text:
    ELLIOTT BUILDERS, INC., et al. v. TIMBERCREEK PROPERTY OWNERS ASSOCIATION et al.
    2110758 and 2110759.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      Thomas M. O’Hara and William G. Cha-son of McDowell Knight Roedder & Sledge, LLC, Mobile, for appellant.
    James B. Pittman, Jr., and Jennifer L. Evans of James B. Pittman, Jr., P.C., Daphne; and David A. Hamby, Jr., of Spear, Spear & Hamby, P.C., Mobile, for appellees.
   PITTMAN, Judge.

These appeals are taken in consolidated cases involving the operation of the Tim-bercreek Property Owners Association (“TPOA”), the board of directors of TPOA, and the Timbercreek Architectural Review Board (“TARB”). We summarized much of the pertinent procedural history involving these litigants in an opinion rendered in a previous appeal, Elliott Builders, Inc. v. Timbercreek Property Oumers Ass’n, 73 So.3d 1274 (Ala.Civ.App.2011), which was actually the second of two previous appeals arising from the underlying trial-court litigation:

“In June 2007, Elliott Builders, Inc., brought an action against TPOA and TARB in the trial court, which was assigned case no. CV-07-900390 (‘the 2007 action’), seeking declaratory relief and damages arising out of those defendants’ alleged wrongful conduct with respect to their failure to approve the construction of a retaining wall on a lot located in the [Timbercreek] subdivision; the defendants filed an answer denying liability and asserted a counterclaim seeking declaratory and injunctive relief against Elliott Builders and Chris Elliott, an individual owner of a lot in the subdivision who was named as an additional defendant in the counterclaim. In July 2008, Elliott Builders filed a motion for a summary judgment in the 2007 action; in September 2008, an amended complaint was filed in which Chris Elliott asserted claims against the defendants in the 2007 action. TPOA and TARB filed a motion for a summary judgment as to all claims in the 2007 action. Both of those summary-judgment motions were denied in November 2008. In April 2009, Elliott Builders and Chris Elliott filed, without leave of court, a second amended complaint in the 2007 action adding new tort claims, adding a claim under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq., and restating other claims previously presented; TPOA and TARB filed an amended answer and counterclaim challenging the procedural propriety of the second amended complaint, asserting defenses to the plaintiffs’ claims, and restating claims against the plaintiffs.
“In July 2009, TPOA, its board of directors, and TARB filed a ‘motion to consolidate’ in which they averred that, in April 2009, four other plaintiffs (Robert M. Hoover, John C. Brutkiewicz, Lucille M. Dean, and Paul C. Davis) had brought a separate civil action seeking injunctive relief against them in the trial court, an action that had been assigned case no. CV-09-900412 (‘the 2009 action’); the movants requested that the 2007 action and 2009 action be consolidated because of the purported existence of common legal and factual questions. The trial court apparently granted the relief requested because the record contains a motion filed by the plaintiffs in the two actions seeking separate trials in which the plaintiffs acknowledge that a consolidation order had been entered in. the 2009 action. It also appears that, in an amended complaint filed in the 2009 action in July 2009, Chris Elliott, Elliott Builders, and Sterling Hershiser joined as plaintiffs in the 2009 action, although the record does not contain that amended pleading. In September 2009, TPOA, its board of directors, and TARB filed an answer and asserted counterclaims in the 2009 action seeking injunctive relief, declaratory relief, and damages for an alleged breach of contract; that pleading stated claims against, among other parties, Hoover (who apparently was dropped as a plaintiff in the 2009 action) and his wife (who had never been a plaintiff in either action).
“In July 2009, a new round of dispos-itive motions began. First, in that month, the plaintiffs in the 2009 action filed a summary-judgment motion (which does not appear in the record). Elliott Builders and Chris Elliott moved in August 2009 for the entry of a partial summary judgment in their favor as to various claims and counterclaims in the 2007 action. TPOA, its board of directors, and TARB filed responses to those motions and filed a motion for a summary judgment as to the claims asserted in ■ the plaintiffs’ ‘amended complaint’ (apparently, the amended complaint filed in the 2009 action); the motion did not seek a summary judgment as to any counterclaim. The plaintiffs in both cases moved to strike various evidentiary exhibits that were filed in support of the summary-judgment motion filed by TPOA, its board of directors, and TARB, as well as those defendants’ filings in opposition to the August 2009 partial-summary-judgment motion filed by Chris Elliott and Elliott Builders. Finally, it appears that four of the plaintiffs in the 2009 action (Hoover, Brutkiewicz, Dean, and Davis) were permitted in September 2009 to voluntarily dismiss, without prejudice, their claims in the 2009 action; although the order granting those parties’ request does not appear in the record, a motion filed by TPOA, its board of directors, and TARB sought amendment of that dismissal order to direct that the dismissal be with prejudice.
“On November 17, 2009, the trial court, in the 2007 action, simultaneously rendered and entered, by transmitting electronic documents to the State Judicial Information System (‘SJIS’), four orders. Two of the orders denied motions to strike that had been filed by the plaintiffs; one order denied the partial-summary-judgment motion filed by Elliott Builders (and Chris Elliott); and a fourth order granted the summary-judgment motion filed by TPOA, its board, and TARB. Because the orders did not adjudicate all claims as to all parties in the 2007 action, the orders were not final and appealable. See Rule 54(b), Ala. R. Civ. P.
“On December 18, 2009, Chris Elliott and Elliott Builders moved the trial court for the express direction of entry of a final judgment as to the denial of their August 2009 partial-summary-judgment motion in the 2007 action. On December 23, 2009, a notice of appeal was filed on behalf of the ‘Plaintiffs,’ identified in the style solely as ‘Robert M. Hoover, et al.’ from the ‘Summary Judgment in favor of Defendants’ (which, as we have noted, was entered in response to a motion directed to the amended complaint in the 2009 action, not the 2007 action). That appeal, pursuant to § 12-2-7(6), Ala.Code 1975, was transferred to this court, where it was assigned case no. 2090361. This court called for supplemental briefs from the parties regarding whether a final, appealable judgment had been entered. Replies to that order indicated that the trial court, on January 29, 2010, had directed the entry of a final judgment in the 2007 action as to the denial of the August 2009 partial-summary-judgment motion filed by Chris Elliott and Elliott Builders. The ‘Appellants/Plaintiffs’ (listed as being Brut-kiewicz, Dean, Davis, Chris Elliott, and Elliott Builders) filed a motion to voluntarily dismiss the appeal in case no. 2090361, and this court entered an order granting that motion on March 11, 2010.
“Rule 41, Ala. R.App. P., provides that, in the absence of an appellate court’s order to the contrary, that court’s certificate of judgment finally terminating appellate proceedings in a case will not issue contemporaneously with the entry of a judgment in the case, but will be withheld for either 18 days or until final disposition of a rehearing application and/or final action upon a cer-tiorari petition, whichever is later. It is well settled that a judgment of an intermediate appellate court in this state ‘ “is not final until that court issues its certificate of judgment.” ’ Ex parte Tiong-son, 765 So.2d 643 (Ala.2000) (quoting Jackson v. State, 566 So.2d 758, 759 n. 2 (Ala.1990)). This court’s certificate of judgment in case no. 2090361 did not issue until March 29, 2010. However, before this court’s jurisdiction over the case had ceased, counsel for the plaintiffs in both the 2007 action and the 2009 action filed a request for an ‘expedited’ hearing to be held on March 23, 2010, to issue further orders in the two cases. On March 25, 2010, again before this court’s certificate of judgment in case no. 2090361 had been issued, the trial court rendered an order purporting (a) to ‘grant[] by order of 11/16/09’ (sic; actually November 17, 2009) the summary-judgment motion filed by TPOA, its board of directors, and TARB in the 2009 action; (b) to deny the September 2009 partial-summary-judgment motion filed by Elliott Builders and Chris Elliott in the 2007 action; (c) to deny the summary-judgment motion filed by the plaintiffs in the 2009 action; (d) to deny the plaintiffs’ motions to strike eviden-tiary exhibits filed by the defendants; and (e) to direct the entry of a final judgment as to the March 25, 2010, order. The 2007 action and 2009 action were also ordered deconsolidated, and the trial court stated that the 2009 action would remain on the trial court’s docket. That order, issued on a separate paper, was not immediately transmitted to SJIS, but was entered four days later. See Rule 58(c), Ala. R. Civ. P.
“On May 5, 2010, within the time specified in Rule 4(a), Ala. R.App. P., for taking an appeal from a final judgment, a notice of appeal was filed by ‘Plaintiffs,’ again identified in the style solely as ‘Robert M. Hoover, et al.,’ as to the ‘Summary Judgment in favor of Defendants.’ That appeal, following its transfer to this court pursuant to Ala.Code 1975, § 12-2-7(6), has been assigned case no. 2090754 by this court. The second notice of appeal differs from the notice of appeal filed in case no. 2090361, which refers to the case number of the 2007 action (CV-07-900390), because the current notice of appeal refers to the case number in the 2009 action (CV-09-900412). However, a motion filed in this case seeking to incorporate the record from case no. 2090361 into the record on appeal in this ease (which this court granted on May 18, 2010) belies the significance of that facial distinction. That motion identifies the appellants as Brutkiewiez, Dean, Davis, Chris Elliott, and Elliott Builders (as well as Hershiser, who was not listed in the voluntary-dismissal motion in case no. 2090361), and the appellants notably admit in that motion that they ‘previously appealed [from] the trial court’s order granting [a] summary judgment in favor of Defendants’ and that that appeal was case no. 2090361.
“1 The record does not reflect that the trial court acted on that motion.”

