Jewel Campbell v. Ethel C. Taylor , 159 So. 3d 4 ( 2014 )

REL:07/03/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________
1110057
_________________________
Jewel Campbell et al.
v.
Ethel C. Taylor et al.
_________________________
1110104
_________________________
Gladys A. Campbell and Paula Buettner
v.
Jewel Campbell et al.
Appeals from Baldwin Circuit Court
(CV-09-900617)
1110057; 1110104
PER CURIAM.
In case no. 1110057, Jewel Campbell, Acie A. Campbell,
William J. Campbell, Jr., Roy J. Campbell, Eva Campbell,
William C. Campbell, Kelly Calvert, and Amanda Givens ("the
plaintiffs") appeal from a summary judgment in favor of Ethel
C. Taylor, Paula Buettner, Gladys A. Campbell, Jason Bennett,
and Mendi1 Bennett ("the defendants") in this dispute stemming
from a judgment entered in 2006 in the administration of an
estate. In case no. 1110104, Paula Buettner and Gladys A.
Campbell, two of the above defendants, cross-appeal from the
denial of their motion to strike certain affidavits filed by
the plaintiffs in opposition to the defendants' summary-
judgment motion. For the reasons discussed below, we affirm
the judgment in case no. 1110057; our holding in case no.
1110057 renders moot the cross-appeal, case no. 1110104.
Facts and Procedural History
These appeals involve a challenge to the disposition of
the estate of A.V. Campbell, Sr. (hereinafter sometimes
referred to as "the testator"), who died in 1977. He had at
least four children: A.V. Campbell, Jr., William J. Campbell,
1
The spelling of Mendi's name appears in the record both
as "Mindi" and as "Mendi."
2
1110057; 1110104
Sr.,2 Ethel C. Taylor, and Archie Paul Campbell. His will was
admitted to probate in 1977; those proceedings languished in
the probate court until 2005. During this time, A.V.
Campbell, Jr., and Archie Paul Campbell died. Ethel was
ultimately named the executrix of the estate.
In 2005, Gladys A. Campbell, one of Archie Paul
Campbell's descendants, filed a petition under Ala. Code 1975,
§ 12-11-41,3 to remove the probate proceedings to the Baldwin
Circuit Court ("the 2005 circuit court action"). She alleged,
2
William J. Campbell, Sr., had predeceased his father,
dying in 1972.
3
That Code section states:
"The administration of any estate may be removed
from the probate court to the circuit court at any
time before a final settlement thereof, by any heir,
devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
of any such estate, without assigning any special
equity; and an order of removal must be made by the
court, upon the filing of a sworn petition by any
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
of any such estate, reciting that the petitioner is
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
and that, in the opinion of the petitioner, such
estate can be better administered in the circuit
court than in the probate court."
3
1110057; 1110104
among other things, that Ethel, as the executrix, had failed
to have the estate's property devised under the terms of the
will. The case-action summary in the record for the 2005
circuit court action4 indicates that the following persons
were ultimately named parties to the 2005 circuit court
action: Ethel, who is the testator's daughter and executrix;
Paula Buettner, Gladys, and Barbara Campbell, relatives of
Archie Paul Campbell; and Jewel Campbell, William J. Campbell,
Jr., Amanda Givens, and Kelly Calvert, descendants of William
J. Campbell, Sr.
After several hearings, the circuit court, on November
28, 2006, issued a judgment that, among other things,
distributed property according to the testator's will ("the
2006 judgment"). Specifically, certain property was awarded
separately to (1) Ethel, (2) to Paula and Gladys, and (3) to
"the heirs at law of William J. Campbell[, Sr.]." Jewel
appealed from that judgment, and this Court affirmed the
circuit court's judgment without issuing an opinion. Campbell
4
We take judicial notice of the record in that action,
which came before this Court in a prior appeal discussed
below. See Morrow v. Gibson, 827 So. 2d 756, 762 (Ala. 2002).
4
1110057; 1110104
v. Estate of Campbell (No. 1060567, Sept. 28, 2007), 22 So. 3d
531 (Ala. 2007) (table).
