Appeal From Probate Court To Circuit Court - Condemnation Proceeding: Ex Parte Alabama Power Company


Ex parte Alabama Power Company, [Ms. 1161161, Mar. 2, 2018] __ So. 3d __ (Ala. 2018). This decision by Chief Justice Stuart, (Parker, Shaw, Main, Wise, and Mendheim, JJ., concur; Bolin, J., dissents; Sellers, recuses) denies a petition for writ of mandamus sought by Alabama Power Company seeking to dismiss an appeal filed by property owners in a condemnation action.

Alabama Power Company initiated a condemnation proceeding in the St. Clair Probate Court seeking to obtain easements across three parcels of property. On May 18, 2017, the probate court granted Alabama Power’s complaint and appointed commissioners to determine the just compensation Alabama Power would be required to pay. Ms. *2-3. On June 8, 2017, the probate court entered an order adopting the report of the commissioners and providing that Alabama Power would obtain the easements upon payment of the amounts assessed by the commissioners. Ms. *3. The June 8 order of the probate court notified the property owners of their right to appeal pursuant to § 18-1A-283 to the circuit court within 30 days of the entry of the order of condemnation.

On June 15, 2017, the property owners filed a notice of appeal in the probate court, and the probate court subsequently entered an order transferring the case to the circuit court for the trial de novo contemplated by § 18-1A-283. Ms. *4.

Alabama Power moved the circuit court to dismiss the appeal contending that the property owners failed to comply strictly with § 18-1A-283 because their notice of appeal “indicated that they sought review of the May 18 order granting the complaint ...” rather than the June 8 order of condemnation. Ms. *5. The circuit court denied Alabama Power’s motion to dismiss concluding in pertinent part “[i]t is abundantly clear that [the property owners] intended to appeal from the [June 8] order of condemnation in compliance with § 18-1A-283. It is also abundantly clear that the probate court’s order of transfer of appeal confirms that the notice of appeal applied to the [June 8] order of condemnation and was in accord with § 18-1A-283.” Ms. *6.

The Court reaffirmed settled law that a party resisting an eminent domain taking cannot appeal a preliminary order granting the condemnation but “must await until the order of condemnation is entered pursuant to § 18-1A-282 before any appeal can be filed.” Ms. *8. The Court noted this “promotes judicial economy inasmuch as it avoids a scenario where a property owner resisting an eminent-domain taking might have to pursue two separate appeals if the owner objects not only to the taking, but also to the subsequently awarded compensation.” Ms. *9. The Court held that even though the property owners’ notice of appeal referred to the wrong order, the notice was timely and thus “this is not a case presenting a clear jurisdictional problem such as a missed deadline. ...” Ms. *13. The Court also noted that after the notice of appeal was filed, the probate court entered an order of transfer stating “that it was transferring ‘this action in its entirety and on all issues’ based upon the ‘timely notice of appeal filed ... by [the property owners]. ...’” Ms. *14.

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