AVCO Financial Services v. Scott

PER CURIAM.

Calvin Scott and Gladys Scott purchased land from AVCO Financial Services of the United States, Inc. (AVCO). Cornelius Montgomery is employed by AVCO. After they purchased the property, taking a warranty deed, the Scotts discovered that the State of Alabama claims to own a right-of-way through their property.

In Montgomery County Circuit Court case CV-84-1580, the Scotts sued AVCO and Montgomery for breach of warranty and fraud. The Scotts also joined as defendants an attorney, a surveyor, and a real estate company and some of its employees.

In Montgomery County Circuit Court case CV-85-1750, AVCO and Montgomery sued the Scotts, the Montgomery County probate judge, the State, and the other parties involved in CV-84-1580, and requested a declaratory judgment to the effect that the State did not own a right-of-way through the Scotts’ property. The argument of AVCO and Montgomery was that the State’s right-of-way had not been properly recorded and was unenforceable as against subsequent purchasers, under the holding of State v. Abbott, 476 So.2d 1224 (Ala.1985). The trial judge denied a motion by AVCO and Montgomery to stay CV-84-1580 pending the outcome of CV-85-1750. That denial prompted this mandamus petition from AVCO and Montgomery requesting that this Court order the trial judge to stay CV-84-1580 pending the outcome of CV-85-1750. (If CV-85-1750 determined that the State did not own a right-of-way, AVCO and Montgomery would argue that the Scotts had suffered no damage and could not recover in CV-84-1580.) We stayed action in CV-84-1580 and ordered the respondents to answer the petition.

During the pendency of this matter in this Court, the trial court held a hearing in CV-85-1750. In his order of February 28, 1986, the trial judge determined that the State’s right-of-way is valid and enforceable against the Scotts.

Since the only relief requested in this petition was that CV-84-1580 be stayed pending the outcome of CV-85-1750, this petition for writ of mandamus is dismissed as moot.

PETITION DISMISSED.

All the Justices concur.