The Alabama Eminent Domain Code (Code of Alabama, 18-1A-1, et seq.) contains the process and procedure for all eminent domain actions in state courts in Alabama. This body of law was based on the Uniform Eminent Domain Code (now referred to as the Model Eminent Domain Code). The various aspects of the key processes and procedures are explained below in the order in which they normally arise.
Pre-Filing Procedures
The condemning agency must have the property inspected and appraised. The agency must give the owner a reasonable opportunity to accompany the appraiser during the inspection of the property. Code of Alabama, § 18-1A-21. Once the appraisal has been performed, the agency must use the appraisal to establish an amount which it believes to be just compensation, and it must offer to purchase the property from the owner for the amount of just compensation so determined. Code of Alabama, § 18-1A-22(a). The agency is not required to furnish the owner with a copy of the appraisal, but it is required to submit a written statement and summary of the basis for its offer. Code of Alabama, § 18-1A-22(d). The agency is not required to negotiate with the owner, it is only required to offer to purchase the property based on an appraisal before initiating the condemnation process.
It is a defense to a condemnation action that the agency did not (1) allow the owner the opportunity to accompany the appraiser or (2) provide a detailed offer letter offering to purchase the property prior to filing the action. Code of Alabama, § 18-1A-21; Code of Alabama, § 18-1A-55.
Pre-Filing Entry for Suitability Studies
To accomplish the conditions precedent, and to determine suitability and other matters, an agency has the power to go on land to conduct suitability studies, surveys, and other matters. Code of Alabama, §§ 18-1A-50 through -54. If the owner resists, the agency can get a Circuit Court order allowing entry. Code of Alabama, § 18-1A-51.
Complaint for Condemnation
After the pre-filing procedures have been satisfied, the agency files a Complaint for condemnation in the Probate Court for the county in which the property (or any part thereof) is located. Code of Alabama, § 18-1A-71. The Complaint must contain: (1) the names of the plaintiff and defendants; (2) a legal description of the property and the nature of the interest to be taken; (3) the basis for the plaintiff’s legal authority to take property by eminent domain; (4) a statement of the agency’s intentions or purpose for taking the property; and (5) a list of all items of equipment or fixtures which the condemnor seeks to acquire and which are attached to the property. Code of Alabama, § 18-1A-72(a). The Complaint must also be accompanied by a map or diagram showing the property sought to be taken and the remainder of the owner’s land, if any. Code of Alabama, § 18-1A-72(d).
While the agency must also file a notice of the pendency of the condemnation action (lis pendens) in the probate courts in which the property is located, the failure to do this is not a defense to the condemnation action. Code of Alabama, § 18-1A-75(a).
The Complaint must be served on the defendants as provided in Rule 4 of the Alabama Rules of Civil Procedure. Code of Alabama, § 18-1A-74(b).
Owner’s Answer and Preliminary Objections
An owner must file an Answer to the Complaint if they challenge the right or authority of the agency to take their property (either on constitutional or statutory grounds) or if they dispute the area to be taken or the area which will remain after the proposed taking. Code of Alabama, § 18-1A-90 (Answer); 18-1A-91 (Answer and Preliminary Objections). Well-plead allegations in the Complaint which are not denied in the Answer may be deemed admitted. Code of Alabama, § 18-1A-91, Commentary.
Preliminary objections are any available grounds for objecting to the condemnation action. Code of Alabama, § 18-1A-91(b). These could be challenges to the agency’s power of eminent domain (based on lack of authority, lack of necessity and/or intended use is private rather than public) or to the condemnation action itself (based on failure to comply with pre-filing procedures, failure to properly plead Complaint, lack of jurisdiction of court over property or defendants, or any other deviations from the Alabama Eminent Domain Code).
Discovery in Probate Court
Some Probate Courts allow the parties to conduct discovery while others do not. The Alabama Eminent Domain Code does not directly address this issue, and there is authority for both sides of this issue. Code of Alabama, § 18-1A-93, Commentary (“Nothing in this section directly affects the right to pursue discovery proceedings. Discovery, of course, may be an important prelude to resolution of fact issues raised by one or more objections pleaded in the answer.”); but see, Ala. R. Civ. P. 71A (“These rules [of civil procedure] do not apply to probate courts where condemnation proceedings originate.”); Code of Alabama, § 18-1A-70 (“The procedure [for condemnation] in the probate courts shall be as provided in this chapter.”). As a practical matter, the Probate Judge is not likely to be challenged, much less reversed on mandamus, if they allow or prohibit discovery – which is to say it is in the Probate Judge’s discretion.
