Carver v. Foster

• Court: Alabama Supreme Court
• Writing for the Court: Lyons
• Citation: Carver v. Foster, 928 So.2d 1017 (Ala. 2005)
• Decision Date: 18 November 2005
• Docket Number: 1040910.
• Parties: Andy CARVER v. Kimberly Carver FOSTER and Christa Carver Moses Burroughs.

928 So.2d 1017

Andy CARVER v. Kimberly Carver FOSTER and Christa Carver Moses Burroughs.

1040910.

Supreme Court of Alabama.

November 18, 2005.

COPYRIGHT MATERIAL OMITTED

Jesse M. Williams III of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.

Charles A. Hardin of Hardin & Hughes, LLP, Tuscaloosa, for appellees.

LYONS, Justice.

I. Facts and Procedural History

This case involves seven parcels of land located in Tuscaloosa County totaling 1,162 acres. Kimberly Carver Foster, one of the plaintiffs below, owned an interest in each of the seven parcels. Various combinations of members of the Carver family also owned interests as cotenants in those parcels. Christa Carver Moses Burroughs also a plaintiff below, owned an interest in five of the seven parcels. None of the seven parcels of land was owned by all of the cotenants involved in this case. Kimberly and Christa jointly filed a complaint for a sale of the land and a division of the proceeds, requesting that the trial court order that each parcel be sold, and the proceeds from each parcel divided among its cotenants. Kimberly and Christa named their cotenants, Tommy Carver, Wayne Carver, Dorla Carver, and Andy Carver, as defendants in the complaint. The defendants answered Kimberly and Christa's complaint and requested that the trial court allow them to purchase the interests of their cotenants in each parcel pursuant to § 35-6-100, Ala.Code 1975, which provides:

"Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing . . . the petition or any others named therein who agree to the sale by the other joint owners or tenants in common or any one of them. Provided that the joint owners or tenants in common interested in purchasing such interests shall notify the court of same not later than 10 days prior to the date set for trial of the case and shall be allowed to purchase whether default has been entered against them or not."

Subsequently, Kimberly and Christa filed their own requests to purchase the interests of their cotenants.

The trial court appointed an appraiser to determine the value of each parcel. The parties agreed to a private auction, in which the starting bid was set at the appraised value of each parcel, and each subsequent bid increased from that value. The auction resulted in the following high bids for the parcels:

Christa and Kimberly jointly bid $37,500 for parcel A;

Tommy bid a total of $45,600 for parcels B and C;

Christa and Kimberly jointly bid $710,000 for parcel D;

Wayne bid $725,000 for parcel E;

Tommy bid $977,100 for parcel F; and Dorla bid $380,000 for parcel G.

After the auction, the attorney for Kimberly and Christa filed a petition for an attorney fee pursuant to § 34-3-60, Ala. Code 1975, which states:

"In all actions and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such action or proceeding may ascertain a reasonable attorney's fee, to be paid to the attorneys or solicitors representing the trust, joint or common property, or any party in the action or proceeding, and is authorized to tax as a part of the costs in such action or proceeding such reasonable attorney's fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court and to be a lien on the several parts in case of partition in kind."

The defendants, including Andy Carver, who is the appellant here, objected to the request by the plaintiffs' attorney for an attorney fee.¹ In addition, after the auction Andy filed a petition requesting that the trial court recognize him as having a one-fourth interest in the hunting, fishing, and mineral rights to parcel A, for which Christa and Kimberly had been the high bidders at the auction.

The trial court granted the request by the plaintiffs' attorney for a fee and ordered each defendant who sold his or her interest in a parcel of land to pay the plaintiffs' attorney 7%² of the portion of the high bid attributable to that interest and ordered each plaintiff who sold an interest in a parcel of land to pay 10% of the portion of the high bid attributable to that interest.³ The trial court denied Andy's request that he be granted an interest in the mineral, hunting, and fishing rights to parcel A. The defendants filed motions to alter, amend, or vacate the trial court's rulings, which the court denied.

