Peacock v. Clay

831 So. 2d 33, 2001 Ala. Civ. App. LEXIS 346, 2001 WL 818503
CourtCourt of Civil Appeals of Alabama
DecidedJuly 20, 2001
Docket2000065
StatusPublished
Cited by4 cases

This text of 831 So. 2d 33 (Peacock v. Clay) 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
Peacock v. Clay, 831 So. 2d 33, 2001 Ala. Civ. App. LEXIS 346, 2001 WL 818503 (Ala. Ct. App. 2001).

Opinion

PITTMAN, Judge.

This appeal arises out of a dispute over a statutory right of redemption and the doctrine of relation back. The trial court determined that a proposed amendment to a complaint did not relate back to the date of the original filing of the complaint and it granted the defendants’ motion to dismiss the complaint. We hold that the amendment properly related back to the date of the original fifing, thus, the trial court improperly granted the defendants’ motion to dismiss. We reverse and remand.

In its order the trial court specifically found that Edwina Horn and Ray Horn owned real property that they mortgaged to the First National Bank of Brundidge (hereinafter “the Bank”). According to the trial court’s specific findings of fact contained in its order, the Horns thereafter defaulted on their mortgage payments and, on November 24, 1998, the Bank foreclosed on the mortgage. On November 24, 1998, Charles L. Clay and Martha Jeanette Tyler Clay purchased the property and divided the title to that property between two revocable trusts. On November 8, 1999, the Horns transferred their respective rights of redemption to Peacock Timber Transport, Inc. (hereinafter “PTT”). The trial court stated in its order that PTT had the sole and exclusive right of redemption to the property and that no individual, unless he clearly designated in writing that he was acting as an officer or agent of PTT and not in his individual capacity, had the right of redemption. On November 12, 1999, PTT, through its agent, Wendy Ward, gave notice to the Clays that PTT intended to exercise its right of redemption. However, on November 24, 1999, a complaint to redeem real property was filed by Tommy Peacock; it carried the style “Edwina Horn and Tommy Peacock v. Charles L. Clay Revocable Trust, Martha Jeanette Tyler Clay Revocable Trust and Charles L. Clay and Jeanette T. Clay, and fictitious parties, A, B, C, D, Defendants.” (Emphasis added.)

The Clays argued before the trial court that the complaint filed on November 24, 1999, to redeem real property was fatally late. See § 6-5-247, Ala.Code 1975 (stating that the right of redemption may be exercised within one year of the date of the sale). The trial court determined, instead, that the complaint had been timely filed — albeit on the very last day within the statutory period. See Garrison v. Dickerson, 631 So.2d 255 (Ala.Civ.App.1993).

The trial court noted that Tommy Peacock fisted himself, in his individual capacity, as the plaintiff in the complaint, and in that document he alleged that Edwina Horn had assigned her right of redemption and any interest she owned in the subject property to Peacock, individually. The [35]*35trial court determined that Edwina Horn had no standing to sue, and it granted the Clays’ motion to dismiss her as a plaintiff to that action.

The Clays filed a second motion to dismiss (the motion that is the subject of this appeal), under Rule 12(b)(6), Ala. R. Civ. P., for failure to state a claim upon which relief may be granted. They argued that Edwina Horn had transferred her right of redemption to PTT, not to Peacock in his individual capacity. The trial court granted this second motion to dismiss, on the basis that Peacock, in his individual capacity, did not have standing to sue, because the trial court concluded that PTT,' not Peacock, had been assigned the right of redemption from Edwina Horn.

The trial court also noted that on February 17, 2000, Edwina Horn and Peacock’s trial counsel filed a motion to amend, seeking to add PTT as a plaintiff and to clarify an allegation — that Edwina Horn’s assignment of the right of redemption was to PTT, not to Peacock, individually. On February 24, 2000, the trial court granted the motion to amend; however, it later determined, upon a review of all of the evidence, that the amendment had come too late — one year and three months after the foreclosure. See § 6-5-248(b). Peacock argued before the trial court that his proposed amendment related back to the date the complaint was originally filed (November 24, 1999), but the trial court held, instead, relying on Manning v. Zapata, 350 So.2d 1045 (Ala.Civ.App.1977), that because no fictitious plaintiffs were listed in the original complaint, Peacock would have to prove some identity of interest and a sufficiently analogous legal position between the previously listed parties and the proposed new party before the doctrine of relation back could be implicated. The trial court eventually determined that although Peacock is the only owner, or at least the principal owner of all of the stock in PTT, no such identity of interest existed between Peacock and PTT. See Russell v. Birmingham Oxygen Serv., Inc., 408 So.2d 90 (Ala.1981) (holding that a corporation has the power to sue and be sued in its corporate name); see also § 10-2B-3.02(1), Ala.Code 1975 (stating the same). The trial court noted that the original complaint had made no assertion that Peacock was suing in any manner other than as an individual (to exercise a right of redemption that belonged instead to PTT). It concluded that PTT, alone, held the statutory right of redemption to the property and that,-because the amendment adding PTT as a plaintiff did not relate back, the period for exercising the right of redemption had lapsed. See § 6-5-248(b), Ala. Code 1975.

Furthermore, the trial court noted that under § 6-5-252, Ala.Code 1975, anyone entitled to redeem property may make a written demand of the purchaser or his transferees for a statement of debt and all lawful charges claimed, and that that demand must be complied with within 10 days. If the purchaser or transferee fails to respond, he forfeits all claims or rights to compensation for improvements and the redeeming party has 10 days in which to file a complaint without tender (however, tender must be made, or a lawsuit must be instituted, within one year from the date of foreclosure). The trial court noted that although PTT had sent the Clays a notice of intent to redeem, PTT had not filed a complaint within 10 days after it made its demand on the Clays and, further, had not sued within one year after the foreclosure. The trial court subsequently denied Peacock’s motion to alter, amend, or vacate its previous judgment.

Peacock raises two issues on appeal:

[36]*361. Whether the trial court erred in granting the Clays’ motion to dismiss for lack of standing; and,
2. whether the trial court misapplied the law regarding “standing,” “identity of interest,” and the relation-back principle.

Essentially these two issues are interconnected, because Peacock contends that in granting the second motion to dismiss the trial court erred in applying the law regarding standing, identity of interest, and relation-back. Therefore, we will consider the issues together.

Peacock specifically argues that he has a legally protectable interest at stake in this case because, he says, as the president and sole shareholder of PTT, he acts in a representative capacity for PTT and he acquired the redemption rights from the Horns through PTT; thus, he says, the trial court erred in determining that he did not have standing to file this action. Additionally, Peacock argues that he and PTT share an identity of interest because the business activities of each affects the other. He also argues that, in compliance with the mandates of Rule 17, Ala. R. Civ. P.

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

Related

E.B. Investments, L.L.C. v. Pavilion Development, L.L.C.
212 So. 3d 149 (Supreme Court of Alabama, 2016)
Anderson v. Tate & Lyle PLC
81 So. 3d 1217 (Supreme Court of Alabama, 2011)
Deutsche Bank National Trust Co. v. Citibank, N.A.
806 F. Supp. 2d 1212 (M.D. Alabama, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
831 So. 2d 33, 2001 Ala. Civ. App. LEXIS 346, 2001 WL 818503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peacock-v-clay-alacivapp-2001.