Thomas Chandler and Rebecca E. Chandler
Branch Banking & Trust Company
from Shelby Circuit Court (CV-15-900027)
THOMPSON, Presiding Judge.
ejectment action, Thomas Chandler ("Thomas") and
Rebecca E. Chandler ("Rebecca") appeal from a
summary judgment of the Shelby Circuit Court ("the trial
court") in favor of Branch Banking & Trust Company
("BB&T"). The judgment awards BB&T
immediate possession of certain property.
record contains the following evidence relevant to this
appeal. Thomas was not married when, in October 2011, he
obtained a mortgage on what appears to be residential
property in Shelby County ("the property"). That
mortgage was assigned to BB&T on April 1, 2013. At some
point after October 2011 but before September 20, 2013,
Thomas and Rebecca married. On September 20, 2013, Thomas
executed a deed granting Rebecca joint interest in the
property with the right of survivorship ("the September
2013 deed"). The September 2013 deed was recorded in the
Shelby Probate Court on October 1, 2013.
subsequently defaulted on the mortgage, and the property was
purchased by BB&T at a foreclosure sale on December 23,
2014. On December 29, 2014, BB&T sent a letter to Thomas
demanding possession of the property and giving Thomas 10
days to vacate it. When Thomas failed to act, BB&T filed
a complaint for ejectment against him on January 9,
2015. Rebecca was not named in the action. On
June 19, 2017, Rebecca filed a motion in the trial court
seeking to intervene in the action. In support of her motion,
Rebecca attached the September 2013 deed conveying to her an
interest in the property and asserting that she had received
no notice of the previous proceedings in the trial court. The
trial court denied Rebecca's motion to intervene on July
summary judgment against Thomas was entered on July 26, 2017.
On August 17, 2017, the clerk of the trial court issued a
writ of possession in favor of BB&T. On September 5,
2017, both Thomas and Rebecca appealed the July 26, 2017,
judgment to the Alabama Supreme Court, which transferred the
appeal to this court pursuant to § 12-2-7(6), Ala. Code
issue of whether the trial court erred in denying
Rebecca's motion to intervene is raised on appeal. In its
appellate brief, BB&T argues that the appeal from the
July 4, 2017, order, which BB&T characterizes as denying
permissive intervention, is untimely in this case.
The parties did not discuss whether Rebecca was an
indispensable party, however. Therefore, we requested that
the parties submit letter briefs on that issue. The parties
timely complied with our request.
"The absence of an indispensable party is a
jurisdictional defect that renders the proceeding void.
See Gilbert v. Nicholson, 845 So.2d 785, 790 (Ala.
2002). Although no party to this appeal has raised the issue
of indispensable parties, the absence of an indispensable
party can be raised for the first time on appeal by the
appellate court ex mero motu, even if the parties
failed to present the issue to the trial court.
Allbritton v. Dawkins, 19 So.3d 241, 243 (Ala. Civ.
App. 2009). In Allbritton, this court pointed out:
"'[The supreme court] has also held ... that in
cases where the final judgment will affect ownership of an
interest in real property, all parties claiming an interest
in the real property must be joined.'
"Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala.
1991) (citations omitted). See also Johnston v.
White-Spunner, 342 So.2d 754 (Ala. 1977) (when a trial
court is asked to determine property rights of property
owners not before the court, the absent property owners are
indispensable parties and any judgment entered in the absence
of those parties is void)."
19 So.3d at 244.
Allbritton was published, our supreme court has
"definitively stated that the failure to join an
indispensable party does not affect the subject-matter
jurisdiction of a court." Miller v. City of
Birmingham, 235 So.3d 22, 229 (Ala. 2017)(citing
Campbell v. Taylor, 159 So.3d 4, 9 (Ala. 2014)).
Nonetheless, the Miller court went on to quote
commentators Charles Alan Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice & Procedure, §
1611 (3d ed 2001), as follows:
"Because an objection to the failure to join a person
who should be regarded as indispensable under Rule 19(b)
[Fed. R. Civ. P., ] may be raised as late as on appeal from a
final judgment or by the court on its own motion,
the impression is created that a failure to join is
jurisdictional, since ordinarily only jurisdictional defects
are treated in this fashion. Thus, it is not surprising that
cases can be found that speak of nonjoinder as ousting the
court of jurisdiction. Since the indispensable-party doctrine
is equitable both in its origin and ...