Petition for Writ of Certiorari — Cribbs v. Hill

Supreme Court, U.S, -

FILED

| JUL 80 1988

j "JOSEPH F. SPANIOL, JR.

CLERK

86-403

NO. |

{Nene

IN THE SUPEREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

RICHARD EARL CRIBBS, SR. and SUE S. CRIBBS,

Petitioners

versus

STEWART ARNOLD HILL and ANN ELIZABETH HILL,

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

PETITION FOR WRIT OF CERIORARI

Clifford Walker Norris, Esq.

2517 North 30th Avenue

Birmingham, Alabama 35207

Telephone: (205) 322-2526

a

QUESTION PRESENTED FOR REVIEW

MAY THE COURT SET ITS OWN INDEPENDENT

VALUE, WHICH IS CONTRADICTORY TO THE COURT

APPOINTED APPRAISER?

PARTIES

All parties in the proceedings in the

Supreme Court of Alabama appear in the

caption of this case.

ii

TABLE OF CONTENTS

Page

Question Presented for Review i

Parties i

Table of Authorities } S54

Opinions Below 2

Jurisdiction 2

Constitutional and Statutory 2

Provisions

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT 6

Conclusion 10

APPENDIX "A"

Circuit Court Order dated 9/13/85 A-1/A-7

Circuit Court Order dated 10/18/85 A-8/A-9

Opinion of Supreme Court of Alabama A-10

Order Denying Rehearing A-i]

iii

CASES: PAGE

Jolly vs Knopf, 463 Sodd. 7

150 (Ala. 1985)

Madison vs Lambert, 399 So2d. 840 ee

Scott Paper Co. vs Griffin, 399 7

So2d 375

CONSTITUTIONS AND STATUTES:

Alabama Constitution (Sections 2, 8

6, and 22)

Alabama Constitution (Sections 6 9

7, and 13)

U. S. Constitution, Amendment V |

U. S. Constitution, Amendment XIV 3, 8

T. 28, Sec. 1257(3), U. S. Code 2

Section 35-6-100 through 35-6-104 7

Code of Alabama, 1975

Section 35-6-100, Code of Alabama, 1975 3

Section 35-6-102, Code of Alabama, 1975 3

pm ee

RICHARD EARL CRIBBS, SR. and SUE S. CRIBBS,

Petitioners

versus

STEWART ARNOLD HILL and ANN ELIZABETH HILL,

Respondents

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES SUPREME COURT

TO THE HONORABLE, THE CHIEF JUSTICE OF THE

UNITED STATES, AND THE ASSOCIATE JUSTICES

OF THE SUPREME COURT OF THE UNITED STATES:

Your Petitioners, RICHARD EARL CRIBBS,

SR. and SUE S. CRIBBS, respectfully pray

that a Writ of Certiorari be issued out of

and under the seal of this Court to review

the judgment of the Supreme Court of the

State of Alabama rendered May 2, 1986,

which judgment affirmed the Order dated

September i 1985, in which the

Plaintiff/Petitioners were ordered to pay

to the Defendants/Respondents the sum of

$36,101.75 for the two parcels of property

wit

made the basis of this matter contrary to

the appraised value and in violation of

Code of Alabama, 1975, Section 35-6-102.

OPINIONS BELOW

The opinion of the Circuit Court, Tenth

Judicial Circuit of Alabama, Bessemer

Division, Case No. CV 84391C, is attached

hereto in Appendix A, infra, pp. Al through

26.

The opinion of the Supreme Court of

Alabama, Case No. 85149, is attached hereto

in Appendix A, infra, pp. A7 through A8.

JURISDICTION

The statutory provision believed to

confer on this Court jurisdicticn to review

the judgment in question by writ of

certiorari is Title 28, Section 1257(3),

United States Code.

CONSTITUIONAL AND STATUTORY PROVISIONS

A. United States Constituion, Amendment V:

"No person shall . be

deprived of life, liberty, or

Ren

property, without due process’ of

law; een .

B. United States Constitution, Amendment

XIV, Section 1:

‘ ‘ , - nor shall any state

deprive any person of life,

liberty, or property, without due

process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws."

