Opinion
2011076.
March 21, 2003. Opinion Overruling Rehearing December 12, 2003. Certiorari Denied April 16, 2004 Alabama Supreme Court 1030493.
Appeal from the District Court, Jefferson County, No. CV-00-3337, Houston L. Brown, J.
Kenneth J. Lay of Legal Services of Metro Birmingham, Inc., Birmingham, for appellant.
Naomi H. Truman, Ray Huffstutler, and Marshell R. Jackson, Birmingham, for appellee.
This appeal concerns the duty of a tenant to pay, and the corresponding right of a landlord to recover, rents due under a lease agreement during the pendency of a de novo appeal to the circuit court from an unlawful-detainer judgment entered by a district court.
In March 2000, the Housing Authority of the Birmingham District ("HABD") sued a tenant of one of its apartments, Vanessa McGhee ("the tenant"), in the Jefferson County District Court, alleging that the tenant's lease was due to be terminated and possession of the apartment awarded to HABD because the tenant had allegedly violated provisions in the lease requiring the tenant to avoid "drug and/or criminal activity" on the leased premises; the complaint also sought $14.61 in damages. Although the tenant denied the allegations of HABD's complaint, the district court, after an ore tenus proceeding, found in favor of HABD.
In a judgment appearing on the district court's case action summary sheet, the district court awarded possession of the apartment returned to HABD; it also determined that the tenant owed HABD rent of $71 per month and that $142 in rent — or two months' rent — had accrued since the filing of the complaint. The district court entered a final judgment awarding HABD the right to possession of the apartment and all accrued rent, but it reserved jurisdiction "on the money claim" for $14.61. However, a second district court judgment form is included in the supplemental record on appeal. That judgment form contains blank spaces for the district court's determinations concerning monthly and accrued rent; those blank spaces have not been filled in. A comparison of that judgment form with the case action summary sheet suggests that the judgment form was photocopied and superimposed on the case action summary sheet. The version of the form appearing on the case action summary sheet contains handwritten amounts in the blanks provided to reflect the district court's determinations as to the tenant's monthly and accrued rent.
We note that under Rule 58(c), Ala. R. Civ. P., which is made applicable to district courts under Rule 58(dc), "[n]otation of a judgment . . . on separately maintained bench notes or in the civil docket . . . constitutes the entry of the judgment" such that "rendition and entry of judgment occur simultaneously when the trial judge notes the judgment on the case action summary sheet." Smith v. Jackson, 770 So.2d 1068, 1071-72 (Ala. 2000).
The tenant appealed from the district court's judgment in favor of HABD to the Jefferson Circuit Court and simultaneously filed an affidavit of substantial hardship; that affidavit was approved, and the district court waived the tenant's prepayment of docket fees. However, HABD sought a writ of restitution from the district court; under Alabama law, that procedure is conditionally permissible, despite the pendency of an appeal, under the authority of § 6-6-351, Ala. Code 1975, which provides as follows:
"(a) Notwithstanding any other provisions of law or of the Alabama Rules of Civil Procedure, in cases of forcible entry or unlawful detainer, an appeal to circuit court or to appellate court does not prevent the issue of a writ of restitution or possession unless the defendant pays to the clerk of the district court all rents called for under the terms of the lease, since the date of the filing of the action and continues to pay all rent that becomes due and payable under the terms of the lease as they become due, during the pendency of the appeal, and the sums are to be ascertained by the judge.
"(b) If the defendant should fail to make any payments as they become due under subsection (a), the court shall issue a writ of restitution or possession and the plaintiff shall be placed in full possession of the premises.
"(c) Upon disposition of the appeal, the court shall direct the clerk as to the disposition of the funds paid to the clerk pursuant to subsection (a)."
On August 18, 2000, the district court, finding that moneys due from the tenant had not been paid into the court, issued a writ of restitution. However, it appears that HABD did not seek enforcement of the writ and that the tenant remained in the apartment for more than a year after the writ had issued.
After the district court had issued its writ of restitution, the district court and the circuit court both denied motions filed by HABD to "correct" the district court's judgment; the motions were based upon the existence of the blank spaces in the judgment form. The tenant filed a response in opposition to HABD's circuit-court motion in which she requested that the circuit court declare § 6-6-351 unconstitutional because, she said, that statute "deprives the tenant of a trial de novo and a trial by jury." Pursuant to § 6-6-227, Ala. Code 1975, notice of the tenant's constitutional challenge was provided to the attorney general, who acknowledged the notice and waived his rights to be heard and to further notice with respect to the challenge. HABD then filed a motion requesting, among other things, that the circuit court set a bond for the tenant pending the hearing of the tenant's appeal; the circuit court granted the motion to the extent that the tenant was ordered to pay $71 (i.e., one month's rent) within seven days of the entry of the order and to pay $71 by the eighth day of each month that she chose to continue living in the apartment.
