Saunders v. Ingram

• Decision Date: 07 April 2017
• Docket Number: 2150852
• Citation: 236 So.3d 104
• Parties: John SAUNDERS and Mike Saunders v. Betty INGRAM
• Court: Alabama Court of Civil Appeals

236 So.3d 104

John SAUNDERS and Mike Saunders

v.Betty INGRAM

2150852

Court of Civil Appeals of Alabama.

April 7, 2017

Spencer W. Danzey, Abbeville, for appellants.

Stephen T. Etheredge and Nikki H. Stephens of Buntin, Etheredge & Fowler, LLC, Dothan, for appellee.

MOORE, Judge.

John Saunders and Mike Saunders appeal from a judgment entered by the Henry Circuit Court ("the trial court") quieting title to a certain parcel of real property in Betty Ingram and John Ingram, Jr. We dismiss the appeal.

On September 28, 2012, the Ingrams filed a complaint against the Saunderses and a number of fictitiously named defendants, asserting, among other things, that Betty and John owned separate but contiguous parcels of real property in Henry County; that the Saunderses owned property adjoining that of the Ingrams; and that the Ingrams' predecessors in title and the Saunderses' predecessor in title had agreed that Abbie Creek and Skipper Creek would operate as the boundary line between the parties' respective properties. The Ingrams further asserted that, following that agreement, they and their predecessors in title had maintained exclusive possession of the property lying west of Abbie Creek and Skipper Creek that had been included in the property description in the deed conveying property to the Saunderses ("the disputed property"). The Ingrams sought a judgment from the trial court quieting title to their properties, including the disputed property. On October 16, 2012, the Saunderses filed an answer to the complaint. They also filed a counterclaim seeking a judgment declaring that the disputed property belongs to the Saunderses in fee simple; an adjudication of the boundary line between the Ingrams' properties and the Saunderses' property; and an award of costs, damages, and attorney'sfees resulting from the Ingrams' request for a restraining order.

A trial was set for February 28, 2013. On February 21, 2013, the Ingrams filed a motion seeking to continue the trial, asserting, among other things, that John was suffering from issues with his health and would be unable to attend or testify at the trial; that motion was granted, and the trial date was reset. After a number of continuances, a trial was set for February 25, 2014. On February 24, 2014, Betty filed a motion to continue the trial setting of the case;¹ she asserted that John had died on February 10, 2014, that "no [e]state ha[d] been commenced as of [that] date," and that it would "be necessary for a [p]ersonal [r]epresentative or [a]dministrator to be appointed and that person substituted as a party in interest pursuant to Rule 25 of the Alabama Rules of Civil Procedure, prior to the trial of this case." The trial court granted that motion to continue.

Following an order in which the trial court requested to be advised of the status of the case and another order indicating that the case would be dismissed for "no action," the trial court entered an order on January 20, 2015, dismissing the case for "lack of action." On January 21, 2015, Betty filed a motion to reinstate the case, asserting that the case "is and has been ready for trial and is waiting on the Court to set the trial date." The trial court granted that motion, reinstated the case, and set the case for a trial, which was conducted on October 8, 2015. After the close of all of the evidence, the following exchange occurred between the trial judge and Betty's attorney:

"THE COURT: My first question ... is, who's actually the plaintiff now? It started out as Betty and John Ingram. Obviously, John Ingram is deceased.

"[Counsel for Betty]: Judge, and we revised the case in the name of his estate.

"THE COURT: So, you filed—the only thing I could find ... is you filed a motion to continue one time to amend in—

"[Counsel for Betty]: And we did that.

"THE COURT: You're telling me. Because, typically, she hits one print button and it prints off everything, and I didn't see it.

"[Counsel for Betty]: We amended and filed to bring in the estate. That's why Pam [Taylor] is sitting here, because she is the personal representative of the estate.

"THE COURT: As long as you tell me you're sure, I'm not going to go back and check.... So, you're sure?

"[Counsel for Betty]: Yes, sir."