C. Code of Alabama, 1975, Section 35-6-100:

is » % - Provided that the joint

owners or tenants in common

interested in purchasing such

interests shall notify the court of

same not later than 10 days’ prior

to tome Gete set for trial... .*

D. Code of Alabama, 1975, Section 35-6-102:

"After the report of the appraisers

or commissioners, the tenants’ in

common or joint owners seeking to

purchase the interests of those

filing the petition shall have 30

days to pay into the court the

price set as the value of those

interests to be purchased.”

STATEMENT OF THE CASE

Petitioners and Respondents are joint

owners of two (2) parcels of property in

-

Jefferson County, Alabama.

Parcel I is a vacant lot that was

purchased by the parties hereto to rent to

the contractor that was constructing the

Jefferson County Courthouse in Bessemer,

Alabama. The rent was disbursed to the

parties during the term of use, but after

the lease payments ceased; the Petitioners

had to make all of the remaining mortgage

payments.

Parcel II was an old foundry that the

parties purchased in 1980 and remodeled

with the Respondents doing some work and

the Petitioners furnishing material, men

and machinery. The Petitioners made all

mortgage payments on this parcel of

property. This property was vacant until

1984 at which time it was leased by a

corporation that Petitioners had a major

interest.

a

The parties have had numerous

transactions over these properties and

numerous joint ventures, and the

Petitioners have cosigned with Respondents

on a note at Central Bank that Respondents

have failed and/or refused to pay. The

Petitioners have made all the payments on

this indebtedness for Respondents.

Petitioners filed a Petition for Sale

and Division of the joint owned properties

and for an accounting of all monies paid

for the benefit and credit of Respondents

when the Respondents failed and/or refused

to pay any of the indebtednesses owing on

said properties.

The Circuit Court Court of Jefferson

County, Alabama, Bessemer Division,

appointed an appraiser, Mr. Joe Terry, Sr.,

to appraise the properties. He appraised

Parcel I as having a value of $12,000.00

~~

and Parcel II having a value of

$175,000.00. The Petitioners did not file

an objection to this appraisal made by Mr.

Terry. Subsequently, the Court entered an

Order valuing Parcel I as having a value of

$8,700.00 and Parcel II a value of

$133,000.00 and that the Petitioners owed

to the Respondents the sum of $19,577.00;

no credit was given for the monies expended

by the Petitioners for the mortgage

payments, other expenses incurred on the

properties and any other monies paid for

the benefit or use of the Respondents.

REASONS FOR GRANTING THE WRIT

The trial court erred by not accepting

the values set by the Court's appointed

appraiser, Mr. Joe Terry, Sr., when no

objection was made to his compentency or to

the value. Madison vs Lambert, 399 So2d

840.

~

The standards set in Madison vs

Lambert, were not complied with in that

there is nothing to substantiate any value

other than the value set by the Court-

appointed appraiser, Mr. Joe Terry. Sr.

Code of Alabama, 1975, Sections 35-6-100

to 35-6-104 mandates a sale in accordance

with its provisions. Scott Paper Co. vs

Griffin, 409 So2d 375.

Provision is also made for independent

valuation and judicial supervision of the

purchase and sale of these interests if the

coowners cannot agree on a price. Jolly vs

Knopf, 463 So2d 150 (Ala. 1985)

In Code of Alabama, 1975, Sections 35-6-

100 to 35-6-104, it provides for an

independent valuation judicial supervision

of the purchase and sale of respective

interests in property if the

cannot agree on a price.

fin

The procedui is that one party is to

make an offer to purchase at a certain

value (that value set by one or more

competent real estate ppraisers, Section 35-

6-101 ) and the other accepting that value

or objecting to the value; with the Judge

accepting both offer and acceptance.