73 So.3d at 1275-78 (emphasis added). We dismissed the second appeal, reasoning that “there [was] no valid final judgment that [would] support our appellate jurisdiction” because “the trial court [had] purported to ‘finalize’ its November 17, 2009, order ... [when] jurisdiction as to that ... order was not then in that court”; we opined that, “[ajfter this court’s certificate of judgment in [the second] appeal [was] issued, the trial court [would] again have jurisdiction, pursuant to Rule 54(b), to determine whether to direct the entry of a final judgment as to any order adjudicating less than all claims as to all parties for which there may be no just reason for delay in seeking appellate review.” 73 So.3d at 1278-79. On remand from our dismissal of the second appeal, the trial court entered an order on November 29, 2011, deconsolidating the 2007 case and the 2009 case, stating that “[t]he Defendants’ motion for summary judgment as to all Plaintiffs’ claims in the then-consolidated actions is GRANTED by order of November 17, 2009,” stating that the plaintiffs’ motions seeking summary judgments or partial summary judgments in their favor and to strike filings of the defendants in the formerly consolidated actions were denied “by orders of November 17, 2009,” and directing the entry of a final judgment as to the partial summary judgment in favor of the defendants in the two cases. Notices of appeal were filed on December 22, 2011, in the 2007 action and in the 2009 action by “Elliott Builders, Inc., et al.”; those appeals were transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6), and have been consolidated.

