Browning v. Palmer

• Decision Date: 21 March 2008
• Docket Number: 2060725.
• Citation: 4 So.3d 524
• Parties: Larry G. BROWNING v. Steve PALMER.
• Court: Alabama Court of Civil Appeals

4 So.3d 524

Larry G. BROWNING v. Steve PALMER.

2060725.

Court of Civil Appeals of Alabama.

March 21, 2008.

Certiorari Denied September 26, 2008. Alabama Supreme Court 1070938.

Timothy B. Loggins of The Loggins Firm, LLC, Opp, for appellant.

Mark John Christensen, Andalusia, for appellee.

THOMPSON, Presiding Judge.

Larry G. Browning appeals from the trial court's judgment in favor of Steve Palmer on Browning's action to set aside a sheriff's sale and on Palmer's counterclaim for ejectment. On February 2, 2005, Browning filed a complaint in the Covington Circuit Court seeking to set aside the December 1, 2003, sheriff's sale of his house and approximately 12.5 acres of real property ("the property") to Palmer. Browning also sought to quiet title to the property. Palmer answered the complaint, and in August 2005 he added a counterclaim for ejectment. In lieu of a trial, the parties stipulated to the authenticity of numerous documents and submitted stipulated facts to the circuit court.

On December 20, 2006, the circuit court entered a judgment for Palmer on Browning's claims. The circuit court also entered a judgment for Palmer on his counterclaim for ejectment, ordered that Browning be ejected from the property, and ordered Browning to pay Palmer "the reasonable rental value of the property from December 1, 2003, in the amount of $14,400." Browning filed a postjudgment motion under Rule 59, Ala. R. Civ. P. The circuit court denied that motion on April 6, 2007. Browning filed a timely notice of appeal to this court on May 14, 2007. This court transferred the case to our supreme court due to a lack of subject-matter jurisdiction; the case was then transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The undisputed facts, as stipulated to by the parties, show the following. Browning purchased the property on August 2, 2000. He and his wife, Barbara Browning, resided on the property for several years. The property is subject to mortgage indebtedness, which totaled approximately $101,000 in August 2006. An appraisal of the property estimated its value at $125,000 as of December 1, 2003; another appraisal estimated the property's value at $154,000 as of September 14, 2005.

On November 19, 2002, SouthTrust Bank of Alabama ("SouthTrust") recovered a judgment against Browning in the amount of $12,926. SouthTrust subsequently sought execution of the judgment, and in October 2003 the Covington County Sheriff ("the sheriff") issued a notice of levy on the property. The Brownings received a copy of the notice of levy on November 3, 2003. The levy did not contain a complete, correct description of the property as required by § 6-9-99, Ala. Code 1975.¹

On November 3, 2003, the sheriff issued a public notice that a sale of the property was to take place "on Monday, December 1, 2003, during the legal hours of sale at 12:00 noon in [the] County Courthouse in Covington County, Alabama." The notice of sale appeared in the Andalusia Star-News on November 4, November 11, and November 18, 2003. The notice of sale did not contain a complete, correct description of the property. The notice of sale was not posted on the county courthouse door for 30 days prior to the sale as required by § 6-9-87, Ala.Code 1975.² The record does not disclose whether Browning's mortgagee was aware of the sale.

The sheriff's sale took place on December 1, 2003, at 12:00 p.m. Mrs. Browning and one prospective purchaser, Palmer, were present at the sale. The sheriff's representative opened the bidding at $230. Palmer bid $230 for the property, and the sale was closed. A representative of SouthTrust arrived at the courthouse shortly after the sale concluded. The parties agree that he would have bid $14,337 for the property on behalf of SouthTrust.³

The record does not contain a writ of execution;⁴ however, Palmer received a sheriff's deed reflecting the sale. The description of the property in that deed is different from the descriptions in the notice of levy and the notice of sale. The deed merely identifies the property as: "owned by the grantees as shown in real property book 2000, page 3061 in the office of the Judge of Probate of Covington County, Alabama." The deed erroneously states that the sale had been posted on the courthouse door for 30 days.

The Brownings continued to reside on the property after the sheriff's sale. Although Palmer never demanded rent from the Brownings, the parties stipulated that if "he had rented the property, he would have expected to have received $400 per month in rent." Browning did not attempt to redeem the property pursuant to § 6-5-248(a), Ala.Code 1975.⁵ Browning did continue to pay the homeowner's and hazard insurance on the property, and he also continued to pay the mortgage. Browning paid the taxes on the property for the 2003 tax year. Palmer paid the taxes on the property for the 2004 and 2005 tax years. The record does not show that Browning and Palmer had any communication about the property until more than one year after the sheriff's sale, when Palmer asked Browning, via letter, to vacate the property. Browning then filed this action to set aside the sale and to quiet title to the property.

