Opinion
No. 1050299.
Decided September 8, 2006.
Petition for Writ of Certiorari to the Court of Civil Appeals.
Appeal from the Covington Circuit Court, CV-04-48; Court of Civil Appeals, 2040477.
For more than 100 years, the only provision of Alabama law addressing appeals from orders of condemnation entered by probate courts allowed 30 days from "the making of the order of condemnation" in which to file an appeal. § 18-1A-283, Ala. Code 1975; see State ex rel. Wood v. Williams, 125 Ala. 115, 28 So. 401 (1900). Neither the legislature nor this Court, however, has ever explicitly defined when an order of condemnation is "made" for purposes of § 18-1A-283 or its predecessor statutes. That is what we must do in this case.
I. Probate Court and Circuit Court Proceedings
In December 2003, the State of Alabama filed in the Probate Court of Covington County a petition to condemn land owned by James Craig Boutwell to widen U.S. Highway 84 between Opp and Andalusia. The probate court granted the State's petition to condemn and, pursuant to § 18-1A-279, Ala. Code 1975, appointed commissioners to assess the compensation to which Boutwell was entitled for the taking of his property. § 18-1A-281, Ala. Code 1975. After the commissioners filed their report, the probate court issued an order condemning the property and transferring title of the property to the State, subject to its payment of a total compensation award of $153,791.65. The probate court signed the order of condemnation on January 26, 2004; the order was "recorded in the probate minutes" on January 27, 2004.
In its opinion in this case, the Court of Civil Appeals compared "recording" of a probate court's order to the "entry" of a circuit court's judgment or order. See Rule 58(c), Ala. R. Civ. P.; Boutwell v. State, [Ms. 2040477, November 18, 2005] ___ So. 2d ___, ___ (Ala.Civ.App. 2005).
The general rule is that the time for taking an appeal runs from the entry of the judgment appealed from. Rule 4(a)(1), Ala. R. App. P. If this appeal were subject to that rule, it would be necessary to determine whether the act of recording the order in the probate minutes is equivalent to the entry of the judgment. Section 18-1A-283 is an exception to the general rule, however, and instructs that the time for taking an appeal is calculated from the "making of the order."
Section 12-13-41(2), Ala. Code 1975, requires the probate judge to "keep minutes of all his official acts and proceedings and,within three months thereafter, to record the same in well-bound books." (Emphasis added.)
As required by § 18-1A-282, Ala. Code 1975, the probate court then prepared and mailed a letter to Boutwell, dated January 27, 2004, notifying Boutwell of his right to appeal under § 18-1A-283. Ex parte City of Irondale, 686 So. 2d 1127, 1129 (Ala. 1996); Stanton v. Monroe County, 261 Ala. 61, 63, 72 So. 2d 854, 855 (1954). The letter quoted the entire text of § 18-1A-283 and included a copy of the condemnation order. Section 18-1A-283 provides:
"Any of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days from the making of the order of condemnation by filing in the probate court rendering that judgment a written notice of appeal, a copy of which shall be served on the opposite party or his attorney, and on such appeal, the trial shall be de novo, and it shall be necessary to send up the proceedings only as to the parties appearing or against whom an appeal is taken."
(Emphasis added.)
On February 25, 2004, Boutwell and his attorney contacted the probate judge regarding the deadline within which to file an appeal from the condemnation order. The probate judge informed them that an appeal filed the following day, February 26, would be timely. On February 26, 2004, Boutwell filed his notice of appeal in the probate court. This notice was filed 30 days after the order of condemnation had been recorded in the probate minutes, but 31 days after the probate judge had signed the order.
After the condemnation proceeding was transferred to the Covington Circuit Court for a trial de novo, the State moved to dismiss Boutwell's action, arguing that it was untimely because it was filed 31 days after the probate judge had signed the condemnation order. The circuit court agreed. The court concluded that Boutwell had failed to comply with the requirements of § 18-1A-283, and it dismissed the action.