Merit Hearing and Orders
The Probate Court will schedule a merit hearing on the agency’s right to take the property. Code of Alabama, § 18-1A-276. At this hearing, the agency generally has the burden of proof on all issues of fact relating to a preliminary objection. Code of Alabama, § 18-1A-94(a). The exception to this general rule is that the owner has the burden of proving by clear and convincing evidence all allegations of fraud, corruption, bad faith, and gross abuse of discretion. Code of Alabama, § 18-1A-94(b). Preliminary objections which are sustained may result in the following types of relief:
(1) Dismissal of the action, in whole or in part, if the plaintiff is not authorized to take the property, or some part thereof, or the acts or omissions constituting the basis for the objection will necessarily inflict irreparable injury upon the defendant;
(2) Conditional dismissal, in whole or in part, unless, within a specified period, the plaintiff takes corrective or remedial action prescribed in the order, including, if appropriate, the adoption of a new or amended condemnation authorization; or
(3) Any other disposition required by the circumstances.
Code of Alabama, § 18-1A-95(a).
In the event a preliminary objection is sustained, the court has the discretion to order the agency to pay the defendant’s litigation expenses, including attorney’s fees, expert fees, and costs. Code of Alabama, § 18-1A-95(b). The court must award litigation expenses to the defendant in the event the court finds that the agency “acted or failed to act without justification”. Code of Alabama, § 18-1A-95(b).
After being raised in an Answer, a preliminary objection may be also asserted in the form of a motion to dismiss. Code of Alabama, § 18-1A-230(1). In addition to the preliminary objections originally raised, the agency’s failure to exercise reasonable diligence in prosecuting the condemnation action may be asserted as grounds for dismissal upon motion of the owner. Code of Alabama, § 18-1A-230(2).
If a condemnation action is dismissed, either voluntarily or involuntarily, at any stage, this dismissal will not act as a bar against a subsequent condemnation effort for the same property. Alabama M. Ry. Co. v. Newton, 10 So. 89 (Ala. 1891); see also, Alabama Power Co. v. Thompson, 32 So. 2d 795, 799 (Ala. 1947). Thus, an agency may appeal a dismissal to circuit court for a trial de novo. Code of Alabama, § 18-1A-286. Alternatively, the agency may re-file its condemnation Complaint in probate court and begin the process anew. Alabama M. Ry. Co. v. Newton, 10 So. 89 (Ala. 1891). It is not a defense to a condemnation action that the agency was previously unsuccessful in taking the owner’s property.
If the preliminary objections are overruled (and any motions to dismiss are denied), then the court will enter an order granting the Complaint, sometimes referred to as a “Right to Take Order.” Code of Alabama, § 18-1A-276.
Hearing on Just Compensation
Within ten days after entry of the Right to Take Order, the Probate Court must appoint three persons to act as Commissioners whose job is to determine the damages and amount of just compensation due to the owner. Code of Alabama, § 18-1A-279. Some jurisdictions allow the parties to have input over the commissioners appointed. The condemnation hearings, including the admission of evidence, are conducted as if the action was a civil case at law, except as provided in the Alabama Eminent Domain Code. Code of Alabama, § 18-1A-277. Neither party has the burden of proof on the issue of just compensation. Code of Alabama, § 18-1A-153. Only legal evidence is to be presented at the hearing (Attorney General’s Opinion 2004-052 (December 20, 2003)), but these hearings are typically very casual and are usually conducted outside the presence of the Probate Judge. Sometimes the Commissioners will visit the property, sometimes they will not.
After hearing all the evidence, the Commissioners will return a report of just compensation, or verdict, to the Probate Court. Code of Alabama, § 18-1A-281. This report must be returned within twenty (20) days of the date of the Commissioners’ appointment. Code of Alabama, § 18-1A-282. If the Commissioners will not be able to return a verdict within this time frame, the Probate Court should re-appoint the Commissioners from time to time as needed.
Judgment of Condemnation
Once the Commissioners return their verdict to the Probate Court, the Probate Court must, within seven days, issue a Judgment of Condemnation which states that the subject property be condemned upon deposit into Probate Court of the amount of just compensation and damages assessed by the Commissioners. Code of Alabama, § 18-1A-282. This is the Probate Court’s Judgment of Condemnation.