Following those representations by Betty's attorney, the trial was concluded after an unrelated discussion between the trial judge and the attorneys for the parties. On December 4, 2015, the trial court entered a judgment that stated: "After trial, judgment entered for plaintiff." Both Betty and the Saunderses filed postjudgment motions, and, on February 25, 2016, the trial court entered a new judgment in response to Betty's postjudgment motion in which it quieted title to the disputed property in Betty, as it related to the property in her name, and quieted title to the disputed property in "the Estate of John Ingram, as substituted Plaintiff," with regard to the property in John's name. That same day, the trial court entered an order denying the Saunderses' postjudgment motion. The Saunderses filed their notice of appeal to the Alabama Supreme Court on March 31, 2016; that court subsequently transferred the appeal to this court, pursuant to Ala. Code 1975, § 12–2–7(6).

After the appeal was transferred to this court, this court entered an order directing Betty and the Saunderses to submit letter briefs regarding (1) whether the February 24, 2014, motion to continue initiated the running of the period contemplated in Rule 25, Ala. R. Civ. P., for filing a motion to substitute a proper party; (2) whether a motion to substitute a proper party for John had been filed in the trial court; and (3) whether, at the time the trial court entered its judgment, the trial court retained jurisdiction over the claims raised in the complaint insofar as they related to the property that had been owned solely by John. Betty and the Saunderses submitted letter briefs; they agree that no motion to substitute a proper party for John had been filed following his death, and we agree that there is no such motion in the record. Betty and the Saunderses disagree, however, as to the two remaining issues, and, thus, we address those issues in turn.

Rule 25(a)(1), Ala. R. Civ. P., provides:

"If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5[, Ala. R. Civ. P.,] and upon persons not parties in the manner provided in Rule 4[, Ala. R. Civ. P.,] for the service of a summons, and may be served in any county. Unless the motion for substitution is made not later than six months after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall in the absence of a showing of excusable neglect be dismissed as to the deceased party."

It is undisputed on appeal that the claims before the trial court relating to the property owned solely by John survived in favor of his personal representative upon John's death. See Wells v. Wells, 376 So.2d 750, 751 (Ala. Civ. App. 1979) ("Under present Alabama statutory law, legal and equitable claims survive in favor of and against the personal representative of a deceased. § 6–5–460 et seq., [Ala. Code 1975]." (emphasis omitted) ). It is also undisputed, however, that, in the present case, no personal representative was substituted as a party pursuant to Rule 25(a)(1). The Saunderses argue in their letter brief that the February 24, 2014, motion to continue was a proper suggestion of death as contemplated in Rule 25(a)(1) and, thus, that the six-month period for substitution addressed in the rule began to run at the time of its filing. We disagree.

In Kissic v. Liberty National Life Insurance Co., 641 So.2d 250, 252 (Ala. 1994), our supreme court determined that "[i]t is quite simple under Rule 25 [, Ala. R. Civ. P.,] to start the running of the time period for substituting a proper party for a deceased party by filing a clearly designated ‘statement of the fact of death’ or ‘suggestion of death’ and by serving that statement in accordance with the requirements of the rule." Our supreme court noted in Kissic that Rule 25(a)(1) also requires that service of the clearly designated suggestion of death on the successor or representative of the deceased party's estate must be served pursuant to Rule 4, Ala. R. Civ. P. Id. at 253. The supreme court further noted that, because the personal representative of the decedent's estate in that case had not been served with a proper suggestion of death in accordance with Rule 4, the six-month limitations period of Rule 25(a)(1) would not have begun to run. Id. See also Kaldawy v. Gold Serv. Movers, Inc., 129 F.R.D. 475 (S.D.N.Y. 1990) (concluding that the federal version of Rule 25(a)(1), Ala. R. Civ. P., prevented the filing of a proper suggestion of death until a representative had been appointed and properly served with notice as required by the rule); and Gronowicz v. Leonard, 109 F.R.D. 624 (S.D.N.Y. 1986) (concluding that, according to the federal version of Rule 25(a)(1), the suggestion of death must identify a representative or successor to be valid).

In the present case, the February 24, 2014, motion to continue indicated that no personal representative had been appointed as of that date. Thus, that motion could not have been served on the personal representative of John's estate such that the six-month limitations period of Rule 25(a)(1) would have begun to run. See Kissic, supra. Additionally, because no suggestion of death had been properly filed in the trial court in accordance with Rule 25(a)(1) and the six-month limitations period in that rule had not begun to run, dismissal of the claims relating to John's property by the trial court would not...