Thereafter, Boutwell moved the circuit court to reconsider its judgment. Boutwell asserted that the probate judge had informed him that his appeal would be timely if it was filed on February 26, 2004, and asked the circuit court to set aside its order dismissing the case and to "enter an order consistent with the intention of the Probate Court of Covington County, Alabama, allowing the appeal to stand as timely filed." In support of his motion, Boutwell attached an affidavit from the probate judge in which she acknowledged that she had spoken with Boutwell and his attorney on February 25, 2004, and stated that "it was [her] intention and opinion that an appeal filed by February 26, 2004, the day following [the] conversations, would be a timely filed appeal pursuant to [§] 18-1A-283."
In response, the State argued that the appeal had been properly dismissed because "[t]he intention and opinion of the Probate Judge cannot extend, or shorten, the time period for an appeal created by the legislature." It also produced a second affidavit from the probate judge in which she stated that she had "not undertaken to give legal advice to James Craig Boutwell or to his attorney. . . ."
The circuit court denied Boutwell's motion to reconsider, and Boutwell appealed to the Court of Civil Appeals.
II. Appeal to the Court of Civil Appeals
On appeal, the Court of Civil Appeals reversed the circuit court's judgment and remanded the case with directions to reinstate Boutwell's appeal. The court concluded that it was unclear from the critical language in § 18-1A-283, providing that an appeal must be filed within 30 days "from the making of the order of condemnation," "whether our legislature intended the running of the period within which to appeal to start from the date an order was signed or from the date a signed order was recorded." Boutwell v. State, [Ms. 2040477, November 18, 2005] ___ So. 2d ___, ___ (Ala.Civ.App. 2005). Faced with this apparent uncertainty in the statute and with no authority directly on point, the Court of Civil Appeals looked to the Alabama Rules of Civil Procedure for guidance. While recognizing that the Rules "are not applicable to probate court proceedings," citing Ex parte City of Irondale, 686 So. 2d at 1129, ___ So. 2d at ___, the court reasoned nevertheless that "the explanation in Rule 58[, Ala. R. Civ. P.,] of the difference between `rendering' and `entering' a judgment is informative as to the process courts follow when they `make' a decision." ___ So. 2d at ___. The court stated:
Although this Court has never explicitly determined when an order of condemnation is "made" for purposes of § 18-1A-283, we have acknowledged the potential for uncertainty on the answer to that question under that statute. In Puckett v. Alabama Power Co., 412 So. 2d 1209, 1210 n. 1 (Ala. 1982), we stated:
"Our reference to the final judgment (order of condemnation) as the December 12 `Order' is not to be construed as holding that December 12, rather than December 21 (the date on which the order was marked `FILED'), is the commencing date for measuring the time for taking the appeal. Because the notice of appeal was filed more than 30 days after December 21, we need not decide this issue."
(Capitalization in original.)
"Generally speaking, a trial judge must render a judgment in one of several ways; then, following the rendition of the judgment, the clerk of the court enters the judgment. Rule 58(a) and (c), Ala. R. Civ. P. The period in which to appeal a trial court's judgment runs from the date of the entry of the judgment, not from the date of the rendition of the judgment. See Rule 58, Ala. R. Civ. P. (Committee Comments on 1973 Adoption).
"The statute at issue[§ 18-1A-283, Ala. Code 1975] indicates that the legislature was familiar with the word `rendition,' because it is used in the same sentence as `making.' Consequently, if the legislature had intended to begin the period in which to appeal on the date a probate court renders a judgment, it could have so stated. Instead the word `making' was used. We hold that `making' a judgment, for purposes of § 18-1A-283, incorporates both the rendering and the entering of a judgment."
___ So. 2d at ___. Therefore, the Court of Civil Appeals concluded that "[b]ecause the probate court's judgment was not `made' until the court's judgment was recorded in the probate court's minutes on January 27, 2004, Boutwell's notice of appeal filed in the probate court on February 26, 2004 — 30 days later — was timely." ___ So. 2d at ___.
