June 19, 2015
Doris W. Barber, by and through her guardian and conservator, Antony B. Barber
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 averment, which shall
include such supporting particulars as are peculiarly within
the pleader's knowledge."
(Emphasis added.) Thus, a party who wishes to assert another
party's lack of capacity to sue must affirmatively raise
that defense in its pleadings. Failure to do so constitutes a
waiver of that defense. Ex parte Tyson Foods, Inc.,
146 So.3d 1041, 1044 (Ala. 2013).
asserted in his answer that Antony lacked standing to bring
the ejectment action on Doris's behalf, but a general
assertion of lack of standing does not equate to an assertion
of the affirmative defense of lack of capacity. Pretl v.
Ford, 723 So.2d 1, 3 (Ala. 1998). Because Andre failed
to raise in the trial court the issue of Antony's
capacity, we cannot consider that argument on appeal.
D.A. v. Calhoun Cnty. Dep't of Human Res., 976
So.2d 502, 504 (Ala.Civ.App. 2007)(" The oft-quoted and
long-standing rule is that an appellate court may not
consider an issue raised for the first time on appeal."
next argues that a summary judgment was improper because, he
says, Doris failed to make a prima facie showing that his
occupancy of the property was unlawful.
" 'A summary judgment is proper when there is no
genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law. Rule 56(c)(3),
Ala. R. Civ. P. The burden is on the moving party to make a
prima facie showing that there is no genuine issue of
material fact and that it is entitled to a judgment as a
matter of law. In determining whether the movant has carried
that burden, the court is to view the evidence in a light
most favorable to the nonmoving party and to draw all
reasonable inferences in favor of that party. To defeat a
properly supported summary judgment motion, the
nonmoving party must present " substantial
evidence" creating a genuine issue of material
fact--" evidence of such weight and quality that
fair-minded persons in the exercise of impartial judgment can
reasonably infer the existence of the fact sought to be
proved." Ala. Code 1975, § 12-21-12; West v.
Founders Life Assurance Co. of Florida, 547 So.2d 870,
871 (Ala. 1989).'
" Capital Alliance Ins. Co. v. Thorough-Clean,
Inc., 639 So.2d 1349, 1350 (Ala. 1994). Questions of law
are reviewed de novo. Alabama Republican Party v.
McGinley, 893 So.2d 337, 342 (Ala. 2004)."
Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933,
935 (Ala. 2006).
succeed in an ejectment action, a plaintiff must show that he
or she has legal title to the premises and that the defendant
entered the premises and unlawfully remains there. §
6-6-280, Ala. Code 1975. In this case, Andre does not dispute
that Doris has legal title to the property, nor does he
dispute that he has occupied the property since 2011; he
argues only that Doris failed to show that his possession of
the property is unlawful. However, despite Andre's
argument, Antony's affidavit states that Andre's
occupancy of the property was " unlawful and
wrongful," that he had provided notice to Andre to
vacate the property, and that Andre had refused to surrender
possession of the property. Thus, given the requirements
necessary to succeed in an ejectment action, we hold that the
evidence was sufficient to make a prima facie showing that
there was no genuine issue of material fact as to whether
Andre's occupancy of the property was unlawful.
Doris made a prima facie showing that there was no genuine
issue of material fact, the burden shifted to Andre to
present substantial evidence that there was a genuine issue
of material fact. Pritchett, supra. Although Andre argued to
the trial court and argues to this court that his possession
of the property was lawful, he presented no evidence to
support that claim; he attached no documents to his response
in opposition to the motion for a summary judgment, and he
did not appear for the hearing. As the nonmovant, he was not
permitted to " rest upon mere allegations or denials of
his pleadings" but was required to " 'set forth
specific facts showing that there is a genuine issue for
trial. Proof by substantial evidence [wa]s
required.'" King v. African Methodist Episcopal
Church, Inc., 132 So.3d 13, 14 (Ala.Civ.App. 2013),
quoting Sizemore v. Owner-Operator Indep. Drivers
Ass'n, Inc., 671 So.2d 674, 675 (Ala.Civ.App. 1995);
and Rule 56(e), Ala. R. Civ. P. Furthermore, " [w]hen
the nonmovant offers no evidence to contradict that presented
by the movant, the movant's evidence is treated by the
trial court as uncontroverted." Griffin v. American
Bank, 628 So.2d 540, 543 (Ala. 1993). Thus, because
Andre presented no evidence to the trial court to either
support his argument or to contradict Doris's argument,
the uncontroverted evidence before the trial court indicated
that Doris has legal title to the property, that Andre
occupied the property at the time of the hearing, and that
Andre's occupancy of the property was unlawful. In light
of that undisputed evidence, we hold that a summary judgment
in Doris's favor as to the ejectment claim was proper.
