Surginer v. Roberts

• Decision Date: 03 February 2017
• Docket Number: 2150781
• Parties: John Mark SURGINER and Jeffrey Ward Surginer v. Sharon M. ROBERTS
• Court: Alabama Court of Civil Appeals

231 So.3d 1117

John Mark SURGINER and Jeffrey Ward Surginer

v.Sharon M. ROBERTS

2150781

Court of Civil Appeals of Alabama.

February 3, 2017

Rehearing Denied March 24, 2017

Robert C. King, Monroeville, for appellants.

J. Michael Druhan, Jr., and Deena R. Tyler of Druhan & Tyler, LLC, Mobile, for appellee.

DONALDSON, Judge.

John Mark Surginer ("John") and Jeffrey Ward Surginer ("Jeffrey") appeal from a judgment of the Wilcox Circuit Court ("the trial court") purporting to vest title to certain property in Sharon M. Roberts. Both the Surginers and Roberts describe the proceedings conducted before the trial court as involving a claim by Roberts for judicial redemption of that property. Although we question the manner in which the proceedings were presented to the trial court, we must address the issues presented on appeal as framed by the parties. Because the Surginers have not demonstrated a basis for reversal, we affirm the judgment of the trial court.

Facts and Procedural History

In 1994, Roberts purchased approximately 68 acres of land along the Alabama River ("the property").¹ The property contained, among other things, an uninhabitable trailer and a cabin. In 2001, Jeffrey offered to purchase the property from Roberts. Roberts declined the offer. Jeffrey then obtained an assignment of a mortgage on the property from Charles and Maxine Haskew, the previous owners and the mortgagees of the property. Immediately thereafter, Jeffrey attempted to foreclose on the property, but he was unable to do so because Roberts was under the protection of a United States bankruptcy court. In 2002, Roberts apparently commenced an action in the trial court against Jeffrey relating to his attempt to foreclose on the property.

Although the circumstances are not entirely clear from the record, it appears that in 2002 Jeffrey paid the property taxes on the property that were apparently delinquent at the time. In 2004, John purchased the property at a tax sale for $10,100. Jeffrey testified that he did not know at that time that John had purchased the property. In September 2005, apparently in settlement of the action Roberts had commenced, Jeffrey executed a quitclaim deed conveying his interest in the property to Roberts in exchange for $10,000. Roberts's action against Jeffrey was dismissed pursuant to that settlement.

On July 10, 2007, the Wilcox Probate Court, noting that the time for redemption following the 2004 tax sale had elapsed, recorded a deed, pursuant to § 40–10–29, Ala. Code 1975, conveying the property jointly to the Surginers.² In 2007 and 2008, the Surginers made various purported improvements to the property.

In 2008, Roberts commenced an action in the probate court seeking to redeem the property pursuant to § 40–10–120 et seq., Ala. Code 1975. On January 26, 2009, the probate court issued a certificate of redemption to Roberts. See § 40–10–127, Ala. Code 1975. Thereafter, the Surginers were ordered to be ejected from the property.

On November 18, 2009, the Surginers filed a complaint for declaratory relief in the trial court. In the complaint, the Surginers sought a judgment declaring that the certificate of redemption issued by the probate court in January 2009 was void and that Roberts had no right to possess the property. In her answer to the Surginers' complaint, Roberts asserted, among other things, that she had received from Jeffrey, in exchange for $10,000, a quitclaim deed to the property in September 2005. After Roberts filed her answer, the case was placed on the administrative docket by the agreement of the parties.

On June 21, 2011, Roberts filed an amended answer, in which she asserted that she had redeemed the property, and a counterclaim, in which she sought, among other things, a judgment declaring that the certificate of redemption issued by the probate court on January 26, 2009, was valid. Thereafter, the trial of the case was continued several times.

On October 17, 2014, the Surginers filed an amended complaint and a reply to Roberts's counterclaim. In the amended complaint, the Surginers reasserted their previous allegations, but they also asserted that Roberts had wrongfully evicted them from the property and had wrongfully removed timber from the property. Roberts filed an answer to the amended complaint and an amended counterclaim, asserting claims of abuse of process and conspiracy to commit abuse of process.

A trial was held on December 3, 2014. The only witnesses at the trial were Jeffrey and Daniel Crigger, a home inspector hired by Roberts. On March 9, 2016, the trial court entered what it styled as a "Final Order." In the order, the trial court made various findings of fact and conclusions of law, and ordered the following:

"1. The Certificate of Redemption issued by the Probate Judge of Wilcox County on January 26, 2009 is vacated as null and void and the Probate Judge shall vacate such redemption.

