Boutwell v. State

• Decision Date: 21 September 2007
• Docket Number: 1050299.
• Citation: 988 So.2d 1015
• Parties: Ex parte State of Alabama. (In re James Craig BOUTWELL v. STATE of Alabama).
• Court: Alabama Supreme Court

988 So.2d 1015

Ex parte State of Alabama.

(In re James Craig BOUTWELL v. STATE of Alabama).

1050299.

Supreme Court of Alabama.

September 21, 2007.

Rehearing Denied January 11, 2008.

Francis M. James III, Andalusia, for petitioner the State Department of Transportation.

Ronald W. Penn, Opp, for respondent.

Mark John Christensen, Andalusia; and Sherrie R. Phillips, president of the Alabama Probate Judges' Association, Andalusia, for amicus curiae Alabama Probate Judges' Association, in support of the petitioner.

On Application for Rehearing

PER CURIAM.

This Court's opinion of September 8, 2006, is withdrawn, and the following is substituted therefor.

The State has petitioned for certiorari review of a decision of the Court of Civil Appeals reversing the circuit court's dismissal of James Craig Boutwell's appeal in a condemnation proceeding. We affirm the judgment of the Court of Civil Appeals, but we do so on a rationale different from the rationale given by that court.

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. Proceedings in the Probate Court and the Circuit Court

In December 2003, the State of Alabama filed in the Probate Court of Covington County a petition to condemn land owned by Boutwell to widen U.S. Highway 84 between Opp and Andalusia. Boutwell's property comprised approximately 2.5 acres and had been in his family since the 1940s; the parcel sought to be condemned included his residence and the buildings in which he conducted his cane-pole business. The probate court granted the State's petition to condemn and, pursuant to § 18-1A-279, Ala.Code 1975, a part of the Alabama Eminent Domain Code, § 18-1A-1 et seq., 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, 2004.¹

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 and vacate 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 Boutwell's 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, 988 So.2d 1012, 1014 (Ala.Civ.App.2005). Faced with this apparent uncertainty in the statute and with no authority directly on point,² 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, 988 So.2d at 1014, 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." 988 So.2d at 1014. The court stated:

"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."

988 So.2d at 1015. 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." 988 So.2d at 1015.

In so holding, the Court of Civil Appeals rejected the State's argument that by holding that Boutwell's appeal was timely it was impermissibly importing into the condemnation statutes concepts that would effectively destroy the time standards contained throughout the legislative scheme for condemnation. 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 the documents pertaining to the condemnation proceeding in this case were recorded on the same date, leads to the absurd conclusion that all 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 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 the State's 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." 988 So.2d at 1015. 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...