On June 2, 2009, the underlying action was filed in the
Baldwin Circuit Court ("the trial court"). The plaintiffs
purport to be the heirs of William J. Campbell, Sr. Some of
the plaintiffs participated in the 2005 circuit court action;
others did not. This new action was described as a "complaint
to set aside judicial decree" and was alleged to be filed
"pursuant to Rule 60(b) of the Alabama Rules of Civil
Procedure as an independent action for the purpose of setting
aside" the 2006 judgment. The plaintiffs contended that, as
the heirs of William J. Campbell, Sr., they were also heirs of
A.V. Campbell, Sr., and were thus entitled to certain
ownership interests in the property distributed in the 2005
circuit court action. The plaintiffs further alleged that
they had not all been "named as parties" in the 2005 circuit
court action and that they "were not before the [circuit
court] at the time of the final adjudication." They thus
alleged that they were "not subject to" and "not bound by" the
2006 judgment, and they asked that it be set aside. Of the
defendants in the underlying action, Ethel, Paula, and Gladys
5
1110057; 1110104
participated in the 2005 circuit court action; Jason Bennett
and Mendi Bennett did not.
After various motions and after granting a motion by the
defendants to strike certain affidavit testimony filed by the
plaintiffs, the trial court purported to enter a summary
judgment in favor of Ethel. The plaintiffs appealed, and the
Court of Civil Appeals dismissed the appeal as being from a
nonfinal judgment, Campbell v. Taylor, 76 So. 3d 258 (Ala.
Civ. App. 2011). The proceedings resumed in the trial court.
Ethel again moved for a summary judgment. The remaining
defendants also filed a motion for a summary judgment. The
plaintiffs responded with their own filings in opposition, and
the defendants moved to strike certain affidavit testimony
supplied by the plaintiffs with their opposition. The trial
court, without stating the findings on which its decision was
based, ultimately granted the defendants' summary-judgment
motions and denied their motions to strike. In case no.
1110057, the plaintiffs appeal the summary judgment in favor
of the defendants. In case no. 1110104, Paula and Gladys
cross-appeal from the trial court's denial of their motion to
strike.
6
1110057; 1110104
Discussion
The complaint in the underlying action sought, pursuant
to Rule 60(b), Ala. R. Civ. P., to set aside the 2006 judgment
as "void," in substance, seeking relief from the 2006 judgment
under Rule 60(b)(4), Ala. R. Civ. P. ("[T]he court may
relieve a party or a party's legal representative from a final
judgment, order, or proceeding for the following reasons: ...
the judgment is void ...."). On appeal, as in the trial
court, the plaintiffs contend that all the plaintiffs were
"necessary parties" to the administration of the estate but
that some of them did not receive notice of the 2005 circuit
court action, were not served with pleadings filed in that
action, and were not properly named as parties. Thus, the
plaintiffs argue, the 2006 judgment is "void."
"'The standard of review on appeal
from the denial of relief under Rule
60(b)(4) is not whether there has been an
abuse of discretion. When the grant or
denial of relief turns on the validity of
the judgment, as under Rule 60(b)(4),
discretion has no place. If the judgment is
valid, it must stand; if it is void, it
must be set aside. A judgment is void only
if the court rendering it lacked
jurisdiction of the subject matter or of
the parties, or if it acted in a manner
inconsistent with due process. Satterfield
7
1110057; 1110104
v. Winston Industries, Inc., 553 So. 2d 61(Ala. 1989).'
"Insurance Mgmt. & Admin., Inc. v. Palomar Ins.
Corp., 590 So. 2d 209, 212 (Ala. 1991). In other
words, if the underlying judgment is void because
the trial court lacked subject-matter or personal
jurisdiction or because the entry of the judgment
violated the defendant's due-process rights, then
the trial court has no discretion and must grant
relief under Rule 60(b)(4)."
Allsopp v. Bolding, 86 So. 3d 952, 957 (Ala. 2011). See also
Bowen v. Bowen, 28 So. 3d 9, 14 (Ala. Civ. App. 2009) (holding
that a Rule 60(b)(4) motion will be granted only when the
prior judgment is void and not merely voidable).
It is under this standard that we review the trial
court's ruling; however, the plaintiffs on appeal do not
explicitly present their arguments in terms of the framework
of the above three grounds--a lack of subject-matter
jurisdiction, a lack of personal jurisdiction over the
parties, or a violation of due process. Instead, they cite
caselaw holding generally that all heirs are proper and
necessary parties in estate actions like the 2005 circuit
court action. See Jacobs v. Murphy, 245 Ala. 260, 263, 16 So.