The case was then litigated for several months. The parties filed various motions, including cross-motions for a summary judgment, which were denied. The case was ultimately set for a jury trial. However, in May 2002, HABD filed a motion to dismiss the appeal, averring that the tenant had vacated the apartment on May 8, 2002, and that the action was therefore moot. The circuit court granted HABD's motion and dismissed the appeal with prejudice. The tenant then filed a motion in which, among other things, she sought to recover the moneys that she had paid into court pursuant to the circuit court's order that she pay monthly rent while her appeal was pending. Although the circuit court initially granted the tenant's request, it later set aside that order and awarded the funds to HABD. The tenant appeals, contending (1) that she should not have been required to pay rent while her appeal to the circuit court was pending; (2) that the rent moneys should have been disbursed to her after the dismissal of her appeal by the circuit court; and (3) that § 6-6-351 is unconstitutional.
The tenant first contends that the circuit court erred in requiring her to pay $71 per month in rent during the pendency of her appeal from the district court. She claims that under § 6-6-351, as construed in Adams v. Birmingham Towers, Ltd., 709 So.2d 1286 (Ala.Civ.App. 1998), the district court must determine the rent due during the pendency of an appeal and that that court must "set or order [a] Bond." However, a close review of Adams indicates that the tenant's position is not well taken.
In Adams, which also involved an unlawful-detainer action, the circuit court, hearing a de novo appeal from a district court judgment awarding a landlord possession of an apartment, issued a writ of restitution because the tenant had not paid to the district court clerk the rents called for under the terms of the parties' lease. This court noted that § 6-6-351, as amended in 1996, "restored the ability of an unlawful detainer plaintiff to execute on a favorable district court judgment during the pendency of an appeal to the circuit court if the appealing defendant does not provide adequate security to supersede the judgment." 709 So.2d at 1288. However, we noted that because the amended version of § 6-6-351 had retained the requirement that "the `sums' payable to the district court clerk during the pendency of the appeal are `to be ascertained by the judge,'" 709 So.2d at 1288 (emphasis added), and because the Alabama Court of Appeals had held that the term "the judge" meant the judge of the inferior court from which the case had been appealed rather than the circuit court judge, we reversed the circuit court's judgment issuing the writ because the judge of the district court in Adams had failed to ascertain the tenant's monthly rental obligation. Id. at 1288 (citing King v. Sawyer, 1 Ala.App. 439, 442, 55 So. 320, 321 (1911)).
In this case, however, the district court judge did ascertain the monthly rental amounts due under the parties' lease; that court specified in its judgment entered on the case action summary sheet that the rental amount was $71 per month and that a rent arrearage of $142 had accrued since the filing of HABD's complaint. Thus, the requirement of § 6-6-351 that the district court judge ascertain "all rents called for . . . since the date of the filing of the action" and "rent that becomes due and payable under the terms of the lease . . . during the pendency of the appeal" has been fulfilled.
In disputing our conclusion as to this issue, the dissent notes that in HABD's motion to correct the "judgment" filed in the district court, HABD averred that the district court had failed to fill in the spaces in the judgment form HABD had submitted; apparently, the dissent concludes that HABD's statement amounts to evidence supporting the tenant's contention that "a clerical worker in the district court impermissibly filled in the blanks" in the judgment appearing on the case action summary sheet. The dissent overlooks the fact that the tenant did not make that argument in the circuit court, and therefore cannot now raise it on appeal to this court. "The function of an appeal is to obtain judicial review of the adverse rulings of a lower court. . . . Issues raised for the first time on appeal cannot be considered." Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala. 1994). We therefore need not address the tenant's belated accusations of misconduct against the district court's personnel.
Even if we could properly review the tenant's argument, however, we would not find it persuasive. As we have explained, the record indicates that the district court took a photocopied portion of the judgment form submitted by HABD and affixed that photocopied portion onto its case action summary sheet as its judgment; that affixed portion of the form, not the form itself, constitutes the duly entered judgment of the district court under Rule 58, Ala. R. Civ. P. See also Boothe v. Jim Walter Res., Inc., 660 So.2d 604, 607 (Ala.Civ.App. 1995) (a draft judgment presented by counsel "has no legal effect until signed by the trial court"). Thus, HABD's contentions concerning what should have appeared on its proposed judgment form are not properly viewable as proof of omissions in the judgment that was actually entered.
