Debra Ann Kawzinski v. Sheryl Lyne, individually and as personal representative of the Estate of Robert L. Kawzinski ( 2023 )

Rel: April 21, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
________________________
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_________________________
Debra Ann Kawzinski
v.
Sheryl Lyne, individually and as personal representative
of the Estate of Robert L. Kawzinski, deceased
Appeal from Elmore Circuit Court
(CV-22-900026)
MENDHEIM, Justice.
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Sheryl Lyne, individually and as the personal representative of the
estate of Robert L. Kawzinski, deceased, commenced an action in the
Elmore Circuit Court against Debra Ann Kawzinski ("Debra Ann") to
quiet title to a piece of real property to which Lyne and Debra Ann both
claim an ownership interest. Lyne further requested that the circuit
court require the property to be sold and the proceeds divided among the
rightful owners of the property. The circuit court entered a summary
judgment in favor of Lyne. Debra Ann appealed. We dismiss Debra
Ann's appeal as untimely filed.
Facts and Procedural History
It is undisputed that Robert L. Kawzinski ("Robert") and Debra Ann
were married on September 14, 1991. On September 1, 2004, Robert and
Debra Ann purchased, as joint tenants with the right of survivorship, a
piece of real property and a house ("the property") located in Elmore
County.
On February 8, 2008, in a separate action, the circuit court entered
a "final decree of divorce" divorcing Robert and Debra Ann. According to
the divorce judgment, "[s]ince the purchase of the [property], it is
undisputed that [Debra Ann] has resided at the [property] and [Robert]
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has resided at" a separate home owned by Robert. Concerning the
property, which is at issue in this case, the circuit court's divorce
judgment stated that the parties agreed that "the [estimated] value of
the … property [was] approximately $325,000.00 to $330,000.00." The
divorce judgment further stated:
"The … property … shall be listed with a local real estate
company or agent and sold at fair market value. The net
proceeds from the said sale shall be equally divided by and
between the parties. [Robert] shall select the real estate
company and/or agent with which to list the [property] and
have the [property] listed within 21 days of the date of this
decree. [Debra Ann] shall be allowed to continue to reside [at]
the [property] until such time as the [property] sells. [Debra
Ann] shall fully cooperate, with [Robert] and/or his agents in
arranging for the sale of same and shall make the [property]
available for viewing, showing and/or inspection at any and
all reasonable times pending the closing on same."
According to Debra Ann's affidavit testimony, Robert, contrary to the
divorce judgment, never listed the property for sale.
On March 1, 2008, Robert executed his will, which named Lyne as
the personal representative of his estate and left her "[a]ll the rest,
residue and remainder of the property which I may own at the time of my
death, real, personal and mixed, tangible and intangible, of whatsoever
nature and wheresoever situated, including all property which I may
acquire or become entitled to after the execution of this will …." On
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August 15, 2021, Robert died, having never attempted to sell the
property. On September 24, 2021, Lyne filed Robert's will with the
Elmore Probate Court and petitioned for letters testamentary. On
November 4, 2021, the probate court granted Lyne's petition and issued
her letters testamentary naming her the personal representative of
Robert's estate.
On December 30, 2021, Lyne's attorney sent Debra Ann a letter,
which states, in pertinent part:
"As you know, [Robert] owned a one-half (1/2) interest in
the … property ….
"Pursuant to your divorce decree with [Robert], the
property … was to be sold and the proceeds from such sale
were to be divided equally between [Robert] and yourself. At
the time of your divorce, the … property was estimated to be
valued at $330,000.00. Also, according to the divorce decree,
this estimation was agreed to by you.
"As personal representative of the Estate of Robert L.
Kawzinski, Ms. Lyne must secure all of [Robert's] assets. That
said, Ms. Lyne is not interested in trying to remove you from
the … property; and, as such, would like to extend an offer to
you to purchase [Robert's] one-half (1/2) interest in the real
property for $165,000.00. Ms. Lyne believes this to be a
reasonable resolution to this matter. However, if you are not
agreeable to this solution, Ms. Lyne is prepared to seek legal
action against you to have the property sold."
