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Prescott v. Milne

Alabama Court of Civil Appeals

December 13, 2019

Tyler Montana Jul Prescott
v.
Brenda K. Milne Brenda K. Milne
v.
Tyler Montana Jul Prescott

          Appeals from Mobile Circuit Court (CV-18-901458)

          DONALDSON, JUDGE.

         In appeal no. 2180270, Tyler Montana Jul Prescott, the substituted plaintiff in an ejectment action brought against Brenda K. Milne in the Mobile Circuit Court ("the trial court"), appeals from the trial court's judgment in that action insofar as it determined that Prescott was not entitled to recover mesne profits from Milne.[1] In appeal no. 2180305, Milne cross-appeals from that judgment insofar as it determined that Prescott's predecessors in title were not obligated to demand possession of the house at issue before commencing the ejectment action. With respect to Prescott's appeal, we reverse. With respect to Milne's cross-appeal, we affirm.

         Facts and Procedural History

         In May 2014, a house owned by Milne ("the house") was sold at a tax sale for nonpayment of the 2013 ad valorem taxes. The State purchased the house at the tax sale and subsequently received a tax-sale certificate. See §§ 40-10-18 and 40-10-20, Ala. Code 1975. In February 2017, the State assigned the tax-sale certificate to Drew Bienvenue and June Rackley. See § 40-10-21, Ala. Code 1975. In August 2017, Bienvenue and Rackley obtained a tax deed conveying to them title to the house. See § 40-10-29, Ala. Code 1975. Milne never vacated the house.

         In June 2018, without making a prior demand that Milne surrender possession of the house, Bienvenue and Rackley, pursuant to § 6-6-280, Ala. Code 1975, brought an action stating a claim of ejectment or, in the alternative, a claim in the nature of ejectment ("the ejectment action") against Milne. Alleging that they owned title to the house, Bienvenue and Rackley sought possession of the house and the recovery of mesne profits for the period Milne had occupied the house after Bienvenue and Rackley obtained the tax deed.[2] Milne answered the complaint with a general denial. Milne also filed a motion asking the trial court to ascertain the amount necessary to redeem the house pursuant to § 40-10-83, Ala. Code 1975, [3] and asserted that the amount should not include an attorney's fee for bringing the ejectment action because, Milne said, the ejectment action was premature. In addition, Milne filed a motion to dismiss Bienvenue and Rackley's claims after the trial court had ascertained the amount necessary to redeem the house pursuant to § 40-10-83. As the ground of that motion, Milne asserted that Bienvenue and Rackley had not demanded possession of the house before commencing the ejectment action and that, therefore, their claims had not accrued because, Milne said, § 40-10-74, Ala. Code 1975, provides that Bienvenue and Rackley could bring an ejectment action only if Milne had not surrendered possession after a demand for possession had been made. In response, Bienvenue and Rackley asserted that Milne's motion to dismiss should be denied because, they said, § 6-6-280 does not require them to demand possession of the house before bringing their ejectment action. Responding to Milne's motion asking the trial court to ascertain the amount necessary to redeem the house, Bienvenue and Rackley asserted that Milne was entitled to redeem the house only if she paid all the amounts specified in § 40-10-83, which included a reasonable attorney's fee for bringing the ejectment action.

         In September 2018, Bienvenue and Rackley filed a motion to substitute Prescott as the plaintiff in the action because they had conveyed to Prescott title to the house while the action was pending. Following a hearing, the trial court, on November 15, 2018, entered a judgment providing, in pertinent part:

"1. [Milne's] Motion to Dismiss is denied. The Court holds as a matter of law that since [Bienvenue and Rackley] acquired a 'tax deed' (as opposed to a 'tax certificate'), they were not required to give [Milne] the six month notice set forth in § 40-10-74 and § 41-10-73, [Ala.] Code 1975, prior to filing the subject ejectment action. It was admitted by [Bienvenue and Rackley] that they did not give [Milne] the six month statutory notice.
"2. [Milne] is allowed to redeem the subject property upon payment into Court of the following:

"Tax years 2013-2016 (paid on 02/03/17)

$1, 286.37

Interest for 560 days

266.44

"2017 taxes (paid on May 25, 2018)

305.36

Interest for 154 days

15.46

"Tax year 2018 (paid 10/26/2018)

627.22

"Insurance Premium (paid 08/31/17)

470.00

Interest for 421 days

65.05

$3, 035.90

"Additionally, [Milne] shall pay into Court the original filing fee, plus reasonable attorney fees for [Bienvenue and Rackley] to be later determined by the Court at an evidentiary hearing. Upon final determination of the total amount, [Milne] shall pay the same into Court within 45 days at which point an Order shall be entered as a judgment for [Milne] for the land, and all title and interests in the land shall by such judgment ... be divested out of [Rackley and Bienvenue]; all remaining claims shall be dismissed with prejudice; and [Rackley and Bienvenue] shall have no interest in or lien upon the subject property. If [Milne] shall fail to pay said amount into Court, upon notification from [Rackley and Bienvenue], an Order of Ejectment shall be entered.
"3. Having considered the oral argument of the parties' counsel, and having been made aware of Hairston v. Dobbs, 2 So. 147, 148 (Ala. 1887) and Pridgen v. Elson, 5 So.2d 477 (Ala. 1941), the Court finds that [Rackley and Bienvenue] are not entitled to recover mesne profits in connection with their ejectment claim pursuant to Ala. Code [1975, ] § 6-6-280.
"4. The Motion to Substitute Parties is Granted."

         On December 10, 2018, Prescott, as the substituted plaintiff, filed a motion asking the trial court to hold a hearing at which he could introduce evidence to prove the amount of the reasonable attorney's fees Milne was obligated to pay him in order to redeem the house. The trial court set such a hearing for February 8, 2019; however, on December 27, 2018, Prescott filed a notice of appeal to this court. On January 7, 2019, Milne cross-appealed to this court. Because this court lacked appellate jurisdiction, it transferred Prescott's appeal and Milne's cross-appeal to our supreme court. On November 15, 2019, the supreme court transferred the appeals back to this court pursuant to § 12-2-7(6), Ala. Code 1975.

         Finality of the Trial ...


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