Either party may object to the

compentence of the appraiser or to the

amount. The Code does not allow the Judge

independently to reduce or increase the

amount set by the appraiser without

objection by one of the parties. To allow

the Judge to alter the value would violate

the equal protection provisions of the

United States Constitution (14th Amendment )

and the Alabama Constitution (Section 2, 6

and 22). The purchaser would have the

option of paying the higher price or

refusing while the seller would have no

=

remedy from the amount set by the

reduction. This also would vioiate the due

process provisions of the Alabama

Constitution (Sections 6, 7 and 13) and the

United States Constitution (5th Amendment )

in that it would deny the seller of is

property rights by reducing his sales

price. By denying the seller the right to

bid on the property at any amount less than

that set by the appraiser, of which he has

prior knowledge and acceptance, the statute

is circumvented, the common law is

circumvented; and the State of Alabama

Constitution and United States Constitution

is violated.

CONCLUSION

The petition should be granted to

resolve the statute for the sell and

division of cotenant properties and to

insure the constitutional protections of

«it Gn

due process and equal protection to all

parties of the sale.

Respectfully submitted,

A SLOT”

ESSE W. SHOTTS, Esq.

APPENDIX "A"

A-1

IN THE CIRCUIT COURT, TENTH JUDICAL CIRCUIT

OF ALABAMA, BESSEMER DIVISION

RICHARD EARL CRIBBS, SR. and SUE S. CRIBBS,

Plaintiffs

vs

STEWART ARNOLD HILL and ANN ELIZABETH HILL,

Defendants

CASE NO. CV 84-391C

ORDER

This matter was heard on this date on

the Defendant's motion to purchase the

interest of the Plaintiffs' in the property

subject to this cause. The defendants were

present and with counsel, but the

plaintiffs, though being notified through

their attorney of record, the Honorable

Jesse W. Shotts, failed to appear.

Testimony was presented and the Court does

find and order as follows:

That defendants motion and offer is based

upon 35-6-100 through 104, Code of Alabama,

i975.

A-2

That the property subject to the

petition in this cause is two parcels of

land which are described as follows:

PARCEL I

Lot 12, Block 242, according to

the map of the City of Bessemer,

as recorded in Map Book 2, Page

14 and 15, as recorded in the

Probate Office of Jefferson

County, Alabama, Birmingham

Division. Situated in Jefferson

County, Bessemer Division.

PARCEL 2

Lots i, £2 ane 2, in Block 392,

according to Bessemer Coal, Iron

and Land Co.'s Survey of the City

of Bessemer as recorded in Map

Book 2, page 72, in the Bessemer

Division of the Probate Court of

Jefferson County, Alabama. Said

lots being formerly known as the

A-3

Northeast 150 feet of Block 3 of

the Survey of Keith Village as

recorded in Map Book 5, Page 20,

in said Probate Office. The

Survey of Keith Village being

vacated by instrument recorded in

Volume 271, Page 509 in said

Probate Office.

That the parties are joint tenants or

tenants in common in both parcels and that

the property can not be equitably divided

without a sale. That the parties acquired

title to parcel one by virtue of a deed

from E. C. Coston Company to Allied

Development Corp. dated November 26, 1979.

The parties to this suit are the sole share

holders of Allied development and that

corporation was dissolved in September of

1982. There is no outstanding indebtedness

regarding this parcel. The parties jointly

purchased parcel two from J. K. Edwards on

A-4

March 24, 1980, subject to a mortgage to

Mr. Edwards in the amount of $44,000.00.

Mr. Edwards is now deceased and the Court

determines that as of October 1, 1985 the

outstanding balance due to his estate on

this mortgage is $30,342.50. This property

is currently under lease to Alabama

Alignment and Spring, Inc. which is owned

by the Plaintiffs. Current monthly rental

on that lease is $1,320.00.

The Court determines that the

Plaintiffs are indebted to the Defendants in

the amount of $19,577.00, which amount

includes the defendants' share of the

rental income on parcel two until October

1, 1985. This debt is not subject to any

pending litigation other than the one

before this Court.