In the statement of jurisdiction appearing in their joint brief filed in both appeals, TPOA, its board, and TARB (hereinafter referred to collectively as “the defendants”) contend that the appeals are an untimely effort to secure appellate review of the November 17, 2009, order. However, as the appellants in these actions {i.e., the plaintiffs below) correctly note, that order did not adjudicate all claims as to all parties. The first attempt by the trial court, on January 29, 2010, to direct the entry of a final judgment — and the basis, such as it was, of the first appeal involving the parties — was instigated by Chris Elliott and Elliott Builders’ motion seeking an order purporting to direct the entry of a final judgment solely as to the denial of the August 2009 partial-summary-judgment motion that they had filed in the 2007 action, a fact evidenced by the trial court’s statement in its January 29, 2010, order that the partial-summary-judgment motion had been denied and that that order would be certified as a final judgment. A trial court’s order denying a summary-judgment motion is, however, inherently nonfinal and cannot properly be made final and appealable through resort to Rule 54(b). See Ohio Cas. Ins. Co. v. Bailey, 814 So.2d 889, 892 (Ala.Civ.App.2001). Thus, the plaintiffs involved in the first appeal, by moving for a voluntary dismissal of that appeal, correctly anticipated that their appeal would be susceptible to involuntary dismissal on jurisdictional grounds. Further, although the plaintiffs again tried to elicit an order in compliance with Rule 54(b), the trial court did not stay its hand long enough for this court to issue its certificate of judgment as to the first appeal, a fact that rendered the trial court’s order giving rise to the second appeal void and necessitating the dismissal of the second appeal. It is only now, after the trial court has entered an order that directs the entry of a final judgment in favor of the defendants in both the 2007 action and the 2009 action, that this court has been presented with proper appellate jurisdiction, and we reject the defendants’ contention that the appeals are untimely. Likewise, however, we necessarily cannot accept the position of the plaintiffs in their brief in case no. 2110758 that the trial court’s order does not actually apply to the 2007 action.

We now turn to the merits of the appeals, starting with the appeal in the 2009 action (case no. 2110759). The complaint in the 2009 action, as last amended, listed Robert M. Hoover, John C. Brut-kiewicz, Lucille M. Dean, Paul C. Davis, Sterling Hershiser, Chris Elliott, and Elliott Builders as named plaintiffs and TPOA, its board of directors, and TARB as defendants; the plaintiffs sought, in that action, a declaration that a particular section of the Timbercreek Residential Design Guidelines (“the guidelines”) pertaining to enforcement of the substantive provisions thereof (i.e., Section Seven) should be deemed void, an injunction against the filing of liens against TPOA members that included alleged penalty claims and attorney-fee-award requests, and an injunction to require the board of TPOA to hold a special meeting to elect directors rather than appoint them. The defendants’ counterclaim sought a judgment declaring that the board of TPOA had the authority to approve amendments to the guidelines and sought enforcement of the guidelines as to Hoover’s property. As we have noted, the defendants successfully moved for a summary judgment as to the claims asserted in the amended complaint in the 2009 action, which has been certified as a final judgment. We thus apply the following standard of review:

“A motion for summary judgment tests the sufficiency of the evidence. Such a motion is to be granted when the trial court determines that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The moving party bears the burden of negating the existence of a genuine issue of material fact. Furthermore, when a motion for summary judgment is made and supported as provided in Rule 56, [Ala. R. Civ. P.,] the nonmovant may not rest upon mere allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. Proof by substantial evidence is required.”

Sizemore v. Owner-Operator Indep. Drivers Ass’n, 671 So.2d 674, 675 (Ala.Civ.App.1995) (citations omitted).

The evidentiary submissions by the respective parties, among other things, placed before the trial court certain pertinent documents governing the operation of TPOA and TARB. Among those documents were (a) an amended and restated declaration of rights, covenants, restrictions, affirmative obligations, and conditions applicable to the properties in the Timbercreek subdivision that had been recorded in the Baldwin Probate Court by Timbercreek Land Co., Inc., the subdivision developer; (b) restated articles of incorporation of TPOA, which is a nonprofit corporation; (c) the bylaws of TPOA; and (d) the guidelines. The core issue in case no. 2110759, the appeal arising from the 2009 action, is whether Section Seven — the enforcement section — of the guidelines was validly adopted by a properly constituted board of directors of TPOA.

The plaintiffs and the defendants in the 2009 action vehemently disagree concerning the general authority of the board of TPOA to act on behalf of TPOA to adopt Section Seven of the guidelines and the board’s authority to adopt and enforce the specific provisions of Section Seven. In resolving the dispute, we are guided by our decision in Miller v. Miller’s Landing, L.L.C., 29 So.3d 228 (Ala.Civ.App.2009), in which we reasoned that amendments to restrictive covenants adopted by a common-interest community such as the subdivision governed by TPOA must be “reasonable,” which necessarily entails consideration of whether the amendment in question was adopted “in compliance with the procedural requirements of the governing documents of the subdivision.” 29 So.3d at 236.

