Ronnie Joe Weeks and Sally Patterson v. Warren C. Herlong
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Rel: 08/21/2009 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF C I V I L APPEALS SPECIAL TERM, 2009 2080290 Ronnie Joe Weeks and Sally Patterson V. Warren C. Herlong Appeal from Baldwin Circuit Court (CV-07-497) THOMPSON, Presiding Judge. Ronnie Joe Weeks and Sally Patterson appeal from the judgment of the Baldwin Circuit Court entered in favor of Warren C. Herlong following a bench trial. stated herein, we affirm. For the reasons 2080290 This appeal concerns an attempt by Weeks and Patterson to obtain litigation expenses pursuant to § 18-1A-232, Ala. Code 1975, based on the outcome of a prior condemnation action") in which Herlong right-of-way across their property pursuant action ("the sought to condemn a to the Alabama Eminent Domain Code, § 18-lA-l et seq., Ala. Code 1975. The judgment our in the condemnation action was appealed to supreme court; the opinion in that appeal. Weeks v. Herlong, 951 So. history below 2d 670 (Ala. 2006), contains of the dispute between the relevant aspects of a detailed the parties. the factual factual We set and forth procedural history necessary for the resolution of this appeal. Weeks and Patterson are siblings. They owned a parcel of land that was adjacent to a parcel of land owned by Herlong. Herlong owned two easements that led to his property; however, a small gap between the two easements, which was located on Weeks and Patterson's property and which has been referred to as "the gap property" throughout the course of the parties' litigation, prevented those easements from connecting to one another. Thus, because of the gap property, Herlong was 2080290 unable to use those easements to access his property without trespassing on Weeks and Patterson's property. In 2003, Herlong filed a petition in the Baldwin Probate Court to condemn a private right-of-way easement across the gap property in order to join the two easements. court entered requiring a Herlong judgment to condemning pay compensation for the taking. Weeks and the gap The probate property Patterson $2,000 Herlong sought property. that he filed in the circuit condemnation as Weeks and Patterson appealed the judgment to the Baldwin Circuit Court for a trial de novo. the original complaint and of a right-of-way In court, over the gap During the course of the litigation in the circuit court, Herlong amended his complaint to add a count alleging that he had an easement by prescription over the gap property. After a hearing, the circuit court entered a judgment in which it found that Herlong had established a prescriptive easement over the gap property. It further found that Herlong was not entitled to relief under the aspect of his complaint seeking condemnation of the gap property for purposes of a right-ofway 2080290 Weeks and Patterson appealed the circuit court's judgment to our supreme Particularly court, pertinent which to the affirmed present that appeal, judgment. our supreme court quoted a portion of the proceedings in the circuit court relative to the basis of the circuit court's decision not to grant relief to Herlong on the count of his complaint seeking condemnation of the gap property: "'[Trial judge:] Well, I'll tell y'all, I don't know anything about private condemnations. So, I mean, I've never handled one of those. I've handled easements before. I've dealt with that but I don't know how to handle a private condemnation. I would assume that if an easement is established, then there' s no nee d f or a p: ivate con demna tion so b ased r on my ruling that the prescrip five easemen t did exist, I 'm gonna d eny the claim for this p; < rivate condemnation.'" Weeks, 951 So. 2d at 677 Following the (emphasis added) . supreme court's affirmance. Weeks Patterson instituted the present action against Herlong. and They sought an award of litigation expenses pursuant to § 18-lA232, Ala. Code 1975, which provides: " (a) The court shall award the defendant his litigation expenses, ^^ in addition to any other ^ ^For purposes of § 18-1A-232, litigation expenses are defined as "[t]he sum of the costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for anticipated or 2080290 amounts authorized by law, if the action is wholly or partly dismissed for any reason. " (b) If the scope of the property to be taken is reduced as the result of (1) a partial dismissal, (2) a dismissal of one or more plaintiffs, or (3) a final judgment determining that the plaintiff cannot take part of the property originally sought to be taken, the court shall award the defendant the portion of his litigation expenses attributable to the property within the scope of the reduction. " (c) Costs and litigation expenses authorized by this section may be claimed, taxed, and awarded under the same procedures that apply to costs in other civil actions." Weeks and Patterson argued that an award of litigation expenses to them was justified because the circuit court in the condemnation action did not provide for the statutory condemnation of a right-of-way easement over the gap property as Herlong had received in the probate court and as he had sought in his circuit court complaint. After an ore tenus hearing, the trial court entered a judgment denying Weeks and Patterson's request for litigation expenses In its judgment, the trial court wrote, in pertinent part: "1. Judgment is hereby entered in favor of the Defendant, Warren Herlong, on [Weeks and participation in actual probate or circuit court proceedings." § 18-1A-3(12). 