2d 859, 862 (1944) (noting in the administration of an estate
removed from the probate court to the circuit court that "[i]n
all suits in equity respecting the lands of decedent his heirs
8
1110057; 1110104
at law are necessary parties"); Irwin v. Irwin, 227 Ala. 140,
141, 148 So. 846, 847 (1933) (stating in the context of
administration of an estate removed from the probate court to
the circuit court that the heirs at law are "proper parties"
and "necessary to a full and complete relief"); and Irwin v.
J.S. Reeves & Co., 222 Ala. 647, 647-48, 133 So. 692, 692
(1931) (rejecting the argument that "the heirs of decedent
[and] distributees of the estate" are not "proper parties" in
an administration of an estate removed "into the equity
court"); see also Cook v. Castleberry, 233 Ala. 650, 653, 173
So. 1, 3 (1937) (stating that the administrator of the estate
of a deceased distributee is a "necessary party" to the
administration of an estate in equity). The lack of necessary
parties, the plaintiffs argue, rendered the 2006 judgment
"void."
This Court has long referred to a failure to join a
"necessary" or "indispensable" party as a "jurisdictional
defect." See Gilbert v. Nicholson, 845 So. 2d 785, 790 (Ala.
2002) ("The absence of an indispensable party is a
jurisdictional defect that renders the proceeding void."
(citing Davis v. Burnette, 341 So. 2d 118 (Ala. 1976)));
Rogers v. Smith, 287 Ala. 118, 123, 248 So. 2d 713, 717 (1971)
9
1110057; 1110104
("[T]he absence of necessary or indispensable parties ... is
a jurisdictional defect ...."). See also J.C. Jacobs Banking
Co. v. Campbell, 406 So. 2d 834 (Ala. 1981); Johnston
v. White-Spunner, 342 So. 2d 754, 759 (Ala. 1977); and Burnett
v. Munoz, 853 So. 2d 963 (Ala. Civ. App. 2002). But see
Holland v. City of Alabaster, 566 So. 2d 224 (Ala. 1990)
(addressing the issue of the absence of an indispensable party
as one of error on the part of the trial court). This is so,
even after the adoption in 1973 of Rule 19, Ala. R. Civ. P.,
which addresses the "Joinder of Persons Needed for Just
Adjudication." Indeed, Rule 19 wholly fails to speak in terms
of jurisdiction, and nothing in that rule indicates that if
the court fails to address the necessity or indispensability
of a particular party or does address, and errs with regard to
the resolution of, Rule 19 concerns, any ensuing judgment is
void. See Adams v. Boyles, 610 So. 2d 1156, 1157 n.1 (Ala.
1992) (reiterating "that failure to join even an indispensable
party does not automatically compel dismissal").
Other decisions appear to refer to the joinder of
necessary or indispensable parties as a statutory requirement
for certain actions or as a requirement of "due process." See
Holland v. Flinn, 239 Ala. 390, 392, 195 So. 265, 267 (1940)
10
1110057; 1110104
(stating that due process required the presence of certain
parties so that those parties "have their day in court" and
further noting that, although "[t]he Declaratory Judgment Act
... required necessary parties to be brought in," "the
presence of necessary parties is jurisdictional"), and A.S. v.
M.W., 100 So. 3d 1112, 1114 (Ala. Civ. App. 2012) (holding
that a judgment adjudicating paternity was "void for failure
to join ... an indispensable party" required by Ala. Code
1975, § 26–17–603).
Other references to the lack of necessary or
indispensable parties impacting "jurisdiction" refer to issues
of personal jurisdiction. See Burnett v. Munoz, 853 So. 2d at
965 (holding that the failure to join a necessary party
rendered the trial court without "jurisdiction" to affect the
rights of that party); Holland v. City of Alabaster, 566 So.
2d at 228 (noting that the trial court "must have jurisdiction
over the [omitted party] before proceeding to adjudicate any
issues affecting that entity's interests"); Johnston v.
White-Spunner, 342 So. 2d at 759 ("Rendering final judgment
without jurisdiction over those indispensable parties renders
that judgment void."); and Rogers v. Smith, 287 Ala. at 123,
248 So. 2d at 717 ("A judgment or decree is not binding on
11
1110057; 1110104
anyone unless the court rendering the same had jurisdiction of
the parties and the subject matter of the cause.").
