Gilbert v. Nicholson
Decision Date | 20 September 2002 |
Citation | 845 So.2d 785 |
Parties | Gerald GILBERT and Joyce Gilbert v. James NICHOLSON and Brandy Nicholson. |
Court | Alabama Supreme Court |
Robert P. Bynon, Jr., Birmingham, for appellants.
Charles C. Tatum, Jr., Jasper, for appellees.
Gerald Gilbert and his wife, Joyce Gilbert, appeal from a contempt order finding Gerald Gilbert in contempt, entered by the trial court in a dispute between the Gilberts and his daughter, Brandy Nicholson, and her husband, James Nicholson, relating to a road to the Nicholsons' property. The Gilberts also appeal from the trial court's denial of certain motions they filed. We affirm the order finding Gerald Gilbert in contempt, but otherwise dismiss the appeal.
The trial court summarized the history of this case in its contempt order entered on November 2, 2001.
The Court held two hearings after it entered its November 2, 2001, contempt order. On November 20, the Court heard testimony concerning Joyce Gilbert's alleged contempt of court. The Court also heard testimony and argument concerning two motions filed by the Gilberts—a motion to add an indispensable party and a motion to alter, amend, or vacate the trial court's November 2 order. The Gilberts argued that Leady Gilbert, Gerald Gilbert's mother and Brandy Nicholson's grandmother, was an indispensable party to the action and that she should be made a defendant because, the Gilberts said, the road the Gilberts had agreed to construct crossed her property.
The Gilberts also argued that the trial court erred in ordering them to construct a road in accordance with specifications provided by David Edgil, the county engineer. The Gilberts acknowledged that they had agreed to provide another road across the property for the Nicholsons' use, but they argued that they did not agree to construct it according to Edgil's specifications. The trial court denied both motions on November 20, but took the matter of Joyce Gilbert's contempt under advisement. If the trial court ever entered a contempt order as to Joyce Gilbert, it does not appear in the record. Thereafter, the Gilberts filed the $25,000 performance bond required by the court and filed a motion to stay Gerald Gilbert's incarceration. The trial court held a hearing on the motion to stay Gerald Gilbert's incarceration and granted the motion to allow Gerald Gilbert to be released from jail with further instructions from the court to comply with its previous orders. The court scheduled another hearing for April 2002.
The Gilberts appealed. Their notice of appeal states that they are appealing from a judgment of November 11 and a postjudgment order of November 20. In addition to arguing that the trial court erred in finding them in contempt,2 they also argue that the trial court failed to make "correct" findings of fact, that the trial court erred in denying their motion to add Leady Gilbert as an indispensable party, and that the trial court erred in denying their motion to alter, amend, or vacate the November 2 order. To the extent that the Gilberts attempt to appeal orders relating to the merits of the underlying case, their appeal is premature, because no final judgment has been entered in the case. At a hearing conducted in August 2001, the Nicholsons' attorney stated:
(Emphasis added.) The Gilberts' attorney responded: (Emphasis added.)
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...Court has long referred to a failure to join a ‘necessary’ or ‘indispensable’ party as a ‘jurisdictional defect.’ See Gilbert v. Nicholson, 845 So.2d 785, 790 (Ala. 2002) (‘The absence of an indispensable party is a jurisdictional defect that renders the proceeding void.’ (citing Davis v. B......
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Wallace v. Belleview Props. Corp., 1100902.
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