J.K.L.B. Farms, LLC v. Phillips

• Decision Date: 15 June 2007
• Docket Number: 2060190.
• Citation: 975 So.2d 1001
• Parties: J.K.L.B. FARMS, LLC, v. Donald L. PHILLIPS and Dana H. Phillips.
• Court: Alabama Court of Civil Appeals

975 So.2d 1001

J.K.L.B. FARMS, LLC, v. Donald L. PHILLIPS and Dana H. Phillips.

2060190.

Court of Civil Appeals of Alabama.

June 15, 2007.

James R. Bussian and Robert H. Fowlkes of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.

Thomas B. Prickett II, Oneonta, for appellees.

THOMPSON, Presiding Judge.

This is the second time these parties have been before this court.

The record indicates that in 1998 J.K.L.B. Farms, LLC ("J.K.L.B."), purchased land that shares a boundary with land owned by Donald L. Phillips and Dana H. Phillips (hereinafter together referred to as "the Phillipses"); the land owned by J.K.L.B. is to the north of the land owned by the Phillipses.

In 2000, J.K.L.B. entered into an agreement to sell a parcel of its property to Robert A. Petty. On September 15, 2000, before the close of the real-estate transaction, Petty and his wife placed a mobile home¹ on the parcel Petty was to purchase from J.K.L.B. Three days later, on September 18, 2000, the Phillipses sued J.K.L.B. seeking to establish the boundary between the properties and seeking damages on a claim alleging trespass. According to the affidavit of James Thomas, a member of J.K.L.B., as a result of the 2000 litigation, J.K.L.B. and Petty did not complete their proposed real-estate transaction. Although the real-estate transaction was never completed, the mobile home was never removed from the parcel that Petty had planned to purchase.

On July 8, 2003, the trial court entered a judgment finding in favor of the Phillipses and determining that the boundary between the parties' properties was established by a survey upon which the Phillipses had relied. The survey upon which the trial court relied in reaching its July 8, 2003, judgment revealed that a small portion of Petty's mobile home was located across the boundary between the parties' properties and, therefore, that that portion of the mobile home constituted a trespass to the Phillipses' property. It also appears that another structure, perhaps a septic tank,² appurtenant to Petty's mobile home also trespassed upon the property owned by the Phillipses. In addition to determining the boundary line between the parties' properties, in its July 8, 2003, judgment, the trial court ordered J.K.L.B. to remove structures that were located on what it had determined to be the Phillipses' property and to pay the Phillipses $5,000 in damages for the trespass.

J.K.L.B. appealed the July 8, 2003, judgment to this court. In that appeal, J.K.L.B. argued only that the trial court's determination of the boundary line between the parties' properties was not supported by the evidence in the record. On October 15, 2004, this court affirmed the trial court's July 8, 2003, judgment, without an opinion. See J.K.L.B. Farms v. Phillips (No. 2030237, Oct. 15, 2004), 921 So.2d 477 (Ala.Civ.App.2004) (table).

On August 4, 2006, the Phillipses filed a petition for a rule nisi in which they alleged that J.K.L.B. had failed to comply with the terms of the July 8, 2003, judgment and in which they sought a determination that J.K.L.B. was in contempt based on its failure to comply with the July 8, 2003, judgment. Specifically, the Phillipses alleged that J.K.L.B. had failed to remove the structures referenced in the July 8, 2003, judgment.³ J.K.L.B. answered and moved that the trial court determine that the July 8, 2003, judgment had been satisfied. On October 11, 2006, the trial court entered a judgment in favor of the Phillipses on their petition for a rule nisi and ordered J.K.L.B. to remove the structures within 30 days. J.K.L.B. again appealed.

In this appeal, J.K.L.B. argues, as it did before the trial court, that it has satisfied the July 8, 2003, judgment to the extent that it is possible for it to do so. The July 8, 2003, judgment provides, in pertinent part:

"The Court finds that [J.K.L.B.] has placed structures south of the boundary line as set out herein, and thus has trespassed on the property of the [Phillipses]. [J.K.L.B.] shall be allowed 60 days from the date of this order to remove said structures from the [Phillipses'] land. The Court further finds that the [Phillipses] have been damaged by [J.K.L.B.'s] trespass in the amount of $5,000. It is ORDERED, ADJUDGED and DECREED that [the Phillipses] have and recover [from J.K.L.B.] the sum of $5,000."

