Iberiabank v. Niland (Ex parte Arvest Bank)

• Decision Date: 16 September 2016
• Docket Number: 1141421
• Citation: 219 So.3d 620
• Parties: EX PARTE ARVEST BANK (In re IBERIABANK f/k/a Capitalsouth Bank v. Raymond E. NILAND)
• Court: Alabama Supreme Court

219 So.3d 620

EX PARTE ARVEST BANK

(In re IBERIABANK f/k/a Capitalsouth Bank

v.Raymond E. NILAND)

1141421

Supreme Court of Alabama.

Sept. 16, 2016

Jesse P. Evans III, Michael B. Odom, and Martin W. Evans of Rumberger, Kirk & Caldwell, P.C., Birmingham; and Thomas J. Skinner IV, Birmingham, for petitioner.

Burt W. Newsome of Newsome Law, L.L.C., Birmingham; and G. Houston Howard II, Orange Beach, for respondent.

MURDOCK, Justice.

Arvest Bank ("Arvest") petitions this Court for a writ of mandamus directing the Autauga Circuit Court to vacate its order denying Arvest's motion to quash a writ of execution obtained by Iberiabank f/k/a Capitalsouth Bank ("Iberia") against real property owned by Evelyn L. Niland ("Evelyn") and to issue an order granting the motion. We treat the petition as an appeal, and we reverse and remand.

I. Facts

The facts in this case are undisputed and were recounted in the trial court's final order of September 7, 2015:

"1. On July 8, 2004, Thomas M. Karrh, II, transferred the property that Iberia seeks to sell (‘the property’) to Raymond E. Niland [ (‘Raymond’) ] and Evelyn L. Niland as joint tenants with right of survivorship.

"2. On August 8, 2007, the Nilands quitclaimed the property to [Evelyn], removing [Raymond's] name from the title.

"3. In October of 2008, [Raymond] stopped paying an existing indebtedness to Iberia.^[1]"4. On March 26, 2009, Iberia obtained a judgment against [Raymond] for $124,589.56.

"5. On April 9, 2009, Iberia filed its judgment for record in the probate office of Autauga County, creating a lien on all of [Raymond's] property in the county.

"6. On September 11, 2012, [Evelyn] transferred the property back to herself and [Raymond], attempting to create a joint tenancy with right of survivorship. The Nilands executed a mortgage to Arvest Bank the same day.

"7. [Raymond] died on December 5, 2012, less than three months after title was returned to his name."

In January 2015, Iberia secured a writ of execution against the property, which was amended on June 15, 2015, to include postjudgment interest. On August 10, 2015, Arvest, as the mortgage holder, moved to intervene and to quash the scheduled sheriff's sale of the property. The trial court granted the motion to intervene, stayed the sale pending further argument, and set a hearing for August 28, 2015. On August 26, 2015, Iberia filed an opposition to the motion to quash the sheriff's sale.

On September 7, 2015, the trial court denied the motion to quash the sheriff's sale and vacated its previous order staying the sheriff's sale. On October 1, 2015, Arvest filed this petition for a writ of mandamus, after which the trial court received a supersedeas bond and again stayed the sheriff's sale.

II. Standard of Review

For reasons that will be explained in the analysis below, we believe this mandamus petition should be treated as an appeal. Thus, we do not apply the standard of review ordinarily associated with a mandamus petition. The trial court in this case applied the law to undisputed facts. Our review on appeal therefore is de novo.

" ‘When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep't of Revenue v. Garner , 812 So.2d 380, 382 (Ala.Civ.App.2001) ; see also Ex parte Graham , 702 So.2d 1215 (Ala.1997).’ "

American Res. Ins. Co. v. H & H Stephens Constr., Inc. , 939 So.2d 868, 873 (Ala.2006) (quoting Bean Dredging, L.L.C. v. Alabama Dep't of Revenue , 855 So.2d 513, 516–17 (Ala.2003) ).

III. Analysis

A. Iberia's Motions to Dismiss

Iberia has filed two motions to dismiss Arvest's petition. In its first motion, Iberia contends that this Court has never formally determined that a ruling on a motion to quash an execution is reviewable by a petition for a writ of mandamus. Iberia cites early cases from this Court stating that a motion to quash an execution was reviewable by a writ of error, the predecessor to an appeal.² See, e.g., Howard v. Kennedy's Ex'rs , 4 Ala. 592 (1843) (reviewing an order refusing to set aside a judgment and execution in ejectment by writ of error); Creighton v. Denly , Minor 250, 250 (Ala.1824) (reversing by writ of error a trial court's denial of a motion to quash a writ of execution). "[T]he Code of 1852 abolished the writ of error as the method of bringing civil cases to [the supreme] court for review, and ... established appeal as the remedy."

