author: MOORE, Judge.

text:
    REGIONS BANK v. Kathleen ALLEN
    2160949
    Court of Civil Appeals of Alabama.
    January 12, 2018
    Tracy P. Turner and Tiffany B. Smith of Johnstone, Adams, L.L.C., Mobile, for appellant.
    Kathleen Allen, pro se.
   MOORE, Judge.

Regions Bank appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") denying Regions' motion for termination of medical benefits previously ordered to be paid, pursuant to Alabama's Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975, on behalf of Kathleen Allen.

On August 6, 1998, the trial court entered a judgment approving a settlement of a workers' compensation action filed by Allen against Regions. In its judgment approving the settlement, the trial court concluded, among other things, that, on April 3, 1996, Allen had "sustained an on-the-job injury at Regions, while in the course of employment a chair in which she was sitting broke, causing [Allen] to fall to the floor, striking her right buttock and hip region." The trial court awarded Allen a lump-sum payment of $3,359.88 in workers' compensation disability benefits and ordered that Regions would "remain[ ] responsible for payment of any reasonably necessary future medical benefits with respect to said accident and injury."

On May 8, 2017, Regions filed a motion requesting a termination of its responsibility to pay medical benefits related to medical treatment Allen was seeking for her back. Regions alleged that, during its recent review of Allen's request for the payment of medical benefits, Allen's treating physician had responded to an inquiry from Regions regarding whether Allen's current treatment was related to her 1996 injury by indicating that Allen's current treatment was a result of the normal aging process and wear and tear as opposed to being related to her 1996 injury.

On July 18, 2017, the trial court held a hearing on Regions' motion; there is no transcript of that hearing in the record on appeal, and there also is no indication that ore tenus testimony was presented at that hearing. Indeed, Regions indicates that it made arguments and "referenced and argued" certain exhibits during those arguments. That same day, the trial court entered a judgment stating: "Motion for Termination of Medical Benefits filed by Regions Bank is hereby DENIED."

Also on July 18, 2017, Regions moved to supplement the record to include the exhibits referenced and argued at the hearing on its motion to terminate Allen's medical benefits; it attached the exhibits to its motion to supplement. The trial court did not rule on that motion. On August 23, 2017, Regions filed its notice of appeal.

On appeal, Regions argues that the trial court's judgment should be reversed because Allen's current medical treatment is unrelated to her April 3, 1996, injury and because she failed to establish a compensable injury. We initially note, however, that the trial court's judgment does not include findings of fact or conclusions of law.

Our supreme court has held: "The procedure in disputed claims arising under the [Workers'] Compensation Act[, § 25-5-1 et seq., Ala. Code 1975,] is set out in § 25-5-88, Code of Alabama 1975, and must be complied with." Ex parte Curry, 607 So.2d 230, 231 (Ala. 1992).

" Section 25-5-88[, Ala. Code 1975,] requires a trial court to make findings of fact and conclusions of law in workers' compensation judgments. Alabama law requires only substantial compliance with § 25-5-88, and meager or omissive findings of fact or conclusions of law do not necessarily require a reversal of a workers' compensation judgment. See Ex parte Curry, 607 So.2d 230, 232 (Ala. 1992) ; Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969) (construing the predecessor statute to § 25-5-88 ). A trial court, however, must make findings of fact and state conclusions of law that are responsive to the issues presented at trial. Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129-30 (Ala. Civ. App. 2008).
" ' "The purpose of Ala. Code 1975, § 25-5-88, is to 'ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.' " Farris v. St. Vincent's Hosp., 624 So.2d 183, 185 (Ala. Civ. App. 1993) (quoting Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So.2d 1049, 1052 (Ala. Civ. App. 1985) ). "[T]he trial court has a duty to make a finding on each issue presented and litigated before it. In instances where the trial court fails to make a finding responsive to the issue presented, the case must be reversed." Thomas v. Gold Kist, Inc., 628 So.2d 864, 867 (Ala. Civ. App. 1993) ; see also Harbin v. United States Steel Corp., 356 So.2d 179 (Ala. Civ. App. 1978) ; and Dun & Bradstreet Corp. v. Jones, 678 So.2d 181 (Ala. Civ. App. 1996). In Harbin v. United States Steel Corp., this court reversed the trial court's judgment and remanded the case because the trial court had failed to address or to make findings regarding the issue of notice of injury to the employer, despite the issue being presented and litigated.' "

Weaver v. Pilgrim's Pride Corp., 106 So.3d 417, 419-20 (Ala. Civ. App. 2012) (quoting Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129-30 (Ala. Civ. App. 2008) ); see also Johnson v. Lowe's Home Ctr., Inc., 59 So.3d 698, 700 (Ala. Civ. App. 2010) (reversing a workers' compensation judgment when the "trial court failed to include findings of fact responsive to the issues presented, as required by § 25-5-88").

