Duncan v. First Nat. Bank of Jasper

• Decision Date: 21 December 1990
• Parties: Billy J. DUNCAN and Garve Ivey, Sr. v. FIRST NATIONAL BANK OF JASPER. 89-400.
• Court: Alabama Supreme Court

Page 270

573 So.2d 270

Billy J. DUNCAN and Garve Ivey, Sr. v. FIRST NATIONAL BANK OF JASPER.

89-400.

Supreme Court of Alabama.

Dec. 21, 1990.

Garve Ivey, Jr. of Wilson & King, Jasper, for appellants.

William R. Lucas, Jr. and Madeline H. Haikala of Lightfoot, Franklin, White & Lucas, Birmingham, and J. David Hood of Tweedy, Jackson & Beech, Jasper, for appellee.

MADDOX, Justice.

This is an appeal from an order made final by the trial court denying the appellants' motion to conditionally intervene after the trial court had entered a summary judgment for the plaintiff in the underlying suit. The appellants present the following issues: 1) whether the trial court properly entered summary judgment in favor of First National Bank of Jasper; 2) whether the trial court should have added the appellants as parties pursuant to Rule 19, Ala.R.Civ.P.; and 3) whether the trial court properly denied the appellants' motion to conditionally intervene. The facts and corresponding dates of events are as follows:

March 27, 1989 The First National Bank of Jasper (hereinafter referred to as "the Bank") filed a complaint in the Circuit Court of Walker County, Alabama, alleging that Billy F. Brand d/b/a Brand Motor Company (hereinafter referred to as "Brand") had breached his contract with the Bank. The Bank sought from Brand money damages and possession of the used automobiles on Brand's lot pursuant to Rule 64, Ala.R.Civ.P., which provides for seizure of property by judicial process. That same day, the trial court issued an order authorizing the Bank to seize the automobiles on Brand's lot in which the Bank had a security interest.

March 28, 1989 The appellants, Billy J. Duncan and Garve Ivey, Sr., filed a conversion action in the trial court, alleging that some of the cars the Bank had seized belonged to them and not to Brand. Also, on that day, Brand moved to dissolve the order for writ of seizure, stating that many of the automobiles seized belonged to persons other than himself, and further that the Bank had not yet established the amount of Brand's indebtedness to the Bank.

March 29, 1989 The trial court denied Brand's motion to dissolve the order, and Duncan and Ivey subsequently dismissed their conversion action against the Bank without prejudice.

May 3, 1989 Duncan filed another conversion action in the United States District Court for the Northern District of Alabama, Jasper Division, in case CV-89-HM-0775-J, alleging a denial of due process, a denial of equal protection under the law, and conversion against First National Bank of Jasper, et al.

July 24, 1989 Duncan filed, pursuant to Rule 41, F.R.Civ.P., a notice of dismissal of the federal court action, with prejudice.

July 27, 1989 The federal action was dismissed with prejudice.

August 29, 1989 The federal district court denied Duncan's amended notice of dismissal of the federal action, which sought to reinstate the conversion claim.

September 25, 1989 The Bank filed a motion for summary judgment.

October 10, 1989 The trial judge granted the Bank's motion for summary judgment.

October 13, 1989 Duncan and Ivey filed their motion for conditional intervention.

November 14, 1989 The trial judge denied Duncan and Ivey's motion with a written order. ¹

November 28, 1989 Duncan and Ivey appealed from the order of November 14, 1989.

Duncan and Ivey initially submit that the trial court should not have granted the Bank's motion for summary judgment because they argue, in doing so, it determined the substantive rights of persons who were not parties to the Bank's suit against Brand. They state that, from Brand's pleadings and affidavits, the trial court was on notice during the entire litigation that Brand was in the business of selling the automobiles of others and that many of the automobiles seized by the Bank did not belong to Brand. In other words, the appellants maintain that the trial court ignored their ownership interest in certain automobiles on Brand's lot when it granted the Bank's motion for summary judgment.

The appellants also contend that the trial court erred in denying their motion for conditional intervention. They argue that the trial court should have included them as real parties in interest necessary to an adjudication of the issues, and in support of their argument cite the provisions of Rule 19, Ala.R.Civ.P., maintaining that rule requires the trial court to order that necessary parties be added to the action if they have not been joined. They argue that Rule 19(c) requires the plaintiff to state the names of those parties who by Rule 19(a) and (b) are required to be joined but who have not been joined and the reason for not joining those parties. Appellants finally claim that Rule 24, Ala.R.Civ.P., allows them the right to intervene. We will address each argument.