In so holding, the Court of Civil Appeals rejected the State's argument that it was impermissibly importing into the condemnation statutes concepts that would effectively destroy the time standards contained throughout the legislative scheme. The State had argued, and continues to argue to this Court, that concluding that an order of condemnation is not "made" until it is recorded in the official minutes of the probate court, in light of the fact that all of the documents pertaining to the condemnation proceeding in this case were recorded on the same date, leads to the absurd conclusion that all of the necessary components of the condemnation process, from the State's petition to condemn to the commissioners' report, were made on the same date. The only interpretation of § 18-1A-283 that preserves the integrity of the entire statutory scheme, the State argues, is to conclude that an order of condemnation is made when it is signed by the probate court, just as the other orders are made during the condemnation process.
The Court of Civil Appeals found this argument unpersuasive, however, and supported its holding as having "the practical benefit of avoiding a clear degree of uncertainty and perhaps unfairness that could develop if the State's argument were adopted." ___ So. 2d at ___. That court stated:
"Although it seems unlikely that most of the events in a case would occur actually on the same day, the sounder view is that, regardless of when the parties involved submitted documents to the trial court, an official `entering' of a judgment must by necessity occur to adequately notify the parties as to when to begin the running of the time to appeal. For example, the probate judge could have signed the judgment when she was at home and then not brought it in to her office to be recorded for a week. In such an event, it would clearly be unfair to start the litigants' time to appeal from a day when, unknown to them, the probate judge signed the order, and not the day the order was officially `recorded' in the probate record."
___ So. 2d at ___.
We granted certiorari review to consider whether the Court of Civil Appeals correctly construed § 18-1A-283.
III. Timeliness Issue
In this case, the facts are undisputed, and we are presented with a pure question of law. Therefore, our review is de novo.George v. Sims, 888 So. 2d 1224, 1226 (Ala. 2004).
In interpreting § 18-1A-283, "[p]rinciples of statutory construction instruct this Court to interpret the plain language of [the] statute to mean exactly what it says and to engage in judicial construction only if the language in the statute is ambiguous." Ex parte Pratt, 815 So. 2d 532, 535 (Ala. 2001).
As discussed, the Court of Civil Appeals found the plain language of § 18-1A-283 ambiguous and looked to the Alabama Rules of Civil Procedure to conclude that the legislature must have intended the time for appeal under § 18-1A-283 to begin once the probate court had both signed and recorded the order of condemnation. The court supported this construction of § 18-1A-283 in large measure on the ground that the alternative interpretation advocated by the State could lead to an unfair result. Although the Court of Civil Appeals' concern about this potential unfairness is not without merit, that concern cannot govern our interpretation of § 18-1A-283.
In interpreting a statute, a court does not construe provisions in isolation, but considers them in the context of the entire statutory scheme; moreover, to ascertain legislative intent, a court should look to the entire act instead of isolated phrases or clauses. Pope v. Gordon, 922 So. 2d 893, 897 (Ala. 2005);Siegelman v. Alabama Ass'n of School Bds., 819 So. 2d 568, 582 (Ala. 2001); Ex parte Employees' Retirement Sys. of Alabama, 644 So. 2d 943, 945 (Ala. 1994); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So. 2d 1219, 1225 (Ala. 1984). Here, although § 18-1A-283 may be ambiguous if construed in isolation, it is not ambiguous when it is construed in the context of the entire legislative scheme governing condemnation proceedings. We conclude that based on the language contained in § 18-1A-282, which, along with § 18-1A-283 and other sections was originally enacted as part of Act No. 85-548, Ala. Acts 1985, the Court of Civil Appeals' construction of § 18-1A-283 is incorrect.