In the present case, the trial court's judgment contains no findings of fact or conclusions of law related to the issues pending before this court. We therefore reverse the trial court's judgment, and remand the cause for the trial court to enter findings of fact and conclusions of law in compliance with § 25-5-88. Weaver, 106 So.3d at 420.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ., concur.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    EX PARTE A.J.
    (In re: R.E. v. A.J.)
    2170217
    Court of Civil Appeals of Alabama.
    January 12, 2018
    * Note from the reporter of decisions: George N. Sims, retired circuit judge, Talladega County, was appointed to preside over this case.
    Kelly R. Knight of Gorham & Knight, LLC, Birmingham, for petitioner.
    Calvin D. Biggers, Fairfield, for respondent.
   THOMAS, Judge.

A.J. ("the mother") gave birth to H.G.B. ("the child") on February 22, 2017. The following day, E.B. ("the acknowledged father") executed an acknowledgment of paternity and was named as the child's father on the birth certificate. The mother and the acknowledged father married on May 1, 2017.

Meanwhile, on March 28, 2017, R.E. ("the alleged father") filed a complaint seeking to establish paternity and child support in the Jefferson Juvenile Court. The mother was served with the complaint on May 11, 2017. On May 23, 2017, the mother, who was acting pro se, filed a motion to dismiss the action; in the motion she contended that the alleged father lacked standing to pursue an adjudication as to his paternity of the child because the acknowledged father was a "presumed father" under Ala. Code 1975, § 26-17-204(a)(4). The motion was not immediately ruled upon.

In her mandamus petition, the mother indicates that Judge Carnella Green Norman ordered genetic testing on June 1, 2017, after a hearing on that same date. Judge Norman set the matter for another hearing to be held in August 2017; the mother appeared for that hearing, which Judge Norman reset for January 2018 because the alleged father did not appear. However, on August 24, 2017, Judge Raymond P. Chambliss entered an order setting the case for a hearing before Judge George Sims, to be held on August 29, 2017. The mother did not receive notice of the August 24, 2017, order or of the August 29, 2017, hearing.

On August 29, 2017, Judge Sims entered an order awarding visitation to the alleged father and continuing the case to October 17, 2017. Judge Sims's order indicated that the mother was not present for the hearing. The State Judicial Information System case-action-summary sheet does not reflect that notice of the October 17, 2017, hearing was sent to the mother.

On October 17, 2017, presumably after a hearing, Judge Sims entered an order determining that the alleged father is the father of the child and continuing the case for another hearing to be held on November 14, 2017; the order does not address child support and, therefore, is not a final judgment. Around that same time in October 2017, the mother learned of the entry of the August 29, 2017, order and the October 17, 2017, order. Through an attorney, the mother filed a motion seeking reconsideration of the October 17, 2017, order, the August 29, 2017, order, and the June 1, 2017, order ("the motion to reconsider"). The juvenile court began a hearing on the motion to reconsider on October 31, 2017, but that hearing was not completed until November 14, 2017.

On November 3, 2017, the acknowledged father filed a motion to intervene in the paternity action. In his motion, the acknowledged father contended that he is the presumed father of the child and that, therefore, he is an indispensable party to the paternity action. After the November 14, 2017, hearing, at which the juvenile court indicated it was considering the motion to intervene, the motion to reconsider, and the mother's still pending motion to dismiss, the juvenile court entered an order granting the acknowledged father's motion to intervene and denying the motion to reconsider; the order does not specifically reference the mother's motion to dismiss or indicate what other proceedings might be contemplated. Furthermore, the November 14, 2017, order does not resolve the issue of child support and is, therefore, like those before it, not a final judgment resolving the paternity action. The mother filed this petition for the writ of mandamus on November 28, 2017.

