THE CIRCUIT COURT OF THE
JUDICIAL CIRCUIT OF ALABAMA
4BALDWIN COUNTY, 



BASS ENTERPRISES, LLC,
et al.,
Plaintiffs,
vs. CASE NO.: 

CLARENCE E. BURKE, JR.,
et al.,



Defendants.
*kir?k-kirvk-v?r-kir-kic-k

TRANSCRIPT OF PROCEEDINGS

 

HELD BEFORE: HON. C. JOSEPH NORTON
Circuit Judge

DATE: October 22, 2019
PLACE: Baldwin County Courthouse

Courtroom Four
Bay Minette, Alabama 36507

REPORTED BY: SHELAGH DUNCKLEY, ACCR #222
Official Court Reporter

 

 

A.P 

 

REPRESENTING THE PLAINTIFFS:

WILLIAM G. CHASON, ESQUIRE
MCDowell, Knight

Post Office Box 350

Mobile, Alabama 36601?0350
[wchason@mcdowellknight.com]

REPRESENTING THE DEFENDANTS:

ALSO PRESENT:

LAURENCE P. SUTLEY, ESQUIRE
Attorney at Law

Post Office Box 10

Summerdale, Alabama 36580?0010
[sutley@gulftel.com]

DANIEL G. BLACKBURN, ESQ.
BLACKBURN CONNER

Post Office Box 458

Bay Minette, Alabama 36507
[dblackburn@blackburnpc.com]

SHELAGH DUNCKLEY, ACCR #222
Official Court Reporter

 

 

EIX
ITEM:

 

PROCEEDING HELD ON OCTOBER 22, 2019
CERTIFICATE



EIX I I I EIX

 

PAGE:

 

22

(No exhibits were submitted during this proceeding.)

 

 

(THE FOLLOWING PROCEEDING WAS HELD ON OCTOBER 22, 2019,
BEFORE THE HON. C. JOSEPH NORTON, CIRCUIT JUDGE,
COMMENCING AT 2:36 P.M.)

THE COURT: The first case we have this
afternoon is Bass Enterprises, LLC, et al.,
versus Clarence Burke, Jr., et al. We are here
today or back on August the 27th, I should
say, we had a hearing on the Plaintiff's sale
for division claim: And correct me if I'm
wrong. I believe that was the last unresolved
issue in the case was that sale for division
claim but or the sole remaining unresolved
issue, I should say.

Did I give you the case number?

COURT REPORTER: No, sir.

THE COURT: 

And at the hearing on that date, we had
pretty much an agreement as it relates to
certain aspects of the claimi And I again,
correct me if I'm.wrong. Y'all agreed that the
property could not be sold for I mean
equitably divided and you requested that it be
sold for division. And y'all agreed, if I?m not
mistaken, that the competing interests were Bass

Enterprises, LLC and Pennstar, LLC and each of

 

 

those entities owned an undivided one~half
interest in the respective property. And as
such, since y'all agreed that the property could
not be equitably divided, I entered an order
directing that the property be sold for
division. And both parties filed or had timely
filed a notice of intent to purchase and request
to have the property appraised in accordance
with the statute. And I entered an order to
that effect based on that agreement. And y'all
even agreed that Mr. Courtney would be appointed
as an appraiser, and I appointed Mr. Courtney to
appraise the property.

It's at that point that there was not any
real agreement or nothing was brought to my
attention about how we should move forward with
the sale of the case, and I entered an order
setting the case here today on your respective
notices of intent to purchase the property.

And I have a copy of the appraisal that
Mr. Courtney prepared. And you sent that to my
office.

MR. CHASON: Right.

THE COURT: And I believe y'all have all

received a copy of the appraisal; is that

 

 

correct?

MR. CHASON: Yes, sir.

MR. SUTLEY: Yes.

THE COURT: And is that procedurally where
everybody agrees that we are right now?

MR. CHASON: Yes, sir.

THE COURT: And I have a copy of the
appraisal, and I have reviewed the appraisal
report prepared by Mr. Courtney, and there is
one matter that I want to bring to your
attention before we go forward. And that is
that in Mr. Courtney's report, he utilized six
comparable real estate sales to determine the
fair market value of the property in the case.

The six comparable sales relied upon by Mr.
Courtney in making his findings and conclusions
includes a sale where the developer listed in
Mr. Courtney's appraisal for that comparable
sale currently works with my wife. And so I
just wanted to bring it to your attention that
the developer listed for one of the six
comparable real estate sales in Mr. Courtney?s
appraisal currently works with her. And before
I go forward, I just want any further, I just

wanted to determine if that in any way affects

 

 

should go forward with the case here
today.

