Wall to Wall Properties, Inc. v. Cadence Bank, N.A.

206 So. 3d 654, 2016 WL 1554119, 2016 Ala. Civ. App. LEXIS 86
CourtCourt of Civil Appeals of Alabama
DecidedApril 15, 2016
Docket2140683
StatusPublished

This text of 206 So. 3d 654 (Wall to Wall Properties, Inc. v. Cadence Bank, N.A.) 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
Wall to Wall Properties, Inc. v. Cadence Bank, N.A., 206 So. 3d 654, 2016 WL 1554119, 2016 Ala. Civ. App. LEXIS 86 (Ala. Ct. App. 2016).

Opinion

On Second Application for Rehearing

MOORE, Judge.

This court’s opinion of February 12, 2016, is withdrawn, and the following is substituted therefor.

Wall to Wall Properties, Inc. (“Wall”), appeals from a judgment of the Madison Probate Court (“the probate court”) determining that Cadence Bank, N.A. (“Cadence”), in order to complete the redemption of certain property that Wall had purchased at a tax sale on May 3, 2012, for $814.07, did not have to reimburse Wall for the insurance premiums regarding the property Wall had paid or for the permanent improvements Wall had made to the property, which included a residential structure. We affirm the probate court’s judgment.

Background and Procedural History

This is the second time this case has been before this court. See Wall to Wall Props. v. Cadence Bank, NA, 163 So.3d 384 (Ala.Civ.App.2014) (“Wall”).1 In Wall, Wall argued that the probate court had issued a certificate of redemption to Cadence for the property and that the [656]*656probate court had failed “to verify that Wall had been reimbursed for the costs of insurance premiums it had paid and for the permanent improvements it had made to the property in accordance with § 40-10-122(c) through (e), Ala.Code 1975.” 163 So.3d at 385-86. This court concluded that the probate court should “vacate[ ] the certificate of redemption ... and perform[ ] [its] statutory duty to assess Wall’s claim for compensation and assure that Cadence paid any amounts for which it was duly obligated.” 163 So.3d at 388.

After our decision in Wall was issued, the probate court vacated the certificate of redemption and held a hearing to determine whether Wall “ha[d] been reimbursed for the costs of insurance premiums it ha[d] paid and for the permanent improvements it ha[d] made to the subject property in accordance with § 40-10-122(c) through (e), Ala.Code 1975;” After that hearing, the probate court entered a judgment on January 22, 2015, determining that Wall had failed to prove that Cadence owed it for any permanent -improvements Wall had made to the property or for insurance premiums it had paid. On February 11, 2015, the probate court entered an order reinstating the certificate of redemption. On February 23, 2015, Wall filed two separate postjudgment motions. Those motions were denied on April 13, 2015. Wall appealed to this court on May 2, 2015. This court transferred the appeal to the Alabama Supreme Court for lack of appellate jurisdiction; that court transferred the appeal back to this court, pursuant to Ala. Code 1975, § 12-2-7.

Discussion

Section 40—10—122(d), Ala.Code 1975, provides, in pertinent part:

“The proposed redemptioner shall make written demand upon the purchaser of a statement of the value of all permanent or preservation improvements as applicable made on the property since the tax sale. In response to written demand made pursuant to this subsection, within 10 days from the receipt of such demand, the purchaser shall furnish the proposed redemptioner with the amount claimed as the value of such permanent or preservation improvements as applicable; and within 10 days after receipt of such response, the proposed redemp-tioner either shall accept the value so stated by the purchaser or, disagreeing therewith, shall appoint a referee to ascertain the value of such permanent or preservation improvements as applicable. The proposed redemptioner shall in writing (i) notify the purchaser of his or her disagreement as to the value; and (ii) inform the purchaser of the name of the referee appointed by him or her. Within 10 days after the receipt of such notice, the purchaser shall appoint a referee to ascertain the value of the permanent or preservation improvements as applicable and advise the proposed redemptioner of the name of the appointee. Within 10 days after the purchaser has appointed his or her referee, the two referees shall meet and confer upon the award to be made by them. If they cannot agree, the referees shall at once appoint an umpire, and the award by a majority of such body shall be made within 10 days after the appointment of the umpire and shall be final between the parties.”

