Florence v. Williams

• Decision Date: 30 September 1983
• Parties: O.H. FLORENCE as Judge of Probate of Jefferson County, Alabama v. C. Molton WILLIAMS and Elizabeth Linn Williams Wheelock. 81-790.
• Court: Alabama Supreme Court

Page 83

439 So.2d 83

O.H. FLORENCE as Judge of Probate of Jefferson County, Alabama v. C. Molton WILLIAMS and Elizabeth Linn Williams Wheelock.

81-790.

Supreme Court of Alabama.

Sept. 30, 1983.

Charles Cleveland of Gordon, Silberman, Loeb, Cleveland & Gordon, Birmingham, for appellant.

Gerald D. Colvin, Jr. of Bishop, Colvin & Johnson, Birmingham, for appellees.

ALMON, Justice.

This appeal is from a judgment of the circuit court which issued a writ of mandamus directed to the probate judge ordering him to vacate an order granting the City of Birmingham's application for condemnation of certain lands for the construction of an off-street parking facility.

This condemnation proceeding involves two complicated sets of transactions between the City of Birmingham and private developers.

On June 28, 1979, the City of Birmingham (City) entered into an agreement with Canal-Randolph of Alabama, Inc. (Canal) for the purchase of Lots 13 through 18 (the Molton Hotel site) in Block 48 of downtown Birmingham. The terms of the agreement provided that Canal would acquire the land by purchase and would sell a one-half interest in the property to the City. Canal would then construct on the site a multi-story office building, which would include a 750-space parking deck. The City or its Parking Authority would reimburse Canal for its parking deck construction costs, and the parking deck would belong to the City under a condominium agreement. The contract also gave either party an option to purchase the other party's one-half interest for a price determined by a specified formula. Canal purchased the property for $1,609,225.00 and on August 16, 1979, the City purchased a one-half interest in the property for $804,612.51. During this period, Canal entered into a joint venture agreement with Continental Cities Company, Inc. with respect to Canal's one-half interest in the Molton Hotel site.

When Canal-Continental failed to comply with the construction schedule, the City exercised its option under the original contract to purchase Canal-Continental's one-half interest for $1,298,000.00.

On this same date, November 4, 1980, the City entered into a contract to sell the Molton Hotel site to Birmingham Associates a general partnership composed of the principal officers of Johnson-Rast & Hays Co., Inc. (JR & H), for $2,050,000.00. Birmingham Associates then entered into a joint venture agreement with Equitable Life Assurance Society of the United States, and Birmingham Associates assigned the contract to purchase the Molton Hotel site to the joint venture. The purchase agreement provided that the City would construct, pay for, and maintain a parking deck with at least 350 spaces on property east of and immediately adjacent to the office building which would be constructed on the Molton Hotel site by the joint venture. A sufficient number of the spaces, not to exceed 30, would be assigned to JR & H employees.

On November 25, 1980, the City received a parking feasibility report which recommended the construction of three off-street parking facilities in downtown Birmingham to satisfy both existing and projected needs of its populace. The study recommended that Lots 19 through 24 (the Exchange Bank and Williams properties) of Block 48 be the location of a parking deck to include 630 spaces with 12,000 square feet of commercial area. The city council passed a resolution to construct a 630 space parking facility on Lots 19 through 24 but did not authorize the construction of any commercial space within the proposed off-street facility.

On January 23, 1981, the City filed in probate court its application for condemnation of Lots 19 and 20 (the Exchange Bank property), and Lots 21 through 24 (the Williams property) of Block 48, downtown Birmingham. The condemnees filed motions to dismiss, answers, objections, and a petition for removal to federal court. The federal court, however, remanded the case to the probate court. After a two-day hearing, the probate judge entered an order granting the petition for condemnation and then set a hearing date for the appointment of commissioners.

On July 21, 1981, the condemnees filed a joint petition for mandamus to the circuit court, seeking an order directing the probate judge to vacate his order and to dismiss the City's application for condemnation. The circuit judge granted a stay of the probate court proceedings and conducted a hearing which was limited to a review of the proceedings before the probate court. Exchange National Bank thereafter settled with the City and was no longer considered a party to the mandamus proceeding. On June 1, 1982, the circuit court issued a final judgment which held the proposed condemnation to be an unconstitutional taking of private property for a primarily private purpose in violation of Ala. Const. art. XII, § 235 and Ala. Const. art. IV, § 94 (1901, amended 1956). The circuit judge thereby granted the writ of mandamus and ordered the probate court to vacate its order granting the condemnation application. The City filed a notice of appeal on behalf of the probate judge as nominal defendant and obtained a stay of the circuit court order pending appeal.

