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 ...