In her petition, the mother argues that this court should direct the juvenile court to set aside the June 1, 2017, August 29, 2017, and October 17, 2017, orders as void for failure to join an indispensable party. See A.S. v. M.W., 100 So.3d 1112, 1114 (Ala. Civ. App. 2012) (indicating that the failure to join all presumed fathers in an action seeking to establish paternity of a child renders the paternity judgment void). Because the mother specifically seeks relief from the June 1, 2017, August 29, 2017, and October 17, 2017, orders but not the November 14, 2017, order, we must consider whether her petition is timely. Generally, a petition for the writ of mandamus in a juvenile matter must be filed within 14 days of the entry of the order under review. See Rule 21(a)(3), Ala. R. App. P.;

Ex parte C.J.A., 12 So.3d 1214, 1215-16 (Ala. Civ. App. 2009) (explaining that the presumptively reasonable time for filing a petition for the writ of mandamus in a juvenile case is 14 days). The motion to reconsider did not extend the time for filing the mother's petition for the writ of mandamus. See Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003) (explaining that motions seeking reconsideration of interlocutory orders do not toll the time for filing a petition for the writ of mandamus). The mother's petition was filed months after the entry of the June 1, 2017, and August 29, 2017, orders and six weeks after the entry of the October 17, 2017, order. Thus, the mother's November 28, 2017, petition, having been filed more than 14 days after the entry of the June 1, 2017, August 29, 2017, and October 17, 2017, orders, is untimely regarding all three orders. Accordingly, the mother's petition is dismissed as having been untimely filed.

PETITION DISMISSED.

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

      We note that the motion filed by the mother mistakenly relied on Rule 59, Ala. R. Civ. P., and Rule 60(b), Ala. R. Civ. P. However, the mother's motion is neither a Rule 59 motion, see Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003) (quoting Malone v. Gainey, 726 So.2d 725, 725 n.2 (Ala. Civ. App. 1999) )("A 'Rule 59 motion may be made only in reference to a final judgment or order.' "), nor a Rule 60(b) motion, see Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala. 1982) ("Interlocutory orders ... are ... not brought within the restrictive provisions of Rule 60(b), Alabama Rules of Civil Procedure, which provides for relief from final judgments. Instead, such orders are left within the plenary power of the court that rendered them to afford relief from them as justice requires.").

      Although our supreme court has indicated that a mandamus petition challenging the subject-matter jurisdiction of the trial court may be considered even when the petition is untimely, see Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016), the mother's argument is not that the juvenile court lacked subject-matter jurisdiction over the paternity action but, instead, that the failure to name an indispensable party-the acknowledged father-renders the June 1, 2017, August 29, 2017, and October 17, 2017, orders void. "[I]t is clear that the absence of an indispensable party does not deprive the circuit court of subject-matter jurisdiction." Miller v. City of Birmingham, 235 So.3d 220, 230 (Ala. 2017) (citing Campbell v. Taylor, 159 So.3d 4, 10 (Ala. 2014) ).


author: THOMPSON, Presiding Judge.

text:
    RIOPROP HOLDINGS, LLC v. COMPASS BANK et al.
    2160673
    Court of Civil Appeals of Alabama.
    January 12, 2018
    John T. Bender of McFadden, Rouse & Bender, LLC, Mobile, for appellant.
    Ed R. Haden and M. Lee Johnsey, Jr., of Balch & Bingham LLP, Birmingham, for appellee Compass Bank.
    David P. Shepherd, Fairhope, for appellee Walter K. Striplin.
   THOMPSON, Presiding Judge.

Rioprop Holdings, LLC ("Rioprop"), appeals from a judgment the Baldwin Circuit Court ("the trial court") entered in favor of Compass Bank ("Compass") and Walter K. Striplin in this action involving a dispute over title to a unit in the Dunes Condominiums in Gulf Shores ("the property"). In the judgment, the trial court, among other things, divested Rioprop of any interest it had in the property and determined that Striplin had fee-simple title to the property.

The record indicates the following. In 2007, Striplin owned the property. Compass held a mortgage on the property. Striplin failed to pay the 2007 property taxes for the property, so on May 27, 2008, the Baldwin County revenue commissioner conducted a tax sale of the property. Plymouth Park Tax Services ("Plymouth") purchased the property for $36,826.16 at the tax sale. However, Plymouth never took action to obtain possession of the property, and it did not notify Compass of its interest in the property.

In November 2011, Plymouth obtained a tax deed on the property. It subsequently conveyed its interest in the property to Propel Financial 1, LLC ("Propel"). Joseph Lassen, the in-house counsel for Propel, testified that, in 2014 or 2015, Propel purchased Plymouth and all of its assets, including the property. Lassen said that Rioprop, "which owns our REO [real estate owned] aspect of Propel, is a separate entity that manages the REO, real estate owned properties." On February 4, 2016, Propel filed a civil action ("the action") in the trial court to enforce its interest in the property. During the pendency of the action, Rioprop was substituted for Propel. For ease of reference, we refer to Rioprop when discussing the actions of Plymouth, the tax purchaser, or Propel throughout the remainder of this opinion.