Despite the language in prior decisions referring to the
lack of a necessary or indispensable party as an issue of
"jurisdiction," it is clear that the court in the 2005 circuit
court action possessed subject-matter jurisdiction in that
case. Specifically, a circuit court's subject-matter
jurisdiction is derived from the Alabama Constitution and the
Alabama Code. Ex parte Seymour, 946 So. 2d 536, 538 (Ala.
2006). Here, § 12–11–41 clearly authorizes the circuit court
to administer the estate in that case, which was properly
removed to the circuit court from the probate court. The
inclusion of a necessary or indispensable party is not what
provides the court with jurisdiction, although, in some
instances, the lack of a necessary or indispensable party may
deprive the action, for purposes of justiciability, of the
requisite adversity. See Stamps v. Jefferson Cnty. Bd. of
Educ., 642 So. 2d 941 (Ala. 1994).
The cases cited by the plaintiffs--Jacobs and Irwin,
supra--do not hold otherwise. Specifically, those cases refer
to the necessity of certain parties in an administration of an
estate removed from the probate court as a requirement to
12
1110057; 1110104
exercise "jurisdiction" in equity. Jacobs states that the
"heirs at law are necessary parties" in actions involving a
decedent's lands, but this is for the purpose of properly
exercising equitable powers:
"'All persons interested in a suit in equity, and
whose rights will be directly affected by the
decree, must be made parties, unless they are too
numerous, or some of them are beyond the reach of
process, or not in being; and in every case there
must be such parties before the court as to insure
a fair trial of the issue in behalf of all.'"
Jacobs, 245 Ala. at 263, 16 So. 2d at 862 (quoting Culley v.
Elford, 187 Ala. 165, 172, 65 So. 381, 383 (1914)). Irwin too
notes the connection between the presence of necessary parties
and the proper exercise of equitable powers, stating that the
presence of "proper parties" is "necessary to a full and
complete relief, according to the jurisdiction and rules in
equity .... That is, having the right and assuming
jurisdiction of the parties and properties, equity will grant
full relief." 227 Ala. at 141, 148 So. at 847. As Justice
Murdock noted in his special writing in Ex parte Green, 58 So.
3d 135, 154-57 (Ala. 2010), a court's authority to exercise
equitable powers, sometimes referred to as "equity
jurisdiction," is distinct from subject-matter jurisdiction.
Thus the Court in Jacobs noted, in the quotation above, that
13
1110057; 1110104
while "[a]ll persons interested in a suit in equity ... must
be made parties," some parties may be excepted when they "are
too numerous, ... beyond the reach of process, or not in
being." 245 Ala. at 263, 16 So. 2d at 862. There need only
"be such parties before the court as to insure a fair trial of
the issue in behalf of all." 245 Ala. at 263, 16 So. 2d at
862. All such parties are not required for the court to
properly exercise equitable power; the presence of all parties
is not a prerequisite to subject-matter jurisdiction.
Given that § 12-11-41 provided the court in the 2005
circuit court action with subject-matter jurisdiction, the
2006 judgment is not void for lack of subject-matter
jurisdiction.
We thus turn to the issue whether the 2006 judgment is
"void" for lack of personal jurisdiction.5 When a party is
not served or joined in an action and the trial court thus
acquires no jurisdiction over it, the judgment is deemed
"void" "for purpose[s] of Rule 60(b)(4)." Ex parte Wilson
Lumber Co., 410 So. 2d 407, 409 (Ala. 1982). See also Ex
5
There is no explicit argument before us that the 2006
judgment was "void" on the ground of lack of due process;
therefore, we do not address that Rule 60(b)(4) ground.
14
1110057; 1110104
parte Pate, 673 So. 2d 427, 429 (Ala. 1995) ("If a court lacks
jurisdiction of a particular person, or if it denied that
person due process, then the court's judgment is void."), and
Horizons 2000, Inc. v. Smith, 620 So. 2d 606, 607 (Ala. 1993)
("A judgment rendered against a defendant in the absence of
personal jurisdiction over that defendant is void.").
First, we note that under certain circumstances the lack
of personal jurisdiction is subject to waiver, i.e., "defects
in personal jurisdiction ... can be waived," which
distinguishes personal jurisdiction from subject-matter
jurisdiction, which "'may not be waived; a court's lack of
subject-matter jurisdiction may be raised at any time by any
party and may even be raised by a court ex mero motu.'" J.T.
v. A.C., 892 So. 2d 928, 931 (Ala. Civ. App. 2004) (quoting
C.J.L. v. M.W.B., 868 So. 2d 451, 453 (Ala. Civ. App. 2003)).