The circuit court found that, "although the price paid for the property was extremely low in relation to its value, there was no fraud involved in the sheriff's sale." The circuit court also noted that the right to redeem under § 6-5-248 had expired after one year,⁶ and it stated: "It seems contrary to the intent of the statute to permit title to be voidable beyond the one-year redemption period based solely on the price that was paid at the sheriff's sale." Browning argues on appeal that the circuit court erred in applying a one-year limitations period and in failing to set aside the sale pursuant to § 6-9-147, Ala.Code 1975.

"This cause came to be heard by the trial judge upon the pleadings and stipulations of the parties. The court heard no oral testimony on any matter material on this appeal. `When such is the case, no weight will be given the decision of the trial judge upon the facts, but this court must review the evidence de novo and render such judgment as it deems just.' Prestwood v. Gilbreath, 293 Ala. 379, 384, 304 So.2d 175, 179 (1974). The ore tenus rule of review does not apply to a decision based on such evidence at trial. Kessler v. Stough, 361 So.2d 1048, 1049 (Ala.1978); Hacker v. Carlisle, 388 So.2d 947, 950 (Ala.1980). `Instead, this court "sits in judgment on the evidence."' Mann v. Cherry, Bekaert and Holland, 414 So.2d 921, 923 (Ala.1982), citing Hacker v. Carlisle; McCulloch v. Roberts, 292 Ala. 451, 296 So.2d 163 (1974); Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115 (1950)."

Hurt v. Given, 445 So.2d 549, 550-51 (Ala. 1983). Furthermore, "[w]here the facts of the case are undisputed and the trial court is called upon to determine a question of law, no presumption of correctness attaches to the trial court's ruling and this court's review is de novo." Gilbert v. James Russell Motors, Inc., 812 So.2d 1269, 1271 (Ala.Civ.App.2001).

Section 6-9-147, Ala.Code 1975, grants courts "full power over their officers making execution or judicial sales, and whenever satisfied that a sale made under any legal process is infected with fraud, oppression, irregularity, or error to the injury of either party, the sale will be set aside." According to Palmer, because Browning's right to redeem the property under § 6-5-248(b) had expired, he is barred from seeking to set aside the sale under § 6-9-147. Palmer's argument is in error. A court's authority to set aside a sale under § 6-9-147 is not always limited by the time period allowed for a debtor's statutory right of redemption under § 6-5-248. In Garris v. Federal Land Bank of Jackson, 584 So.2d 791, 795 (Ala.1991), our supreme court, speaking of execution sales in the context of a mortgage, explained:

"Traditionally, in `ordinary cases,' the period within which a mortgagor could elect to disaffirm a sale of lands under a mortgage was two years. This period was fixed by analogy to the period allowed for statutory redemption, and after this period, in the absence of special circumstances, the court presumed that during that two-year period the mortgagor had elected to ratify the sale. Cloud v. Gamble, 264 Ala. 270, 86 So.2d 836 (1956); Hawk v. Moore, 260 Ala. 228, 69 So.2d 419 (1954); Dozier v. Farrior, 187 Ala. 181, 65 So. 364 (1914); Alexander v. Hill, 88 Ala. 487, 7 So. 238, 16 Am. St. Rep. 55 (1890). In 1969, the Alabama Legislature adopted Ala. Code 1975, § 6-5-230 [now § 6-5-248], which limited the time to redeem to one year from the date of confirmation of the foreclosure sale."

The supreme court drew this language from its opinion in Cloud v. Gamble, 264 Ala. 270, 272, 86 So.2d 836, 838 (1956). In that case, the supreme court affirmed the trial court's decision not to dismiss the plaintiff's challenge to a foreclosure sale, even though the plaintiff did not file a complaint until nearly seven years after the sale. The court explained:

"In the `ordinary case' by analogy to the time allowed for statutory redemption there is fixed the period of two years as a reasonable time for a mortgagor to elect to disaffirm a mortgage foreclosure sale. Hawk v. Moore, 260 Ala. 228, 69 So.2d 419 [(1954)], and cases cited. But where there are peculiar features that seem to refute the presumption of ratification after the lapse of two years that rule is relaxed and the presumption of ratification is not given effect. First National Bank of Opp v. Wise, 241 Ala. 481, 3 So.2d 68 [(1941)].

"In First National Bank of Opp v. Wise, 235 Ala. 124, 177 So. 636 [(1937)], it was held that a foreclosure under the power of sale which is infected with fraud does not cut off the equity of redemption, and the mortgagor or those succeeding to his rights by operation of law have a reasonable time, to be determined by the court in the...