2080290 Patterson's] claim for attorney's fees and litigation expenses incurred in the previous lawsuit. The Court finds that Warren Herlong prevailed in the previous lawsuit at the Probate, Circuit and Supreme Court levels, and therefore an award of litigation expenses and attorney's fees to [Weeks and Patterson], who were not the prevailing parties, would be inappropriate and unjustified."^ Weeks and Patterson appealed to our supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. On appeal. Weeks and Patterson contend that, because the circuit court in the condemnation action denied relief to Herlong on the count of his complaint seeking condemnation of the gap property, they were entitled, by the terms of § 18-lA232, Ala. Code 1975, to an award of their litigation expenses. Citing Carroll v. Ward, 814 So. 2d 287, 290 (Ala. Civ. App. 2001), they point out that the use of the word "shall" in the statute indicates that the award of such expenses is mandatory, not discretionary, and that, in failing to award litigation expenses, the trial plain language of the statute. court failed to follow the We disagree. ^Herlong filed a counterclaim on which the trial court granted relief in his favor in its final judgment. Because Weeks and Patterson do not appeal from that aspect of the final judgment, we pretermit discussion of that matter. 2080290 In Paulk V. McCarty, 855 So. 2d 1123 (Ala. Civ. App. 2003), this court wrote: "As we noted in Williams v. Deerman, 724 So. 2d 18, 20 (Ala. Civ. App. 1998), the same principles and procedures set forth in the Alabama Eminent Domain Code, § 18-lA-l et seq., Ala. Code 1975, governing eminent-domain actions in general govern actions brought by private parties to condemn a right-of-way easement pursuant to § 18-3-1 et seq., Ala. Code 1975. With respect to the issue raised by the parties in this case, § 18-1A-232, a part of the Eminent Domain Code, provides for an award in certain cases of 'litigation expenses, ' which would include reasonable attorney, appraisal, and engineering fees necessary to participation in probate-court or circuit-court condemnation proceedings. See § 18-1A-3(12), Ala. Code 1975." Paulk, 855 So. 2d at 1126. The effect of the circuit court's judgment in the condemnation action was to award Herlong, by virtue of common law, an easement for ingress and egress over the gap property that, for all intents and purposes, was identical in scope to both the statutory condemnation ordered by the probate court and the statutory condemnation sought in the circuit court. a victory for Weeks and Herlong Moreover, far from constituting Patterson, the circuit court's judgment actually precluded them from being compensated for the taking of an easement over the gap property as had been ordered by the probate court. 2080290 Because the circuit court in the condemnation action did not dismiss the applicable; condemnation thus, the count, basis for § 18-lA-232(a) an award of is not litigation expenses in this case arises, if at all, through the treatment by § 18-lA-232(b) of a judgment that reduces the "scope of the property to be taken." See Paulk, 855 So. 2d at 1126-27 (holding that when a circuit court's judgment results in the reduction of the scope of the right-of-way sought in a statutory condemnation proceeding to nothing, § 18-lA-232 (b) , rather than § 18-lA-232(a), is applicable with regard to an award of litigation expenses) . does not address a situation The statute, by its terms, like the present one, where a party obtains the same right-of-way by prescription that, in the same action, he or she sought through statutory condemnation. Caselaw applying § 18-1A-232 also fails to shed light application on the of that statute in the context presented by this case. Our primary focus when construing and applying a statute is to effectuate the intent of the legislature. See City of Bessemer v. McClain, 957 So. 2d 1061, 1074-75 (Ala. 2006). so doing, we will "'read the concept of reasonableness In into 2080290 the provisions of the statute 2d 663, 670-71 (Ala. Civ. Smith V. Smith, 964 So App. 2005) (quoting Berryhill, 801 So. 2d 7, 10 (Ala. 2001)). "[i]f a literal construction Ex parte We also note that [of a statute] would produce an absurd and unjust result that is clearly inconsistent with the purpose and policy of the statute, such a construction is to be avoided." As provides it City of Bessemer, 957 So. 2d at 1075. pertains that to the litigation present expenses case, are § 18-lA-232(b) recoverable by the person whose property is sought to be taken for the creation of a right-of-way easement "if the scope of the property to be taken is reduced" by a final judgment. Although the statute does not define the phrase "scope of the property to be taken is reduced," we construe that phrase to mean that the result of the judgment must, at the very least, reduce the size of the right-of-way easement sought and result in the owner of the property keeping more of his or her property free from the right-of-way easement than what was interpretation of proposed to have been taken through the action. Applying our § 18-lA-232(b) to the present case, we conclude that, even though the circuit court 2080290 in the based condemnation on common-law action awarded prescription an easement rather than on to Herlong statutory condemnation, the circuit court's judgment did not reduce or in any other way alter the size and scope of the right-of-way easement sought by Herlong. the present action As a result, the trial court in correctly determined that Weeks and Patterson were not entitled to the litigation expenses they had incurred in the condemnation action, and its judgment is affirmed. AFFIRMED. Pittman, Bryan, Thomas, and Moore, JJ., concur. 10
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