Section 18-1A-282, Ala. Code 1975, provides:
"The commissioners must, within 20 days from their appointment, make a report in writing to the probate court stating the amount of damages and compensation ascertained and assessed by them for the owners of each tract of land, or persons injured and other parties interested therein, and thereupon, within seven days, the probate court must issue an order that the report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation so assessed. A notice of entry of said order and the amount of the award shall immediately be mailed by first class mail to each party whose address is known, together with a notice of the right to appeal therefrom to the circuit court within 30 days from the date of said order."
(Emphasis added.) When the plain language of § 18-1A-283 is construed with that of § 18-1A-282, it is clear that the legislature has provided that the time for appeal from an order of condemnation is measured "from the date of" the order of condemnation, and not from the date the order is recorded in the probate court. To hold otherwise would violate the principle that we must construe sections of the Code originally constituting a single act in pari materia to produce a harmonious whole.Proctor v. Riley, 903 So. 2d 786, 789-90 (Ala. 2004). In this case, the order of condemnation reads: "DONE this the 26 day ofJanuary, 2004." Therefore, the order of condemnation was "made" on January 26, 2004, and Boutwell had 30 days from that date to file his notice of appeal.
Because the act of recording the order may occur as much as three months after the fact, see note 1, supra, recording has no relevance in determining the time for appeal in this case.
In reaching this conclusion, we are mindful of the potential unfairness that could result if a probate court drafted and signed an order of condemnation, yet failed to notify the parties of the order, thereby compromising their time for taking an appeal. "Our task, however, is to resist `finding' meanings in statutes when those meanings would contravene the very wording of the statutes themselves." American Liberty Ins. Co. v. AmSouth Bank, 825 So. 2d 786, 794 (Ala. 2002). We have construed the statute governing appeals in condemnation proceedings as the legislature has written it. It is for the legislature, not this Court, to amend the statute to associate the time for appealing an order of condemnation with an official recording or filing of that order in the probate court or with some other act.
This, however, did not happen in this case. In its order dismissing the action, the circuit court "specifically noted that the Probate Judge in this proceeding did not hold her order for such an extensive time as to really affect [Boutwell's] ability to take a timely appeal. Rather, [Boutwell] simply failed to avail himself of the mandatory statutory method of perfecting the appeal." The facts are undisputed that after the probate court signed the order of condemnation, the probate court mailed Boutwell a copy of the order, which expressly states that it is "DONE this the 26 day of January, 2004," and included a letter, dated January 27, 2004, notifying him of his right to appeal under § 18-1A-283. Under different facts, we note that a question of satisfactory notice under § 18-1A-282 could arise.
Because Boutwell's notice of appeal was filed 31 days after the order of condemnation was made, his appeal was untimely under § 18-1A-283.
IV. Equitable Estoppel
Boutwell asserts that even if we reject the Court of Civil Appeals' statutory analysis and conclude that his appeal is untimely, we should nevertheless remand this case to the circuit court with directions to reinstate his appeal because, he says, he relied to his detriment on the probate court's erroneous notification of what was the last day on which he could file a timely notice of appeal. As a result, Boutwell argues, he is entitled to an equitable exception to the 30-day time period for appealing condemnation orders, an exception, he contends, this Court held in Ex parte Tanner, 553 So. 2d 598 (Ala. 1989), applied when a party has received an erroneous notification from a probate court.
In Ex parte Tanner, Alabama Power Company filed a petition to condemn land owned by the Tanners. The probate court "issued an order on May 8, 1984, confirming the report of the commissioners and condemning the Tanners' property." 553 So. 2d at 598. Subsequently, on May 22, 1984, the probate court issued an additional order, confirming the payment of the compensation and damages to which the Tanners' were entitled. Thereafter, the probate court "sent the Tanners a postcard incorrectly notifying them that the court's order of condemnation was May 22, rather than May 8." 553 So. 2d at 598. Relying on that notification, the Tanners filed their appeal on June 19, 1984. Because it was filed more than 30 days after May 8, the circuit court dismissed their appeal as untimely.