In its complaint, Rioprop alleged five counts, including a count seeking a declaration that it held an enforceable lien on the property, with priority over all other liens; a count seeking to eject everyone who claimed an interest in the property and to vest possession in Rioprop; a count seeking to quiet title of the property in Rioprop; a count to establish and enforce a tax lien in the event the trial court determined that Rioprop was not entitled to possession; and a count alleging unjust enrichment based on the taxes that Rioprop had paid since purchasing the property in the event that the trial court determined that it was not entitled to possession of the property or to a lien on the property.

Compass and Striplin filed separate motions to dismiss the ejectment and quiet-title claims on the ground that the applicable limitations period had expired as to those claims. In separate orders dated July 15, 2016, the trial court granted the motions to dismiss those claims. Compass also filed a counterclaim seeking a declaration that Rioprop did not have an interest in the property because, it said, Rioprop was time-barred from seeking possession. Compass further claimed that any interest Rioprop might have had in the property had vested in Striplin, subject to Compass's mortgage.

On April 17, 2017, an ore tenus hearing was held on the remaining issue of whether Rioprop was entitled to recover the amount it had paid for the property at the tax sale, the accumulated interest on that amount, the amount it had paid for expenses such as property taxes and insurance, and an attorney fee. At the hearing, Lassen testified that the total amount Rioprop claimed was $117,372.79. On cross-examination, however, Lassen acknowledged that he did not have a copy of the insurance policy or bills for the premiums that had been paid. Lassen also admitted that, other than a "payoff statement" that included a description of the expenses paid in connection with the property, he did not have receipts, copies of checks, or other documents to support Rioprop's claim that it was owed $117,372.79 or entitled to a lien in that amount. Lassen also testified that Rioprop had never demanded possession of the property from Striplin.

On May 1, 2017, the trial court entered a judgment in favor of Striplin as to Rioprop's contention that it held an enforceable lien with priority over all other liens on the property. The trial court also denied Rioprop's request to establish and enforce a lien pursuant to §§ 40-10-70 and -76, Ala. Code 1975. As to Rioprop's unjust-enrichment claim against Striplin, the trial court found in favor of Rioprop and ordered Striplin to pay Rioprop $5,190.36. In addition, the trial court divested Rioprop of any interest it had in the property and vested title of the property in fee simple absolute to Striplin. The trial court then explicitly stated that the judgment had disposed of all matters as to all parties. Rioprop appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Rioprop argues on appeal that the trial court erred in dismissing its claims for ejectment and to quiet title. In its brief on appeal, Rioprop states that the trial court's order "did not provide any clue as to what legal or factual support upon which it based its decision." In their motions to dismiss the ejectment and quiet-title claims, both Compass and Striplin argued that those claims were time-barred.

" '[T]he standard for granting a motion to dismiss based upon the expiration of the statute of limitations is whether the existence of the affirmative defense appears clearly on the face of the pleading. Sims v. Lewis, 374 So.2d 298 (Ala. 1979) ; Browning v. City of Gadsden, 359 So.2d 361 (Ala. 1978) ; Wright & Miller, Federal Practice and Procedure, Civil& 1357 [sic], at 605 (1969).'
" Braggs v. Jim Skinner Ford, Inc., 396 So.2d 1055, 1058 (Ala. 1981)."

Treadwell v. Farrow, [Ms. 2160667, Oct. 27, 2017] 253 So.3d 967, 969 (Ala. Civ. App. 2017).

Compass and Striplin supported their contention that the ejectment and quiet-title claims were barred by the applicable statute of limitations by citing §§ 40-10-29 and -82, Ala. Code 1975.

Section 40-10-29, which deals with the sale of land for tax purposes, provides:

"After the expiration of three years from the date of the sale of any real estate for taxes, the judge of probate then in office must execute and deliver to the purchaser, other than the state, or person to whom the certificate of purchase has been assigned, upon the return of the certificate, proof that all ad valorem taxes have been paid, and payment of a fee of five dollars ($5) to the judge of probate, a deed to each lot or parcel of real estate sold to the purchaser and remaining unredeemed, including therein, if desired by the purchaser, any number of parcels, or lots purchased by him at such sale; and such deed shall convey to and vest in the grantee all the right, title, interest and estate of the person whose duty it was to pay the taxes on such real estate and the lien and claim of the state and county thereto, but it shall not convey the right, title or interest of any reversioner or remainderman therein."