As we noted in Adams, before the 1996 amendments to § 6-6-351, Rule 62(dc)(5), Ala. R. Civ. P., had been held to preclude the issuance of a writ of restitution during the pendency of a de novo appeal to the circuit court by a defendant in an unlawful-detainer case in the district court if the defendant had complied with Rule 62(dc) by filing a cost bond or an approved affidavit of substantial hardship. However, we noted in Adams that the 1996 amendments to § 6-6-351, which restored the ability of an unlawful-detainer plaintiff to execute on a favorable district court judgment unless the appealing defendant provides adequate security to supersede the judgment, had essentially "effected a limited legislative repeal of Rule 62(dc)(5)." 709 So.2d at 1288.
In this case, the district court issued a writ of restitution because the tenant had not paid the rents due under her lease during the pendency of HABD's unlawful-detainer action and the pendency of her appeal to the circuit court from the district court judgment in favor of HABD. There is no indication in Adams that the circuit court could not have issued a similar writ had the tenant not begun paying into the court the moneys due HABD under the terms of her lease as ascertained by the district court; indeed, Wright v. Hurt, 92 Ala. 591, 9 So. 386 (1891), holds that the circuit court may issue such a writ. That the circuit court elected not to issue such a writ, but instead entered an order that required the tenant to pay rent into the court while HABD's right to terminate the tenant's lease for failing to avoid drug and/or criminal activity was on appeal, was wholly consistent with the intent of § 6-6-351 that a defendant in an unlawful-detainer action continue to make rent payments during the pendency of a de novo appeal to the circuit court.
We note that because the clerk of the Jefferson Circuit Court serves ex officio as the clerk of the district court, see Upton v. Mississippi Valley Title Ins. Co., 469 So.2d 548, 552-53 (Ala. 1985); and Ala. Code 1975, § 12-17-160 et seq., payment of moneys to the circuit court clerk would be the equivalent to payment of such moneys to the clerk of the district court as specified in § 6-6-351.
Whether HABD had remedies available to it to collect the tenant's rent other than by requesting that HABD be awarded the moneys paid by the tenant into the court in lieu of rent, as the dissent suggests, is ultimately immaterial.
Not only did the circuit court correctly require the tenant to continue making rent payments into the court during the pendency of her appeal, that court also properly awarded the funds accumulated by the court during the pendency of the appeal to HABD upon the dismissal of the appeal. Section 6-6-351(c) specifically provides that "the court shall direct the clerk as to the disposition of the funds" upon "disposition" of the appeal. The dismissal of the tenant's appeal restored the district court's judgment in favor of HABD "to full force and effect." See Alabama Power Co. v. Thompson, 250 Ala. 7, 12, 32 So.2d 795, 800 (1947). Because we have already concluded that the circuit court did not err in requiring the tenant to pay $71 per month into the court, and because one of the purposes of § 6-6-351 is to provide financial security to landlords during the pendency of unlawful-detainer litigation, see Lovejoy v. Intervest Corp., 794 So.2d 1205 (Ala.Civ.App. 2001), we conclude that awarding the funds paid into the court by the tenant to HABD (which, after all, could not re-lease the apartment until the appeal was decided) was not erroneous. To hold otherwise, as urged by the dissent, would be to afford the tenant a financial windfall by retroactively permitting the tenant to remain in an apartment on HABD's property without any payment of rent for over two years, a result we cannot and shall not countenance.
We note, however, that the tenant may properly claim a setoff from HABD in the amount of the $1,349 paid into court in the event that HABD persists in seeking to recover back rent from her (as the tenant, without citation to the record, contends HABD has been doing).
