State v. Reynolds

Decision Date23 January 2004
Citation887 So.2d 848
PartiesEx parte State of Alabama. (In re STATE of Alabama v. Charles Donald REYNOLDS et al.)
CourtAlabama Supreme Court

William Tipton Johnson, Jr., deputy atty. gen., Tuscumbia; and William M. Bouldin, special asst. atty. gen., Russellville, for Petitioner.

Judge Harold V. Hughston, Jr., Tuscumbia; Judge Jacqueline M. Hatcher, Tuscumbia; and Vincent McAlister and G. Rick Hall of Almon, McAlister, Baccus, Hall & Kelley, Tuscumbia, for Respondents.

HARWOOD, Justice.

The State of Alabama ("the State") petitions for a writ of mandamus ordering the Circuit Court of Colbert County to vacate its order in six condemnation actions pending before it; the order realigns certain parcels and parties in those condemnation actions.

The facts presented in the petition for mandamus are as follows. The State filed petitions in the Probate Court of Colbert County seeking to condemn five tracts of land located within the Detroit Park subdivision in the City of Muscle Shoals. As originally filed, each of those five cases sought to condemn tracts that had common ownership. The State filed a sixth petition seeking to condemn two tracts with separate owners. The probate court entered an order condemning the land and awarding compensation to the owners. After the probate court entered its judgment, the State appealed each condemnation award to the Circuit Court of Colbert County for a trial de novo. After the appeals were filed, but before the cases were tried, the owners of the tracts ("the defendants") filed motions to have the tracts and the defendants realigned so that, regardless of the ownership of the tracts as designated in the six separate actions by the State in the probate court, each case would contain all of the condemned lots in a separately platted "block" of the subdivision. Neither the State's petition to this Court nor the answer of the respondents sets out or describes with any other detail the motions filed by the defendants. The trial court granted the defendants' motions to realign the tracts and the defendants.

The State filed its "Objection to Consolidation Order Dated January 17," asserting the following:

"Comes now the State of Alabama and objects to the Order of Consolidation entered in the above style[d] cases on January 17, 2003 and request[s] that the cases be re-aligned as originally filed and tried in the Probate Court based on ownership or that each parcel be tried separately. For grounds of said motion the State assigns the following:
"1. Under Alabama Eminent Domain Law each parcel should be valued as if it was being sold as a single parcel. The joinder contemplated by the order of the court create[s] larger parcels than in fact exist. This joinder therefore confuses the value.
"2. The joinder ... contemplated by the order of the court makes it impossible for the State to try each parcel free of the terms of the sale of the other tracts as required by section 18-1A-197(1), Code of 1975.
"3. The joinder set out in the order may require separate trials for each owner's tract of land. Since the joinder creates new actions with more than one different owner each owner has the right to demand a separate trial under section 18-1A-73(b), Code of 1975.
"4. The joinder contemplated by the order of January 17, 2003 will make it more difficult to determine the cash market value of each parcel since appraisers regularly use different values depending in part on the size of the tracts. The size of a tract being an important factor in determining the value.
"5. The division of the cases as originally filed and tried in the Probate Court and the Order of Consolidation of the various parcels into new cases will require substantial revision of appraisal work[,] increasing the costs to the State and presumably the defendants, if they have already obtained appraisal work.
"6. The State has already paid into the Court awards made in the Probate Court. The Probate Court awards were based on the original alignment by property owner and it will be impossible or difficult to match the existing probate awards to the new Circuit Court files and case numbers.
"7. The costs of trial preparation will be substantially increased if the order of January 17, 2003 remains because the appraisal work has been performed by appraisers on the basis of the tracts as they were set out in the probate court and appealed to the Circuit Court.
"8. The re-alignment of parcels contemplated by the order dated January 17, 2003 will create confusion as to the value of the tracts by attempting to combine tracts that are due to be valued by the court as smaller tracts owned by separate defendants.
"The State prays that the order of January 17, 2003 be recended [sic] and cases tried as originally filed or in the alternative that a separate trial be had for each parcel."