The plaintiffs in the 2009 action contend that the trial court overlooked provisions in the pertinent governing documents tending to indicate that the board of TPOA was not lawfully constituted so as to have the authority to act on behalf of TPOA in any regard, much less to promulgate the enforcement section of the guidelines. They base their contention in this regard upon the absence, in years after 2005, of a quorum of members of TPOA at the annual February meeting of TPOA at which directors are scheduled to be elected.

In Article IX of the subdivision declarations, subject to which all property in the Timbercreek subdivision is held, it is declared that TPOA consists of a membership inclusive of all property owners in the subdivision. Article XII further states that TPOA may, through its board of directors, take “any and all actions necessary in the discretion of the [bjoard to enforce this Declaration and all other covenants and restrictions affecting the properties of’ TPOA and can “exercise ... any rights reserved by the Developer [of the subdivision] and transferred by the Developer to [TPOA].” Among the rights granted to the developer in the declaration, and which necessarily passed to TPOA, was the power to “publish Timber-Creek Design Guidelines, as amended, from time to time which will set forth minimum criteria and, controls for construction of improvements on the Property” (emphasis added). However, the declarations do not address the composition of the board of TPOA.

Article VII of TPOA’s articles of incorporation states that the board of TPOA shall “consist[ ] of not less than three (3) nor more than seven (7) persons.” The board’s membership is more fully provided for in the bylaws of TPOA. Article V.G.2. of the bylaws, which pertains to voting procedures at meetings of the membership of TPOA, provides for the election of directors every February by the members of TPOA at the annual members’ meeting; under that subdivision of the bylaws, a candidate receiving a majority of votes entitled to be cast by members is deemed “elected to [a] director’s position.” However, Article V.F. of the bylaws provides a quorum requirement of “fifty-one percent (51%) of the total number of votes that may be cast as to “any action which is subject to a vote of the [m]embers of ... TPOA” and states that, if such a quorum is not obtained at a scheduled meeting, “one (1) or more subsequent meetings may be called for the same purpose, subject to ten (10) days written notice of each such subsequent meeting being provided to all” members of TPOA (emphasis added). The import of the quorum provision is magnified in this case because it is undisputed that, although TPOA has held its annual meeting every February for the purpose of, among other things, electing directors, a quorum of members has not yet been obtained at a TPOA annual meeting.

Assuming, without deciding, that the absence of a quorum at the annual meeting deprives the election of directors of any legal efficacy, the bylaws likewise provide for an alternate method for filling vacancies on TPOA’s board. In Article VI.G., the bylaws state that, with two exceptions not here pertinent (dealing with the initial classes of TPOA directors in 1994 and TPOA directors formerly appointed by the subdivision developer), “[b]oard [mjembers may be filled for the unexpired term, and until the [mjembers shall have elected a successor, by the [cjhairman, subject to approval of the [bjoard.” The clear intent of the bylaws is to place the choice of new directors within the approval power of the board of TPOA in instances where vacancies occur in those offices, such as when the absence of a quorum of qualified members at an annual meeting prevents the candidate who receives the majority of the votes from the balloting from being deemed “elected” under Article V. In so concluding, we necessarily reject the plaintiffs’ contention that Article VI.G. is triggered only in cases referred to in Article VI.C., which states that directors shall be chosen by election “except in case of death, resignation, retirement, disqualification, or removal”; there is no indication that the drafters of the bylaws of TPOA intended to exhaustively delimit all the ways that a director’s seat might become vacant.

Thus, the fundamental premise that underlies the plaintiffs’ argument against the validity and effect of Section Seven of the guidelines for the Timber-creek subdivision — that the board of TPOA was necessarily illicitly constituted — fails as a matter of law. Stated another way, although Miller invites reviewing courts to take into account whether the conduct of a body administering subdivision restrictions has acted in compliance with the governing documents of the subdivision, we perceive no error in the trial court’s apparent conclusion that TPOA, acting through its board of directors, had not been unlawfully constituted at the time that it adopted Section Seven in early 2007.

We likewise conclude that the board of directors of TPOA did not act outside its authority in promulgating Section Seven. As we have noted, the board, as the successor of the developer, acceded to the developer’s authority under the subdivision declarations to publish guidelines so as to set forth controls for construction of improvements in the Timber-creek subdivision. Further, Article XII of the declarations expressly provides that the board of TPOA “shall have the power, upon violation of the Declaration, ByLaws, or any rules and regulations, ... to impose reasonable monetary fines” that “constitute a lien upon the property of the [o]wner guilty of ... such violation” and to enforce such a lien “in a like manner to” liens for common-area assessments provided for in Section 11.01 of the declarations. We cannot conclude that the actions of the board of TPOA fall outside that body’s express authority to control the process of construction of improvements in the Timbercreek subdivision and to impose monetary fines for violations of substantive provisions of the governing subdivision documents, nor do we find merit in the plaintiffs’ additional argument that those actions somehow amount to an amendment of Section 11.01 of the subdivision-declarations document pertaining to collection actions against owners in the subdivision who have failed to pay “ordinary” annual and special assessments when due simply because the pertinent article is cited in the declarations.