Finally, we reject the tenant's contention that § 6-6-351 is unconstitutional because, she says, it deprives litigants of their rights to a trial de novo in the circuit court and to a jury trial. As we noted in Adams, supra, in amending § 6-6-351, which had previously been held to be procedural in nature and to have been supplanted by Rule 62(dc)(5), the Legislature acted pursuant to its power under Ala. Const. of 1901, amend. 328, § 6.11, to change rules governing the practice and procedure in the courts of this state through a general act of statewide application. 709 So.2d at 1287. Requiring a tenant, as a condition precedent to the tenant's retaining possession of leased premises during an appeal to the circuit court for a trial de novo in an unlawful-detainer action, to continue making the exact rental payments he or she would be obligated to make in order to comply with his or her lease is no more burdensome to the tenant's right to a jury trial on the issue of her right to continued possession than is requiring the tenant to pay a civil jury trial fee, a practice our Supreme Court has held to be constitutional. Fox v. Hunt, 619 So.2d 1364 (Ala. 1993). We conclude that § 6-6-351 bears a rational relationship to a legitimate state interest, namely, providing a landlord, who has prevailed on an unlawful-detainer claim in a district court, some economic security when a tenant appeals to a circuit court and demands a jury trial that may not occur for months (or, as in this case, years) after the appeal is filed. See Smith v. Coyne, 555 Pa. 21, 722 A.2d 1022 (1999) (holding that rule which required tenants to deposit rent arrears before appeals could supersede judgments of inferior courts in landlord-tenant actions did not violate low-income tenants' rights to jury trial).
Based upon the foregoing facts and authorities, the judgment of the circuit court awarding HABD the accrued rent paid into the court by the tenant during the pendency of her appeal is due to be affirmed.
AFFIRMED.
CRAWLEY and THOMPSON, JJ., concur.
MURDOCK, J., concurs in the result.
YATES, P.J., dissents.
In addition to filing an application for rehearing and an amended application for rehearing, Vanessa McGhee, the tenant, has filed a motion to supplement the record on appeal and an amended motion to supplement the record on appeal. The material that is the subject of the motion to supplement as amended is purported to be a transcript of a hearing held in the district court on August 24, 2000; according to the tenant, that purported transcript (which was not prepared until after this court issued its opinion on original submission) "shows that the [d]istrict [c]ourt [j]udge did not set the amount of rent." The Housing Authority of the Birmingham District ("HABD") has moved to strike the transcript, arguing that (1) the tenant did not first seek to supplement the record in the circuit court, as required by Rule 10(f), Ala. R.App. P.; (2) the tenant, as the appealing party, has the burden of ensuring that the record is correct; and (3) the transcript is not a transcript of proceedings held in the circuit court and is therefore not properly to be considered.
In Walker v. Eubanks, 424 So.2d 631 (Ala.Civ.App. 1982), we noted that we have the discretion to allow supplementation of the record under Rule 10(f), Ala. R.App. P., on rehearing. However, as the Alabama Supreme Court noted in Cowen v. M.S. Enterprises, Inc., 642 So.2d 453 (Ala. 1994), "Rule 10(f) provides for the supplementation of the record only to include matters that were in evidence in the trial court," and it "was not intended to allow the inclusion of material in the record on appeal that had not been before the trial court." 642 So.2d at 455 (emphasis added).
As we noted in our opinion on original submission, the tenant argued on appeal that the handwritten amounts added in the blanks provided in HABD's proposed judgment form to reflect the district court's determinations as to the tenant's monthly and accrued rent were "impermissibly" filled in by "a clerical worker in the district court"; however, we noted that "the tenant did not make that argument in the circuit court, and therefore cannot now raise it on appeal to this court." McGhee v. Housing Auth. of the Birmingham Dist., 890 So.2d 122, 126 (Ala.Civ.App. 2003). We conclude that the same principle renders improper the tenant's invocation of Rule 10(f), Ala. R.App. P., in an effort to supplement the record with a transcript that was not even prepared until after this court's opinion on original submission was released and that pertains to an argument that was not made to the circuit court. HABD's motion to strike is, therefore, due to be granted.
The tenant's application for rehearing, as amended, is overruled. The tenant has also filed a motion for sanctions that, like her application for rehearing, relies upon material outside the record and upon arguments not made to the circuit court; that motion is denied.
MOTION TO STRIKE TRANSCRIPT GRANTED; APPLICATION OVERRULED; MOTION FOR SANCTIONS DENIED.
CRAWLEY and THOMPSON, JJ., concur.
MURDOCK, J., concurs specially, with writing.
YATES, P.J., concurs in part and dissents in part, with writing.
As a threshold matter, I note that my decision to concur in the result reached in the main opinion (but not in the reasoning employed in that opinion), does not turn on whether there were any blanks in the district court's judgment as entered on the case action summary sheet, nor upon who may have filled in any such blanks or when they may have done so.
My reasons for concurring in the result reached in the main opinion, but not in the reasoning of that opinion, are as follows.
