Chesnut v. Bd. of Zoning Adjustment

• Decision Date: 27 March 2015
• Docket Number: 2140042,2140043.
• Parties: Richard E. CHESNUT and Betty B. Chesnut v. BOARD OF ZONING ADJUSTMENT, City of Huntsville. Richard E. Chesnut and Betty B. Chesnut v. City of Huntsville, Denton–Niemitz Realty, LLC, and Guild Building & Remodeling, LLC.
• Court: Alabama Court of Civil Appeals

208 So.3d 609

Richard E. CHESNUT and Betty B. Chesnut

v.BOARD OF ZONING ADJUSTMENT, City of Huntsville.

Richard E. Chesnut and Betty B. Chesnut

v.City of Huntsville, Denton–Niemitz Realty, LLC, and Guild Building & Remodeling, LLC.

2140042

2140043.

Court of Civil Appeals of Alabama.

March 27, 2015.

Richard E. Chesnut of Chesnut & Chesnut, Huntsville; and R. Patrick Chesnut of Chesnut & Chesnut, Athens, for appellants.

Michael L. Fees, Allen L. Anderson, and Allison B. Chandler of F&B Law Firm, P.C., Huntsville, for appellees the City of Huntsville and the Board of Zoning Adjustment for the City of Huntsville.

Jonathan D. Watson, Decatur, for appellees Denton–Niemitz Realty, LLC, and Guild Building & Remodeling, LLC.

THOMPSON, Presiding Judge.

Richard E. Chesnut and Betty B. Chesnut appeal from two separate judgments of the Madison Circuit Court that were entered against them in connection with their challenge of building permits ("the permits") issued for the construction of a house next door to the Chesnuts' house.

On June 3, 2013, the Chesnuts filed a civil action, case no. CV–13–901203 ("the civil action"), in the Madison Circuit Court against the City of Huntsville ("the city"), Denton–Niemitz Realty, LLC, and Guild Building & Remodeling, LLC (the two latter entities are hereinafter referred to collectively as "the builders"); we hereinafter refer to the Madison Circuit Court, insofar as it presided over the civil action, as "the trial court."¹ On September 27, 2013, the builders filed a motion for a summary judgment, which the city joined on October 1, 2013. On December 23, 2013, the builders filed counterclaims against the Chesnuts, alleging slander of title and seeking sanctions against them pursuant to the Alabama Litigation Accountability Act. On February 2, 2014, the Chesnuts filed a motion to dismiss the builders' counterclaims pursuant to Rule 12(b)(2) and (6), Ala. R. Civ. P. As discussed more fully below, the trial court entered a summary judgment in favor of the city and the builders on the Chesnuts' claims on March 14, 2014. On April 16, 2014, the builders submitted a notice of dismissal to the trial court, in which they stated that they were voluntarily dismissing their counterclaims that were still pending against the Chesnuts. On May 16, 2014, the Chesnuts filed a motion to alter, amend, or vacate the judgment. That motion was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P. The Chesnuts filed a timely notice of appeal to our supreme court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975. This court assigned appeal No. 2140043 to the appeal from the civil action.

On July 8, 2013, while the civil action was pending, the city filed a motion to dismiss the civil action on the ground that the Chesnuts had not appealed the issuance of the permits to the Board of Zoning Adjustment of the City of Huntsville ("the board"). Therefore, the city argued, the Chesnuts had not exhausted their administrative remedies before filing the civil action. On July 31, 2013, the Chesnuts filed an appeal of the issuance of the permits with the board. The board determined that the Chesnuts' appeal was untimely. On August 30, 2013, the Chesnuts appealed the board's decision ("the administrative appeal") to the Madison Circuit Court and the administrative appeal was assigned case no. CV–13–902031; we hereinafter refer to the Madison Circuit Court, insofar as it presided over the administrative appeal, as "the circuit court."² The board filed a motion to dismiss, which was converted to a motion for a summary judgment. On April 9, 2014, the circuit court entered a summary judgment upholding the board's determination that the Chesnuts' appeal of the issuance of the permits had been untimely. The Chesnuts filed a timely motion to alter, amend, or vacate the circuit court's judgment. The circuit court denied the postjudgment motion, and the Chesnuts filed a timely notice of appeal to our supreme court. Our supreme court transferred the appeal to this court pursuant to § 12–2–7(6). This court assigned appeal no. 2140042 to the appeal from the administrative appeal. On the Chesnuts' motion, this court consolidated the appeals from the civil action and from the administrative appeal.