I. Whether the trial court properly granted the Bank's motion for summary judgment.

Although appellants do not have the necessary standing to question the propriety of the trial court's entry of summary judgment, we nonetheless discuss this issue in an attempt to make clearer the circumstances surrounding this appeal. Summary judgment is proper when the moving party has demonstrated that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P.; Southern Guar. Ins. Co. v. First Alabama Bank, 540 So.2d 732 (Ala.1989); Gallups v. Cotter, 534 So.2d 585 (Ala.1988). In the present case, the trial court determined that the Bank was entitled to a summary judgment as to its claim against Brand. Neither Brand nor the Bank has appealed. Although the appellants may have an interest in the subject matter of the Bank's claim against Brand, the trial court was not asked to and did not find it necessary to adjudicate any claims involving the appellants and, consequently, made its ruling based on the pleadings before it. ²

The appellants, of course, were not parties to the litigation at the time the trial court granted the Bank's motion for summary judgment against Brand. As we understand the argument made by the appellants, they maintain that the trial court should not have granted the Bank's motion for summary judgment because, they say, the record contained evidence that showed their interest in the controversy, and that the court should have allowed their intervention in the action in order to protect their interest. The appellants, therefore, appeal from the trial court's order denying their motion to intervene, claiming that they have a right to question the propriety of the trial court's summary judgment, even though they were not parties to the action between the Bank and Brand. Alabama cases hold that one who is not a party to an action may not appeal from a judgment entered in that action. ³ We therefore hold that the appellants were not parties to the cause and therefore have no standing to raise the propriety of the summary judgment for the Bank.

II. Whether the trial court improperly failed to add the appellants as indispensable parties pursuant to Rule 19, Ala.R.Civ.P.

The appellants argue that the trial court erred by failing to add them as indispensable parties to the suit between the Bank and Brand. They contend that they were indispensable parties under Rule 19, Ala.R.Civ.P., as persons whose rights were adversely affected by the judgment entered. We disagree.

This Court has stated:

" 'It is [the] plaintiff's duty to join as a party anyone required to [be] joined.... If such persons are not joined, the plaintiff must, under subsection (c) of Rule 19, [Ala.R.Civ.P], state their names and the reasons why they are not joined. If there is a failure to join a person needed for just adjudication by a litigant, then, under subsection (a) of Rule 19, the trial court shall order that he be made a party.

" 'However, failure of the plaintiff or the trial court to add a necessary and indispensable party, and of the defendant to raise the absence of such party in his or her pleadings, does not necessarily dispose of the issue. This defect can be raised for the first time on appeal by the parties or by the appellate court ex mero motu. Mead Corp. v. [City of] Birmingham, 350 So.2d 419 (Ala.1977); Davis v. Burnette, 341 So.2d 118 (Ala.1976) ' "

Long v. Vielle, 549 So.2d 968, 972 (Ala.1989), quoting J.C. Jacobs Banking Co. v. Campbell, 406 So.2d 834, 849-50 (Ala.1981) (emphasis added in Long.)

In the instant case, the facts reveal that neither party to the suit has appealed or requested the trial court or this Court to add the appellants as parties. Furthermore, after a review of the present circumstances, we do not feel constrained to raise the issue for the appellants ex mero motu.

The evidence is undisputed that the appellants had knowledge of the Bank's claim against Brand for seven months prior to the trial court's ruling. In fact, although it was later voluntarily dismissed, the appellants filed a conversion action against the Bank the day after the Bank filed its complaint against Brand. The appellants easily could have filed a timely motion to intervene or could have consolidated their conversion action with the Bank's action against Brand. The trial court wrote the following in its order denying the appellants' untimely motion:

"It is clear to this Court that [the appellants] and their attorneys had full knowledge of the existence of this case since filing, and made a conscious and informed decision not to intervene or to pursue their claims in a separate action which could have been consolidated with this action. This Court will not speculate as to why [the appellants] chose this course of action."

In Long, supra, this Court quoted the Court of Civil Appeals, which stated the following in Moody v. Moody, 339 So.2d 1030, 1034 (Ala.Civ.App.), cert. denied, 339 So.2d 1035 (Ala.1976):

" 'A close examination of Rule 19, [Ala.R.Civ.P.], implies that a person should be joined as a party, in the first instance,...