Based upon the appraisals and other

matters presented, the Court determines

A-5

that parcel one has fair market value of

$8,700.00 and that parcel two has fair

market value of $133,000.00. Deducting the

existing indebtedness regarding parcel two

leaves a net equity in both parcels in the

amount of $111,357.50. (The plaintiffs'

interst being valued at $55,678.75 and the

defendants' interest being valued at

$55,678.75)

Therefore, after credit given for the

amounts plaintiffs owe defendants, the

Court determines that in order to purchase

plaintiffs' interest in both parcels

subject to this suit, the defendants must,

on or before October 10, 1985, pay into

Court $36,101.75, to be disbursed to

plaintiffs by further order of this Court.

The plaintiffs are then directed to

execute deeds conveying their interests in

both these parcels to the defendants and,

should they fail to do so, the Court

A-6

retains jurisdiction of this matter to

issue whatever orders may be appropriate,

including an order directing the Clerk to

convey the interests of the plaintiffs to

the defendants.

When the interest of the plaintiffs in

the property has been conveyed to the

defendants then the defendants are directed

,to pay any remaining indebtedness regarding

the outstanding mortgage on parcel two and

to indemnify and hold harmless the

plaintiffs from any claim or liability

thereon. ‘he interest thus conveyed in

parcel two will be subject to the lease

with Alabama Alignment and Spring, Inc.

The Court orders that each party shall

pay their own attorney fees. Appraisal fee

in the amount of $125.00 submitted by Mr.

Joe Terry is taxed as an item of costs and

costs are taxed one-half to the plaintiffs

and one-half to the defendants.

A-7

Done and Ordered this the 13th day of

September, 1985.

(Original executed by Judge Roger

Halcomb, Circuit Judge)

ROGER HALCOMB, CIRCUIT JUDGE

s4

WE) Whee ms

A-8

IN THE CIRCUIT COURT, TENTH JUDICIAL

CIRCUIT OF ALABAMA, BESSEMER DIVISION

RICHARD EARL CRIBBS, SR. and SUE S. CRIBBS,

Plaintiffs

vs

STEWART ARNOLD HILL and ANN ELIZABETH HILL,

Defendants

CASE NO. CV 84-391C

ORDER

Plaintiffs' motion to amend order of

September 13, 1985 was filed on October 8,

1985. The motion does not request a

hearing or oral argument. After

considering the same, the Court finds that

defendants’ motion to purchase the interest

of the joint owners was set for hearing by

the Court on September 13, 1985 and all

parties were notified. Neither plaintiffs

nor their counsel appeared. The record

reveais that when the plaintiffs failed to

appear, the Court contacted their

A-9

attorney's office by telephone and was

informed their attorney would not appear

and had no objection to the motion being

heard. Thereupon the Court took the

testimony of the defendants and based upon :

that testimony rendered the Order of

September 13, 1985. The plaintiffs' motion

contained allegations which could have been

raised in the hearing on September 13th for

consideration by the Court, but which were

not then presented as evidence under oath.

Therefore the Court orders that the motion

is denied.

Done and Ordered this the 18th day of

October, 1985.

(Original executed by Judge Roger Halcomb)

ROGER HALCOMB, CIRCUIT JUDGE

i i

A-10

THE STATE OF ALABAMA - JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1985-86

Richard Earl Cribbs, Sr. and Sue S. Cribbs

85-149

Vv.

Stewart Arnold Hill and Ann Elizabeth Hill

Appeal from Jefferson Circuit Court °

JONES, JUSTICE.

Affirmed on the authority of Valley

Mining Corp. v. Metro Bank, 383 So. 2d 158

(Ala. 1980).

AFFIRMED.

Torbert, C.J., an Maddox, Shores, and

Adams, JJ.

Concur.

A-11

OFFICE OF CLERK OF THE SUPREME COURT

STATE OF ALABAMA

MONTGOMERY

Re: 85-149

RICHARD EARL CRIBBS, SR., et al, Appellant

vs

STEWART ARNOLD HILL, et al, Appellee

You are hereby notified that the

following action was taken in the above

cause by the Supreme Court today:

xxxx Application for rehearing overruled.

No opinion written on rehearing.

Jones, J. - Torbert, CJ., Maddox,

Shores and Adams, JJ., concur

5/2/86

bsa

(Original executed by Robert G. Esdale)

Robert G. Esdale, Clerk

Supreme Court of Alabama