MR. CHASON: Judge, do you know which one
can find it?

THE COURT: It is I believe it's number

two.

MR. CHASON: The grantees of The Veranda,


THE COURT: Yes.

MR. CHASON: That's, I guess, Trey Corte's
development.

THE COURT: He?s listed as the developer.

MR. CHASON: Okay. And, Judge, your
question to us is whether or not that fact
causes us to want to reevaluate the appraisal?

THE COURT: Right.

MR. CHASON: Can I take just a
two?second 

THE COURT: Absolutely. Absolutely. Why
don't we take about a five minute why don't
we get started back at 3:00. That will give you
15 minutes, or do you need that much time?

MR. CHASON: I maybe ten minutes. Do
you have any 

MR. SUTLEY: Look. The only question is

 

 

R-8

 

 

really for fairness, was your wife interviewed
by Mr. Courtney? I doubt it. He probably got
the comps from the sale information.

THE COURT: I only 

MR. SUTLEY: So if she didn't 

THE COURT: I only have the information
that was provided to me by Mister 

MR. SUTLEY: From Mr. Courtney.

THE COURT: No. I actually got this from
Mr. Chason. He actually delivered this report
to me.

MR. SUTLEY: That's where I got it. I got
no 

MR. CHASON: JUdge, if we can literally
just take five or ten minutes.

THE COURT: You take your time. Go right
ahead.

MR. CHASON: And I'll walk back and talk to
these people.

(A.recess was held.)

THE COURT: All right. Yes, sir.

MR. CHASON: Yes, sir, JUdge. To the
comparable sale number two, in which The
Veranda, LLC with the grantee that

Mr. Courtney used as a comparable sale with

 

 

coming up with his price, the Plaintiff Bass
Enterprises does not have a problem.with that
fact alone. That does not present a problem to
us as to this appraisal, and so we can move
forward.

THE COURT: You say, as to that alone. Is
there some other do you have any other
concerns that you have?

MR. CHASON: Your Honor, we are here today
about, you know, submitting the bids to Your
Honor per the Court's order. Mr. Courtney did
this appraisal pursuant to your order. He used
this comparable sale. Right now, based on this
information, we don't have a problem_with him
using this comparable sale. I mean I realize
that Trey Corte is involved in that development.
That's the extent of my knowledge. So I don't
know any more information other than that.

THE COURT: But you keep saying like right
now. I mean here's what the w? you know, again,
you both agree that the property cannot be
equitably divided and should be sold for
division. You also agreed to have Mr. Courtney
appraise the property.

MR. CHASON: Yes, sir.

 

 

THE COURT: However, you both filed notices
of intent to purchase the property. And so you
have no agreement as to which of you is going to
purchase the property ultimately on those
notices or the sales price that the Court will
be asked to or called upon to ultimately prove
in the case.

MR. CHASON: Yes, sir.

THE COURT: And because those matters
remain unresolved, Mr. Courtney's appraisal and
the supporting information in that appraisal,
including those six comparable sales, are going
to be relied upon by youmall as well as the
Court in resolving those matters. And if you
feel that that's an issue and I can't get a
good feel of whether it is or not then if you
have some concerns, then, you know, I am.happy
to address those.

MR. CHASON: Yes, sir. I think the bottom
line is that Mr. Courtney came back at $5,800 an
acre using six separate sales to come up with
that number. That's the bottom line. And based
on what we know currently about market values,
about Mr. Courtney's appraisal, we are okay with

moving forward today with Your Honor's order

 

 

R-ll

 

 

that required the parties to submit a sealed bid
to Your Honor as based on that $5,800 per acre.
We're okay with doing that today, you know,
based on his appraisal.

THE COURT: And I'm.sorry. I
interrupted you.

MR. CHASON: No, that's fine.

Your Honor, what I am.referencing is Your
Honor's order from, I believe, October 22nd and
then in Paragraph 5.

THE COURT: Right. And I really want to 

And, Mr. Sutley, are you?all satisfied as
well?

MR. SUTLEY: (Modding head affirmatively.)
We are.

THE COURT: If you have any concerns, I
just want to address them now.

MR. SUTLEY: We don't have any concerns.

THE COURT: I don't want to try to go back
and address this after the fact. And so if we
need to address it further, I?m happy to do so.
If you feel that it's an issue, then we can
address it now. But if not, I?m.prepared to go
forward with the sale today.

MR. CHASON: Yes, sir, Your Honor.

 

 

You know, my understanding is today's
hearing, that we are going by Paragraph 5 of
Your Honor's order that called for the bidding
process is my 

THE COURT: Yes.

