedly tried unsuccessfully to contact counsel for NTV and was concerned NTV was a "scamming operation." Joshua Capps also stated in the e-mail that he had a "lease to own contract" for the property with Brantley.

         After the time for redemption of the property allegedly had passed, NTV presented its tax-sale certificate to the probate court. On October 28, 2015, the probate court issued NTV a tax deed to the property. Thereafter, NTV sent the Cappses a letter offering to settle the dispute about the property and to allow Brantley to redeem the property, but the Cappses allegedly did not respond to NTV's offer.

         On June 17, 2016, the HBA and Brantley commenced an action in the trial court seeking to quiet title to the property and to redeem the property ("the redemption action"); the redemption action was assigned case number CV-16-902228. The HBA and Brantley requested that the trial court enter a judgment declaring that Brantley owned the property, subject to the HBA's mortgage, and that it enter an order allowing the HBA, as mortgagee, to redeem the property pursuant to Ala. Code 1975, § 40-10-120, or the HBA and Brantley to redeem the property pursuant to Ala. Code 1975, § 40-10-83. The HBA and Brantley further sought a judgment declaring that NTV's tax deed is void. NTV was named as the defendant in the redemption action. Paragraph 4 of the HBA and Brantley's complaint alleged, in part: "Upon information and belief, [NTV] is not registered as a foreign entity with the State of Alabama."

         On June 22, 2016, NTV filed a complaint in the Jefferson District Court ("the district court"), pursuant to Ala. Code 1975, § 35-9A-101 et. seq. ("the Landlord and Tenant Act"), and Ala. Code 1975, § 6-6-310 et seq. ("the Unlawful Detainer Act"); that action was assigned case number DV-16-902777 ("the unlawful-detainer action"). NTV's complaint was filed using an Alabama Unified Judicial System Form CS-59, titled "Statement of Claim Eviction/Unlawful Detainer," along with several attached pages. The complaint "demand[ed] the right to possession [of the property] from the [Cappses]" and included claims for "unpaid rent and late charges, plus attorney's fees (if applicable), and other charges," and for "future rent and late charges ... through the date [NTV] obtains possession of the ... property." The pages attached to the complaint included allegations that the Cappses owed NTV over $40, 000 in past-due rent, and the prayer for relief requested, in part, that the district court "[f]ind [the Cappses] liable for unlawful detainer," "issue a writ of possession in favor of [NTV]," and [f]ind [the Cappses] liable for unpaid rent and attorney's fees, and court costs."

         On September 1, 2016, NTV filed in the district court a motion to consolidate the unlawful-detainer action with the redemption action, which counsel for NTV apparently thought was pending in the district court. The district court held a hearing on NTV's motion to consolidate, at which Joshua Capps appeared, pro se, along with counsel for NTV. On September 23, 2016, the district court entered an order purporting to transfer the unlawful-detainer action to the trial court, pursuant to Ala. Code 1975, § 12-11-9, which states:

"If a case filed in the ... district court is within the exclusive jurisdiction of the circuit court, the circuit clerk or a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court, and the clerk shall make such cost and docket fee adjustments as may be required and transfer all case records."[1]

         The unlawful-detainer action was assigned case number CV-16-337. On November 17, 2016, purportedly after an ore tenus hearing, the trial court entered an order consolidating the unlawful-detainer action with the ...


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