Opinion
2900563.
January 3, 1992.
Appeal from Montgomery Circuit Court; Joseph D. Phelps, Judge.
James E. Wilson, Jr., Montgomery, for appellants.
D. Coleman Yarbrough, Montgomery, for appellees.
The parties to this appeal have been before this court previously regarding the same subject matter. See Hicklin v. Old Ship African Methodist Episcopal Zion Church, 574 So.2d 822 (Ala.Civ.App. 1990). The appellee has filed a motion to dismiss this appeal as being frivolous and also has asked for damages because of such frivolous appeal.
We decline to dismiss the appeal as frivolous or to award damages. Instead, we affirm on authority of our previous holding in Hicklin and on authority of § 6-5-253(c), Code 1975 (Cum.Supp. 1990).
AFFIRMED.
THIGPEN, J., concurs.
RUSSELL, J., concurs in part and dissents in part.
I concur in the decision of the majority to affirm the trial court. However, I would find that the appeal is frivolous and would award damages in the amount of $500 pursuant to Rule 38, Alabama Rules of Appellate Procedure, for the following reason.
The appellant contends that he is entitled to have rents collected by the appellee prior to the date of redemption prorated to the date of redemption. As this court stated in Hicklin, 574 So.2d 822, the appellant is entitled to rents subsequent to the redemption date. We found there that, because the amount necessary to redeem under § 6-5-252, Ala. Code 1975, had not been paid or tendered, redemption had not occurred at the time of the trial court's order. Id. The appellant again asks for proration of rents prior to the time of redemption, an issue already decided by this court, thereby causing the appellee to have additional expense in attorney's fees.