The agency, the owner, or both may appeal the Probate Court’s Judgment of Condemnation to the Circuit Court. Code of Alabama, § 18-1A-283. If neither party appeals, the agency may pay the judgment at any time within 90 days of the entry of the Judgment. Code of Alabama, § 18-1A-290. If the agency does not pay the judgment within 90 days, and no appeal is filed, then the owner may move the court to vacate the Judgment and for an award of their damages, including attorney’s fees. Code of Alabama, §§ 18-1A-215 and 18-1A-290.
Appeal to Circuit Court
In order to perfect an appeal, a notice of appeal must be filed with the Probate Court within thirty (30) days of the Probate Court Judge signing of the Judgment of Condemnation. Code of Alabama, § 18-1A-283.
Once appealed, the condemnation trial essentially starts over. The circuit court does not review the probate court’s judgment, but instead sets the matter for a trial de novo. Code of Alabama, § 18-1A-283.
Either party may demand a jury trial on the issue of just compensation, but the trial judge will decide whether the agency has the right to take the subject property (if this issue is raised on appeal). Code of Alabama, § 18-1A-151(a); Palughi v. City of Mobile, 526 So. 2d 1 (Ala.), cert. denied, 488 U.S. 855 (1988).
Right of Entry
Immediately after the Probate Court enters the Judgment of Condemnation, and without regard to whether either party has filed an appeal to Circuit Court, the agency may take steps to gain immediate access to the property. When the sovereign is the condemning agency it must first pay the amount of the Judgment into the probate court before it can enter the property. Southern Natural Gas Company v. Ross, 275 So.2d 143 (Ala. 1973); Code of Alabama, § 6-5-1(a). If the agency is not the sovereign, it must not only pay the amount of the Judgment, but it must also post a bond equal to two times the amount of the Judgment before it can enter the property. Code of Alabama, § 18-1A-284.
The agency’s right of entry carries with it the right of possession, including the right to begin work on the subject property such as cutting trees, building roads, or whatever work is associated with the project for which the land was taken. Code of Alabama, § 18-1A-289. Any work performed on the subject property is at the agency’s peril if it is later found to not have the power to take the subject property by condemnation or if it later elects to abandon the project or dismiss the condemnation action. Code of Alabama, § 18-1A-233; Code of Alabama, § 18-1A-215.
If the agency does not desire immediate access to the property, it does not have to pay any amount into court pending the appeal, but it must pay the final Judgment within 60 days of the resolution of the appeal. Code of Alabama, § 18-1A-290.
Title to Money and to Land
Title, as distinguished from right of possession, to the subject property does not pass to the agency until the condemnation process has been finally adjudicated, including all appeals. Code of Alabama, § 18-1A-289. This means that even though the agency may have entered upon the property and constructed its improvements, the title to the land is still held by the owner for so long as the condemnation action is pending. Likewise, any money paid into probate court by the agency remains the property of the agency until title to the real property passes to it. Code of Alabama, § 18-1A-231.
Just as the agency has a right to enter upon the property prior to title passing, the owner has a corresponding right to the immediate access to a portion of the money paid into court. This process is commonly referred to as “drawing down.” The owner is entitled to draw down the amount of the agency’s pre-complaint offer to purchase from the money deposited into court (if any). Code of Alabama, § 18-1A-110.
If the amount of this offer is less than the Judgment, then the owner or agency should, by motion, request the probate court to invest the remainder of the Judgment in an interest earning account. Code of Alabama, § 18-1A-111.
Discovery in Circuit Court
Each party is entitled to the full discovery procedures provided for in the Alabama Rules of Civil Procedure, except as limited by the Alabama Eminent Domain Code. Code of Alabama, § 18-1A-70. Appraisal reports prepared in contemplation of the condemnation action are specifically exempt from discovery. Ex Tuscaloosa County, 825 So.2d 729 (Ala. 2001); State v. Bragg, 710 So.2d 417 (Ala. 1917); Code of Alabama, § 18-1A-130. This exemption extends to the information contained within an appraisal report that a party may seek to obtain through some other form of discovery than a request for production.
Jury Trial
Either party may request a jury to determine the amount of just compensation. Alabama Constitution, Art. XII, Sec. 235; Code of Alabama, § 18-1A-151.
Appeal from Circuit Court
After its trial, the circuit court will enter a Judgment which may be appealed to either the Court of Civil Appeals or the Supreme Court depending on the amount of money involved. Code of Alabama, § 18-1A-288.
