Dunkin v. Bobby Schrimsher & Sons, Inc.

• Decision Date: 18 September 2020
• Docket Number: 2190237
• Citation: 323 So.3d 80
• Parties: Michael DUNKIN v. BOBBY SCHRIMSHER & SONS, INC.
• Court: Alabama Court of Civil Appeals

323 So.3d 80

Michael DUNKIN

v.BOBBY SCHRIMSHER & SONS, INC.

2190237

Court of Civil Appeals of Alabama.

September 18, 2020

Michael Dunkin, appellant, pro se.

Robert V. Rodgers of Ables, Baxter & Parker, P.C., Huntsville, for appellee.

THOMPSON, Presiding Judge.

On August 10, 2016, Bobby Schrimsher & Sons, Inc. ("Schrimsher & Sons"), filed in the Madison Circuit Court ("the trial court") a complaint against Michael Dunkin and Bank of America, N.A. In that complaint, Schrimsher & Sons alleged that the defendants owed it $26,659.15 plus interest and costs in connection with materials Schrimsher & Sons provided Dunkin to make improvements and repairs on certain real property he owned that had been damaged in a structural fire. In its complaint, Schrimsher & Sons sought the imposition of a materialman's lien, and it attached to its complaint a verified statement of lien. The record contains no indication that Bank of America, N.A., was served with process of the action, and, therefore, it never became a party to the action.

Dunkin answered Schrimsher & Sons’ complaint, denying liability. On August 14, 2018, while the action remained pending, Dunkin filed in the trial court a suggestion of bankruptcy in which he notified the trial court that on August 10, 2018, he and his wife had filed for Chapter 13 bankruptcy protection in the United States Bankruptcy Court for the Northern District of Alabama ("the bankruptcy court").¹ The bankruptcy court designated Dunkin's action as case number 18-82392. Schrimsher & Sons’ action in the trial court was removed to the bankruptcy court.

On December 28, 2018, the bankruptcy court entered an order in case number 18-82392 remanding Schrimsher & Sons’ action to the trial court; that bankruptcy-court order was filed in the trial court on January 15, 2019, by Schrimsher & Sons. On January 22, 2019, Schrimsher & Sons moved the trial court for a summary judgment on its claims.

On February 12, 2019, Dunkin filed in the trial court another suggestion of bankruptcy; in that filing, Dunkin stated that he had filed a new Chapter 13 bankruptcy action on January 30, 2019, and that the bankruptcy court had issued an automatic stay pursuant to 11 U.S.C. § 362, a part of the bankruptcy code. We note that the record does not indicate the nature of the disposition of the earlier bankruptcy action, i.e., case number 18-82392. The bankruptcy court designated Dunkin's new, 2019 bankruptcy action as case number 19-80275. Dunkin subsequently submitted a May 30, 2019, bankruptcy-court order entered in bankruptcy case number 19-80275 in which the bankruptcy court lifted the automatic stay to allow Schrimsher & Sons’ claim to be litigated in the trial court. The May 30, 2019, bankruptcy-court order stated:

"This case came before the Court on May 30, 2019, for Evidentiary Hearing on Objection to Claim #4 of Bobby Schrimsher & Sons, Inc. (hereinafter ‘Schrimsher & Sons’).... On February 27, 2019, Schrimsher & Sons filed a secured claim in this case for $32,867.27. The Debtors² filed an Objection to the Claim, arguing that the claim is not secured.

"Prior to the hearing, the parties filed a Joint Stipulation of Facts pursuant to which the parties stipulated, for purposes of the evidentiary hearing, that Schrimsher & Sons timely provided notice to [Dunkin] regarding its claim, filed a verified statement of lien in the probate office of the county where the real property is located, and filed a complaint to enforce its lien in the [trial court], styled Bobby Schrimsher & Sons, Inc. v. Dunkin, et al., CV-16-901325. During the hearing, the parties agreed that Schrimsher & Sons perfected its lien under Alabama law. The only remaining issue is the amount of [Schrimsher & Sons'] claim for the work performed which is an issue pending before the [trial court]. Accordingly, the Court finds that good cause exists to lift the stay to allow the parties to proceed in the [trial court] to determine the amount of Schrimsher & Sons’ claim. The Court having considered the Objection to Claim, and based on the agreement of the parties, it is hereby "ORDERED, ADJUDGED AND DECREED as follows:

"1. The stay is hereby lifted pursuant to 11 U.S.C. § 362(d)(1) to allow the parties to proceed in the [trial court] in the case styled Bobby Schrimsher & Sons, Inc. v. Dunkin, et al., 47-CV-2016-901325 for the limited purpose of determining the amount of Schrimsher & Sons’ claim.

"2. This Court will continue the Objection to Claim generally pending a determination by the [trial court] regarding the amount of Schrimsher & Sons’ claim.