Finally, in their brief in case no. 2110759, the plaintiffs assert that the penalties set forth in Section Seven of the Guidelines (ie., a $20-per-day fine for continuing violations of the substantive provisions of the guidelines after receipt of a second written notice thereof and a $10,000 liquidated-damages provision triggered upon a judicial determination that a condition fails to confoi’m with the guidelines) are void as violative of public policy. Assuming, without deciding, that those provisions are not severable from the remainder of Section Seven, we note the plaintiffs’ admission in their brief that that issue was raised in a motion for a partial summary judgment filed in the 2007 case. Because we cannot determine that the trial court was placed on notice that a ruling in favor of TPOA, its board, and TARB in the 2009 case would have been erroneous on the grounds asserted by Elliott Builders and Elliott in the 2007 case, we conclude that the issue has not been preserved for appellate review in case no. 2110759. See Cash v. Usrey, 278 Ala. 313, 315, 178 So.2d 91, 93 (1965) (appellate review will not extend to issues as to which “the judge had made no ruling adverse to appellant on the specific matter complained of’); cf. Ex parte Green, 221 Ala. 415, 418, 129 So. 69, 71 (1930) (consolidation of cases does not make the parties in one suit parties to the other or change the issues in the respective cases; rights of parties “ ‘must still turn upon the pleadings, proof and proceedings in the respective cases.’ ” (quoting 1 Corpus Juris, 1137)).

Although we conclude that the plaintiffs’ appeal from the partial summary judgment entered in the 2009 case does not state a valid basis for reversal, we reach a different conclusion as to the appeal taken by Elliott Builders and Elliott in the 2007 action (case no. 2110758). To the extent that the trial court’s order of November 29, 2011, purported to rule that that court’s November 17, 2009, order applied to “all Plaintiffs’ claims in the then-consolidated cases,” we agree with Elliott Builders and Elliott that the trial court acted outside its discretion in purporting to enter a summary judgment in favor of TPOA and TARB in the 2007 action. The record reveals that Elliott Builders and Elliott, on September 11, 2009, moved for the entry of a partial summary judgment on various claims they had asserted, and on counterclaims as to which they had been defending, in the 2007 action; that motion was set by the trial court for a hearing on Tuesday, September 22, 2009. On Friday, September 18, 2009, two business days before that scheduled hearing, TPOA, its board, and TARB filed a response in which they themselves moved for a summary judgment. Although the trial court did not schedule a hearing to address the motion filed by TPOA, its board, and TARB, the trial court heard arguments on that motion on September 22, 2009, at the hearing that had been scheduled for presentation of the partial-summary-judgment motion filed by Elliott Builders and Elliott. Elliott Builders and Elliott, in their appellate brief in case no. 2110758, correctly note that, under Rules 6(a) and 56(c)(2), Ala. R. Civ. P., the earliest that the trial court could properly have scheduled a hearing on the summary-judgment motion filed by the defendants in the 2007 action on September 18, 2009, would have been October 5, 2009. Because the trial court proceeded to hear that motion on September 22, 2009, it effectively foreclosed any chance Elliott Builders and Elliott could have had to properly present evidence in opposition, because Rule 56(c)(2) also requires that matters in opposition to a summary-judgment motion must be filed and served two days (ie. two business days, see Rule 6(a), Ala. R. Civ. P.) before the hearing on the motion. In proceeding to hear the defendants’ motion, and in ultimately ruling in the defendants’ favor on all claims asserted by Elliott Builders and Elliott in the 2007 action, the trial court failed to comply with the notice requirements embodied in Rule 56(c)(2).

In Moore v. GAB Robins North America, Inc., 840 So.2d 882 (Ala.2002), a trial court granted four defendants’ summary-judgment motions despite having, in effect, vacated an order setting a hearing date as to those motions, prompting the plaintiff to appeal and to contend, apparently for the first time on appeal, that the cumulative effect of the trial court’s actions had prevented him from presenting an effective opposition to the summary-judgment motions. 840 So.2d at 883. Our supreme court acknowledged the manifest injustice resulting from the trial court’s rulings in that case:

“In this case, [the plaintiff] alleges that the denial of the opportunity to oppose the motions for a summary judgment prejudiced him, and we need not address the merits of [his] underlying claims to recognize that, while he may not ultimately prevail, [he] deserves the opportunity to raise a genuine issue of material fact through his opposition to the motions for a summary judgment. ... While the parties may differ over the meaning of the provisions of the policy, to cut off [the plaintiffs] opportunity to make a showing of disputed facts to the trial court is to prevent him from having his day in court.”

840 So.2d at 884.

The appeal taken by Elliott Builders and Elliott in the 2007 case presents a similar profile: plaintiffs who were not permitted the opportunity afforded under Rule 56(c)(2) to adduce materials in opposition to a summary-judgment motion filed by multiple defendants. Like our supreme court did with respect to the plaintiff in Moore, we conclude that Elliott Builders and Elliott are entitled to an opportunity to make a showing of disputed facts as to the 2007 action, which involves a number of issues not presented in the 2009 action.

Based upon the foregoing facts and authorities, the trial court’s judgment as to the 2009 action is affirmed. That court’s judgment as to the 2007 action is reversed, and that cause is remanded for the trial court to afford Elliott Builders and Elliott an opportunity to present materials and arguments in opposition to the September 18, 2009, summary-judgment motion filed by the defendants in the 2007 action.

2110758 — REVERSED AND REMANDED.

2110759 — AFFIRMED.

THOMPSON, P.J., and THOMAS and DONALDSON, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . Deposition testimony given by a representative of TPOA that was submitted to the trial court in support of a summary-judgment motion filed in the 2007 action established that the developer relinquished its control of the subdivision to TPOA in late 2005.