On appeal, Wall argues that, because, it says, Cadence failed to follow the procedure set forth in § 40-10-122(d), Cadence waived the right to object to the amounts claimed by Wall for the permanent improvements and the insurance premiums. Specifically, Wall claims that Cadence failed to timely nominate a referee in accordance with the statute. Wall asserts that, because Cadence waived the right to object to the amounts claimed by Wall by failing to nominate a referee in a timely [657]*657manner, the probate court should have entered a judgment for Wall for the amounts claimed by Wall.

The exhibits presented at the trial indicate that, on December 21, 2012, Cadence, the proposed redemptioner, demanded that Wall provide a statement of the value of all the permanent or preservation improvements it had made on and to the property since the tax sale. Cadence made that demand in the body of a motion to dismiss it filed with the Madison Circuit Court; that motion indicates that it was served on Wall through either the AlaFile system, the Web-based court-filing system, or the United States mail. The exhibits further indicate that Wall, through its attorney, Patrick Jones, had communicated to Cadence that that demand was not in compliance with § 40-10-122(d), so Cadence served a second written demand on Wall, via Jones, on February 4, 2013. On February 13, 2013, Wall mailed to Cadence a statement of the amounts for which it claimed reimbursement. Subsequently, on February 27, 2013, Jones notified Cadence that he was not authorized to represent Wall in the redemption process.

We conclude that Cadence’s first demand was effective under § 40-10-122(d). The third supplemental record on appeal indicates that the motion to dismiss containing the demand was transmitted to the e-mail address for Wall’s attorney on December 21, 2012. That transmission constitutes a written demand under § 40-10-122(d). See, e.g., Ex parte Alamo, 128 So.3d 700 (Ala.2013) (noting that an e-mail constitutes a written communication). Section 40-10-122(d) does not require that the demand be mailed or otherwise transmitted in any certain manner.

In its first application for rehearing, Wall argued that Jones was not authorized as its agent in the redemption process. The record indicates, however, that subsequent to the first demand being sent, Jones informed Cadence that Wall was requesting a second demand and that, thereafter, Cadence served Jones with that second demand, which Wall responded to with a statement of the amounts for which it was claiming reimbursement. Only after Wall responded to this second demand did Jones inform Cadence that he was not authorized to represent Wall in the redemption process. Furthermore, we note that Jones was acting as Wall’s attorney in court proceedings relating to the redemption process at the time the first demand was served. Because Wall does not dispute that it had authorized Jones to represent it in the court proceedings relating to the redemption process and because Wall also responded to the second demand that was served on it via Jones, we conclude that Jones had at least the apparent authority to act as Wall’s agent in the actual redemption process at the time the first (and second) demand was served. See, e.g., Daniel v. Scott,

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

Related

Avis Rent a Car Systems, Inc. v. Heilman
876 So. 2d 1111 (Supreme Court of Alabama, 2003)
Daniel v. Scott
455 So. 2d 30 (Court of Civil Appeals of Alabama, 1984)
Liberty Nat. v. Univ. of Ala. Health Servs.
881 So. 2d 1013 (Supreme Court of Alabama, 2003)
P.B. Surf, Ltd. v. Savage
128 So. 3d 700 (Supreme Court of Alabama, 2013)
Wall to Wall Properties v. Cadence Bank, NA
163 So. 3d 384 (Court of Civil Appeals of Alabama, 2014)
Ross v. Deutsche Bank National Trust Co.
56 So. 3d 679 (Court of Civil Appeals of Alabama, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
206 So. 3d 654, 2016 WL 1554119, 2016 Ala. Civ. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wall-to-wall-properties-inc-v-cadence-bank-na-alacivapp-2016.