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On January 28, 2022, Debra Ann's attorney sent a letter rejecting Lyne's
offer concerning the property.
On February 1, 2022, Lyne, individually and as the personal
representative of Robert's estate, filed a complaint in the circuit court
against Debra Ann seeking to quiet title to the property and seeking a
sale of the property for a division of the proceeds, pursuant to § 35-5-20
et seq., Ala. Code 1975. On March 11, 2022, Debra Ann filed an answer
to Lyne's complaint.
On March 23, 2022, Lyne filed a motion for a summary judgment.
Lyne argued that she is entitled to a "one-half undivided interest [in the
property] as the sole devisee of the real property owned by the estate of
Robert …." Lyne further argued that the property cannot be equitably
divided or partitioned and requested that the circuit court order that the
property be sold and distribute the proceeds of the sale between Lyne and
Debra Ann. On April 15, 2022, Debra Ann filed a response to Lyne's
summary-judgment motion and also requested that a summary judgment
be entered in her favor.
On April 20, 2022, the circuit court entered an order granting
Lyne's summary-judgment motion. The circuit court's order states:
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"Upon hearing the argument and review of the
pleadings, this court finds that the motion for summary
judgment is due to be granted in [Lyne's] favor as there is no
genuine issue of a material fact and [Lyne] is entitled to a
summary judgment as a matter of law. The Estate is a half
owner of the interest in the [property], as it took the same
interest as Robert Kawzinski owned before his death. The
court hearing that this is a residential property as such the
same cannot be equitably divided."
On May 20, 2022, Debra Ann filed a motion requesting a stay of
execution of the circuit court's April 20, 2022, order granting Lyne's
summary-judgment motion and requesting that the circuit court set a
supersedeas bond, because Debra Ann intended to appeal the circuit
court's order. On May 22, 2022, the circuit court denied Debra Ann's
motion, stating that its April 20, 2022, order was "not a final judgment."
On June 7, 2022, Lyne filed a motion requesting "leave to list real
property for sale." Lyne noted in her motion that the circuit court, in its
April 20, 2022, order, had stated that the property "is a residential
property [and] as such the same cannot be equitably divided."
Accordingly, Lyne requested "that the [property] be sold at private sale,
and that [she] have the sole authority to list and market the [property]."
On June 8, 2022, the circuit court entered an order, stating: "Issue of the
summary judgment this date is moot as presented with [Lyne's]
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summary judgment already ruled upon on April 20, 2022. Parties talking.
Reset for 9:00 a.m. on July 7, 2022."
On July 7, 2022, the circuit court entered an order stating that the
"[o]rder of 4-20-2022 is made final for appeal purposes." On August 18,
2022, Debra Ann appealed to this Court.
Discussion
We must first consider whether this Court has jurisdiction over
Debra Ann's appeal. On September 19, 2022, after Debra Ann had filed
her notice of appeal, Lyne filed with this Court a motion requesting that
we dismiss Debra Ann's appeal as untimely filed. Citing Bedgood v.
McConico, 30 So. 3d 451, 453 (Ala. Civ. App. 2009), Lyne argues that the
circuit court's April 20, 2022, order directing the sale of the property was
a final judgment and that, thus, pursuant to Rule 4(a)(1), Ala. R. App. P.,
Debra Ann was required to file her notice of appeal within 42 days of its
entry. Because Debra Ann undisputedly did not file her notice of appeal
within 42 days of the entry of the circuit court's April 20, 2022, order,
Lyne argues that Debra Ann's appeal is untimely and must be dismissed.