MR. CHASON: understanding of what's
going to transpire today.

THE COURT: Yes.

MR. SUTLEY: (Approaching the bench.)

MR. CHASON: It would be and then if you
look at the bottom of Paragraph 5 

THE COURT: I'm.not taking those right now.

MR. SUTLEY: I understand.

THE COURT: Go right ahead.

MR. CHASON: And, Your Honor, the bottom of
Paragraph 5, it says, The Court shall conduct a
hearing to approve the sale. That will be later
down the road.

THE COURT: Correct.

MR. CHASON: So today my understanding is
we are just having the bids.

THE COURT: There's really where, in my
mind, I can see do you think that would be an
issue down the road in the decision to approve

the sale?

 

 

R-13

 

 

MR. CHASON: Currently, with what I know
today, no. You know, with what I know today,
that the fact that Mr. Courtney used the veranda
sale as one of his six comparable sales to come
up with this number, currently, what I know
today, that's not a problem.for us to submit a
bid to Your Honor.

THE COURT: And so are you saying are
you wanting to reserve the right to raise the
issue for the approval process?

MR. CHASON: I don't have any more -- I
don't have any information to well, let me
just go ahead and tell you. My understanding
is --

Is that y'all's sealed bid?

MR. SUTLEY: (Modding head affirmatively.)

MR. CHASON: Okay.

We have a sealed bid. They have a sealed
bid. Our bid will be contingent upon your order
being clarified.

THE COURT: I'm going to clarify it.

MR. CHASON: Okay. With the 

THE COURT: I'm.just not getting there
until I'm_comfortable that we?re all on the same

page.

 

 

R-14

 

 

MR. CHASON: And, well, I mean, he's got
his. I've got mine.

THE COURT: No. I don't need those now.

MR. CHASON: Okay.

THE COURT: Before I do anything else, I
want to make sure we're all comfortable, because
just based on what I'm saying is, absent a
waiver of conflict, or whatever you want to call
it, I would you know, I brought this to your
attention. And so if y'all think that it's 

MR. SUTLEY: It's not an issue.

THE COURT: a conflict, then I'll be
happy to address that.

MR. CHASON: Judge, I guess my response to
that would be, I mean, is Your Honor
comfortable? Does Your Honor think there is a
conflict? You might know more than I know.

THE COURT: I have the information that was
provided to me and I have brought it to
you?all's attention.

MR. CHASON: Right. What I know is what
you know, and that's in the appraisal itself.
That's all I know is that in the appraisal
itself, one out of the six includes the sale to

The Veranda, LLC. And I think Trey Corte is

 

 

listed on there as I guess the developer.

THE COURT: Whatever it said on there.

MR. CHASON: Whatever it says. That?s all
I know. And, you know, ultimately, he came up
with $5,800. That's the bottom line. He came
up with $5,800. So we are comfortable moving
forward today, you know, with the bidding
process.

THE COURT: Okay.

MR. CHASON: If Your Honor is not
comfortable or Your Honor 

THE COURT: I just saw it in the report and
I brought it to you-all's attention.

MR. CHASON: Yeah.

THE COURT: So with that being said, do
y'all want to go forward? Do you need any
additional time, or or are y?all asking me
you know, absent a waiver 

Now that I have brought it to your
attention, I do feel that everybody is going to
have to waive this as a conflict so that we can
move forward.

MR. SUTLEY: I don't see a conflict. If
there is one, I waive it. My client waives it.

MR. CHASON: Your Honor, I'm not sure what

 

 

would be waiving. If what we are talking
about is strictly the appraisal and strictly the
fact that Mr. Courtney used the sale to The
veranda, if that is all we are talking about,
then we are okay moving forward with Paragraph 5
of Your Honor's order, which is the bidding
process. If that's all we are talking about.
I'm.just and I'm.not trying to I

just don't I'm just 

THE COURT: I understand.

MR. CHASON: It makes me a little bit
uneasy waiving something that maybe I don't know
exists out there. That's all I'm saying is
like, I don't want to be on the record waiving
something that perhaps I don't know today.

THE COURT: Then absent a waiver, I would
be inclined to then I have brought it to your
attention, and I don't think I think by
bringing it to your attention we either have to
absent a waiver, I would be inclined to set
aside that order of August 27th, or at least as
it relates to the manner in which the sale is to
be conducted and recuse, then.

MR. CHASON: Okay.

MR. SUTLEY: Wait a minute. Wait a minute.

 

 



How can you set aside the manner in which it's
to be conducted and then recuse? Now, I can see
leaving the order in place and recusing and let
somebody else handle it, if that makes you feel
comfortable.

