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Wilson v. Merriweather

Alabama Court of Civil Appeals

January 10, 2020

Betty Wilson et al.
v.
Marion Martin Merriweather et al.

          Appeal from Talladega Circuit Court (CV-16-900287)

          THOMPSON, PRESIDING JUDGE.

         Betty Wilson, Mary Ann Swain, the heirs and/or undetermined heirs of Jerry Swain, Jr., Rosie Lee Garrett, Minnie Ree Garrett, Kindness Swain, Dorothy Sue Keith, and Janie Mae Powell ("the plaintiffs") brought an action in the Talladega Circuit Court ("the trial court") seeking to quiet title to certain real property in Alpine ("the property"). The complaint, filed on September 6, 2016, named as defendants the property itself, Marion Martin Merriweather, who, according to the complaint, held an undivided one-fifth interest in the property, "and all persons claiming any present, future, contingent, remainder, reversion, or other interest" in the property. It appears that, on the same day, the plaintiffs moved the trial court for an order to allow the "unknown defendants" to be served by publication.

         On November 15, 2016, Merriweather filed a motion to dismiss the plaintiffs' action. As a ground for her motion, Merriweather stated that the complaint in this action was "essentially the same" as a complaint the plaintiffs had filed on March 2, 2016. That complaint had been dismissed without prejudice on August 24, 2016, because of the plaintiffs' counsel's failure to attend two scheduled hearings and a mandatory docket call. Merriweather also objected to service by publication of the September 6, 2016, complaint, among other things.

         On February 28, 2017, the plaintiffs filed an amendment to their complaint. That amendment did not include naming or specifying any additional defendants. The plaintiffs again sought an order allowing service by publication on all unknown defendants. Nothing in the record indicates that the trial court ruled on that motion.

         On September 29, 2017, the plaintiffs filed another amended complaint, this time adding defendants Anthony D. Bell, Daphne V. Bell, Willie Bell Braxton, and fictitiously named defendants A through Z "as persons claiming any present, future, contingent, remainder, reversion, or other interest" in the property. The September 29, 2017, amended complaint included an alternative claim for ejectment. On October 20, 2017, Merriweather filed a motion to dismiss that amended complaint. Anthony Bell and Daphne Bell, each appearing pro se, filed their own respective motions to dismiss. The trial court held a hearing on the motions to dismiss, and, on January 24, 2018, it entered an order directing the plaintiffs to "add all necessary Party Defendants to adjudicate the issues complained of in their Complaint, amend the description of the real property at issue in this case," and respond to outstanding discovery within 45 days of the date of the order.

         On March 10, 2018, the plaintiffs filed yet another amended complaint, this one naming defendants in the place of fictitiously named defendants. Specifically, in the March 10, 2018, amended complaint, in addition to Merriweather, Anthony Bell, Daphne Bell, and Braxton, the plaintiffs named as defendants the heirs of Jay Cee Vincent, Jr. (Jason Douglas Vincent, Valeria Yvette Vincent, and Sonja Michelle Vincent), Jerry Vincent, Brenda Vincent Cross, Regina Vincent Clark, Carol A. Vincent, Calvin D. Vincent, Rogers Vincent, William F. Martin, Larry E. Martin, Ralph B. Martin, and the heirs of Sharon Martin Daniels (Karmon Daniels, Karl Daniels, and Kevin Daniels). In identifying the parties in the complaint, the plaintiffs indicated that the named defendants lived throughout the United States. Additionally, the plaintiffs attempted to demonstrate how each individual was connected to the property. The complaint indicated that only four of the defendants--Merriweather, Braxton, Anthony Bell, and Daphne Bell--had been served with the March 10, 2018, amended complaint.

         On July 26, 2018, the trial court entered an order stating that, at the docket call held on that day, it had taken judicial knowledge of its file and had noted that the plaintiffs had not perfected service on the "Defendant." Therefore, the trial court directed, the plaintiffs were given 60 days from the date of the order to perfect service or the case would be dismissed.

         On October 16, 2018, Merriweather filed a motion to dismiss, pointing out that the time in which the plaintiffs had to perfect service had expired on September 27, 2018, and, furthermore, that the plaintiffs had not requested an extension of time. Because the action had been pending "for an unusually long period of time," and all of the necessary parties had not yet been "identif[ied] or served," Merriweather said, the action was due to be dismissed.

         The next day, October 17, 2018, the plaintiffs filed a motion for additional time to perfect service on the defendants. In their motion, the plaintiffs asserted that they had identified all the people who had an interest in the property and that they had "made diligent attempts to perfect service within the 60 days." However, the plaintiffs said, some of the defendants had refused service by certified mail, and, the plaintiffs alleged, the delay in perfecting service was because of the defendants' avoidance of service. The plaintiffs stated that they had "researched" process servers in the hope of being able to perfect service by employing process servers. The plaintiffs identified nine individuals who had been served and, as noted, sought additional time to complete service.

         After a hearing, the trial court entered an order on February 25, 2019, directing the plaintiffs to identify and properly name or substitute all parties in the litigation within 45 days. The trial court further ordered the plaintiffs to perfect service on all defendants within 45 days or the case would be dismissed.

         On April 11, 2019, the plaintiffs filed yet another amended complaint. Also on April 11, 2019, the plaintiffs filed a motion seeking additional time to perfect service on the one defendant, Brenda Cross, who had not yet been served. In the motion, the plaintiffs asserted that they had learned that afternoon that Cross's previous address had "been vacated" and that they had located another address for her. On April 24, 2019, the trial court entered an order allowing the plaintiffs seven days to perfect service on Cross and to provide the court with proof of such service.

         On May 2, 2019, the trial court stated in a judgment that it had reviewed its file and that the plaintiffs had not yet served all the party defendants as ordered. Accordingly, the trial court dismissed the action with prejudice. The plaintiffs did not file a postjudgment motion. Instead, on June 11, 2019, the plaintiffs filed a timely notice of appeal to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975. The defendants did not favor this court with a brief on appeal.

         On appeal, the plaintiffs contend that the trial court abused its discretion in dismissing their action for lack of prosecution. Involuntary dismissal of an action is ...


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