I am not persuaded that the circuit court had the authority under § 6-6-351, Ala. Code 1975 (particularly reading § 6-6-351(a) and (b) in pari materia), to issue a writ of restitution. Nor is it clear that it could issue such a writ consistent with the strictures of due process without first conducting its own hearing or otherwise properly receiving evidence relating to the issuance of the writ. Moreover, I see no need to address this question in the present case, because the circuit court did not issue a writ of restitution in this case.
What the circuit court did do was set an appeal bond. The main opinion states that the circuit court's order setting this appeal bond was "consistent with the intent of § 6-6-351." That may be true, but that does not mean that the Legislature authorized such action in § 6-6-351. This court has been pointed to no such authority in § 6-6-351 or in any other statute.
Notwithstanding the foregoing, the tenant did not seek relief by way of a petition for a writ of mandamus or otherwise from the appeal bond imposed by the circuit court. Instead, the tenant complied with the requirements of the court order setting that bond and, without objection, paid to the circuit clerk the amount of $71 per month for the better part of two years. I therefore must conclude that the tenant failed to preserve any objection to the appeal bond or that she waived any such objection. It is for this reason that I find it appropriate to concur in the result reached by the main opinion.
On original submission, I wrote separately to comment on my reason for concurring in the result reached by the main opinion. Upon further review of this matter on application for rehearing, I would offer the following comments in place of my previous writing:
For various reasons, I cannot agree with the treatment in the main opinion on original submission of the question of the circuit court's authority to issue a writ of restitution or a supersedeas bond, and, therefore, I can only concur in the result reached by the main opinion on original submission.
First, I see no need to address the question of whether the circuit court had authority to issue a writ of restitution before hearing the merits of the case before it. The circuit court in this case did not issue a writ of restitution. Indeed, the circuit court denied HABD's motion of August 29, 2000, in which HABD sought, among other things, the issuance by the circuit court of such a writ.
The main opinion on original submission poses this question, and then answers it in the affirmative, citing Wright v. Hurt, 92 Ala. 591, 9 So. 386 (1891). Wright v. Hurt does not stand for this proposition; instead, it affirms the right of a circuit court, upon conducting a trial de novo of an unlawful-detainer action in which the plaintiff has prevailed in the lower court but in which the defendant has prevailed in the circuit court, to issue a "writ of re-restitution" placing the defendant back into possession of the property. 92 Ala. at 594, 596, 9 So. at 387 (holding that "the Circuit Court was authorized to undo what had been done under the process issued on the unwarranted judgment of the justice of the peace, and that the writ of restitution was an appropriate method of accomplishing this result").
Further, I do not see authorization in § 6-6-351, Ala. Code 1975, for the trial court to issue a writ of restitution before hearing the merits of a case on appeal to it de novo from the district court. Nor do I read Adams v. Birmingham Towers, Ltd., 709 So.2d 1286 (Ala.Civ.App. 1998), which focused only on the requirement that the district court be the court that must set the monthly rental amount contemplated under § 6-6-351, as foreclosing a negative answer to the question posed.
In its August 29, 2000, motion, HABD asked the circuit court to amend the district court's judgment, nunc pro tunc, so as to reflect the monthly rent amount, or to remand the case to the district court to allow it to do so, or to issue a writ of restitution itself.
Second, I cannot agree that either § 6-6-351, Ala. Code 1975, or Rule 62, Ala. R. Civ. P., authorizes the circuit court to require the appealing tenant to post a supersedeas bond of the nature required by the circuit court in this case. Recognizing that such an order would be, in the words of the main opinion on original submission, "wholly consistent" with the legislative intent that a defendant in an unlawful-detainer action continue to make rent payments during the pendency of a de novo appeal is one thing. Actually authorizing the circuit court to issue such an order is another. I do not see in § 6-6-351 language that accomplishes the latter. Nor is there provision for such an order in Rule 62.
On appeal, the tenant does not make the foregoing argument, however, but instead argues that the payment amount reflected in the circuit court's judgment was not an amount set by the district court. I do not see in the record any indication that the tenant made this argument to the circuit court in response to the landlord's September 18, 2000, "Motion to Set Bond Pending Appeal." As the main opinion on original submission correctly notes, we should not consider on appeal arguments not first raised in the trial court. See Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala. 1992).
In response to HABD's August 29, 2000, "Motion to Correct Judgment," McGhee did argue that the district court "is to set the rent/appeal bond that the tenant is to pay during the pendency of her appeal [to the circuit court] in order to remain in possession," and that "[i]f the district court does not set a bond the circuit court has no authority under [§] 6-6-351 to issue a writ of restitution." The circuit court denied the motion of HABD to correct the judgment in response to which McGhee made these arguments.