Before reaching the merits in this case, we must first determine whether the judgment in the civil action is final for purposes of appeal. In the civil action, the trial court's summary judgment against the Chesnuts did not address the builders' counterclaims. Therefore, at the time the summary judgment was entered in March 2014, it was not a final judgment. See Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010) ("A judgment is not final if it fails to completely adjudicate all issues between the parties."). Generally, this court's jurisdiction extends only to final judgments. Webb v. Mitchell, 124 So.3d 139, 146 (Ala.Civ.App.2013) ; § 12–22–2, Ala.Code 1975. " ‘ "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." ’ " Harley v. Anderson, 167 So.3d 355, 361 (Ala.Civ.App.2014) (quoting Sexton, 42 So.3d at 1282, quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987) ).

A month after the summary judgment was entered, the builders filed a notice of dismissal of their counterclaims pursuant to Rule 41(a)(1), Ala. R. Civ. P. That rule provides that, subject to certain rules and statutes not applicable in this case,

"an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action."

(Emphasis added.)

Rule 41(a)(2), Ala. R. Civ. P., provides:

"Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action may be dismissed but the counterclaim shall remain pending for adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice."

(Emphasis added.)

If one of the requirements of Rule 41(a)(1) were met, that is, if the Chesnuts, as the adverse party, did not serve either an answer or a motion for a summary judgment as to the counterclaims, or if the parties to the civil action stipulated to the dismissal, the trial court was not required to enter an order dismissing the counterclaims. If, on the other hand, neither of the requirements set forth in subdivisions (i) or (ii) of Rule 41(a)(1) were met, the trial court was required to enter an order dismissing the counterclaims before the judgment can be considered final for purposes of appeal.

" ‘The purpose of Rule 41(a) is to facilitate voluntary dismissals but to limit them to an early stage of the proceedings before issue is joined.’ Rule 41 (Committee Comments on 1973 Adoption) (emphasis added). If the conditions of Rule 41(a)(1) are satisfied, dismissal is automatic, that is, ‘[n]o order of the court is required .... [and] the notice [of dismissal] terminates the action....’ 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2363, at 439–41 (3d ed.2008) (footnotes omitted) (commenting on Fed.R.Civ.P. 41(a)(1) ); see also Greene v. Town of Cedar Bluff, 965 So.2d 773, 777–79 (Ala.2007). Dismissal under Rule 41(a)(1) is a question of law and, therefore, is reviewable de novo. See Matthews v. Gaither, 902 F.2d 877, 879 (11th Cir.1990) (reviewing Rule 41, Fed.R.Civ.P.).

"On the other hand, if the conditions of Rule 41(a)(1) are not met, ‘ "voluntary dismissal can only be upon court order [under Rule 41(a)(2) ] and the court is given broad powers to prevent harassment of or inconvenience to the defendant by an arbitrary dismissal at this advanced stage of the case." ’ Milliken v. South Realty Co., 628 So.2d 928, 930 (Ala.Civ.App.1993) (quoting Committee Comments on 1973 Adoption of Rule 41 ). See Rule 41(a)(2) (‘Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper.’)."

Riverstone Dev. Co. v. Nelson, 91 So.3d 678, 681 (Ala.2012).

In the civil action, there is no indication in the record that the trial court had before it a "stipulation of dismissal signed by all parties who have appeared in the action" as required by Rule 41(a)(1)(ii). Therefore, we must determine whether the Chesnuts filed an answer or a motion for a summary judgment as to the builders' counterclaims before the builders filed their notice of dismissal.

In Ex parte Scannelly, 74 So.3d 432, 436–37 (Ala.2011), our supreme court discussed the effect of a notice of dismissal pursuant to Rule 41(a)(1) :

" ‘It is well settled that "[d]ismissal on motion under [subdivision (2) of Rule 41(a) ] is within the sound discretion of the court." Bevill v. Owen, 364 So.2d 1201, 1202 (Ala.1979) ; see also MetFuel, Inc. v. Louisiana Well Serv. Co., 628 So.2d 601 (Ala.1993). By contrast, review of a dismissal pursuant to subdivision (1) is de novo. See Marex Titanic, Inc. v. Wrecked & Abandoned Vessel, 2 F.3d 544, 545 (4th Cir.1993) ; Matthews v. Gaither, 902 F.2d 877, 879 (11th Cir.1990). This is so, because " Rule 41(a)(1) affords the plaintiff an unqualified right to dismiss" its action before the filing of an answer or a summary-judgment motion. Clement v. Merchants Nat'l Bank of Mobile, 493 So.2d 1350, 1353 (Ala.1986) (emphasis added); see also Marex Titanic, Inc., 2 F.3d at 546. Conversely, Rule 41(a)(1) affords the trial court no discretion. See Williams v.

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