See also Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So. 2d 45(Ala. 2003) (holding that insufficient service of process may
be waived); Hall v. Hall, 122 So. 3d 185, 190 (Ala. Civ. App.
2013) ("'A defense alleging a lack of personal jurisdiction
because of insufficiency of service of process, however, can
be waived if the defendant submits himself or herself to the
15
1110057; 1110104
jurisdiction of the trial court.'" (quoting Klaeser v. Milton,
47 So. 3d 817, 820 (Ala. Civ. App. 2010))); and Rule 12(h)(1),
Ala. R. Civ. P. ("A defense of lack of jurisdiction over the
person ... is waived ... if it is neither made by motion under
this rule nor included in a responsive pleading or an
amendment thereof ....").
Second, the removal of the administration of an estate
from the probate court to the circuit court is not a new
action, but simply the continuation of the action in another
forum:
"'[W]hen the administration of an estate is removed
from the probate court to the circuit court, the
circuit court typically takes the proceeding where
the probate court left off.' Ex parte Farley, 981
So. 2d 392, 396 (Ala. 2007); see also Estate of
Autry v. McDonald, 332 So. 2d 377, 379 (Ala. 1976);
Ex parte Stephens, 233 Ala. 167, 169, 170 So. 771,
773 (1936) ('When the circuit court, in the exercise
of its unquestioned jurisdiction, reached out and
brought before it for administration the estate ...,
it took over that estate, and the proceedings had
therein, just where they stood when the same were
taken over. The order of removal did not serve to
set aside or to annul what had been properly done
theretofore in the probate court, but rather to
"pick up the proceedings" where the probate court
had left off....')."
Sims v. Estate of West, 90 So. 3d 770, 772-73 (Ala. Civ. App.
2012). Thus, when the administration of an estate is removed
16
1110057; 1110104
to the circuit court, the circuit court "pick[s] up the
proceedings where the probate court had left off." Sims, 90
So. 3d at 773 (internal quotation marks omitted). Further,
this Court has explicitly held that notice to the parties of
the removal under § 12-11-41 of the administration of an
estate from the probate court to the circuit court is not
required: "[Section] 12-11-41 neither expressly nor impliedly
requires that any party receive notice of a petition for
removal .... Since removal is a matter of right, notice is
unnecessary." Ex parte Clayton, 514 So. 2d 1013, 1018 (Ala.
1987).
Portions of the probate court record included in the 2005
circuit court action indicate that Jewel and William J.
Campbell, Jr., both filed a "waiver of notice and consent to
probate" in the probate proceeding. Additionally, the probate
court, on April 22, 1977, appointed a guardian ad litem for
Roy and Acie, who were minors at the time, and ordered that
they and their mother be served with notice of the probate
court proceeding. Another document indicates that the
guardian ad litem subsequently appeared before the court in
the proceedings and filed a pleading "deny[ing] each and every
17
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allegation contained in such proceedings and demand[ing] proof
thereof." For all that appears, these four plaintiffs were
parties to the probate court action; no notice to them was
required when the action was transferred to the circuit court.
Clayton, supra.6 Thus, a lack of personal jurisdiction as to
these parties has not been demonstrated.
Kelly Calvert and Amanda Givens were not parties to the
original probate court action.7 Both, however, were named as
parties in the 2005 circuit court action and both were
represented by the same counsel who represented Jewel and
William J. Campbell, Jr., although that counsel later withdrew
from representing Amanda, who then proceeded pro se. No
challenge to the circuit court's exercise of personal
jurisdiction is found in the record of the 2005 circuit court
action; any issue as to personal jurisdiction was therefore
6
Further, both Jewel and William J. Campbell, Jr.,
actually participated in the 2005 circuit court action: both
were represented by counsel. Jewel even filed an appeal from
the court's judgment. See Campbell v. Estate of Campbell,
supra.
7
Kelly and Amanda's mother, Janice Calvert, who died in
1987, was a party to that case and, like Jewel and William J.
Campbell, Jr., filed a "waiver of notice and consent to
probate" in that proceeding.
18
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waived. J.T., supra; Hall, supra; and Rule 12(h)(1), Ala. R.