Subsequent to the denial of HABD's "Motion to Correct Judgment," HABD filed on September 18, 2000, a separate "Motion to Set Bond Pending Appeal," in which HABD asked that the circuit court "set a bond in such sum as the court may prescribe pending appeal/trial de novo of the district court judgment" and "that McGhee be required to begin making monthly rent payments ($71.00) as required until the case is tried." The record reflects no argument in opposition, or other response of any nature by McGhee, to this subsequent motion. The circuit court granted this subsequent motion on September 27, 2000.
I also note that the September 18, 2000, motion stated that it was being made pursuant to Rules 7 and 8, Ala. R.App. P. No argument was made to the circuit court, and none is made to this court, that these rules do not authorize the setting of an appeal bond for an appeal from a district court to a circuit court for a trial de novo.
McGhee also argues that § 6-6-351 is unconstitutional. She contends that § 6-6-351 deprives a litigant of the right to a trial de novo in the circuit court. The main opinion on original submission notes that our Supreme Court has determined that requiring a tenant to pay a civil jury trial fee has been held to be constitutional, see Fox v. Hunt, 619 So.2d 1364 (Ala. 1993), and submits that "[r]equiring a tenant, as a condition precedent to the tenant's retaining possession of leased premises during an appeal to the circuit court for a trial de novo in an unlawful-detainer action, to continue making the exact rental payments he or she would be obligated to make in order to comply with his or her lease is no more burdensome to the tenant's right to a jury trial on the issue of her right to continued possession than is requiring the tenant to pay a civil jury trial fee." 890 So.2d at 128. I cannot agree with this particular rationale; the aggregate amount of rental payments that must be paid by a tenant could far exceed the amount set as a civil jury trial fee. Moreover, the question of exactly what "rental payments [a tenant] would be obligated to make in order to comply with his or her lease" is often the very question at the core of the dispute in an unlawful-detainer action.
The main opinion on original submission also "conclude[s] that § 6-6-351 bears a rational relationship to a legitimate state interest." 890 So.2d at 128. The appropriate test for determining the constitutionality of a fee or expense such as that at issue in this case, however, is not whether it bears some rational relationship to a legitimate state interest, which such a fee undoubtedly would in most cases, but whether it unduly burdens a litigant's right to a jury trial.
Again, however, I believe that the main opinion discusses issues which need not be discussed in order to resolve the present case. Section 6-6-351 is directed to the district court, and it authorizes the district court to issue a writ of restitution, albeit a writ of restitution that is not enforceable in the event the defendant makes certain prescribed rental payments. The order in question in the present case was issued by the circuit court and was not a conditional writ of restitution issued pursuant to § 6-6-351. Rather, as noted above, it was an order for an appeal bond issued by the circuit court in response to a motion filed by HABD that relied upon Rules 7 and 8, Ala. R.App. P. Accordingly, the question of the constitutionality of the scheme outlined in § 6-6-351 is not presented in this appeal.
In light of the foregoing, I continue to agree with the result reached by the main opinion on original submission, and I concur in overruling the application for rehearing.
On March 31, 2000, the Housing Authority of the Birmingham District ("HABD") sued Vanessa McGhee, one of its tenants, in the Jefferson County District Court, alleging that McGhee no longer had the right to possession of the premises because, according to HABD, McGhee had violated provisions of the parties' lease agreement relating to avoiding "drug and/or criminal activity." McGhee denied the allegations. Following ore tenus proceedings on May 22, 2000, the district court found in favor of HABD. McGhee filed a notice of appeal to the circuit court on May 25, 2000, for a trial de novo. She also filed an affidavit of substantial hardship in lieu of a bond for costs, which the district court approved. See Rule 62(dc)(5), Ala. R. Civ. P.
On August 18, 2000, HABD filed a writ of eviction in the district court because, it claimed, McGhee had failed to pay rent money into the court. On August 23, 2000, the sheriff executed the writ. According to HABD's brief to this court, a question arose as to whether the amount of rent McGhee was obligated to pay while her appeal was pending had been ascertained; therefore, possession of the premises was restored to McGhee. On August 23, 2000, Faye Rosenbaum, an attorney for HABD, left a telephone message for the district court judge in which she requested that the judge correct the judgment of possession to include the amount of rent McGhee was obligated to pay while her appeal was pending and that he make the corrected judgment retroactive.