The issues presented for review are 1) whether the presumption in favor of the findings of the trier of fact attaches to the probate judge's findings or to the circuit court's findings when exercising a general superintendance over the probate court; 2) whether the City has statutory authority to condemn the Williams property to construct an off-street public parking facility; 3) whether there was sufficient evidence from which the probate judge could have determined that the proposed parking facility did not violate Ala. Const. art. XII, § 235; and 4) whether there was sufficient evidence from which the probate judge could have determined that the proposed condemnation did not violate Ala. Const. art. IV, § 94 (1901, amended 1956).

Standard of Review

Various presumptions attend the trial court's findings of fact. When the trial court hears the evidence without a jury, its findings of fact will not be disturbed unless clearly erroneous or manifestly unjust. Leslie v. Pine Crest Homes, Inc., 388 So.2d 178 (Ala.1980). This presumption of correctness also accompanies findings of fact made by a circuit judge in a mandamus proceeding where the judge actually hears the evidence upon which its findings are based. Freeman v. Smith, 409 So.2d 770 (Ala.1982); Anderson v. Mullins, 281 Ala. 609, 206 So.2d 856 (1968); Southern Railway Co. v. Todd, 279 Ala. 260, 184 So.2d 341 (1966); Chestang v. Burns, 258 Ala. 587, 64 So.2d 65 (1953). In condemnation proceedings, moreover, the conclusion of the trier of fact is entitled to great weight. State v. Central of Georgia R.R., 293 Ala. 675, 309 So.2d 452 (1975).

Yet how do these presumptions apply where the probate judge, exercising jurisdiction under Code 1975, § 18-1-1, and the circuit judge, exercising a general superintendence over the probate court under Code 1975, § 12-11-30(4), both make findings of fact? These presumptions are limited to situations where the trial court actually sees and hears the evidence upon which its findings are based:

"[T]he trier of fact, the trial court without a jury, unlike an appellate court later reviewing the matter from a written record, occupies a position of peculiar advantage enabling it to see and hear firsthand the evidence as it is presented. From that vantage point the trier of fact can observe the demeanor of the witnesses, listen to the inflections and intonations of their voices during oral testimony, and study their eyes, facial expressions, and gestures--all of these sensory perceptions which play a critical role in the factfinder's determination of which witnesses are to be afforded credibility when conflicting testimony is given. Consequently, this court will rarely disturb the judgment of the trial court ...."

Thomas v. Davis, 410 So.2d 889, 892 (Ala.1982) (citations omitted). Conversely, where the court hears no oral evidence in reaching its findings, this Court indulges no presumption of correctness in favor of the judgment of the trial court. Ex parte British Steel Corp., 426 So.2d 409 (Ala.1982) (citations omitted).

The circuit court rendered its decision on the record from the probate court and its judgment is not entitled to a presumption of correctness. The evidence before the probate court was mostly uncontroverted, so we deem resolution of the standards-of-review issue to be largely academic. A question of law was presented to the circuit court as well as to this Court.

Authority to Condemn for the Construction of an Off-Street Public Parking Facility

Whether a municipality has statutory authority to condemn property for off-street public parking facilities is an issue of first impression for this Court.

Section 11-47-170, Code 1975, which grants municipalities general condemnatory powers, provides that

"[w]henever in the judgment of the council or other governing body of a city or town it may be necessary or expedient for the carrying out and full exercise of any power granted by the applicable provisions of this title or any other applicable provision of law, the said town or city shall have full power and authority to acquire by purchase the necessary lands ... or, for the purposes for which private property may be acquired by condemnation, may proceed to condemn the same in the manner provided by this article, or by the general laws of this state governing the taking of lands or the acquiring of interests therein for the uses for which private property may be taken ...."

Section 11-47-241(1), Code 1975, specifically grants to cities having a population of 34,000 or more the authority "to plan, establish, develop, acquire, construct, enlarge, improve, maintain, equip, operate, regulate and protect parking facilities." The term "parking facility" includes any "building for off-street parking of...