THE COURT: I'm saying it's not about
whether I feel comfortable. It's whether or not
I have brought this to your attention. And
absent if there's not an agreement to go
forward 

MR. SUTLEY: Look. Paragraph 4 is very
clear. Paragraph 4 says the minimum.bid or
purchase price for the property shall be equal
to the appraised value.

Well, if Jason waives The veranda as a
factor in the calculation of the appraisal, then
the bid can go forward whether you handle it or
we go get another judge or we get a monkey, it
doesn't matter.

Your Honor said in the order the parties
will submit a sealed bid. I have one. He has
one. It will equal the amount of the appraisal
at a minimum. Here?s my bid. He has one too
somewhere. Now his isn't sealed, but I'm sure

he can lick the envelope.

 

 

MR. CHASON: Judge Norton, ultimately,
ultimately, as the judgment in this case, the
sale for division claim.is an equitable
procedure.

THE COURT: Sure.

MR. CHASON: And if Your Honor, knowing
what you know about this case, about Trey Corte,
his relationship I_understand that he works
with your wife. If any of that makes you
uncomfortable and you want to recuse yourself,
my client is not going to object to that.

And you know 

THE COURT: I don?t I haven't gotten 
all I know is what I have divulged to you?all.

MR. CHASON: Right.

THE COURT: I'm.just simply divulging this.

MR. CHASON: Yes, sir. I mean, Your Honor,
if 

THE COURT: That's in the report. That's
all I have.

MR. CHASON: I know. I mean it is my
understanding that Trey Corte has a relationship
with Clarence Burke.

THE COURT: Then we don't have to go any

further. Absent then what I would do is I

 

 

would simply recuse as it relates to the case
moving forward, and I would set aside I think
I'll let you~all determine this. Y'all agreed
that the property could not be 

MR. CHASON: Yes, sir.

THE COURT: divided. You agreed on the
appraiser and 

MR. CHASON: Yes, sir.

THE COURT: the property was appraised.
The dispute arose in the case where the where
you have the sale that we are going to conduct
today moving forward, who's going to buy the
property and 

MR. CHASON: Yes, sir.

THE COURT: -- ultimately the sales price
in the case. And all of that will turn I can
either leave that order in place or I would set
it aside altogether or I could set it aside as
it relates to the procedure in which the Court
ordered the property to be sold.

MR. CHASON: Yes, sir. Judge Norton, the
Plaintiff, my client, is aware and they're
conscious of the relationship between Clarence
Burke, who owns Pennstar.

THE COURT: I understand that.

 

 

MR. CHASON: They are aware of that. They
are aware of that. And there are discretionary
things that you can handle in a sale for
division case. There are. Such as the purchase
price based on the appraisal.

Would my client feel more comfortable with
another judge? Yes. Yes. I mean I'm not going
to sugarcoat it. Yes.

THE COURT: Then I will recuse. My
question is, do you want me to set aside that
order entirely or only as it relates to the
manner in which the property was going to be
sold?

LADY IN THE COURTROOM: Entirely.

MR. CHASON: I would say I would say a
fresh start, and then whoever takes it over can
do what they want to.

THE COURT: Okay. Then I will enter an
order to that effect. I?ll get it out to
you?all, and I'll set aside that October[sic]
27th case and recuse.

MR. SUTLEY: Not the case. The order.

THE COURT: Excuse me m- that October 27th
order and recuse.

COURT REPORTER: JUdge, I heard October

 

 

27th order. Is that wrong?

THE COURT: That's incorrect. The August
27th order.

COURT REPORTER: Thank you.

(The Proceeding concluded at 3:02 

 

 

STATE OF ALABAMA)
COUNTY OF BALDWIN) CASE NO.: CV-2014-900196

CERTIFICATE

 

I, SHELAGH DUNCKLEY, ACCR, Official Court Reporter,
duly commissioned and qualified, hereby certify that
the above proceedings were taken down by me and
transcribed by me, or under my personal supervision,
using computer?aided transcription, and that the above
is a true and correct transcript of said proceedings.

I further certify that I am.neither of counsel nor
any relation to the parties to this action, nor am.I in
any wise interested in the outcome of this case.

I further certify that I am.duly licensed by the
Alabama Board of Court Reporting as a Certified Court
Reporter, as evidenced by the ACCR number following my
name below.

So certified on this, the 12th day of November,
2019.



Accra #222; Expires 9/30/20
Official Court Reporter 
For the Honorable C. Jeseph Norton

Twenty-eighth Judicial Circuit
Bay Minette, Alabama