The Tanners appealed, arguing that their failure to timely appeal should be excused under Rule 77(d), Ala. R. Civ. P. The Court of Civil Appeals rejected this argument. On certiorari review, this Court reversed the judgment of the Court of Civil Appeals on the basis of equitable estoppel, stating that "to deny the Tanners the right to appeal because of the probate court's erroneous notification would cause an inequitable result." 553 So. 2d at 599.
In its brief to this Court, the State argues that Tanner is distinguishable and that Boutwell's reliance on the probate judge's representation was misplaced because the probate judge "did not have authority to alter the statutory deadline [for filing his appeal]." We agree.
Unlike Tanner, which involved a misrepresentation of fact (the date of the making of the order), this case involves an incorrect statement of law (the timeliness of an appeal). "`[E]quitable estoppel . . . must be predicated upon the conduct, language, or the silence of the party against whom it is sought to be invoked. Said conduct, language, or silence must amount to the representation or concealment of a material fact or facts.The representation must be as to the facts and not as to the law. . . .'" State Highway Dep't v. Headrick Outdoor Adver., Inc., 594 So. 2d 1202, 1204-05 (Ala. 1992) (quoting First Nat'l Bank of Montgomery v. United States, 176 F. Supp. 768, 772 (M.D. Ala. 1959)). Although we are sympathetic to Boutwell's position, the doctrine of equitable estoppel cannot operate to excuse his failure to file a timely appeal.
V. Conclusion
The judgment of the Court of Civil Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
See, Lyons, Harwood, Woodall, and Parker, JJ., concur.
Stuart, Smith, and Bolin, JJ., concur in part and dissent in part as to the rationale and dissent from the judgment.
I fully concur with the main opinion insofar as it defines the meaning of the "making" of an order of condemnation under § 18-1A-283, Ala. Code 1975, a part of the Alabama Eminent Domain Code. I respectfully dissent, however, from the Court's rationale and holding in Part IV, "Equitable Estoppel," which affords no relief to Boutwell on the basis of equitable estoppel.
The majority correctly begins its opinion by stating:
"For more than 100 years, the only provision of Alabama law addressing appeals from orders of condemnation entered by probate courts allowed 30 days from `the making of the order of condemnation' in which to file an appeal. § 18-1A-283, Ala. Code 1975; see State ex rel. Wood v. Williams, 125 Ala. 115, 28 So. 401, 401 (1900). Neither the legislature nor this Court, however, has ever explicitly defined when an order of condemnation is `made' for purposes of § 18-1A-283 or its predecessor statutes. This is what we must do in this case."
___ So. 2d at ___. The main opinion has taken what has been a gray area of the law for "more than 100 years" and has declared a logical and sensible bright-line solution. Unfortunately, until this opinion was released, parties like Boutwell did not have the benefit of its wisdom. I fully recognize that the doctrine of equitable estoppel should be used sparingly. It is my opinion, however, that Boutwell is due relief pursuant to this doctrine under the facts of this case.
The current Alabama Eminent Domain Code, § 18-1A-1 et seq., Ala. Code 1975, was initially enacted as Act No. 85-548, Ala. Acts 1985. It combined prior Alabama statutes as well as provisions of the Uniform Eminent Domain Code, and it is primarily a procedural statute. The result of this combination is the intertwining of different words of art in different sections that conflict and/or convey different meanings.
Some confusion in the Alabama Eminent Domain Code arises because of the differing rules and practices imposed upon the different judicial forums in which a condemnation proceeding may proceed. Section 18-1A-71 provides probate courts with original jurisdiction of complaints for condemnation and § 18-1A-70 provides that the "procedure in the probate courts shall be as provided in this chapter." However, any party may appeal the probate court's order to the circuit court for a trial de novo, and, in such a case, § 18-1A-70 provides that the procedure in the circuit court is governed by the Alabama Rules of Civil Procedure, except as otherwise provided in the chapter. Although such procedural distinctions between the probate and circuit courts is a legislative prerogative, it serves only to heighten procedural confusion between the steps of the judicial process of condemnation.