On August 24, 2000, HABD moved to correct the judgment stating:
"1. This unlawful detainer claim was filed on March 31, 2000 after defendant's lease was terminated because of multiple incidents of criminal activity by her family and guests.
"2. Defendant filed an answer, and the matter was tried before the Court on May 19, 2000. After hearing testimony from several witnesses including Collegeville housing manager James Billingsley, the Court took the matter under advisement. A judgment form restoring legal possession of the unit to HABD was signed by the Court and entered on May 22, 2000.
"3. Through apparent oversight, inadvertence or clerical error, the spaces on the judgment form used for ascertaining the monthly rent obligation and the amount having accrued since the date of filing were left blank.
"4. Per the terms of defendant's lease, Exhibit A, as adjusted, Exhibit B, her monthly rent is $71.00 per month due and payable on the first day of the month; $142.00 accrued since the date of filing through the date of judgment ($71.00 x 2 months — April and May 2000).
"Wherefore HABD moves this Court to amend the judgment herein to correct the previous omission, nunc pro tunc, effective as [of] the date of entry of judgment for possession in its favor."
On August 25, 2000, the district court denied HABD's motion to correct the judgment on the ground that it lacked jurisdiction because McGhee had appealed to the circuit court on May 25, 2000, for a trial de novo.
On August 29, 2000, HABD filed a motion in the circuit court, seeking to correct the district court's judgment. In that motion, HABD asked the circuit court
"in the interest of justice to amend the judgment herein to correct the previous omission, nunc pro tunc, effective as [of] the date of entry of judgment for possession in [HABD's] favor, or to remand the matter to [the] District Court to so amend its judgment, and further, to require [McGhee] to pay all amounts due pending appeal to date into the clerk of court immediately or issue a writ of restitution so that HABD can regain possession of the unit, and deem the appeal moot."
On September 14, 2000, McGhee responded to HABD's motion, arguing that under Adams v. Birmingham Towers, Ltd., 709 So.2d 1286 (Ala.Civ.App. 1998), the district court is to ascertain the amount of rent a tenant must pay during the pendency of an appeal and that, if the district court does not set the amount, then the circuit court lacks the authority to issue a writ of restitution pursuant to § 6-6-351, Ala. Code 1975. McGhee also challenged the constitutionality of § 6-6-351. On September 15, 2000, the circuit court denied HABD's motion.
On September 18, 2000, HABD filed a motion to set bond pending appeal pursuant to Rules 7 and 8, Ala. R.App. P., and to set an expedited trial date. HABD also requested that McGhee be required to begin making monthly rental payments of $71.
On September 27, 2000, the circuit court entered the following order:
"The Motion To Set Bond, etc., filed 9/18/00 is GRANTED to the extent that Vanessa McGhee is ordered to pay $71.00 per month within 7 days and then to pay $71 per month within 7 days of this first of each month that she lives in [HABD's] housing unit. [McGhee] may vacate the premises at any time without any additional payment pending the outcome of this action. If [McGhee] fails to comply with this Order she may be held in contempt of court and the Court may order her to vacate the unit pending the outcome of the case."
Over the course of the next several months, the parties filed various motions, including cross-motions for a summary judgment (which were denied), and the case was set for a jury trial. However, on May 9, 2002, HABD moved to dismiss the appeal because McGhee had vacated the premises. On May 14, 2002, the circuit court dismissed the appeal. On May 15, 2002, McGhee filed a motion to alter, amend, or vacate the judgment and a motion to release the funds she had paid into the court. The circuit court initially released the funds to McGhee. However, upon rehearing, the court set aside its previous order and ordered that the funds be paid to HABD. McGhee appeals.
Section 6-6-351 provides:
"(a) Notwithstanding any other provisions of law or of the Alabama Rules of Civil Procedure, in cases of forcible entry or unlawful detainer, an appeal to circuit court or to appellate court does not prevent the issue of a writ of restitution or possession unless the defendant pays to the clerk of the district court all rents called for under the terms of the lease, since the date of the filing of the action and continues to pay all rent that becomes due and payable under the terms of the lease as they become due, during the pendency of the appeal, and the sums are to be ascertained by the judge.
"(b) If the defendant should fail to make any payments as they become due under subsection (a), the court shall issue a writ of restitution or possession and the plaintiff shall be placed in full possession of the premises.
"(c) Upon disposition of the appeal, the court shall direct the clerk as to the disposition of the funds paid to the clerk pursuant to subsection (a)."