On October 20, 2022, this Court's Clerk's Office issued a show-cause
order requiring Debra Ann to "show cause unto this Court … as to why
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this appeal should not be dismissed for lack of jurisdiction as untimely
filed." On October 27, 2022, Debra Ann filed a response to the show-cause
order. Debra Ann does not disagree with Lyne's assertion that the circuit
court's April 20, 2022, order was a final, appealable judgment, but she
asserts that she did not file a notice of appeal within 42 days of the entry
of the circuit court's April 20, 2022, order because she relied upon the
circuit court's May 22, 2022, order, in which the circuit court stated that
its April 20, 2022, order was "not a final judgment." Debra Ann states
that she, "relying on the [circuit] court's [May 22, 2022,] order[,] waited
until there was a 'Final Order' to proceed with her appeal." Debra Ann
notes that she did file her appeal within 42 days of the entry of the circuit
court's July 7, 2022, order, in which the circuit court stated that its
April 20, 2022, order "is made final for appeal purposes." Debra Ann
states that her "action and timing of filing of the appeal is an excusable
neglect due to her relying on the [circuit] court's own orders in this
matter"; Debra Ann cites no authority in support of her position.
This Court set forth the relevant legal principles concerning the
jurisdictional issue before us in Jetton v. Jetton, 502 So. 2d 756, 758-59
(Ala. 1987):
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"It is a well established rule that, with limited
exceptions, an appeal will lie only from a final judgment which
determines the issues before the court and ascertains and
declares the rights of the parties involved. Kelley v. U.S.A. Oil
Corp., 363 So. 2d 758 (Ala. 1978); Alabama Public Service
Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199
So. 2d 653 (1967). However, as this Court has previously
noted, decrees and orders entered in equity proceedings
involving the sale of real property for division of the proceeds
present an unusual situation:
" 'Equity decrees may be partly final and
partly interlocutory. A decree which ascertains
and declares the rights of the parties and settles
the equities is a final decree, although it provides
for further proceedings under the direction of the
court in order to make the final decree effective,
such decree is interlocutory and remains within
the control of the court because as to such decree
and further proceedings thereunder the cause
remains in fieri. …
" 'This rule is strikingly illustrated in suits in
equity to sell lands for division. When the court
orders the land sold, that decree is final insofar as
it will support an appeal. Three illustrations of our
entertaining appeals from such decrees are Berry
v. Berry, 266 Ala. 252, 95 So. 2d 798 [(1957)];
Coppett v. Monahan, 267 Ala. 572, 103 So. 2d 169[(1958)]; Raper v. Belk, 276 Ala. 370, 162 So. 2d
465 [(1964)]. We have also held that the decree
confirming the sale is the final decree in judicial
proceedings for the sale of lands for division, Pettit
v. Gibson, 201 Ala. 177, 77 So. 703 [(1917)]; and
that a sale of land for division among joint owners
is not binding until confirmed by the court.'
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"Taylor v. Taylor, 398 So. 2d 267, 269 (Ala. 1981), quoting
Sexton v. Sexton, 280 Ala. 479, 195 So. 2d 531 (1967)."
As noted above, Lyne relied upon Bedgood, supra, in arguing that
Debra Ann's appeal should be dismissed as untimely filed. In Bedgood,
the Court of Civil Appeals dismissed an appeal from a judgment ordering
the sale of real property because the appellant, who had been a defendant
in the trial court, had failed to file his notice of appeal within the time
frame set forth in Rule 4, Ala. R. App. P. The Court of Civil Appeals,
relying upon the principles set forth above from Jetton, stated:
"[The plaintiffs] filed a complaint against [the
defendants], seeking a sale of property for a division of the
proceeds, pursuant to § 35-5-20 et seq., Ala. Code 1975.