Civ. P.
Eva and William C. Campbell were not yet born at the time
of the initiation of the probate court proceedings. Their
father, Dennie Rudolph Campbell, had been a party to those
proceedings and had also filed a "waiver of notice and consent
to probate." Dennie died in 1999. Nothing before us
indicates what happened in the probate court regarding his
interests after he died: it appears that no suggestion of
death was filed and that no substitution of parties under Rule
25, Ala. R. Civ. P., occurred.8
Eva and William C. Campbell claim to be heirs of A.V.
Campbell, Sr., through Dennie and argue that they were thus
necessary parties to the 2005 circuit court action; they
therefore contend that their failure to be named as parties
renders the 2006 judgment "void." Again, as we held above,
the failure to join a necessary party did not render the 2006
8
Testimony in the record indicates that both Eva and
William C. Campbell were actually present at the courthouse
during hearings conducted in the 2005 circuit court action;
for all that appears, they had actual notice that the
administration of the estate was proceeding in the circuit
court.
19
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judgment void for lack of subject-matter jurisdiction. In
their brief on appeal, the plaintiffs do not present a direct
argument as to the issue of personal jurisdiction; instead,
they rely on the argument that the lack of necessary parties
itself rendered the judgment void. In support of that
argument, they cite Maxwell v. State, 656 So. 2d 882 (Ala.
Civ. App. 1995), and Mickens v. Calame, 497 So. 2d 505 (Ala.
Civ. App. 1986). Maxwell stands for the general proposition
that Rule 60(b)(4) relief is applicable when the court that
entered the prior judgment "either lacked subject matter
jurisdiction, lacked personal jurisdiction over one or more of
the parties, or otherwise functioned in a manner which was not
consistent with the principles of due process." 656 So. 2d at
884. Mickens stands for the proposition that a default
judgment may be set aside as "void" under Rule 60(b)(4) where
the summons and complaint "fail[ed] to conform" with Rule 4,
Ala. R. Civ. P.9
9
They further cite in their reply brief Johnston v.
White-Spunner, supra, and Rogers v. Smith, supra, both of
which, as noted above, indicate that a judgment is "void" if
the trial court did not have subject-matter or personal
jurisdiction.
20
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Neither of these decisions addresses whether a probate
court or, after removal of proceedings under § 12-11-41, a
circuit court has personal jurisdiction over the heirs to the
estate of one who was previously a proper party in the case.10
And those cases do not demonstrate that the failure to join
Eva and William C. Campbell in the 2005 circuit court action
rendered the 2006 judgment "void" for purposes of Rule
60(b)(4). Rule 28(a)(10), Ala. R. App. P., requires that the
parties present in their brief the legal authorities that
support their position. "If they do not, the arguments are
waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d
1042, 1058 (Ala. 2008). Given that the lack of personal
jurisdiction is subject to waiver, see Rule 12(h)(1), and
J.T., 892 So. 2d at 931, and that no authority is presented
showing that the court in the 2005 circuit court action lacked
personal jurisdiction, the plaintiffs have not demonstrated on
appeal that their Rule 60(b)(4) motion was due to be granted
for lack of personal jurisdiction over Eva and William C.
Campbell. See Clements v. Clements, 990 So. 2d 383, 396 (Ala.
10
Indeed, another case cited on appeal, Cook, supra,suggests that the administrator of Dennie's estate was a
necessary party.
21
1110057; 1110104
Civ. App. 2007) (holding that a personal-jurisdiction argument
was "waived and this court will not consider it for the first
time on appeal"), and Ex parte Phil Owens Used Cars, Inc., 4
So. 3d 418, 428-29 (Ala. 2008) (Murdock, J., concurring in the
rationale in part and concurring in the result (citing Rule
28(a)(10) and concluding that a party had not on appeal
sufficiently argued that personal jurisdiction did not
exist)); cf. Pruitt v. Palm, 671 So. 2d 105 (Ala. Civ. App.
1995) (affirming the denial of a motion under Rule 60(b)
challenging a judgment as void for lack of personal
jurisdiction because the record was silent as to the facts and
allegations supporting the appellant's arguments). For these
reasons, the trial court's summary judgment denying the
plaintiffs' Rule 60(b)(4) motion, case no. 1110057, is
affirmed. Our holding in case no. 1110057 renders moot the
challenge presented in the cross-appeal, case no. 1110104, and
we dismiss that appeal.
