from Houston Circuit Court. (CV-14-900524).
Thomas, Moore, and Donaldson, JJ., concur. Thompson, P.J.,
concurs in the rationale in part and concurs in the result,
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.
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" ). 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.
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
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.
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
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).
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 ...