Theo. Poull & Co. v. Foy – Hays Constr. Co. , 159 Ala. 453, 458, 48 So. 785, 785 (1909). Consequently, Iberia argues, "the court has since reviewed rulings on motions to quash by appeal."

In this regard, Iberia's position is well taken. There are ample examples of this Court reviewing a motion to quash an execution by way of an appeal.³ Here, Arvest seeks review of a final judgment; its petition to this Court is properly treated as an appeal. See generally Kirksey v. Johnson , 166 So.3d 633, 643 (Ala.2014) (noting that "[t]his Court has treated a notice of appeal as a petition for a writ of mandamus ... and, conversely, treated a petition for a writ of mandamus as a notice of appeal").⁴

In its second motion to dismiss Arvest's mandamus petition, Iberia contends that the petition is untimely because it was not filed within 14 days of the date of the trial court's order it seeks to have reviewed. Iberia reasons that Arvest's mandamus petition is actually an appeal from an interlocutory order under Rule 4(a)(1)(A), Ala. R. App. P. Iberia contends that Arvest seeks review of an order dissolving an injunction because the trial court's September 7, 2015, order vacated a stay of the sheriff's sale that it had ordered on August 11, 2015. Specifically, Iberia contends that "[t]he ‘stay’ order dated August 11, 2015, was an ‘injunction’ because it ‘prevent[ed] an action’: namely, the Sheriff's Sale." It further argues that "[t]he order dated September 7, 2015—that Arvest contests—was an ‘order dissolving an injunction’ because it dissolved the injunction issued on August 11, 2015, which prevented the Sheriff's Sale."

There are several problems with Iberia's argument. To begin with, it contradicts the trial court's view of its September 7, 2015, order. In that order, the trial court stated: "There are no other issues before the court; this is a final order disposing of all parties and issues." (Emphasis added.) Indeed, Iberia does not point to anything that remains for the trial court to adjudicate in this matter, and nothing presents itself from the materials before us. The trial court's order cleared the way for the sheriff's sale of the property to proceed. There were no other issues before the trial court. Given that the September 7, 2015, order was a final order, Arvest's submission to this Court could not be considered an interlocutory appeal.

Moreover, a review of the procedural history of this case shows that Iberia misconstrues what Arvest seeks to have reviewed by this Court. Iberia initially secured its writ of execution on January 26, 2015. On June 12, 2015, it amended the writ to include postjudgment interest. Arvest filed a motion to intervene on August 10, 2015. On August 11, 2015, the trial court granted Arvest's motion to intervene and entered an order stating that "the Sheriff's Sale scheduled for August 17, 2015 is stayed pending further Order" of the court. On September 7, 2015, the trial court entered its order denying Arvest's motion to quash execution of the sheriff's sale. Arvest filed its petition for a writ of mandamus on October 1, 2015.

Arvest's motion to quash was not a motion requesting an injunction but, rather, a request that the trial court nullify the writ of execution of Iberia's judgment. Arvest was not seeking a delay; it was seeking a nullification. The stay the trial court imposed was solely for the sake of giving the parties time to prepare, and the trial court time to hear, arguments concerning Arvest's motion to quash. Merely because the trial court's September 7, 2015, order had the effect of dissolving that stay does not mean that Arvest is seeking review in this Court of the dissolution. Clearly, Arvest is seeking review of the denial of the motion to quash the execution of the judgment. Therefore, Arvest is not seeking review of an order dissolving an injunction under Rule 4(a)(1)(A), Ala. R. App. P.

Based on the foregoing, Iberia's motions to dismiss Arvest's petition are denied. Review by appeal is appropriate in this case. Arvest filed its petition within the 42-day period for filing an appeal under Rule 4(a)(1), Ala. R. App. P., and provided an appropriate supersedeas bond.

B. Review of the Trial Court's Judgment

Arvest in essence argues that the trial court erred in declining to grant its motion to quash Iberia's writ of execution because, it says, the trial court misunderstood the effect Raymond's death had on Iberia's judgment lien in the context of a joint tenancy with a right of survivorship. Arvest contends that Iberia's claim was extinguished when Raymond died and Evelyn assumed sole ownership of the property. Iberia offers various arguments in response to this contention, some of which mirror the trial court's reasoning. For the reasons explained below, we believe that Arvest's argument reflects an accurate understanding of the law.

The trial court provided the following reasons in its September 7, 2015, order for why Iberia could execute its judgment lien on Evelyn's property:

"1. Iberia's judgment lien attached to Mr. Niland's interest in ‘the property’ simultaneously with Mrs. Niland's conveyance to him on September 11, 2012.

"2. Iberia's judgment lien therefore takes priority over, or primes, the survivorship feature of the deed, if it is effective. It is unnecessary for the court to decide whether the conveyance of September 11, 2012, was effective to create a joint tenancy with right of survivorship. Mr. Niland owned an undivided, one-half interest in the property

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