According to the State Judicial Information System, on
February 20, 2007, the trial court entered an order directing
that the property be sold for division. In a sale-for-division
case, both the order directing the sale and the subsequent
order confirming the sale are considered final judgments for
purposes of appeal. Jetton v. Jetton, 502 So. 2d 756, 758-59
(Ala. 1987). On March 14, 2007, [one of the defendants] filed
a timely Rule 59(e), Ala. R. Civ. P., motion seeking to alter or
vacate the trial court's February 20, 2007, order, thus
suspending the time for filing a notice of appeal. See
Rule 4(a)(3), Ala. R. App. P. On June 12, 2007, 90 days after
[the defendant] filed his Rule 59(e) motion, that motion was
denied by operation of law. See Rule 59.1, Ala. R. Civ. P.
Consequently, the 42-day period for [the defendant] to file his
notice of appeal commenced running on June 12, 2007. See
Rule 4(a)(3). Therefore, [the defendant] had until July 24,
2007, to file his notice of appeal. [The defendant] filed his
notice of appeal to the supreme court on October 3, 2008, well
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after the time for filing an appeal had expired. Therefore, we
must dismiss the appeal. See Rule 2(a)(1), Ala. R. App. P. ('An
appeal shall be dismissed if the notice of appeal was not
timely filed to invoke the jurisdiction of the appellate court.')."
Bedgood, 30 So. 3d at 453 (footnotes omitted; emphasis added).
As indicated by the emphasized portion of the above-quoted portion
of Bedgood, it is well established in Alabama that, "[i]n a sale-for-division
case, both the order directing the sale and the subsequent order
confirming the sale are considered final judgments for purposes of
appeal. Jetton v. Jetton, 502 So. 2d 756, 758-59 (Ala. 1987)." Id. Based on
Jetton and Bedgood, and contrary to the circuit court's mistaken belief,
the circuit court's April 20, 2022, order directing that the property be sold
was a final judgment capable of being appealed. Regardless of the
confusion created by the circuit court's misguided orders that followed
the final April 20, 2022, order, Debra Ann was required to file her notice
of appeal of the circuit court's April 20, 2022, order within 42 days of its
entry in order to properly invoke the jurisdiction of this Court. This she
undisputedly did not do. Thus, we must dismiss Debra Ann's appeal for
lack of jurisdiction.
We note, however, that Debra Ann may still have the opportunity
to seek appellate relief. In Bedgood, even though the Court of Civil
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Appeals dismissed the appeal in that case for lack of jurisdiction, the
Court of Civil Appeals went on to note:
"[The defendant] untimely filed his notice of appeal from
the trial court's February 20, 2007, order directing the sale for
division. The record on appeal does not contain an order
confirming any subsequent sale of the property made
pursuant to the February 20, 2007, order. As noted, an order
confirming a sale for division is appealable. Jetton, supra. In
such an appeal, the appellant is 'entitled to raise objections
arising from both the initial judgment ordering the land sold,
and from the judgment confirming the sale, so long as the trial
judge was given an opportunity to rule on such objections.'
Jetton, 502 So. 2d at 759."
Bedgood, 30 So. 3d at 453. The same appears to be true in the present
case; the record on appeal does not contain an order confirming any sale
of the property made pursuant to the circuit court's April 20, 2022, order.
Accordingly, should such an order be entered below, Debra Ann could
appeal that order and would be " 'entitled to raise objections arising from
both the initial judgment ordering the land sold, and from the judgment
confirming the sale, so long as the trial judge was given an opportunity
to rule on such objections.' Jetton, 502 So. 2d at 759." Id.Conclusion
Based on the foregoing, Debra Ann's notice of appeal was not timely
filed to invoke the jurisdiction of this Court. Accordingly, we dismiss
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Debra Ann's appeal. See Rule 2(a)(1), Ala. R. App. P. ("An appeal shall
be dismissed if the notice of appeal was not timely filed to invoke the
jurisdiction of the appellate court.").
APPEAL DISMISSED.
Parker, C.J., and Wise, Bryan, Sellers, Stewart, Mitchell, and Cook,
JJ., concur.
Shaw, J., concurs in the result, without opinion.
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