See Pritchett, supra.
Andre argues that the trial court's award of damages for
the reasonable rental value of the property during the time
he occupied the property
was unsupported by the evidence. In support of that
argument, Andre claims that the only evidence relevant to the
reasonable rental value of the property was a statement in
Antony's " naked affidavit" that he believed
the reasonable rental value of the property to be $750 per
month. Andre claims that the trial court should have granted
his motion to strike Antony's testimony as to the
reasonable rental value of the property for, he says, a
" lack of foundation."
" Alabama law has long recognized an exception to the
general rule excluding opinion testimony of lay witnesses by
holding that a lay person is competent to testify as to his
or her opinion of the value of real property if he or she has
had an opportunity to form an opinion and testifies in
substance that he or she has done so."
Horton v. Perkins, 17 So.3d 235, 240 (Ala.Civ.App.
2009). The witness's opinion must come from his or her
" opportunity to observe the condition of [the] real
property and to form an opinion based on those observations
as to its value." Id. Because Antony's
affidavit contained no indication that his opinion had been
formed pursuant to his observation of the property, his
testimony as to the reasonable rental value of the property
would ordinarily have been inadmissible.
a motion to strike testimony from an affidavit "
'" should specify the objectionable portions of the
affidavit and the grounds for each objection. A motion
asserting only a general challenge to an affidavit will be
ineffective." '" Ex parte Secretary of
Veterans Affairs, 92 So.3d 771, 776 (Ala. 2012), quoting
Perry v. Mobile Cnty., 533 So.2d 602, 605 (Ala.
1988)(adopting language from C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure: Civil § 2738 (2d ed.
1983). Andre's motion to strike did not challenge the
admissibility of Antony's opinion as to the valuation of
the property. Rather, Andre argued that Antony's opinion
as to the valuation of the property should have been stricken
because Antony did not claim to be a real-estate expert, did
not describe the condition of the property, and did not offer
any information as to the rental value of similar properties
in the area. Given these " deficiencies," Andre
argued, the trial court had no basis " to assess [the]
truth" of Antony's valuation of the property.
However, allegations as to the truth of testimony are
directed to the weight to be accorded that testimony and not
the admissibility of it. As a result, Andre's motion to
strike, although arguing against the weight to be accorded
Antony's testimony, failed to offer an objection to the
admissibility of that testimony. Because Andre failed to
object to the admissibility of Antony's testimony, the
trial court did not err in considering it. Ex parte Elba
General Hosp. & Nursing Home, Inc., 828 So.2d 308, 312
(Ala. 2001)(holding that, in the absence of a failure to
object to a defective affidavit, a trial court may properly
consider the affidavit even if an objection alleging the
particular defect would have been proper).
failed to preserve the issue of Antony's capacity for
appellate review, and he has failed to show error in the
court's entry of the summary judgment on Doris's
ejectment claim or in its award of damages in that judgment.
Accordingly, we affirm the trial court's summary judgment
in Doris's favor.
Thomas, Moore, and Donaldson, JJ., concur.
P.J., concurs in the rationale in part and concurs in the
result, with writing.
Presiding Judge, concurring in the rationale in part and
concurring in the result.
I do not agree entirely with the rationale of the main
opinion with regard to the discussion of standing and
capacity, I concur to affirm the trial court's judgment.
At the time Antony filed the complaint on
Doris's behalf, both Doris and Antony were residents of
Section 26-2B-401 provides:
" If a guardian has been appointed in another
state and a petition for the appointment of a guardian is
not pending in this state, the guardian appointed in the
other state, after giving notice to the appointing court of
an intent to register, may record the guardianship order in
this state by recording as a foreign judgment in a court,
in any appropriate county of this state, certified copies
of the order and letters of office."
Andre actually phrases his argument
regarding damages in such a way as to suggest that the entry
of the summary judgment was improper because the award of
damages was not supported by the evidence. However, proof of
damages is not an element of an ejectment action. See §
6-6-280, Ala. Code 1975. Thus, even if we were to hold that
the trial court abused its discretion in its award of
damages, that holding would not affect the propriety of the
summary judgment to the extent that it orders
Andre's removal from the property.