(Emphasis added.)

Section 40-10-82, part of the same chapter as § 40-10-29, provides:

"No action for the recovery of real estate sold for the payment of taxes shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor; but if the owner of such real estate was, at the time of such sale, under the age of 19 years or insane, he or she, his or her heirs, or legal representatives shall be allowed one year after such disability is removed to bring an action for the recovery thereof; but this section shall not apply to any action brought by the state, to cases in which the owner of the real estate sold had paid the taxes, for the payment of which such real estate was sold prior to such sale, or to cases in which the real estate sold was not, at the time of the assessment or of the sale, subject to taxation. There shall be no time limit for recovery of real estate by an owner of land who has retained possession. If the owner of land seeking to redeem has retained possession, character of possession need not be actual and peaceful, but may be constructive and scrambling and, where there is no real occupancy of land, constructive possession follows title of the original owner and may only be cut off by adverse possession of the tax purchaser for three years after the purchaser is entitled to possession."

(Emphasis added.)

A contention identical to Rioprop's contention-that the ejectment claim and the claim to quiet title are not time-barred-has already been considered and rejected by our supreme court. In Reese v. Robinson, 523 So.2d 398 (Ala. 1988), our supreme court discussed the application of the limitations period set forth in § 40-10-82, explaining:

" Code 1975, § 40-10-82, states that no action for the recovery of land sold for the payment of taxes 'shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor.' [The landowner] successfully argued to the trial court that this Code section required that [the tax purchaser], in order to cut off [the landowner's] right of redemption, possess the property exclusively and adversely for a three-year period, and that, according to undisputed evidence, he had not done so. Section 40-10-82 has been construed as a 'short' statute of limitations ( Williams v. Mobil Oil Exploration & Producing Southeast, Inc., 457 So.2d 962 (Ala. 1984) ), and does not begin to run until the purchaser of the property at a tax sale has become entitled to demand a deed to the land; and the tax purchaser is entitled to 'quiet title' relief only after being in exclusive, adverse possession for the statutory three-year period. Gulf Land Co. v. Buzzelli, 501 So.2d 1211 (Ala. 1987).
"Additionally, this limitations period has been held to bar an action by the tax purchaser to recover property sold for the payment of taxes, unless the tax purchaser brought the action within three years from the date he was entitled to demand a tax deed. Grayson v. Muckleroy, 220 Ala. 182, 124 So. 217 (1929). Also, if the taxpayer/landowner has remained in possession of the property for three years after the date when the tax purchaser became entitled to demand a tax deed, this statute would vest title in the taxpayer/landowner and protect him from any action brought by the tax purchaser to recover the property. Johnson v. Stephens, 240 Ala. 419, 199 So. 828 (1941) ; and Sherrill v. Sandlin, 232 Ala. 389, 168 So. 426 (1936)."

523 So.2d at 400 (footnotes omitted; emphasis added). In its brief on appeal, Rioprop contends that our supreme court's holding in Reese, supra, "is ... a misinterpretation of the law." We note, however, that even if we were to agree with Rioprop, "as an intermediate appellate court, we are bound by the holdings of our supreme court. See, e.g., Kanellis v. Pacific Indem. Co., 917 So.2d 149, 154 (Ala. Civ. App. 2005)." Frederick v. Frederick, 92 So.3d 792, 795 (Ala. Civ. App. 2012).

The federal bankruptcy court for the Middle District of Alabama, which also relied on Reese, discussed the applicable statute of limitations and related caselaw.

"The statute of limitations in § 40-10-82 can serve not only to bar a tax purchaser's ejectment action, but also to re-vest legal title in the land owner. Reese [v. Robinson], 523 So.2d [398] at 400 [ (Ala. 1988) ]. In Johnson v. Stephens, 240 Ala. 419, 199 So. 828 (1941), a father lost legal title to property through a 1931 tax sale and 1933 tax deed delivery but retained exclusive and adverse possession until his death in 1938, at which point the tax purchaser obtained possession of the property. Johnson, [ 240 Ala. at 422,] 199 So. at 829. The court held that the suit of the father's heirs against the tax purchaser, to partition and sell the property for the heirs' benefit, was not barred because the prior version of § 40-10-82 vested the father with an absolute defense against the tax purchaser, which then vested in the father's heirs at his death. Id."