      . Although the defendants contend in their appellate brief that the chairman of TPOA's board has customarily appointed, and the board has approved, the winners of the balloting at the February annual meeting as directors, the plaintiffs correctly note in their reply brief in case no. 2110759 that TPOA’s representative who testified by deposition admitted that the winners of the balloting of the members at the annual meeting had not customarily been appointed to the board, although he testified to one instance when the top two candidates in the voting had, in fact, thereafter been appointed to and had been confirmed to serve on the board.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Barbara Dill KYLE v. Richard Ingram KYLE.
    2110184.
    Court of Civil Appeals of Alabama.
    May 17, 2013.

      Ernest J. Wright, Birmingham, for appellant.
   DONALDSON, Judge.

Barbara Dill Kyle (“the wife”) appeals from a judgment of the Jefferson Circuit Court that divorced her from Richard Ingram Kyle (“the husband”) insofar as it divided the marital estate. The wife also appeals from orders entered by the trial court finding her in contempt of court. We affirm the divorce judgment. We vacate the contempt orders.

The husband and the wife were married in 1980. Two children were born of the marriage, one of whom reached the age of majority during the pendency of the divorce proceedings. The husband filed a complaint for a divorce on August 14, 2009, citing an irretrievable breakdown of the marriage. On September 17, 2009, the wife filed an answer and a counterclaim for a divorce. On September 22, 2009, the husband moved for pendente lite relief, requesting, among other things, that the wife be required to pay half the mortgage payment and utilities relating to the marital residence each month. In the motion, the husband claimed that he was drawing unemployment-compensation benefits. On December 8, 2009, the husband and the wife entered into an agreement pursuant to which the parties would continue to reside at the marital residence together. The wife agreed to pay all household bills, including those relating to credit cards, utilities, and the mortgage. The husband agreed to pay the wife $150 per week out of his unemployment-compensation income. The written agreement of the parties was presented to the trial court, which adopted the agreement and incorporated it into a pendente lite order on December 10, 2009.

On January 28, 2010, the husband filed a motion for a temporary restraining order in which he requested that the trial court enter an order restraining the wife from liquidating or otherwise disposing of any funds the wife had inherited and requiring the wife to provide an accounting of the inherited funds. After a hearing, the trial court, on February 24, 2010, granted the motion, ordering both parties to refrain from liquidating assets and requiring the parties to expend funds only in compliance with the trial court’s pendente lite order of December 10, 2009.

On May 11, 2011, the wife filed an emergency motion for pendente lite relief in which she contended that her financial status had changed and that she could no longer pay the husband’s debts. She contended that her inheritance, which was substantial at one point, had dwindled to approximately $4,000 because of her obligation to pay certain marital expenses out of her inheritance. She contended in the motion that she earned an income of $200 per week. The husband argued in his response to the wife’s motion that the wife had had $180,000 at her disposal at the outset of the divorce proceedings, and that the wife had violated the February 2010 temporary restraining order entered by the trial court by spending her inheritance. In a May 24, 2011, filing with the court in support of her motion, the wife claimed that she had less than $2,500 of the inheritance left. She further claimed that she had not had $180,000 in inheritance funds at the start of the divorce proceedings. There is no indication in the record that the trial court ruled on the wife’s motion.

On June 1, 2011, the husband filed a motion for contempt in which he contended that the wife had willfully failed to pay the mortgage as required by the December 2009 pendente lite order. He claimed that the wife had not paid the mortgage since April 2011, and that, as a result, the mortgage continued to accrue interest and penalties.

The trial court tried the divorce action on August 10, 2011, and held a hearing on the motion for contempt on August 11, 2011. On August 11, 2011, the trial court rendered an order finding the wife to be in contempt of court for violating the trial court’s previous orders. The court held as follows:

“1. That the Defendant, Barbara Dill Kyle is cited for CIVIL CONTEMPT, due to her intentional and willful violation of twelve (12) violations [sic] of the Court’s Former Order therefor, cites the Defendant one (1) day for each occasion and direct[s] the Sheriff of Jefferson County, Alabama [to] incarcerate the Defendant in the County Jail for a period of Five (5) days. However, the Court suspends the remaining Seven (7) days of the said sentence.
“2. That the Defendant, Barbara Dill Kyle, is ordered and directed to appear before the undersigned for REVIEW on the 15th day of August, 2011 at 8:45 a.m., in Courtroom 230, Domestic Relations Courts Building, 2124 7th Avenue North, Birmingham, Alabama.
“3. That the Sheriffs Department of this court, is directed to forthwith deliver a copy of this Order to the Sheriff of Jefferson County, Alabama for the service on the plaintiff [sic].
“4. The Court retains jurisdiction of this proceeding for further appropriate orders.”

(Capitalization in original.) The wife contends that she was taken into custody and began serving the five-day term of incarceration. The order was entered in the State Judicial Information System on August 12, 2011. The wife filed a motion to reconsider the contempt order, arguing that the order was deficient because it did not sufficiently delineate the violations the wife was alleged to have committed. By order dated August 12, 2011, the trial court denied the wife’s motion to reconsider stating as follows:

“1. That counsel for the Parties were present at the hearing on August 11, 2011.
“2. That [the wife’s] attorney wrote each and every violation on the Court’s board, and yet, DEMANDS that this Court disregards [sic] them.
“3. As such, due to the overwhelming amount of evidence presented in the case, Defendant’s Motion to Reconsider incarceration is due to be DENIED.”