Subsection 18-1A-73(b), Ala.Code 1975, cited by the State in its objection, reads:

"(b) If there are several distinct tracts of land owned, claimed or held by different persons embraced in the complaint, the owners of each tract or other party interested therein may have a separate hearing as to the right to condemn their lands, and the probate court may, if it finds that the application should be granted as to some and not as to other of the owners or other parties, make and enter its decree accordingly."

The trial court overruled the objection, stating, in pertinent part:

"The State of Alabama objects to the Court's order of January 17, 2003, consolidating this case and parties with others because of common questions of law or fact and to avoid unnecessary costs or delay in furtherance of convenience and to avoid prejudice.
"In this case and in other cases pending in this Court, the State condemned property for highway purposes in the City of Muscle Shoals, Colbert County. Muscle Shoals is a uniquely established city in that most of the city consists of subdivisions platted in the 1920's with small 20-and 30-foot lots and geographically scattered owners. The State in various cases filed in the Probate Court condemned many of these lots and did not arrange the lots and ownerships in a manner conducive to expeditious, economical or convenient jury trial and handling in this Circuit Court to which the State has appealed from the findings in the Probate Court. By the Court's order of January 17, 2003 lots and parties were consolidated and separated into coherent parcels (subdivision blocks) rather than scattered lots and ownerships.
"The State contends in the present objection that this Court is bound to follow the format used by the State in the Probate Court and that this Court does not have the discretion under the Alabama Rules of Civil Procedure ([Ala. R. Civ.P.]) to consolidate and separate cases and parties.
"Therefore, the Court finds and orders as follows:
"(1). This is a de novo action in this Court ([§] 18-1A-283) meaning entirely new trial, as if no trial had ever been had and just as if it originated in this Court.
"(2). The [Ala. R. Civ. P.] apply ([§] 18-1A-70). Also, see Ex parte Palughi, 494 So.2d 404 (1986) for discussion.
"(3). Common questions of law or fact are present in these cases, parties and property and this consolidation avoids necessary [sic] costs, delay or prejudice and furthers convenience in the jury trial of these cases in this Court.
"(4). The State's objection to the Court's order of January 17, 2003 is DENIED."

Rule 21(a), Ala. R.App. P., provides that a petition for a writ of mandamus "shall contain," among other things, "a statement of issues presented and of the relief sought." Under the section of its petition captioned "Issues Presented," the State phrases its sole issue as follows:

"Upon appeal of a condemnation award from probate court to circuit court for trial de novo, do specific provisions of the Alabama Eminent Domain Code (AEDC) dominate general provisions of the Alabama Rules of Civil Procedure? In particular, does AEDC § 18-1A-73(a) allow only the plaintiff to join tracts regardless of the joinder and consolidation provisions of [Ala.]R.Civ.P.?"

Under the heading "Reasons Writ Should Issue," the State asserts:

"The State contends (A) it has a clear legal right under AEDC § 18-1A-73(a) for the order sought; (B) there is an imperative duty upon the trial court to perform, accompanied by a refusal to do so; (C) appeal is not an adequate remedy; and (D) this Court's jurisdiction has been invoked properly."

Thus, in its petition, the sole Code section the State references is § 18-1A-73(a). In objecting to the "consolidation" before the trial court, however, the State referenced only subsection (b) of that Code section, along with § 18-1A-197(1), which reads:

"Notwithstanding the provisions of Sections 18-1A-192 to 18-1A-196(5), the following factors are not admissible as a basis for an opinion as to the value of property:
"(1) The price or other terms and circumstances of an acquisition of comparable property, where that property was or could have been acquired in that transaction under the power of eminent domain...."

As noted, the State in its petition for the writ of mandamus relies on § 18-1A-73(a) "in particular," without referring to subsection (b) in the statement of the issues presented or the statement of the reasons the writ of mandamus should issue. This Court will not reverse an order duly entered by a trial court, or issue a writ of mandamus commanding a trial judge to rescind an order, based upon a ground asserted in the petition for the writ of mandamus that was not asserted to the trial judge, regardless of the merits of a petitioner's position in the underlying controversy. Ex parte Ebbers, 871 So.2d 776, 786 (Ala.2003) ("In determining, on mandamus review, whether the trial court exceeded the limits of its discretion, `the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its...

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