Illustrative of another example of procedural distinctions that can lead to confusion is Rule 1, Ala. R. Civ. P., which makes the Alabama Rules of Civil Procedure inapplicable to probate courts in general except those exercising statutory equitable jurisdiction. Rule 81(a), Ala. R. Civ. P., however, makes the Alabama Rules of Civil Procedure applicable when the probate court is handling the following proceedings:
"(5) Contest of probate of will.
"(6) Contested elections.
"(7) Corrections of errors in the Probate Court.
". . . .
"(13) Habeas corpus.
". . . .
"(22) Protection of estates of intemperates or inebriates.
". . . .
"(25) Relieving disabilities of non-age.
"(26) Removal of property of a minor or a trust estate to this state or to another state.
". . . .
"(29) Vacating and annulling maps, plats, streets, alleys and roads."
Confusion also arises from the differing language employed in various sections in the Code. For instance, § 18-1A-276 requires that the probate court "make an order granting or refusing the complaint." Section 18-1A-279 requires that commissioners appointed to determine the compensation for the condemned property "file a certificate" along with their compensation award, and § 18-1A-280 requires that the probate court "issue notice" of the commissioners' appointment. Section 18-1A-282 requires that the commissioners "make a report" in writing to the probate court, and that the probate court must then "issue an order" that the report be "recorded" (not filed or entered); the probate court must then give notice of the "entry of said order" to each party and of the right to appeal within 30 days from the "date of said order." Section 18-1A-283 then grants any party the right to appeal to the circuit court within 30 days from the "making of the order of condemnation by filing in the probate court rendering that judgment a written notice of appeal." The legislature, in these five Code sections, used the term "issue" twice, "make" or "making" three times, "file" once, "recorded" once, "date" once, and "rendering" once.
The appellate process beyond the probate level is only moderately less confusing. Pursuant to § 18-1A-287, the circuit court "shall make an order of condemnation," although such an order is made (not rendered) only "[u]pon the payment of the damages so assessed to the owner or other party interested therein and the payment of costs of suit into circuit court." Put another way, the circuit court order is properly made, not solely when the jury verdict is rendered but when the damages and costs are thereafter paid. Compare this to the opposite procedure in the probate court, where § 18-1A-282 states that the probate court "must issue an order that the [commissioners'] report be recorded and the property be condemned upon payment or deposit into the probate court of the damages and compensation so assessed." This section seems to make the probate order interlocutory in nature, "the property be condemned upon payment or deposit," yet that order is the final appealable order referred to in § 18-1A-283, which is either made, issued, rendered, and/or dated before the payment of damages and compensation. This is made further incongruous by the provisions of § 18-1A-290, which allow the condemnor up to 90 days after the assessment of damages and compensation to pay the award (even though the condemnee only has 30 days to appeal). However, at least upon appeal from the circuit court, § 18-1A-288 (identical to former § 18-1-25, Ala. Code 1975) uses the term "entry" as the appropriate beginning date for an appeal period in connection with the final judgment made in the circuit court, which is compatible with Rule 58(c), Ala. R. Civ. P., and Rule 4(a), Ala. R. App. P., allowing for appeals within 42 days of the entry of the circuit court's judgment.
The above simply illustrates the confusing sections, loose language, and conflicting words that surround the issue decided by the majority — when is a probate order of condemnation "made"? The probate judge of Covington County is learned in the law and was apparently aware of the distinctions in Rule 58(a) and (c), Ala. R. Civ. P., between the rendering and entering of a judgment. The confusion arising from the unwieldiness of the statutory scheme for condemnations made it easy to view the January 27, 2004, "recording" of the January 26, 2004, condemnation order as tantamount to "entering" it. Indeed, for all that appears otherwise in the record, including the fact that this order was recorded one day after it was signed, it may be the practice of the Covington County Probate Court to stamp orders as being recorded for the dual purpose of showing both entering and recording. It is my opinion that all of the above is sufficient to invoke the doctrine of equitable estoppel and to allow Boutwell to proceed with the appeal.
