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 ...