Only Andy appealed, arguing that § 34-3-60 does not apply to co-owner purchases under § 35-6-100 et seq. He also argues that, even if § 34-3-60 does generally apply to co-owner purchases, an attorney fee should not have been allowed in this case because, he says, the services of the plaintiffs' attorney did not benefit all of the parties involved and there was no common fund created from which to pay the fee. Next, Andy argues that, even if the trial court was correct in awarding an attorney fee in this case, the actual fee awarded was excessive. Finally, Andy argues that the trial court erred in refusing to recognize his interest in the hunting, fishing, and mineral rights to parcel A.

II. Standard of Review

Questions of law are reviewed de novo. Alabama Republican Party v. McGinley, 893 So.2d 337, 342 (Ala.2004).

"The allowance of attorney's fees to be paid as costs in [sale of property for distribution cases or where there is a partition in kind of real or personal property between tenants in common] rests largely in the discretion of the trial court. Mann v. Mann, 451 So.2d 783 (Ala.1984); Bidwell v. Johnson, 191 Ala. 195, 67 So. 985 (1915). This is an `advised, just, judicial and revisable discretion in the light of the whole record.' Dent v. Foy, 214 Ala. 243, 107 So. 210 (1925), Matthews v. Lytle, 220 Ala. 78, 124 So. 197 (1929)."

Irons v. Le Sueur, 487 So.2d 1352, 1359 (Ala.1986).

III. Analysis

A.

Andy's first argument is that § 34-3-60 does not apply to co-owner purchases under § 35-6-100 et seq. He points out that § 34-3-60 was adopted before the co-owner-purchase provisions found in § 35-6-100 et seq. were adopted, and that those provisions, while allowing an award of appraiser fees, make no mention of attorney fees or of § 34-3-60.

We disagree. Section 34-3-60 provides:

"In all actions and proceedings ... where there is involved the sale of property for distribution, ... the court having jurisdiction of such action or proceeding may ascertain a reasonable attorney's fee, to be paid to the attorneys or solicitors representing ... any party in the action or proceeding...."

"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says." IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). Section 34-3-60 clearly applies to "all actions and proceedings ... where there is involved the sale of property for distribution." (Emphasis added.) Proceedings under § 35-6-100 et seq. involve the sale of property for distribution. The interests in the parcels of land involved in this case were sold pursuant to court order, and the proceeds were distributed to the various owners of those interests. At the time of the enactment of § 35-6-100, the catchall language of § 34-3-60 had been the law of this State for over 70 years. The legislature does not operate in a vacuum each time it enacts new legislation; it is charged with knowledge of existing law. Hexcel Decatur, Inc. v. Vickers, 908 So.2d 237, 240 (Ala.2005). If the legislature intended to except proceedings under the co-owner-purchase provisions from the broadly phrased reach of § 34-3-60, it could easily have done so. Whether the applicability of § 34-3-60 to co-owner purchases is sound public policy is a matter within the purview of the legislature, not this Court.

B.

Andy's next argument is that the services of the plaintiffs' attorney did not benefit all the parties involved in the sale of the property for a division of the proceeds. See, generally, Ex parte Martin, 775 So.2d 202, 206 (Ala.2000) (noting that an attorney fee can be awarded under § 34-3-60 only if the services of the attorney were performed "`for the common benefit of all.'" (quoting the 1907 codification of what is now § 34-3-60) (emphasis added in Martin)). Specifically, Andy points out that the trial court ruled that one of the parties, Dorla Carver, was not required to pay any portion of the attorney fee because the plaintiffs' attorney spent a significant amount of time resisting Dorla's owelty claim.⁴ Andy contends that, because the trial court held that some of the actions of the plaintiffs' attorney were adverse to Dorla's interests in the proceedings, none of the other defendants should have been required to contribute to the attorney fee. In other words, according to Andy, "[i]f there is an adverse claim, it affects the whole group, destroying a common benefit to all, i.e., one bad apple spoils the whole barrel." (Andy's brief, at 30-31.)

The three cases Andy cites in support of his so-called "bad apple" argument involved parcels of land in which all the cotenants owned an interest, and the attorneys who claimed to be entitled to fees in those cases performed acts adverse to some of those cotenants. See Godwin v. Dorgan, 811 So.2d 503 (Ala.2001); Shirley v. Mazzone, 591 So.2d 469 (Ala.1991); and Jernigan v. Jernigan, 678 So.2d 1169 (Ala. Civ.App.1996). In contrast, the instant case involves the sale of multiple parcels of...