In Adams v. Birmingham Towers, Ltd., supra, we held that a landlord who prevailed against a tenant in an unlawful-detainer action in the district court could not enforce that judgment by a writ of restitution while an appeal was pending in the circuit court, where the record did not indicate that the district court had ever ascertained, pursuant to § 6-6-351, the amount of the tenant's monthly rent that had accrued since the action was filed in district court. We also discussed the historical development of § 6-6-351.
The original version of § 6-6-351 was included in the Alabama Code of 1852; thus, it predated the adoption of the Alabama Rules of Civil Procedure. Before § 6-6-351 was amended effective May 20, 1996, it provided that, in order to secure an appeal, the tenant must pay "twice the yearly value of the rent of the premises" as ascertained by a justice of the peace, which today would be a district court judge. As we noted in Adams, the supreme court in Ex parte Forbus, 510 So.2d 242 (Ala. 1987), has opined that Rule 62(dc)(5), Ala. R. Civ. P., because it was a procedural rule, in effect, did not allow for a writ of restitution or of possession of the property in an unlawful-detainer action if an appeal from the district court to the circuit court is timely filed and an affidavit of substantial hardship is filed.
The Legislature, in response to Forbus, amended § 6-6-351 to restore the ability of the plaintiff in an unlawful-detainer action to execute on a favorable district court judgment while an appeal to the circuit court is pending if the tenant does not pay all the rent that accrues during the pendency of the appeal. In Adams, we held:
"a court's power under § 6-6-351 (as amended) to issue a writ of restitution or possession during the pendency of an appeal for trial de novo, notwithstanding Rule 62(d)(5), is expressly conditioned upon the district judge's having made a judicial determination of the sums to be paid by the defendant while his or her appeal is before the circuit court."
In the present case, HABD moved the district court to correct its judgment by completing the vacant blanks with the amount of the rent due from McGhee. The district court, on August 25, 2000, entered on the case action summary sheet its ruling on HABD's motion, denying the motion and explaining that it had lost jurisdiction of the case because of the pending appeal to the circuit court. It is notable that the district court's August 25, 2000, ruling appears on the page following the page on which the notation the majority construes as a complete judgment appears. (See attached appendix.) Further, the notation on the case action summary sheet that the majority seeks to characterize as the district court's complete judgment is undated. HABD now contends that the rent due for purposes of § 6-6-351 was "ascertained at the district court level," because, it alleges, an amount for rent was written on the judgment and was subsequently photocopied onto the case action summary sheet.
McGhee contends that a clerical worker in the district court impermissibly filled in the blanks on the judgment when HABD filed its writ of eviction on August 18, 2000. Indeed, in its August 24, 2000, motion to correct the judgment, HABD unequivocally stated that the district court had not ascertained the rent due from McGhee and belatedly sought to correct the judgment, which the district court refused to do. HABD also restored the premises to McGhee. Although the contention as to who filled in the blanks in the judgment form is not in the record, it is clear from HABD's own motion to correct the judgment and from the trial court's order denying that motion that the district court judge did not fill in the blanks. Therefore, I disagree with HABD's contention that the amount of rent due was ascertained by the district court.
Because the district court judge had not ascertained the amount of rent due from McGhee as required by § 6-6-351, the circuit court correctly denied HABD's motion to correct the district court's judgment to include such an amount. The issue then becomes whether the circuit court, in response to HABD's motion to set an appeal bond, had the authority in this unlawful-detainer action to order McGhee to pay rent while the appeal was pending. Section 6-6-351 does not give the circuit court the authority to order McGhee to pay rent during the appeal because the district court had not ascertained the amount of rent due. Accord Adams. This was an appeal in an unlawful-detainer action originally filed in district court in which McGhee had been granted in forma pauperis status; therefore, the circuit court did not have the authority to set an appeal bond if that is what the court was attempting to do when it ordered McGhee to pay rent while her appeal was pending. See Rule 62(dc)(5), Ala. R. Civ. P. Furthermore, HABD has other remedies available to it to collect any unpaid rent owed by McGhee. Therefore, I would reverse the judgment of the circuit court ordering that the funds be disbursed to HABD. Reversing the judgment of the circuit court would not result in a windfall to McGhee, because she remains liable for any unpaid rent. Instead, HABD will have to collect that rent in a separate action, because it did not comply with the mandates of § 6-6-351 as interpreted by this court in Adams.
On Application for Rehearing
I agree that HABD's motion to strike the tenant's motion to supplement the record should be granted; however, based on my dissent on original submission, I would grant the application for rehearing.