(Capitalization in original.) The wife did not file a writ of habeas corpus during the pendency of her incarceration. On August 15, 2011, the trial court entered an order directing the sheriff of Jefferson County to release the wife and ordering that the sheriff send a cost bill to the wife for her incarceration. The wife filed a motion on August 22, 2011, in which she asked the court to clarify its contempt order to provide specific information regarding the violations she had supposedly committed. The record does not indicate that the trial court addressed that motion or provided any further clarification regarding its finding of contempt.

The trial court entered a final judgment of divorce on October 12, 2011. In its judgment, the trial court ordered, among other things, that the wife was to be responsible for payment of all existing debts incurred jointly by the parties during the marriage; that the husband was to be awarded title to the real estate in the parties’ names and all insurance proceeds; and that the wife was to pay the husband $18,000 in attorney fees. The court further ordered the wife to “catch-up” on the mortgage payments within 45 days from the date of the judgment.

On October 24, 2011, the husband filed a motion to alter, amend, or vacate pursuant to Rule 59, Ala. R. Civ. P., requesting that the trial court clarify the divorce judgment. The wife filed a motion to alter, amend, or vacate, or in the alternative for new trial, on October 26, 2011, in which she alleged that the trial court had failed to take into account the husband’s adulterous affair and that the division of property in the divorce judgment disproportionately favored the husband and, thus, was inequitable.

On November 1, 2011, the husband filed an emergency motion for contempt in which he contended that the wife had failed to make the monthly mortgage payments on the marital residence and that the house would be sold at foreclosure on November 4, 2011, unless payment was made. The trial court set the parties’ postjudgment motions and the emergency motion for contempt for a hearing on November 3, 2011. The order setting the hearing commanded the husband and the wife to appear to show cause why the motion for contempt should not be granted and why they should not be adjudged in contempt. The order further stated that the “FAILURE TO APPEAR MAY RESULT IN THE ISSUANCE OF A WRIT OF ARREST.” The wife did not appear at the hearing on November 3. That same day, the trial court entered an order citing the wife for civil contempt and directing that she be incarcerated. The trial court’s order stated as follows:

“1. That the Defendant, Barbara Dill Kyle, is cited for CIVIL CONTEMPT, and the Sheriff of any County of the State of Alabama, is hereby ordered and directed to incarcerate said Defendant, and [she] may not be released on bond.
“2. That the Sheriff of Jefferson County, Alabama, is Ordered to inform this Court of the Defendant’s attachment. Further, the Sheriff of Jefferson County, Alabama is ordered to enter this Decree Ordering Attachment into the National Crime' Information Computer, or any other database available nationwide for the potential arrest of those with attachments or warrants for their arrest.
“3. Upon receipt of this Decree, the Sheriff of Jefferson County, Alabama is ordered to notify the Sheriffs Department in State of California of this Decree Ordering Attachment, and inform said sheriff that this Decree had been entered on the National Crime Information Center.
“4. That the clerk of this court is directed to forthwith deliver a copy of this Order to the Sheriff of Jefferson County, Alabama for service on the Defendant.”

(Capitalization in original.) At the end of the order, the trial court provided a physical description of the wife.

On November 4, 2011, in response to the second contempt order, the wife filed a motion to reconsider the order of incarceration or, in the alternative, for a new trial. In that motion, she also challenged the trial court’s first finding of contempt in August 2011 and contended that she had been wrongfully sentenced to a period of five days’ incarceration for civil contempt, which carries no definite term of imprisonment. As to the second finding of contempt on November 3, 2011, the wife contended that she had not been provided adequate notice of the contempt proceedings pursuant to Rule 70A(c)(2), Ala. R. Civ. P. In the motion, the wife contended that she had been in California on the date the trial court issued the order setting the hearing and that the she had been unable to return to Alabama in time for the hearing. On November 7, 2011, the trial court entered an order denying the wife’s motion. The wife filed a timely notice of appeal to this court.

We note initially the unique procedural history of this appeal. The wife filed her notice of appeal on November 9, 2011. The wife’s counsel undertook efforts to obtain a trial transcript, but the court reporter was unavailable to prepare it. The wife’s attorney prematurely filed a brief with this court in March 2012, before the availability of the clerk’s record. During the pendency of the appeal, the wife’s original attorney died. In February 2013, the wife’s new attorney filed a suggestion of death pursuant to Rule 43(a), Ala. R.App. P., stating that the husband had passed away in December 2012. The suggestion of death did not indicate whether an estate had been opened. On February 21, 2013, the wife filed with this court a motion to submit the appeal for consideration based upon the trial court clerk’s record and on the brief submitted by the wife. This court granted the motion. On February 27, 2013, the husband’s attorney notified this court that she “intend[ed] to represent the estate of [the husband] throughout the appeal” but that she would not be filing a brief unless the court permitted an additional brief to be filed by the wife. The trial court clerk’s record was ultimately filed without the trial transcript in March 2013. The matter was submitted for a decision on the wife’s brief only.

On appeal, the wife first contends that the trial court’s final judgment of divorce did not equitably distribute the marital estate. In her brief on appeal, the wife cites only Wilbanks v. Wilbanks, 624 So.2d 605 (Ala.Civ.App.1993), to support her “belief’ that the trial court considered future inheritance she might receive in determining the distribution of the marital estate. There is nothing in the record, however, to support the wife’s contention that the trial court relied on or even considered the wife’s possible future inheritance. Further, the wife cites no authority to substantiate her claim that the trial court’s judgment inequitably distributed the assets of the marital estate. Accordingly, we will not consider this argument. See Rule 28(a)(10), Ala. R.App. P.; Mullins v. Sellers, 80 So.3d 935, 945 (Ala.Civ.App.2011); and Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“Inapplicable general propositions are not supporting authority, and an appellate court has no duty to perform a litigant’s legal research.”). As to the judgment of divorce, therefore, we affirm the judgment of trial court.

