from Limestone Circuit Court CV-17-900054
THOMPSON, PRESIDING JUDGE
Darrell McDaniel, an inmate incarcerated with the Alabama
Department of Corrections at the time this appeal was filed,
appeals from an order of the Limestone Circuit Court
("the trial court") denying his request for the
return of certain seized property in this forfeiture action
filed by District Attorney Brian C.T. Jones on behalf of the
State of Alabama ("the State").
facts alleged in the forfeiture complaint indicate that on
January 30, 2017, deputies from the Limestone County
Sheriff's Department seized a Nissan Maxima automobile
("the Nissan") and $1, 066 in United States
currency pursuant to an interview with McDaniel and a related
search. The complaint seeking the condemnation and forfeiture
of the Nissan and the currency was filed in the trial court
on February 8, 2017. The case-action summary that appears on
the State Judicial Information System states, regarding
service: "sheriff issued: 02/08/2017 to D001," that
is, to McDaniel. There is a subsequent notation on the
case-action summary indicating "service return" on
March 13, 2017. The case-action summary then states:
"Return of other on 03/03/2017 for D001." Other
than the notations on the case-action summary, no other
documentary evidence regarding service is contained in the
record on appeal.
to the record, once the forfeiture complaint was filed,
nothing occurred in this action for two years. The
case-action summary indicates that McDaniel was eventually
served on January 29, 2019. On February 8, 2019, McDaniel
filed a motion for enlargement of time in which to file a
response to the complaint. The trial court denied the motion
that same day. On February 15, 2019, McDaniel filed a motion
seeking the return of the Nissan and the currency. The State
did not respond to that motion, and the trial court denied
that motion on February 26, 2019. On March 27, 2019, McDaniel
appealed from the order denying the motion to return the
April 3, 2019, McDaniel filed in the trial court a
"motion for a pre-seizure hearing." On April 4,
2019, the trial court entered an order purporting to deny the
motion for a "pre-seizure hearing." However,
"the filing of a notice of appeal divests the trial
court of jurisdiction over an action. Portis v. Alabama
State Tenure Comm'n, 863 So.2d 1125, 1126 (Ala. Civ.
App. 2003) (quoting Ward v. Ullery, 412 So.2d 796,
797 (Ala. Civ. App. 1982))('It is well settled that
"[o]nce an appeal is taken, the trial court loses
jurisdiction to act except in matters entirely collateral to
the appeal."'); see also Veteto v. Yocum,
792 So.2d 1117, 1119 (Ala. Civ. App. 2001) (explaining that,
once an appeal is taken, a trial court may not enter a
judgment or order in an action until such time as the
appellate court issues its certificate of judgment)."
Ex parte Marshall Cty. Dep't of Human Res., 252
So.3d 1105, 1107 n.2 (Ala. Civ. App. 2017). Thus, the April
4, 2019, order is a nullity.
appeal, McDaniel contends that he was not served with the
forfeiture complaint and that the complaint was not timely
filed. What has occurred in this action is difficult if not
impossible to discern based on the record before us, which
consists solely of the clerk's record. There is no
indication that a forfeiture hearing was held, and no
judgment condemning and forfeiting the property is contained
in the record. The State did not favor this court with a
brief on appeal, which may have assisted in clarifying the
well settled that "an appellate court is limited to a
review of the record, and the record cannot be changed,
altered, or varied on appeal by statements in briefs of
counsel." Quick v. Burton, 960 So.2d 678,
680-81 (Ala. Civ. App. 2006)(citing Wal-Mart Stores, Inc.
v. Goodman, 789 So.2d 166, 176 (Ala. 2000), and
Gotlieb v. Collat, 567 So.2d 1302, 1304 (Ala.
1990)). As mentioned, the record does not contain a judgment
of condemnation and forfeiture. "'"A final
judgment" is a terminal decision by a court of competent
jurisdiction which demonstrates there has been a complete
adjudication of all matters in controversy between the
litigants within the cognizance of that court.'
Wilson v. Wilson, 736 So.2d 633, 634 (Ala.
Civ. App. 1999) (citation omitted)." Plantation S.
Condo. Ass'n, Inc. v. Profile Mgmt. Corp.,
783 So.2d 838, 840 (Ala. Civ. App. 2000). Because there is no
judgment on the State's forfeiture claim, there has not
been a complete adjudication on the matter in controversy.
Thus, no final judgment has been entered in this action.
"[E]xcept in limited circumstances not applicable here,
this court does not have jurisdiction to consider an appeal
taken from a nonfinal judgment. See, e.g., James
v. Rane, 8 So.3d 286, 288 (Ala. 2008); Dzwonkowski
v. Sonitrol of Mobile, Inc., 892 So.2d 354, 362 (Ala.
2004); see also Devane v. Smith, 216 Ala. 177, 178,
112 So. 837, 837 (1927) ('Appeal is statutory, and the
question [of the appealability of an interlocutory order] is
a jurisdictional one.'). '"'When it is
determined that an order appealed from is not a final
judgment, it is the duty of the [appellate] [c]ourt to
dismiss the appeal ex mero motu.'"'
Dzwonkowski, 892 So.2d at 362 (quoting Tatum v.
Freeman, 858 So.2d 979, 980 (Ala. Civ. App. 2003),
quoting in turn Powell v. Republic Nat'l Life Ins.
Co., 293 Ala. 101, 102, 300 So.2d 359, 360
Denault v. Federal Nat'l Mortg. Ass'n, [Ms.
2170591, April 5, 2019] ___ So.3d ___, (Ala. Civ. App. 2019).
an appeal will not lie from a nonfinal judgment, we dismiss
McDaniel's appeal. Kirksey v. ...