In re Washington, 551 B.R. 644, 650-51 (Bankr. M.D. Ala. 2016). The bankruptcy court then summarized the applicability of the statute of limitations, writing:

"When land is sold under Alabama law due to non-payment of taxes, the tax debtor has three years (or more) to redeem his interest in the land without losing legal title to the property-known as administrative redemption. If the tax debtor fails to redeem his interest in the land within three years after the foreclosure, the tax purchaser may demand a tax deed (or the State may sell one) that extinguishes the tax debtor's legal interest in the land.
"The tax purchaser is entitled to possession of the land when he purchases it at the tax sale (or from the State). If the tax purchaser obtains a tax deed and maintains adverse possession of the land, the tax debtor has three years to redeem the land by filing suit-known as judicial redemption. If the tax debtor has at least constructive or scrambling possession of the land (i.e., the tax purchaser does not adversely possess the land), then notwithstanding the tax deed the tax debtor has a right to redeem the land for as long as he retains possession. Finally, if the tax purchaser obtains a tax deed but the tax debtor remains in adverse possession of the land, title to the land will revert back to the tax debtor unless the tax purchaser files an ejectment action within three years."

551 B.R. at 651 (emphasis added).

In this case, Rioprop purchased the property at a tax sale on May 27, 2008. Three years later, on May 27, 2011, Rioprop was entitled to obtain a tax deed for the property. See § 40-10-29, Ala. Code 1975. Three years after that date, May 27, 2014, Rioprop was entitled to seek to quiet title to the property if it had been in adverse possession of the property for three years or if it had filed an ejectment action within those three years. However, Rioprop did not file its ejectment action until February 4, 2016, nearly two years after the limitations period for such an action had expired. Furthermore, in its complaint, Rioprop did not aver that it had been in adverse possession of the property for three years. Instead, it stated in the complaint that it had been in "constructive possession by virtue of being the holder of the Tax Deed." Rioprop alleged that Striplin and/or other defendants claimed to be in possession of the property and asked the court to place it in actual possession.

Moreover, in its answer to Compass's and Striplin's motions to dismiss, Rioprop did not allege that it had adversely possessed the property. Instead, it argued that it had constructive possession of the property and, therefore, had a right to the property pursuant to § 6-6-540, Ala. Code 1975, which provides for a cause of action to "settle the title" to lands. In Gulf Land Co. v. Buzzelli, 501 So.2d 1211 (Ala. 1987), however, our supreme court determined that possession and ownership of land purchased pursuant to a tax sale is governed by Title 40, Chapter 10, of the Alabama Code of 1975, and not the statutes governing quieting title of disputed property. In Buzzelli, our supreme court held that, even if the tax purchaser in that case had made out a prima facie case to quiet title pursuant to the requirements of § 6-6-540, the tax purchaser would still not have prevailed because of the application of § 40-10-82. Our supreme court explained that, in a dispute over ownership of land involving a tax purchaser, the landowner's

"possession may be constructive or scrambling, and, where there is no real occupancy of the land, constructive possession follows the title of the original owner and can only be cut off by the adverse possession of the tax purchaser. Stallworth v. First Nat. Bank of Mobile, 432 So.2d 1222 (Ala. 1983) ; Hand v. Stanard, 392 So.2d 1157 (Ala. 1980) ; O'Connor v. Rabren, 373 So.2d 302 (Ala. 1979).
"... In order for the short period of § 40-10-82 to bar redemption under § 40-10-83, the tax purchaser must prove continuous adverse possession for three years after he is entitled to demand a tax deed. Stallworth, 432 So.2d at 1224. This statute applies to cases where the land is purchased from the State, as well as to instances where the purchase is made from the tax collector. Merchants National Bank of Mobile v. Lott, 255 Ala. 133, 50 So.2d 406 (1951)."

Gulf Land Co., 501 So.2d at 1213.

Because the face of the complaint indicates that Rioprop's claims for ejectment and to quiet title demonstrate that those claims were filed nearly two years after the applicable limitations period had expired under § 40-10-82, we conclude that the trial court properly dismissed those claims.

On appeal, Rioprop raises two additional arguments regarding the claims for ejectment and to quiet title. Because we have already determined that those claims are time-barred, thus disposing of those claims, we need not address those arguments.

Rioprop also argues that the trial court erred in divesting it of its interest in the property without ruling on Striplin's motion for redemption and by not establishing the amount of money Striplin was required to pay to redeem the property. Before the trial, Striplin had filed a motion for a determination of the amount necessary for him to judicially redeem the property. After the trial of this matter, the trial court entered a judgment divesting Rioprop of "any and all interest" it had in the property and vesting title to the property "in absolute fee simple" to Striplin.

