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EX PARTE Brenda K. MILNE (IN RE: Tyler Montana Jul Prescott v. Brenda K. Milne)
WRIT DENIED. NO OPINION.
Brenda K. Milne, a homeowner, fell behind on her property taxes. The local government auctioned off her house to pay the taxes, and the State purchased the house. The State later assigned its rights to two people who later assigned the rights to Tyler Montana Jul Prescott. Prescott obtained a tax deed and filed an ejectment action to remove Milne from the house.1 Milne moved the trial court for a calculation of the amount required for her to redeem the property. Prescott asked the court to include mesne profits in the redemption amount, but the court declined to do so.2
On appeal, the Court of Civil Appeals held that, in a tax purchaser's ejectment action, the redemption amount must include mesne profits. Prescott v. Milne, [Ms. 2180270, Dec. 13, 2019] 308 So. 3d 906, –––– (Ala. Civ. App. 2019). The court did so based on a public-policy rationale: “In our view, if Prescott were not allowed to recover the mesne profits ․, he would not be compensated for Milne's wrongful possession of the house ․” Id. at 912. Milne petitioned this Court for certiorari review.
I concur in denying review because Milne has not both preserved in the Court of Civil Appeals and raised in this Court a meritorious argument for review. However, I write specially because I believe that the Court of Civil Appeals erred in including mesne profits in the redemption amount. The court failed to properly interpret the relevant statutes.
The judicial-redemption statute, § 40-10-83, Ala. Code 1975 (as amended in 2009), lists the exclusive components of the redemption amount. For an ordinary residential property, these components are: the tax-sale price, taxes subsequently paid by the tax purchaser, the tax purchaser's casualty insurance premiums, the value of the tax purchaser's preservation improvements, 12 percent interest on all the above, and attorney fees. § 40-10-83(i) and (iii). Notably, mesne profits are conspicuously absent from this list. Under the negative-implication canon of statutory interpretation, a list of items is generally understood to exclude all omitted items of the same kind. See Hall v. Blan, 227 Ala. 64, 67-68, 148 So. 601, 602-03 (1933); Antonin Scalia & Bryan A. Garner, Reading Law: Interpretation of Legal Texts 107-11 (Thomson/West 2012); Black's Law Dictionary 1961 (11th ed. 2019) (“Expressio unius est exclusio alterius”). In basing its holding on public policy, the Court of Civil Appeals apparently did not consider this exclusive list in the judicial-redemption statute.
Moreover, even if the Court of Civil Appeals had relied on the ejectment statute (§ 6-6-280), which allows mesne profits, that rationale would have fallen short as well. When two statutes conflict, the general/specific canon dictates that the statute that more specifically addresses the facts of the case must be applied. See Ex parte Hubbard, [Ms. 1180047, April 10, 2020] ––– So. 3d ––––, –––– (Ala. 2020); Scalia, supra, at 183-88. Although the ejectment statute provides the damages available in ejectment actions generally, the judicial-redemption statute limits the categories of damages in the specific type of ejectment action here. Therefore, in light of the canons of statutory interpretation, mesne profits are not available in a tax purchaser's ejectment action when the property owner moves for a calculation of the redemption amount.
If left uncorrected, the Court of Civil Appeals’ allowance of mesne profits will have serious practical consequences for Alabama property owners. Based on the numbers provided by Milne, which appear realistic, the addition of rental value will inflate the typical redemption amount to easily 10 times the delinquent-tax amount, possibly much more. This increase will steeply raise the redemption hurdle for property owners seeking to save their properties, putting it out of reach for many. Cf. Jesse S. Vogtle, Jr., et al., The Price of Redemption From an Alabama Tax Sale Just Went Up, Board Briefs (Ala. Bankers Ass'n, Montgomery, Ala.), Jan./Feb. 2020, at 1.3 Given the law's pervasive protection of property owners in possession who want to redeem, see Gulf Land Co. v. Buzzelli, 501 So. 2d 1211, 1213 (Ala. 1987); William R. Justice, Redemption of Real Property Following Tax Sales in Alabama, 11 Cumb. L. Rev. 331, 335-40 (1980), such a drastic change should be recognized by the courts only on the clearest legislative mandate.
In principle, the redemption process is designed to make tax purchasers whole. It is not designed as a punitive cudgel to extort from homeowners more than they owe. Nor is it designed to create a pot-o’-gold windfall for investors savvy enough to exploit homeowners’ (and their mortgage holders’) newfound vulnerability. Accordingly, this Court should closely examine this mesne-profits problem at the first opportunity, when presented a proper request. That is, unless the Legislature fixes the problem first.
FOOTNOTES
1. Although the tax-purchaser rights were assigned to Prescott part way through the ejectment action, for simplicity Prescott and his predecessors in interest will all be referred to as “Prescott” in the remainder of this special writing.
2. Mesne profits are the rental value of a property during a period in which it has been wrongfully possessed by someone. See Black's Law Dictionary 1463 (11th ed. 2019); Profile Cotton Mills v. Calhoun Water Co., 204 Ala. 243, 245, 85 So. 284, 285 (1920); Miller v. Parvin, 450 So. 2d 146, 147 (Ala. Civ. App. 1984).
3. As of the date of this decision, this article could be found at: https://imis.alabamabankers.com/abaimis/uploadedfiles/2020% 20publications/BBjanfeb2020.pdf. A copy of the article is available in the case file of the clerk of the Alabama Supreme Court.
BOLIN, Justice.
Shaw, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur. Parker, C.J., concurs specially.
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Docket No: 1190397
Decided: May 01, 2020
Court: Supreme Court of Alabama.
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