from Henry Circuit Court (CV-17-900049)
THOMPSON, Presiding Judge.
Brock appeals from a judgment of the Henry Circuit Court
("the trial court") determining that he and Jimmy
Morris had entered into a "binding contract"
regarding the placement of a dock at Brock's house on
Lake Eufaula. For the reasons discussed below, we dismiss the
record indicates that on August 18, 2017, Jimmy Morris and
Carol Morris, as the plaintiffs, filed a verified complaint
in the trial court seeking a preliminary injunction and a
permanent injunction against defendants Turner Brock and
Linda Brock to prevent the Brocks from building a dock in a
certain location and to compel them to build the dock
pursuant to a compromise allegedly reached between Jimmy
Morris and Turner Brock. In the complaint, the Morrises
asserted that they were married and jointly owned property on
Lakeview Street in Abbeville ("the Morris
property"). They alleged that the Brocks were married
and jointly owned the property contiguous with the Morris
property on Lakeview Street ("the Brock property").
Both Jimmy Morris and Carol Morris executed the verified
complaint. Also on August 18, 2017, the Morrises filed a
motion for a preliminary injunction pursuant to Rule 65, Ala.
R. Civ. P.
August 30, 2017, the Morrises filed an amended complaint
adding a paragraph to the original complaint regarding the
trial court's jurisdiction over the matter. On September
15, 2017, both Turner Brock and Linda Brock answered the
Morrises' complaint. In the answer, the Brocks admitted
that they were married and jointly owned the Brock property.
summonses that were served with the complaint and with the
amended complaint were in Turner Brock's name only. No
summons for Linda Brock is included in the record. Rule
4(a)(1), Ala. R. Civ. P., states that, "[u]pon the
filing of the complaint, ... the clerk shall forthwith issue
the required summons or other process for service upon
each defendant." (Emphasis added.) It is the
plaintiff's duty to furnish the clerk with sufficient
copies of the complaint to be served. Rule 4(a)(3), Ala. R.
Civ. P. That rule further provides that copies are not
required if the complaint is filed electronically. The State
Judicial Information System ("SJIS") indicates that
the complaint in this case was filed electronically. The rule
also provides that the plaintiff shall furnish the clerk with
instructions for service of the complaint, "and, when
requested by the clerk, the plaintiff shall also furnish
sufficient properly completed copies of the summons or other
process." Rule 4(a)(5), Ala. R. Civ. P. We note that the
SJIS case-action summary does not indicate that Carol Morris
is a plaintiff in this action or that Linda Brock is a
defendant. Furthermore, Carol Morris testified at the trial,
as did Jimmy Morris and Turner Brock. Linda Brock did not
testify, and we cannot discern from the record whether she
attended the trial.
is nothing in the record to indicate that Carol Morris
dismissed her claims against the Brocks. In the trial court,
Linda Brock did not challenge the insufficient or improper
service of process at any time during the proceedings.
"An argument as to insufficient or improper service of
process may be waived if it is not raised in a motion to
dismiss or in the first responsive pleading or a proper
amendment thereto. See Rule 12(h)(1), Ala. R. Civ.
P. A general appearance by a party either in person or
through an attorney waives any objection to improper service
of process. Kingvision Pay-Per-View, Ltd. v. Ayers,
886 So.2d 45, 53 (Ala. 2003) (quoting Lonning v.
Lonning, 199 N.W.2d 60, 62 (Iowa 1972)) ('"A
general appearance is a waiver of notice and if a party
appears in person or by attorney he submits himself to the
jurisdiction of the court."'). An appearance may be
made by filing an answer or other pleading, id.
('"The filing of a pleading is a general
appearance."'), or by voluntarily appearing for and
participating in trial. Boudreaux v. Kemp, 49 So.3d
1190, 1197 (Ala. 2010) (stating that 'it is true that
[the Alabama Supreme] Court has previously acknowledged that
a defendant may waive defects in service by voluntarily
appearing in the proceedings' but concluding that the
parties in question had not appeared or participated in the
proceedings at issue)."
D.D. v. Calhoun Cty. Dep't of Human Res., 81
So.3d 377, 380-81 (Ala. Civ. App. 2011). Because Linda Brock
answered the complaint without raising the issue of improper
service of process, she waived her opportunity to object to
improper service of process.
judgment entered in this action does not mention plaintiff
Carol Morris or defendant Linda Brock; thus, the judgment
does not resolve the claims as to all the
parties. This court has repeatedly held that
"'"'[i]t 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.'" Powell v. Powell, 718 So.2d 80,
82 (Ala. Civ. App. 1998), quoting Taylor v. Taylor,
398 So.2d 267, 269 (Ala. 1981). "A ruling that relates
to fewer than all the parties in a case, or that determines
fewer than all the claims, is ordinarily not final as to any
of the parties or as to any of the claims."
Powell, at 82. See Rule 54(b), Ala. R. Civ. P.
"A 'final judgment is a "terminal decision
which demonstrates there has been a complete adjudication of
all matters in controversy between the
litigants."'" Powell, at 82, quoting
Dees v. State, 563 So.2d 1059, 1061 (Ala. Civ. App.
1990). "The question whether an order appealed from is
final is jurisdictional, and the reviewing court, on a
determination that the order is not final, has a duty to
dismiss the case on its own motion." Powell, at
Saunders v. Ingram, 236 So.3d 104, 110 (Ala. Civ.
App. 2017)(quoting Hinson v. Hinson, 745 So.2d 280,
281 (Ala. Civ. App. 1999)). Because there has not been a
complete adjudication of all matters in controversy as to all
litigants, the judgment entered in this case is not final and
will not support an appeal. Therefore, the appeal must be
Pittman, Thomas, Moore, and ...