In its appellate brief, Rioprop states that the trial court improperly "stripped" it of its title without requiring Striplin to redeem the property pursuant to redemption statutes. However, Rioprop's argument ignores the holdings of Reese and Washington. As our supreme court explained in Reese, "if the taxpayer/landowner [here, Striplin] has remained in possession of the property for three years after the date when the tax purchaser became entitled to demand a tax deed, [ § 40-10-82 ] would vest title in the taxpayer/landowner and protect him from any action brought by the tax purchaser to recover the property." 523 So.2d at 400.

Because Rioprop failed to exercise its right to obtain possession of the property during the three years after May 27, 2011 (the date Rioprop was entitled to demand the tax deed for the property), and took no action to actually possess the property or to file an ejectment action, title to the property reverted to, or was "re-vested" in, Striplin. Id.; and Washington, 551 B.R. at 651. Rioprop has not cited any authority, and our research has revealed no authority, indicating that, once title to the property was "re-vested" in Striplin, he was required to pay any amount to redeem the property. Accordingly, we conclude that the trial court did not err in refusing to require Striplin to pay Rioprop to redeem the property.

Finally, Rioprop argues that, even if there were "some legitimate ground for denying [it] possession or title" to the property, it was still entitled to a lien for expenses it had incurred, such as the payment of property taxes, plus statutory interest. Specifically, Rioprop argues that, pursuant to § 40-10-29, when it received the tax deed to the property in November 2011, it was also given "the lien and claim of the state and county thereto." Rioprop maintains that it stepped into the shoes of the State of Alabama and enjoyed the same priority with regard to preexisting liens.

We have found no authority that would allow Rioprop to establish or maintain a lien on property in which it no longer has an interest. There is no language in § 40-10-29 that would provide a tax purchaser the ability to maintain a lien for the property tax paid when the property reverted to the landowner by virtue of the tax purchaser's failure to act within the limitations period. In support of its contention that, for purposes of establishing an ad valorem tax lien, it stepped into the shoes of the State of Alabama, Rioprop cites Langan v. Altmayer, 539 So.2d 173 (Ala. 1988). We find nothing in that opinion that supports Rioprop's position, however. The language Rioprop refers to in making its argument that it stepped into the shoes of the State is found only in Justice Maddox's dissenting opinion. Id. at 186 (Maddox, J., dissenting).

After studying the arguments of the parties and the applicable law, we conclude that, under the circumstances of this case, there is no legal basis for allowing Rioprop to establish a lien to recover the expenses it paid in its attempt to acquire the property. Accordingly, we hold that the trial court did not err in denying Rioprop's request for a lien.

Rioprop has failed to demonstrate that the trial court erred in divesting it of any rights or interests in the property and in awarding the property to Striplin in fee simple absolute. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.

      Also named as defendants in Rioprop's civil action were Henrietta Jordan and Wesley Acee, as tenants in common with Striplin; Branch Banking & Trust, known as BB & T, as a junior mortgage holder; the United States of America; and Sage Development, LLC. The United States of America and Jordan filed disclaimers of interest. Acee, BB & T, and Sage did not file responsive pleadings and did not appear at trial.

      We further note that Rioprop's response to the motions to dismiss failed to create a question regarding the timeliness of those claims.


author: DONALDSON, Judge.

text:
    Michael C. SKIPPER v. Tiffany L. SKIPPER
    2160697
    Court of Civil Appeals of Alabama.
    January 12, 2018
    Melissa Isaak and Nichole Woodburn of The Isaak Law Firm, Enterprise, for appellant.
    Submitted on appellant's brief only.
   DONALDSON, Judge.

Michael C. Skipper ("the father") appeals from a judgment of the Houston Circuit Court ("the trial court") denying his petition to modify a custody judgment. We dismiss the appeal as having been taken from a nonfinal judgment.

The father and Tiffany L. Skipper ("the mother") were divorced by a judgment entered by the trial court in April 2010 ("the 2010 judgment"). Pursuant to the 2010 judgment, the mother and the father shared joint legal custody of their minor child ("the child") with the mother designated as having sole physical custody. The father was given visitation rights and was ordered to pay child support. The 2010 judgment provided that the parents could claim the child as a dependent for income-tax purposes in alternating years.

