March 27, 2015
Ander Lee Tyson and Melody Lee Tyson
Slater Jenkins et al
Appeals from Choctaw Circuit Court. (CV-11-56 and
Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ.,
these two consolidated appeals, Ander Lee Tyson and Melody
Lee Tyson (" the Tysons" ) ask this court to
reverse what they assert are erroneous judgments of the
Choctaw Circuit Court in two civil actions. We dismiss both
appeals for lack of subject-matter jurisdiction.
December 13, 2011, Slater Jenkins (" Slater" )
initiated an action (" the quiet-title action" ) in
the Choctaw Circuit Court. In his complaint, Slater asserted
that he and his two brothers (sometimes hereinafter referred
to collectively as " the Jenkinses" ) own, as
tenants in common, a piece of real property consisting of
eight acres in Choctaw County. According to the complaint,
Slater's parents purchased the property in 1962,
constructed a house on it shortly thereafter, and eventually
deeded it to Slater and his brothers in 2001.
further alleged that, in November 2011, he had received
correspondence from the Tysons, in which they claimed to have
recently purchased, as part of a larger tract of land, the
portion of the real property upon which the house sits
(" the property" ). The Tysons gave Slater and his
family 30 days to remove their belongings from the property
before the Tysons had the house destroyed.
requested the trial court to quiet title to the property and
to declare Slater and his brothers as its owners. He also
purported to state five other causes of action against the
Tysons -- namely, claims asserting a " bare right of
possession," " bare possession," trespass,
adverse possession, and the tort of outrage. Slater
eventually amended his complaint to add a sixth count
alleging " timber trespass." Pursuant to those
causes of action, Slater requested the trial court to restore
possession of the property to Slater and his brothers, to
permanently enjoin the Tysons from entering the property, to
establish the boundary lines of the property, and to award
Slater compensatory and punitive damages, attorney's
fees, and costs.
January 12, 2013, the Tysons answered the complaint. On May
10, 2013, the trial court entered a consent judgment stating
that the parties had reached a settlement agreement resolving
all issues presented in the quiet-title action. The judgment
incorporated the settlement agreement, defined the boundaries
of the property at issue, and directed the Tysons to remove a
portion of a fence they had erected on the property. The
judgment was signed by the trial court and the attorneys for
September 13, 2013, the Jenkinses initiated a new civil
action (" the contempt action" ) in the Choctaw
Circuit Court in which they sought to hold the Tysons in
contempt of court for allegedly violating the consent
judgment that had been entered in the quiet-title action.
Specifically, the Jenkinses alleged that the Tysons had
failed to remove the portion of the fence referenced in the
October 28, 2013, having obtained new counsel, the Tysons
filed in the contempt action a " Motion to Set Aside
Judgment Due to Incompleteness Status," in which they
requested the trial court in the contempt action to set aside
the consent judgment that had been entered in the quiet-title
action. In support of their motion, the Tysons claimed that
it was their understanding that no final judgment was
supposed to have been entered, if at all, in the quiet-title
action " until an assessment had been made [on the
property] and [the] results disclosed." On November 22,
2013, the trial court in the contempt action entered an order
stating: " Motion for New Trial filed by [the Tysons] is
hereby Denied." It appears to this court that that order
is directed to the Tysons' motion to set aside for "
five months later, on April 28, 2014, the Tysons filed
another motion in the contempt action. That motion was styled
as one for relief from the judgment in the quite-title
action, seeking relief under Rule 60(b), Ala. R. Civ. P.
(" the Rule 60 motion" ). In the Rule 60 motion,
the Tysons asserted that, although the settlement agreement
underlying the consent judgment in the quiet-title action had
been negotiated by the attorneys of record (including their
own attorney), the
Tysons themselves " were not present nor privy to such
settlement agreement" and that, had they been present,
they " would not have consented or agreed to the
stipulation." The Tysons further alleged that the
Jenkinses had never owned the property at issue and that the
consent judgment should be set aside in order to prevent
" an extreme hardship or injustice."
same day, the Tysons also filed in the quiet-title action the
same motion to set aside due to " incompleteness
status" that they had filed months earlier, and which
had been denied, in the contempt action. Two days later,
however, the Tysons filed in the quiet-title action the same
Rule 60 motion they had filed in the contempt action.