Moreover, this case should be governed by Tanner v. Alabama Power Co., 553 So. 2d 598 (Ala. 1989). In Tanner, Alabama Power Company filed an application for an order of condemnation in the Probate Court of Jefferson County, seeking to condemn a portion of the Tanners' property. The probate court appointed the requisite commissioners to assess the damages based upon the condemnation. On May 8, 1984, the commissioners issued their report, assessing the compensation for the Tanners' property. Also on May 8, 1984, the probate court issued an order, confirming the commissioners' report and condemning the property upon payment of the damages award into the probate court. The May 8, 1984, order is consistent with § 18-1A-282, which provides that "[a] notice of entry of said order and the amount of the award shall immediately be mailed by first class mail to each party . . . together with a notice of the right to appeal therefrom to the circuit court within 30 days from the date of said order." There was no allegation that the May 8, 1984, order was not sent to and received by the Tanners' counsel. After damages were paid into probate court, the probate court entered a second order on May 22, 1984, confirming payment and ordering condemnation. Although the May 22, 1984, order could logically be considered the final appealable order, the legislature has mandated that the appealable order, pursuant to § 18-1A-282, was the May 8, 1984, order.
Nowhere in the Alabama Eminent Domain Code is there a provision authorizing an order such as the May 22, 1984, order inTanner, which finalized the transfer of title by reflecting and acknowledging payment of damages and costs. However, as the Commentary to § 18-1A-282 states: "This section provides for the issuance of an `order of condemnation' similar to UEDC [Uniform Eminent Domain Code] Section 1209, which was omitted from this Code in article 12."
The Uniform Eminent Domain Code ("the UEDC") provided for two types of judgments or orders, as set out in the following two sections:
"1201. [Contents of Judgment].
"(a) The judgment may, and in the case of a partial taking shall, describe the proposed project in relation to the property taken, and shall:
"(1) describe the property condemned and declare the right of the plaintiff to take it by eminent domain;
"(2) recite the verdict or decision and declare that title to the property will be transferred to the plaintiff after the plaintiff has paid to the defendant, or to the court for the benefit of defendant, the amount of compensation awarded and any additional amounts allowed;
"(3) describe the interest of each defendant in the property condemned, and state the amount of the award to which each defendant is entitled; and
"(4) determine all other questions arising from the taking, including questions relating to taxes, encumbrances, liens, rentals, insurance, or other charges.
"(b) If the court determines that any issue under paragraph (3) or (4) of subsection (a) cannot be tried expeditiously and that no party will be prejudiced by reserving it for later determination, the court may enter a preliminary judgment that includes the recitals required by paragraphs (1) and (2) of subsection (a), directs the plaintiff to deposit in court the amount of compensation awarded, and describes any issue reserved. A preliminary judgment so entered is appealable as to all matters and issues actually determined therein and not reserved. A supplementary judgment of apportionment determining any reserved issue shall be entered after that issue has been resolved."
Unif. Eminent Domain Code § 1201, 13 U.L.A. 121 (2002) (emphasis added).
"1209. [Order Transferring Title].
"(a) Upon proof that the plaintiff has fully satisfied the judgment, the court shall make an order transferring to and vesting in the plaintiff the title to property taken.
"(b) The transfer order shall:
"(1) describe the property taken,
recite or incorporate by reference the provisions of the judgment, and set forth the court's determination that it has been satisfied; and
"(2) declare that title to the defendant's property as described therein is transferred to and vested in the plaintiff upon the effective date of the order.
"(c) The party obtaining the transfer order shall promptly serve a copy of the order upon each party [and may file a copy for record in the place and manner provided by law for the recordation or registration of deeds and conveyances]."