On June 27, 2016, the father filed a petition in the trial court seeking to modify the provision of the 2010 judgment addressing the physical custody of the child. On July 26, 2016, the father amended his petition by seeking to have the mother held in contempt for denying him visitation with the child. On August 29, 2016, the mother filed an answer and a counterclaim seeking to change the visitation-exchange location, to bar the father's father from having contact with the child, to recalculate the amount of child support owed by the father, and to claim the child as a dependent for income-tax purposes in all tax years.

On February 6, 2017, the trial court held a hearing. In an order entered on February 10, 2017, the trial court denied the father's petition for a custody modification but, nevertheless, amended the previous custody and visitation provisions of the 2010 judgment. The February 10, 2017, order also noted that the mother had requested a recalculation of child support and stated: "Within 14 days father shall submit a child support income affidavit to the court, minimum wage shall be imputed to the mother." The record contains no further submissions of the father or orders of the court relating to child support. On February 24, 2017, the father filed a motion he described as a "Rule 59 Motion to Alter, Amend or Vacate," and he filed an amendment to the motion on April 10, 2017. The father's motion was denied on May 4, 2017. The father filed a notice of appeal on June 9, 2017.

On November 6, 2017, after the completion of the record on appeal, this court issued an order requesting letter briefs from the parties on the issue whether this appeal was taken from a final judgment. Specifically, we stated:

"The trial court's order dated February 10, 2017, notes that the mother requested relief including a 'recalculation of child support' and orders the father to 'submit a child support income affidavit to the [trial] court' within 14 days of that order. The order states that 'minimum wage will be imputed to the mother.' The record on appeal contains no further orders addressing that issue. The parties are requested to submit letter briefs to this court within 7 days addressing whether the trial court's judgment dated February 10, 2017, is final and will support an appeal. See, e.g., Tomlinson v. Tomlinson, 816 So.2d 57 (Ala. Civ. App. 2001)."

On November 20, 2017, after obtaining an extension, the father submitted his letter brief. In his letter brief, the father argues that, by ordering him to submit a "Child-Support-Obligation Income Statement/Affidavit" ("CS-41 form"), the trial court effectively modified the child-support obligation, which, he asserts, is "unjustified in this matter," therefore resulting in the trial court's order being a final adjudication of all matters between the father and the mother. The mother did not respond to our request for letter briefs.

" '[M]atters of jurisdiction are of such importance that a court may consider them ex mero motu.' "

Exum v. Exum, 232 So.3d 883, 884 (Ala. Civ. App. 2017) (quoting Reid v. Reid, 844 So.2d 1212, 1214 (Ala. Civ. App. 2002) ).

"An appeal ordinarily lies only from a final judgment. Ala. Code 1975, § 12-22-2 ; Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). An order is generally not final unless it disposes of all claims or the rights or liabilities of all parties. Ex parte Harris, 506 So.2d 1003, 1004 (Ala. Civ. App. 1987).... The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253."

Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala. Civ. App. 2001).

"The trial court in Tomlinson [v. Tomlinson, 816 So.2d 57 (Ala. Civ. App. 2001),] ... had modified a prior custody judgment, had directed the parties to submit CS-41 forms, and had stated that a child-support award would be made after submission of those forms. The mother in Tomlinson, however, appealed before the trial court had entered any further orders regarding child support. Because the issue of child support had not been resolved, this court dismissed the appeal as having been taken from a nonfinal judgment. 816 So.2d at 58."

Exum, 232 So.3d at 884. Similar to Tomlinson, the trial court in the present case ordered the father to submit "a child support income affidavit" pursuant to Rule 32, Ala. R. Jud. Admin. The record contains no further orders addressing the child-support issue and no additional submissions by the father. The mother's claim for child support therefore remains pending, and we have no jurisdiction over this appeal.

Because the trial court's February 10, 2017, order did not adjudicate all of the parties' claims, that order is not a final judgment, and this court has no jurisdiction to consider the father's appeal. "This court must dismiss an appeal taken from a nonfinal judgment." Wilson v. Glasheen, 801 So.2d 848, 849 (Ala. Civ. App. 2001) (citing Powell v. Powell, 718 So.2d 80 (Ala. Civ. App. 1998) ).

APPEAL DISMISSED.

Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

      Although the 2010 judgment described the mother as having "primary" physical custody, we interpret that provision as granting sole physical custody of the child to the mother. Smith v. Smith, 887 So.2d 257, 261-62 (Ala. Civ. App. 2003).

      Because the February 10, 2017, order is not final, Rule 59, Ala. R. Civ. P., is not applicable. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003).