"3. After the [trial court] issues a ruling determining the amount of the claim, the parties are directed to either submit an Agreed Order on Objection to Claim in conformity with the [trial court's] ruling or to file a Joint Report to the Court requesting a hearing on the Objection to Claim."

After the filing in the trial court of the May 30, 2019, bankruptcy-court order entered in bankruptcy case number 19-80275, Schrimsher & Sons renewed its motion for a summary judgment. Dunkin filed a response in opposition to that summary-judgment motion.

On October 28, 2019, the trial court entered a summary judgment in favor of Schrimsher & Sons. The trial court determined that Dunkin owed Schrimsher & Sons a total of $32,413.14, plus interest. In its summary judgment, the trial court noted that the bankruptcy court had already determined, based on a stipulation of the parties, that Schrimsher & Sons had taken all steps necessary for the imposition of a materialman's lien and that the bankruptcy court had concluded that Schrimsher & Sons’ claim was secured.

On December 4, 2019, Dunkin filed a notice of appeal to this court from the trial court's October 28, 2019, summary judgment.³ This court entered a December 30, 2019, order noting that the docketing statement indicated that a bankruptcy action was pending, ordering the parties to provide information regarding that bankruptcy action, and requiring that a suggestion of bankruptcy be filed. Schrimsher & Sons filed a motion to dismiss the appeal on the basis that it was filed in contravention of a bankruptcy stay and is taken from a nonfinal order.⁴ Schrimsher & Sons has renewed that motion twice during the time the appeal has been pending.

On January 23, 2020, this court entered an order staying this appeal because of the pending bankruptcy proceedings. Thereafter, Dunkin filed in the bankruptcy court a motion to clarify its May 30, 2019, order that lifted the automatic stay so the trial court could resolve the parties’ dispute. Dunkin did not submit to this court a copy of the 2020 motion he filed in the bankruptcy court. On February 5, 2020, Dunkin filed in this court a February 3, 2020, order of the bankruptcy court in which that court stated:

"Before the Court is the Debtors’ Motion to Revise and Clarify Order entered on May 30, 2019, lifting the Automatic Stay to allow the parties to proceed in the [trial court] to determine the amount of Schrimsher & Sons, Inc.'s claim (‘Motion to Clarify Order’). For good cause shown, it is hereby

"ORDERED, ADJUDGED AND DECREED as follows:

"1. The Motion to Clarify Order is APPROVED.

"2. The stay is hereby lifted pursuant to 11 U.S.C. § 362(d)(1) to allow the parties to proceed in the Alabama Supreme Court with the appeal of any Order entered by the [trial court] regarding the claim of Schrimsher & Sons, Inc., and extends to any appellate review of any Order of the [trial court] entered in case number CV-16-901325."

On February 13, 2020, this court entered an order requesting that the parties submit letter briefs to this court on the jurisdictional issues regarding whether the trial court's October 28, 2019, order was sufficiently final to support the appeal and whether Dunkin's notice of appeal filed during the pendency of bankruptcy case number 19-80275 was void pursuant to the holding of Alt v. Alt, 257 So. 3d 873 (Ala. Civ. App. 2017). The parties submitted their letter briefs to this court, arguing their respective positions on those issues.

To invoke the jurisdiction of an appellate court, a party must file a valid and timely notice of appeal. Blevins v. Thomas R. Boller, P.C., 257 So. 3d 859, 863 (Ala. Civ. App. 2017) (" ‘The timely filing of the notice of appeal is a jurisdictional act.’ " (quoting Thompson v. Keith, 365 So. 2d 971, 972 (Ala. 1978) )). A valid notice of appeal, however, must be taken from a final judgment: "This court can obtain jurisdiction over an appeal only after a timely notice of appeal from a final judgment has been filed with the clerk of the trial court." Gamble v. First Alabama Bank, 404 So. 2d 688, 689 (Ala. Civ. App. 1981). See also Deal v. Deal, 899 So. 2d 1010, 1011 (Ala. Civ. App. 2004) ("The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.").

In Kyles v. Kyles, 202 So. 3d 684 (Ala. Civ. App. 2016), the wife in that case filed an appeal of an April 8, 2013, divorce order, but this court dismissed her appeal for want of prosecution. On January 28, 2015, the trial court in that case entered a judgment that resolved the last of the pending issues between the parties, and the wife timely appealed from that judgment. As an initial matter, this court determined that the April 8, 2013, order had not been a final judgment that would support the wife's first appeal. We concluded, among other things, that the January 28, 2015, judgment was a final judgment and that the wife's appeal of that judgment was valid and timely. Kyles v. Kyles, 202 So. 3d at 686.

Accordingly, the determination of whether the trial court's October 28, 2019, order was a final judgment that will support an appeal is a threshold question. Kyles v. Kyles, supra. In its complaint in this action, Schrimsher & Sons sought a determination of the amount owed to it and the imposition of a materialman's lien for the amount of its...