Unif. Eminent Domain Code § 1209, 13 U.L.A. 131 (2002) (emphasis added).
It is the May 22, 1984, Tanner order that would be analogous to a UEDC, § 1209, order, although this section was not included in the Alabama Eminent Domain Code. The May 8, 1984, Tanner order is likened to the judgment provided for in UEDC, § 1201, and is the proper appealable order under both § 18-1A-282 and the UEDC.
By omitting UEDC, § 1209, the legislature left a void in Alabama law concerning the transferring and vesting of title. The probate court in Tanner issued its May 22, 1984, order to provide this missing link, although, as stated, there is no statutory authorization for such an order.
As stated earlier in this writing, I consider orders filed pursuant to § 18-1A-282 to be interlocutory in nature because that section orders that the "property is condemned," but only upon "payment or deposit into the probate court of the damages and compensation so assessed." Therefore, even though the property is conditionally condemned in the order, title is not divested and transferred to the condemnor until an act occurs subsequent the issuance of the order, i.e., the payment of damages and compensation. There are occasions when a condemnor, after the § 18-1A-282 order is issued, declines, for whatever reason, to continue to prosecute the action. Inasmuch as § 18-1A-290 allows 90 days from assessment for payment to be made, and if the order is interlocutory in nature, then who owns the property until payment is either made or not made? Is it vested, as an appealable order should so provide, subject to complete divestment by virtue of nonpayment? Who bears the risk of loss during the interim?
The omission of a section comparable to UEDC, § 1209, in the Alabama Eminent Domain Code, coupled with the fact that § 18-1A-70 makes the Alabama Rules of Civil Procedure inapplicable if a procedure is otherwise provided in the Eminent Domain Code, leaves probate courts in a quandary to invent an order that conveys title, or an interest in title, to the plaintiff. InTanner, the quandary was solved by the May 22, 1984, order that was the basis for the incorrect postcard notice relied upon by this Court to invoke equitable estoppel.
The Tanners received a postcard from the probate court that incorrectly stated that they had 30 days from May 22, 1984, to appeal the probate court's decision to the circuit court. In reliance on that notification, the Tanners filed a notice of appeal in the circuit court on June 19, 1984. The circuit court dismissed the appeal as untimely. The Court of Civil Appeals affirmed the dismissal. Tanner v. Alabama Power Co., 553 So. 2d 596 (Ala.Civ.App. 1988). This Court reversed the Court of Civil Appeals' decision, holding that the erroneous notification caused an inequitable result and that, although the probate court was not required to send the postcard, once it did, the Tanners were entitled to rely on the date assigned to the condemnation order.
The Tanners and their counsel had just as much knowledge of the issuance of the order "issued" pursuant to § 18-1A-282 as Boutwell and his counsel did herein. Yet, this Court in Tanner relied on a "postcard incorrectly notifying them that the court's order of condemnation was May 22, rather than May 8. Relying on that notification, the Tanners filed their appeal with Jefferson County Circuit Court on June 19, 1984." 553 So. 2d at 598 (first emphasis original; second emphasis added). Granted, the Tanners and their counsel faced the same lack of a precise statement of the beginning date for the appeal period to begin that Boutwell and his counsel faced in this case. Yet it was this "postcard" ostensibly sent by the probate clerk's office that was the basis for this Court's unanimous decision in Tanner stating that "to deny the Tanners the right to appeal because of the probate court's erroneous notification would cause an inequitable result." 553 So. 2d at 598. I submit that the learned probate judge's incorrect (as now opined by the majority) attempt to apply Rule 58, Ala. R. Civ. P., logic to this gray area of a confusing Code is a far, far greater reason to invoke the doctrine of equitable estoppel in this case than, as in Tanner, a clerical postcard that either submitted incorrect facts or also gave an incorrect interpretation of the law.
Stuart and Smith, JJ., concur.