J.K.L.B. argues in this appeal that the trial court erred in reaching its October 11, 2006, judgment without adding Petty⁴ as a party; J.K.L.B. also includes a similar, but cursory, assertion regarding the July 8, 2003, judgment. In making those assertions, J.K.L.B. maintains that Petty is an indispensable party and that the failure to join him as a party rendered the trial court's judgments void. See Rule 19, Ala. R. Civ. P. J.K.L.B. did not seek relief in the trial court on this basis, and it asserts this theory for the first time in this appeal.

In arguing that Petty was an indispensable party to the underlying rule nisi proceeding that resulted in the October 11, 2006, judgment, J.K.L.B. cites Crum v. SouthTrust Bank of Alabama, N.A., 598 So.2d 867, 870 (Ala.1992), for the proposition that the failure to join an indispensable party may be raised for the first time on appeal. In its brief submitted to this court, J.K.L.B. does not advance any argument that the July 8, 2003, judgment or this court's affirmance of that judgment were void. Thus, with regard to the initial proceeding that resulted in the July 8, 2003, judgment, J.K.L.B. has not properly raised the issue whether Petty was an indispensable party to that proceeding, an issue that J.K.L.B. raises for the first time in this appeal of the October 11, 2006, judgment. However, as the dissent points out, the issue of the failure to join an indispensable party may also be raised by an appellate court ex mero motu. See id.

Even if we were to accept the argument that Petty was an indispensable party to the rule nisi proceeding,⁵ we note that the fact that an indispensable party was not joined in the litigation does not necessitate the dismissal of the litigation or the appeal. J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50, 52 (Ala.1983). If a person who should have been joined as a party to an action was not joined, Rule 19(b), Ala. R. Civ. P., dictates that the courts consider "whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed." Thus, the determination whether to dismiss this appeal or to reverse the October 11, 2006, judgment on the basis that this appeal has been taken from a judgment that is void for the failure to join an indispensable party must be made through the application of equitable principles. See J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d at 52 (quoting Wright & Miller & Kane, Federal Practice and Procedure, Civil § 1611 (1972)) ("`[b]ecause the doctrine of indispensable parties is equitable in character, the court will not dismiss for nonjoinder when special circumstances would make it inequitable to do so.'"); see also Hodge v. State, 643 So.2d 982 (Ala.Civ.App.1993); Felder v. State, 515 So.2d 17 (Ala.Civ.App.1987).

Rule 19(b) sets forth a number of factors to be considered in determining whether it would be equitable or in good conscience for a court to dismiss an action for the failure to join an indispensable party:

"The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder."

With regard to the prejudice factor, our supreme court has held that

"[w]here it is apparent that in raising the joinder issue a party is seeking only to protect itself and not to vicariously protect the absent party against a prejudicial judgment, this Court, in determining the possible prejudice to the party seeking relief, may property consider that party's delay in seeking the joinder of the absent party. See Byrd Companies, Inc. v. Smith, 591 So.2d 844 (Ala. 1991) (`A defendant's delay and its selfserving purpose for raising the issue have also been held to be proper considerations in determining whether a judgment is proper in the absence of a particular party.')."

Jamison, Money, Farmer & Co. v. Standeffer, 678 So.2d 1061, 1068 (Ala.1996).

In this case, the initial judgment was entered in 2003, and this court affirmed that judgment in 2004. J.K.L.B. complied with only a portion of the 2003 judgment, and in August 2006 the Phillipses filed their petition for a rule nisi seeking to enforce the 2003 judgment. J.K.L.B. has not asserted that it attempted to comply with all of the requirements of the 2003 judgment. In fact, in late 2006, J.K.L.B. first raised its arguments that it has "satisfied" the July 8, 2003, judgment. In seeking a declaration that the October 11, 2006, judgment was void, J.K.L.B. advocates a position that further delays the removal of the trespassing structures from the Phillipses' property. Further, it is clear that Petty had knowledge of at least the initial litigation concerning the trespass because that litigation resulted in the cancellation of his purchase of the parcel of property from J.K.L.B. However, Petty did not seek and has not sought to protect any interest he might have had in that litigation or in the later, 2006 rule nisi proceedings.

In Geer Brothers, Inc. v. Walker, 416 So.2d 1045 (Ala.Civ.App.1982), the defendant raised for the first time in a posttrial motion its argument that certain indispensable parties had not been properly joined. One of those parties, a bank, had not attempted at any point to protect its...