"2. To redeem the property at issue, the Defendant, Sharon Roberts, shall pay the following sums within thirty (30) days from the date of this Order.

"a. The sum of $19,229.47 to the [Surginers] reflecting the purchase price and taxes paid by the [Surginers] and interest at a rate of 12 percent per annum.

"b. A reasonable attorney's fee to [the Surginers'] attorneys for bringing this action.

"c. The sum of $15,800.00 for loss [of] use of the property.

"3. If the amounts contained within this Order are not paid in full by [Roberts] within thirty (30) days from the date of this Order, then [Roberts's] right to judicially redeem the property at issue shall terminate and the Court will issue an additional Order quieting title to such property and granting possession of such property to the [Surginers].

"4. That the Probate Court of Wilcox County is hereby ordered to immediately pay to the Circuit Clerk of Wilcox County all money held by the Probate Court previously paid to the Probate Court of Wilcox County by Sharon Roberts in order to obtain a Certificate of Redemption issued by the Probate Court of Wilcox County on January 26, 2009.

"5. The costs of this action, consisting of the filing fee in the amount of $435.00 is hereby taxed against [Roberts]."

On April 14, 2016, the trial court entered the following, which it styled as a "Judgment":

"This matter having previously come before the Court for trial on the merits, and the Court having entered an Order on March 9, 2016, setting forth the monetary amounts that were required to be paid by [Roberts] in order to redeem the subject property from a prior tax sale, and the Court having further ordered that if the amounts set forth in the March 9 order were not paid in full by [Roberts] on or before April 8, 2016, then [Roberts's] right to judicially redeem the subject property from the tax sale was terminated, and it now appearing to the satisfaction of the Court that [Roberts] failed or refused to pay the various amounts required for the redemption of the subject property as contained in the order of March 9, 2016, within the time allowed by the Court, therefore,

"IT IS HEREBY ORDERED, ADJUDGED, AND DECREED by the Court as follows:

"1. The purported Certificate of Redemption from Tax Sale of the subject lands heretofore issued by the Probate Judge of Wilcox County on, to-wit, January 26, 2009, is vacated as null and void for want of jurisdiction, and the Probate Judge of Wilcox County shall forthwith vacate such redemption certificate by written order.

"Further, the Judge of Probate of Wilcox County, Alabama, shall pay and refund to [Roberts] all amounts previously paid to the Judge of Probate for the purported redemption of the subject property. A copy of this Order shall be served upon the Probate Judge of Wilcox County by the Clerk of this Court, and the Judge of Probate shall forthwith comply with the terms hereof.

"2. [Roberts] shall have no further right, title, interest, claim or encumbrance in and to the subject property, viz: Wilcox County Tax Parcel Number 28–01–11–0–000–010.000 #0 and Parcel Number 28–01–12–000.003000 #0, as further described in the Tax Deed recorded in Deed Book 11E, Page 483 in the records of the Probate Court of Wilcox County, Alabama, and the fee simple title to all such lands is hereby quieted in the [Surginers].

"3. The [Surginers] shall have and recover of [Roberts] the sum of $15,800.00, as their damages for [Roberts's] use and occupancy of the subject lands since 2009, for which execution shall issue.

"4. The [Surginers] shall also have and recover of [Roberts] the sum of $15,000.00, as attorneys' fees permitted under the subject judicial redemption statute, such amount having been stipulated by and between the parties in open Court as a reasonable fee for the services of the [Surginers'] attorneys in defending the redemption action.

"5. The [Surginers] shall also have and recover of [Roberts] immediate and exclusive possession of the subject property, and a writ of possession shall issue to the Sheriff of Wilcox County, Alabama, authorizing him to execute this judgment of possession if [Roberts] has not completely vacated the premises and removed all of her goods and chattels therefrom within fourteen (14) days from the date of this order. [Roberts] is specifically enjoined and restrained from committing any damage or waste upon the subject premises.

"6. Since [Roberts] has defaulted with respect to her redemption of the subject property, all costs of this action, including all fees of the appraiser appointed by the Court as a Special Master, are taxed to [Roberts], for which execution shall issue.

"7. A certified copy of this order shall be duly recorded in the Deed Records of the Judge of Probate of Wilcox County, Alabama, and indexed appropriately with [Roberts] as grantor and the [Surginers] as grantees."

On April 15, 2016, Roberts filed a "motion to set aside" the April 14, 2016, judgment. In her motion, she alleged that her attorney had not received notice of the March 9, 2016, order, and she requested an additional 30 days to...