April 29, 2014, the Jenkinses filed, in both actions, a claim
under the Alabama Litigation Accountability Act (" the
ALAA" ), § 12-19-270 et seq., Ala. Code 1975. The
Jenkinses asserted, among other things, that the Tysons'
motions to set aside were frivolous. The Jenkinses later
filed in support of their ALAA claims an affidavit from the
Tysons' former counsel, who had represented the Tysons in
the quiet-title action and had signed the consent judgment,
in which counsel testified that the Tysons had, in fact, been
aware of the terms of the settlement agreement and had
approved the same.
22, 2014, the trial court in the contempt action entered an
order denying the Tysons' Rule 60 motion. The record on
appeal, however, does not contain such a ruling in the
quiet-title action, and the case-action-summary sheet in that
action does not indicate that one was ever
entered. Nevertheless, the Tysons filed a
notice of appeal in the quiet-title action on June 19, 2014;
that appeal was docketed as appeal no. 2130836. Although no
judgment had been entered granting or denying the
Jenkinses' petition for contempt, the Tysons also filed a
notice of appeal in the contempt action on the same day; that
appeal was docketed as appeal no. 2130886. The two
appeals, which have been consolidated, were transferred to
this court, from the supreme court, pursuant to §
12-2-7(6), Ala. Code 1975.
Without final judgments, this court does not have
jurisdiction to consider the appeals. Ex parte Wharfhouse
Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala. 2001).
" A final judgment that will support an appeal is one
that puts an end to the proceedings between the parties to a
case and leaves nothing for further adjudication."
Id. " [J]urisdictional matters are of such
magnitude that we take notice of them at any time and do so
even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712
(Ala. 1987). " The parties may not waive lack of
subject-matter jurisdiction, and subject-matter jurisdiction
may not be conferred by consent." Espinoza v.
Rudolph, 46 So.3d 403, 413 (Ala. 2010).
the trial court in the quiet-title action never ruled on the
Rule 60 motion for relief from the judgment filed in that
action, there is no final judgment on the Rule 60 motion in
that case, and this court does not have jurisdiction to
consider appeal no. 2130836. See Brown v. Foster,
777 So.2d 715 (Ala.Civ.App. 2000) (dismissing an appeal from
the trial court's alleged
refusal to grant a motion for relief from judgment pursuant
to Rule 60 because the trial court had not actually ruled on
the motion). Likewise, because the trial court in the
contempt action never entered an order granting or denying
the Jenkinses' petition to hold the Tysons in contempt,
there is no final judgment in that case, and this court does
not have jurisdiction to consider appeal no. 2130886. See
Arvin North Am. Auto., Inc. v. Rodgers, 71 So.3d 669
(Ala.Civ.App. 2011) (dismissing an appeal from a contempt
action brought after a worker's compensation case because
the judgment entered in the contempt action was incomplete
and not final).
we note that the parties appear to have treated the two
actions, at least in some instances, as if they had been
consolidated. For example, the styles of some of the papers
filed after commencement of the contempt action list the case
numbers of both actions. There is, however, no motion to
consolidate or order of consolidation in the appellate
record. Regardless, it appears that consolidation would not
have cured the jurisdictional defects. See generally
R.J.G. v. S.S.W., 42 So.3d 747, 752-53 (Ala.Civ.App.
2009) (stating that consolidated actions do not lose their
separate identities, that consolidation does not merge the
actions into a single action, that pleadings in one action do
not become pleadings in the other, and that each action
requires the entry of a separate judgment).
final judgments sufficient to invoke our appellate
jurisdiction have not been entered in either of the cases
below, we dismiss both appeals.
P.J., and Thomas, Moore, and Donaldson, JJ., concur.
The complaint also alleged that
Slater's father retains a life-estate interest in the
Slater originally named his two brothers
and his father as defendants along with the Tysons. Those
three parties, however, were realigned as plaintiffs.
The record also does not contain a ruling
in the quiet-title action on the earlier filed motion to set
aside for " incompleteness status."
In their respective appellate briefs, the
Tysons assert, and the Jenkinses at least imply, that the
trial court denied the Rule 60 motions in both actions. The
order to which they cite, however, was entered only in the
contempt action. The record does not contain an order ruling
on the motion in the quiet-title action.
We also note that the Jenkinses' ALAA
claims were still pending when the Tysons filed their notices
of appeal and that the trial court purported to deny those
claims after the appeals were filed. It is not necessary,
however, for this court to decide whether the trial court had
jurisdiction to rule on those claims or whether the pendency
of the claims affects appellate jurisdiction in the two cases