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Chandler v. Branch Banking & Trust Co.

Alabama Court of Civil Appeals

October 19, 2018

Thomas Chandler and Rebecca E. Chandler
Branch Banking & Trust Company

          Appeal from Shelby Circuit Court (CV-15-900027)

          THOMPSON, Presiding Judge.

         In this 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.

         The 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.

         Thomas 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.[1] 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 4, 2017.

         A 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 1975.

         The 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. Id."

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.

         Since 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 ...

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