Equity Saves Late Appeal; Condemnation Order “Made” When Signed

In a first decision under Ala. Code § 18-1A-283, the Alabama Supreme Court held that a condemnation order was “made” when signed, and not when it was later “recorded in the probate minutes.” An appeal filed thirty-one days after the order was signed was therefore untimely. Given the confusing language used throughout the state’s Eminent Domain Code, however, and considering the facts of the case, equity would permit the late appeal to proceed. Ex parte State (In re Boutwell v. State), No. 1050299 (Ala. Sept. 21, 2007).

This eminent domain case presented the Alabama Supreme Court with the question of when a condemnation order is “made” for purposes of triggering the thirty-day deadline for filing an appeal under Ala. Code § 18-1A-283. This question had not been decided before. As the state’s high court explained:

            For more than 100 years, the only provision of Alabama law addressing appeals from orders of condemnation entered by probate courts allowed 30 days from “the making of the order of condemnation” in which to file an appeal. [Ala. Code § 18-1A-283.] Neither the legislature nor this Court, however, has ever explicitly decided when an order of condemnation is “made” for purposes of § 18-1A-283 . . . .

(Citation omitted). Conceptually simple, the case can be recounted usefully only by wading through its details.

The probate court signed an order condemning the plaintiff’s land on January 26, 2004. The order was “recorded in the probate minutes” the next day. Approximately one month later — on February 25, 2004 — the plaintiff’s lawyer contacted the probate judge regarding the deadline for taking an appeal. The judge told him that an appeal filed the next day, February 26, would be timely. The plaintiff filed his notice of appeal on February 26, 2004. This was thirty days from the day on which the order was “recorded in the probate minutes,” but thirty-one days from when it was signed.

The plaintiff took his appeal for a de novo trial to the circuit court but, on the State’s motion, that court dismissed the action as late. Because the appeal was filed thirty-one days after the condemnation order was signed, the circuit court reasoned, the plaintiff had missed the appellate filing deadline of § 18-1A-283.

The Court of Civil Appeals disagreed and ordered the circuit court to reinstate the appeal. Under the appellate court’s analysis, the condemnation order was not “made” until it was recorded in the probate minutes. Filed thirty days after that recording, the appeal was on this view timely.

The Supreme Court of Alabama took the case on a writ of certiorari. It affirmed the Court of Civil Appeals — ordering that the appeal be reinstated — but on a rationale different from that given by the lower appellate tribunal. Looking to a related section of the Eminent Domain Code, § 18-1A-282, and construing the term “made” in the wider context of that code, the Supreme Court of Alabama held that the condemnation order was “made” when signed, and that this triggered the thirty-day appellate deadline of § 18-1A-283. The court acknowledged (as had the Court of Civil Appeals) that this interpretation could lead to unfair results. Still, this was the conclusion the state’s high court reached, and it rendered the plaintiff’s appeal late.

The court nevertheless decided to reinstate the plaintiff’s appeal. Given the confusing language used throughout the Eminent Domain Code (which the court reviewed at length), and in light of the probate judge having informed the plaintiff that its appeal would be timely if filed thirty days after the order’s recording, “equitable estoppel” would permit the late appeal to proceed. The court discussed the conditions under which equity will save an untimely appeal, and determined that “on . . . equitable principles” the case before it warranted that reprieve.

The Court of Civil Appeals was affirmed, and the plaintiff allowed to pursue his de novo condemnation trial in the circuit court.