Jones v. Clausell

859 So. 2d 1134, 2002 Ala. Civ. App. LEXIS 816, 2002 WL 31528728
CourtCourt of Civil Appeals of Alabama
DecidedNovember 15, 2002
Docket2010614
StatusPublished

This text of 859 So. 2d 1134 (Jones v. Clausell) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. Clausell, 859 So. 2d 1134, 2002 Ala. Civ. App. LEXIS 816, 2002 WL 31528728 (Ala. Ct. App. 2002).

Opinions

CEAWLEY, Judge.

Shirley A. Jones and Larry D. Cross (hereinafter referred to as “the redemp-tioners”) defaulted on payments for their home. Pursuant to the terms of a mortgage 1 between the redemptioners and Clyde W. Clausell, John Clausell, Theodore Clausell, and Samuel Rowe (hereinafter collectively referred to as “the sellers”), a foreclosure sale was conducted on August 16, 1999, as a result of the redemp-tioners’ default. The home was repurchased by the sellers, except that John Clausell had died and his two daughters, Annie Bettis and Elnora Shackelford, repurchased his interest in the property (the sellers, excluding John Clausell and including Bettis and Shackelford, are hereinafter collectively referred to as “the purchasers”). On August 18, 1999, the redemp-tioners received a letter giving them notice that their home had been sold at the foreclosure sale. The notice informed them that they had 10 days to surrender possession of their home pursuant to § 6-5-251, Ala.Code 1975, and that their failure to do so would cause them to forfeit their right to redemption.

On August 7, 2000, the redemptioners inquired of the purchasers concerning the total amount due to be paid so that they could exercise their right of redemption. On August 15, 2000, the redemptioners were informed that because they had not delivered possession of their home until August 30, 1999, 12 days after receiving notice of the foreclosure sale, they had therefore forfeited their right to redemption.

On August 16, 2000, the redemptioners filed a complaint for redemption against the purchasers, alleging that they had surrendered possession of their home in a timely manner pursuant to § 6-5-251, that they had provided the purchasers with a written demand for a statement of debt and charges and that the purchasers had failed to provide a statement to them within 10 days pursuant to § 6-5-252.2 On November 13, 2000, the purchasers filed an answer to the redemptioners’ complaint. On May 25, 2001, the redemption-ers filed suggestions of death for Shackel-ford and Theodore Clausell and a motion to amend their complaint to name Namon Shackelford, Jr., Angela Tartt, Lakeisha Grimes, Elnora Reid, and Namon Shackel-ford, the heirs of Elnora Shackelford, and Ima Paxton, Erme Jean Clausell, Johnnie Clausell, Theodore Clausell, Jr., and Dais-ey Clausell, the heirs of Theodore Clausell, as defendants (these heirs are hereinafter included in the term “the purchasers”). On June 4, 2001, the trial court granted the redemptioners’ motion to amend their complaint; an amended complaint was filed on June 9, 2001.

On January 22, 2002, the trial court conducted a bench trial on the redemption-ers’ complaint. On February 1, 2002, the trial court entered an order stating that [1136]*1136the redemptioners were not entitled to the relief they sought. The redemptioners filed a notice of appeal on March 24, 2002. On August 23, 2002, this case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975. On appeal, the redemptioners argue that the trial court erred in determining that they had not properly exercised their right to redeem their home.

The trial court was presented with conflicting testimony in regard to when the redemptioners surrendered possession of their home to the purchasers. The redemptioners testified that the last night they stayed at the home was Thursday, August 26, 1999; that they had completely moved out of the home and contacted Namon and Elnora Shackelford on Friday, August 27; and that they surrendered possession of their home by providing the keys to the house to Namon and Elnora on Saturday, August 28, 1999. Namon testified that the redemptioners telephoned on Saturday, August 28, and stated that they were still moving things out of the home and wanted to clean it, and scheduled to meet him and Elnora to deliver the keys on Monday, August 30, 1999. The trial court questioned Namon as to the reliability of his memory of that date; Namon responded that he was sure of the date because he had picked Elnora up from work prior to meeting the redemptioners at the home.

Our review of the trial court’s judgment is governed by the ore tenus standard of review.

“ ‘We note that under the ore tenus standard of review, the trial court’s findings of fact based on oral testimony, and a judgment based on those findings, are given a presumption of correctness. A judgment based on such findings will not be reversed unless it is shown to be plainly and palpably wrong. The appellate courts are not allowed to substitute their own judgment for that of the trial court if the trial court’s decision is supported by reasonable inferences to be drawn from the evidence. The reason for giving such deference to the trial judge’s findings based on disputed evidence in ore tenus proceedings is that the trial judge has the benefit of observing the witnesses’ manner and demeanor and has the better opportunity to pass upon the credibility of their testimony.’
“Ex parte Pielach, 681 So.2d 154, 154-55 (Ala.1996) (citations omitted). ‘Under the ore tenus rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption, of correctness and will not be reversed unless found to be plainly and palpably wrong.’ Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992) (citations and internal quotation marks omitted).”

Creel v. Crim, 812 So.2d 1259, 1260-61 (Ala.Civ.App.2001). Based upon this standard of review, we cannot say that the trial court erred in basing its decision on the testimony of Namon Shackelford rather than on the testimony provided by the redemptioners. The trial judge was in the best position to determine the credibility of the testimony presented.

The redemptioners also attempt to rely on Watts v. Rudulph Real Estate, Inc., 675 So.2d 411 (Ala.1996), to argue that Namon and Elnora had not acted with due diligence in failing to demand the keys to the home when the redemptioners telephoned them on August 28 and that the redemptioners had otherwise acted in good faith. In Watts, our supreme court held that redemptioners’ acting in good faith and a purchaser’s not acting with due diligence excused the redemptioners’ precise [1137]*1137compliance with § 6-5-251. In that case, the redemptioners, on the ninth day, sought a statement of charges by the purchaser to exercise their right of redemption. On the tenth day, having received no response from the purchaser, the redemp-tioners sent a second letter stating an intent to redeem along with a check, estimated to be the amount of charges due. On the seventeenth day, the purchaser returned the check with a letter stating that the charges were $136.48 more than the amount sent by the redemptioners and stating that because the redemptioners had failed to surrender possession, their right to redemption had been forfeited. In making its holding, the supreme court observed:

“This court stated in Garvich v. Associates Financial Services Co., 435 So.2d 30, 33 (Ala.1983):

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Watts v. Rudulph Real Estate, Inc.
675 So. 2d 411 (Supreme Court of Alabama, 1996)
Garvich v. Associates Financial Services Co.
435 So. 2d 30 (Supreme Court of Alabama, 1983)
Creel v. Crim
812 So. 2d 1259 (Court of Civil Appeals of Alabama, 2001)
Ex Parte Pielach
681 So. 2d 154 (Supreme Court of Alabama, 1996)
TRANSAMERICA COM. FIN. v. AmSouth Bank
608 So. 2d 375 (Supreme Court of Alabama, 1992)
Rodgers v. Stahmer
179 So. 229 (Supreme Court of Alabama, 1938)

Cite This Page — Counsel Stack

Bluebook (online)
859 So. 2d 1134, 2002 Ala. Civ. App. LEXIS 816, 2002 WL 31528728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-clausell-alacivapp-2002.