Conclusion
The trial court's judgment in favor of the defendants
denying the plaintiffs' Rule 60(b)(4) motion is affirmed; the
cross-appeal is dismissed as moot.
22
1110057; 1110104
1110057 -- AFFIRMED.
Moore, C.J., and Bolin, Parker, Shaw, Wise, and Bryan,
JJ., concur.
Murdock, J., concurs in the rationale in part and concurs
in the result.
Main, J., concurs in the result.
1110104 -- APPEAL DISMISSED AS MOOT.
Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main,
Wise, and Bryan, JJ., concur.
23
1110057; 1110104
MURDOCK, Justice (concurring in the rationale in part and
concurring in the result in case no. 1110057 and concurring in
case no. 1110104).
I agree with the analysis of the main opinion in case no.
1110057 with respect to whether a judgment is "void" for lack
of joinder of necessary or indispensable parties. I would add
that Professors Wright and Miller also are in "agreement":
"Because an objection to the failure to join a
person who should be regarded as indispensable under
Rule 19(b) may be raised as late as on an appeal
from a final judgment or by the court on its own
motion, the impression is created that a failure to
join is jurisdictional, since ordinarily only
jurisdictional defects are treated in this fashion.
Thus, it is not surprising that cases can be found
that speak of nonjoinder as ousting the court of
jurisdiction. Since the indispensable-party
doctrine is equitable both in its origin and nature,
however, scholarly commentary as well as the vast
majority of courts reject this 'jurisdictional'
characterization."
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1611 (3d ed. 2001) (emphasis added).
I do not agree with the rationale offered by the main
opinion, however, for affirming the trial court's judgment as
to some of the plaintiffs. The main opinion reasons that
"this Court has explicitly held that notice to the parties of
the removal under § 12-11-41[, Ala. Code 1975,] of the
administration of an estate from the probate court to the
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1110057; 1110104
circuit court is not required." ___ So. 3d at ___ (emphasis
added; emphasis omitted). Be that as it may, the issue before
us does not concern a lack of notice of the removal of the
administration of the estate, but a lack of notice and an
opportunity to participate in a particular proceeding
initiated by a petition filed some 28 years after the estate
proceedings were initiated. Specifically, the contention
before us is that some of the plaintiffs did not receive
notice or an opportunity to respond to a petition filed in
200611 or to participate in the proceedings that ensued from
that petition and that resulted in what the main opinion
refers to as the 2006 judgment. I cannot agree that merely
because Jewel Campbell, William J. Campbell, Jr., Acie A.
Campbell, and Roy J. Campbell were not entitled to notice of
the removal in 2005 of the administration of the estate of
A.V. Campbell, Sr., from the probate court to the circuit
court, they also were not entitled to notice of the 2006
11
The main opinion uses the term "2005 circuit court
action." The estate-administration proceedings were initiated
in 1977 and were removed to the circuit court pursuant to a
removal petition filed in June 2005. The dispute as to the
ownership of certain land that was adjudicated in the 2006
judgment, however, was the subject of a specific petition
seeking that adjudication filed on July 10, 2006.
25
1110057; 1110104
petition and an opportunity to participate in the proceedings
ensuing therefrom.
That said, as to Jewel Campbell and William J. Campbell,
Jr., I would affirm the 2006 judgment (as does the main
opinion), but I would do so on the different ground that both
of those parties either received notice of the 2006 petition
and the ensuing proceedings and/or did in fact participate in
those proceedings in a manner sufficient to give rise to a
waiver of any deficiency in his or her notice of the same.
As to Acie and Roy, I also would affirm on a different
ground than that stated in the main opinion. Elsewhere in the
main opinion, it is stated that "the plaintiffs do not present
a direct argument as to the issue of personal jurisdiction;
instead, they rely on the argument that the lack of necessary
parties itself rendered the judgment void." ___ So. 3d at
___. That is, we are not presented in this appeal with an
argument differentiating among the plaintiffs for purposes of
application of the principles of in personam jurisdiction (or,
for that matter, the doctrine of res judicata) in relation to
the 2006 judgment. As discussed, the argument that the
judgment as a whole is void for failure to join necessary
26
1110057; 1110104
parties is without merit. I therefore concur in the result
reached by the main opinion as to Acie and Roy in case no.
1110057.
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