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Barber v. Barber

Alabama Court of Civil Appeals

June 19, 2015

Andre Barber
v.
Doris W. Barber, by and through her guardian and conservator, Antony B. Barber

Page 456

          Appeal from Houston Circuit Court. (CV-14-900524).

         Pittman, Thomas, Moore, and Donaldson, JJ., concur. Thompson, P.J., concurs in the rationale in part and concurs in the result, with writing.

          OPINION

Page 457

          PER CURIAM.

         Andre Barber appeals from a summary judgment entered by the Houston Circuit Court (" the trial court" ) in favor of Doris W. Barber as to Doris's ejectment action filed against Andre. That judgment ordered the Houston County sheriff to remove Andre from a residence on property (" the property" ) owned by Doris, and it awarded Doris $25,250 for the reasonable rental value of the property for the approximately 33 months Andre lived on the property.

         On August 9, 2014, Antony Barber, on behalf of Doris as her guardian and conservator, filed in the trial court a complaint seeking to eject Andre from the property. Attached to that complaint was a copy of " Letters of Guardianship and Conservatorship of Adult Ward" (" the letters" ) issued to Antony on behalf of Doris by the Probate Court of Cobb County, Georgia (" the Georgia court" ).[1] Doris's complaint alleged that she was the owner of the property and that Andre was an " illegal squatter" on the property and had refused to surrender possession of the property despite demands to do so. Andre filed in the trial court an answer to the complaint in which he admitted that Doris was the owner of the property, admitted that the Georgia court had appointed Antony as Doris's guardian and conservator, and admitted that he had moved onto the property in 2011. However, Andre denied that he was living on the property unlawfully.

         After Andre answered the complaint, Antony, on behalf of Doris, filed a motion for a summary judgment; that motion included Antony's affidavit, a copy of a warranty deed conveying the property to Doris, and a copy of the letters. Antony's affidavit stated that Andre had moved onto the property in 2011, that Andre was living on the property " unlawful[ly] and wrongful[ly]," that Antony had provided notice to Andre to vacate the property, and that Andre had refused to vacate the property. Antony's affidavit also included a statement that he believed the reasonable rental value of the property to be $750 per month. Andre filed a motion opposing the motion for a summary judgment and seeking to strike the testimony in Antony's affidavit as to the reasonable rental value of the property; that motion contained no supporting affidavits or other attached documents.

         On December 23, 2014, the trial court entered the summary judgment from which Andre appeals. That judgment indicates that Andre received notice of the hearing on the motion for a summary judgment but that he failed to appear at the hearing. Andre filed a postjudgment motion seeking to vacate the summary judgment and/or to stay his ejectment from the property; that motion was denied, and Andre timely appealed.

         On appeal, Andre argues that Antony lacked standing to bring the ejectment action on Doris's behalf because, he says, Antony failed to register the letters in the appropriate Alabama court pursuant to § 26-2B-401, Ala. Code 1975,[2] and,

Page 458

therefore, that the trial court lacked subject-matter jurisdiction. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999)(" When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction." ). However, when a defendant raises the issue of a plaintiff's authority to bring an action on behalf of another, the issue is one of capacity, not standing. See Moultrie v. Wall, 143 So.3d 128, 135 n.9 (Ala. 2013). Thus, although Andre phrases his argument as one of standing, that argument is more accurately identified as one challenging Antony's capacity to sue on Doris's behalf. The distinction is an important one because issues of capacity, unlike issues of standing, do not affect a court's subject-matter jurisdiction and, thus, may be waived. Penick v. Most Worshipful Prince Hall Grand Lodge F & A M of Alabama, Inc., 46 So.3d 416, 425 (Ala. 2010).

         Rule 9(a), Ala. R. Civ. P., provides:

" It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, the party desiring to raise the issue shall do so by specific negative ...

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