Court: Court of Civil Appeals of Alabama; August 27, 2010; Alabama; State Appellate Court
Howard Ross appealed a summary judgment from the Madison Circuit Court favoring Deutsche Bank National Trust Company regarding a property dispute. The case centers on whether the Bank validly redeemed the property from Ross after his tax sale acquisition. The Bank had purchased the property at a foreclosure sale on August 24, 2006, and Ross bought it at a tax sale on May 11, 2007. In its September 24, 2007 complaint, the Bank sought a declaration of ownership, a writ of possession, and asserted Ross's unlawful possession. The Bank's summary judgment motion included an affidavit asserting redemption, while Ross countered, claiming he hadn't received notice of redemption. The Bank later provided an affidavit from a probate court accountant confirming the redemption on July 27, 2007, and claimed to have sent Ross a request for improvement costs, to which he did not respond within the statutory timeframe. The trial court, on July 20, 2009, ruled in favor of the Bank, concluding that the redemption was valid and the Bank retained all rights to the property. Ross's subsequent motion to vacate the judgment was denied, leading to his timely appeal on December 23, 2009. The case was transferred to the Alabama Supreme Court for jurisdiction issues and then returned to the original court.
A party may obtain summary judgment when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, as per Rule 56(c), Ala. R. Civ. P. The review standard for summary judgments is de novo, meaning the appellate court examines the case as if it were being heard for the first time (Lee v. Burdette). The court assesses whether the evidence creates a genuine issue of material fact and if the moving party is entitled to judgment as a matter of law (Bussey v. John Deere Co.). If the moving party establishes a prima facie case, the burden shifts to the non-movant to present "substantial evidence" supporting their claims (Bass v. SouthTrust Bank). Substantial evidence is defined as that which fair-minded individuals could reasonably infer as proof of the asserted fact (West v. Founders Life Assurance Co.). The reviewing court must view the record favorably towards the non-movant and resolve reasonable doubts against the moving party (Manners v. Balfour Guthrie, Inc.; Prince v. Wal-Mart Stores, Inc.).
In the case at hand, Ross claimed that his affidavit, stating he placed a list of improvements and insurance premiums in a mailbox, constituted substantial evidence of compliance with a demand for improvement figures per Ala.Code 1975, 40-10-122(d). This statute requires a response within 10 days of receiving the demand. However, Ross failed to demonstrate that his response was made within the required timeframe, thus lacking substantial evidence of compliance.
Ross also argued that the absence of specific forfeiture provisions in Ala.Code 1975, 40-10-122 for failing to respond to a request for improvement figures indicated the trial court erred in granting summary judgment for the Bank. This argument was not presented in the trial court, and therefore the appellate court cannot consider it, following the precedent that new arguments cannot be raised for the first time on appeal (Shiver v. Butler County Bd. of Educ.). Nonetheless, the court noted that the mandatory nature of the statute suggests a forfeiture of the right to payment for improvements if the response is not timely.
Lastly, Ross contended that payment of insurance premiums by a redemptioner is required irrespective of the tax-sale purchaser's response to a demand for improvement figures, highlighting that Ala.Code 1975, 40-10-122 does not address insurance figure requests.
Under Ala. Code 1975, § 40-10-122(c), a proposed redemptioner must pay all insurance premiums, including interest at 12% per annum, for casualty loss coverage on a residential structure at the time of its tax sale. However, the statute does not obligate the purchaser, Ross, to disclose the amount of insurance premiums paid, nor does it allow the redemptioner to demand this information. The Bank, which had a statutory duty to reimburse Ross for these premiums, failed to provide evidence of compliance with this requirement. Consequently, the trial court's summary judgment in favor of the Bank was deemed erroneous, leading to a reversal and remand for further proceedings. Additional provisions of § 40-10-122 detail the requirements for redeeming land from tax sales, including the necessity to pay the sale amount with interest, any unpaid taxes, and applicable costs and fees. The definitions for "permanent" and "preservation improvements" are also provided, specifying what constitutes improvements made to preserve the property.
A proposed redemptioner must submit a written request to the purchaser for a statement regarding the value of any permanent or preservation improvements made to the property since the tax sale. The purchaser is required to respond within 10 days with the claimed value. The redemptioner then has 10 days to either accept this value or, if disagreeing, appoint a referee to determine the value. The redemptioner must notify the purchaser of their disagreement and the referee's name. The purchaser must then appoint their own referee within 10 days. The two referees are to meet and attempt to reach an agreement; if they cannot, they will appoint an umpire. The majority decision among the referees and the umpire will be final and made within 10 days of the umpire's appointment. Furthermore, while amendments to Section 40-10-122 effective September 1, 2009, are noted, they are not relevant to the current appeal. It is acknowledged that the property had a residential structure at the time of the sale, making Ala.Code 1975, 40-10-122(c) applicable, especially since the property was leased to tenants.