The wife also challenges the trial court’s August 2011 and November 2011 orders finding the wife to be in civil contempt. The standard of review this court follows concerning a trial court’s finding of civil contempt is well settled:

“The issue whether to hold a party in contempt is solely within the discretion of the trial court, and a trial court’s contempt determination will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that its judgment is not supported by the evidence. Brown v. Brown, 960 So.2d 712, 716 (Ala.Civ.App.2006) (affirming a trial court’s decision not to hold a parent in contempt for failure to pay child support when the parent testified that he had deducted from his monthly child-support payment the amount he had expended to buy clothes for the children).”

Poh v. Poh, 64 So.3d 49, 61 (Ala.Civ.App.2010).

Rule 70A, Ala. R. Civ. P., applies “to all civil or criminal contempt proceedings arising out of civil actions.” Rule 70A(a)(2)(D) defines civil contempt as “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Paragraph (e)(2) of Rule 70A provides:

“The court may order that a person who had been found to be in civil contempt be committed to the custody of the sheriff until that person purges himself or herself of the contempt by complying with the court’s writ, subpoena, process, order, rule, or command.”

Concerning civil contempt, this court has stated:

“ ‘ “ ‘The failure to perform an act required by the court for the benefit of an opposing party constitutes civil contempt.’ Carter v. State ex rel. Bullock County, 393 So.2d 1368, 1370 (Ala.1981).” J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001, 1012 (Ala.Civ.App.2007). Furthermore, “ ‘[t]he purpose of a civil contempt proceeding is to effectuate compliance with court orders and not to punish the contem-nor.’ Watts v. Watts, 706 So.2d 749, 751 (Ala.Civ.App.1997).” Hall v. Hall, 892 So.2d 958, 962 (Ala.Civ.App.2004).’
“Reed v. Dyas, 28 So.3d 6, 8 (Ala.Civ.App.2009).”

Hood v. Hood, 76 So.3d 824, 831-32 (Ala.Civ.App.2011).

“ ‘Civil contempt carries no definite term of imprisonment; the party jailed on a contempt charge “ ‘ “carries the [key] of his prison in his own pocket” [and] can end the sentence and discharge himself at any moment by doing what he had previously refused to do.’ ” Johnson v. State, 675 So.2d 512, 513 (Ala.Crim.App.1995) (quoting Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 285, 315 So.2d 431, 435 (1975)) (in turn quoting earlier cases, including In re Nevitt, 117 F. 448, 461 (8th Cir.1902)).’ ”

Gladden v. Gladden, 942 So.2d 362, 370-71 (Ala.Civ.App.2005) (quoting Davenport v. Hood, 814 So.2d 268, 273 (Ala.Civ.App.2000)).

In the current case, the husband moved for contempt in June 2011, citing the wife’s failure to make payments on the mortgage as ordered by the trial court’s December 2009 pendente lite order. The August 2011 order of the trial court cited the wife for civil contempt, yet it imposed a sanction of multiple days of incarceration, without bond, in the Jefferson County jail. That sanction was not designed to effectuate compliance with the trial court’s pendente lite order. The wife was not committed to the custody of the sheriff in an effort to coerce her into making payments on the mortgage. Instead, the ordered incarceration appears to have been imposed to punish the wife for her purported noncompliance with the pendente lite order. Such a sanction is not permitted under a finding of civil contempt pursuant to Rule 70A. Thus, we hold that the trial court abused its discretion in imposing the five-day sentence of incarceration for civil contempt, because such a sanction is in direct contravention of and outside the scope of punishment permitted by Rule 70A. We, therefore, vacate the trial court’s August 2011 contempt order.

Concerning the contempt order of November 4, 2011, we hold that the trial court lacked subject-matter jurisdiction to hear the matter.

“Before addressing the merits of the issues raised on appeal, we must first consider whether this court has jurisdiction. ... ‘ “[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.”’ Singleton v. Graham, 716 So.2d 224, 225 (Ala.Civ.App.1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). ‘ “ ‘[Subject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’ ” ’ M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala.Civ.App.2008) (quoting S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala.Civ.App.2005), quoting in turn C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003)).”

Fox v. Arnold, 127 So.3d 417, 421 (Ala.Civ.App.2012). It is well settled that the filing of any contempt motion relating to the failure to abide by the terms of a final divorce judgment requires the initiation of an independent proceeding.

“A motion or petition seeking the imposition of sanctions based on a finding of contempt initiates an independent proceeding that requires the payment of a filing fee. Opinion of the Clerk No. 25, 381 So.2d 58 (Ala.1980); see also Wilcoxen v. Wilcoxen, 907 So.2d 447 (Ala.Civ.App.2005). In Wilcoxen v. Wilcoxen, supra, the trial court entered a judgment divorcing the parties. The husband filed a contempt petition during the time the wife’s postjudgment motion was pending. The trial court denied the wife’s postjudgment motion and scheduled a hearing on the husband’s contempt petition; the wife appealed the divorce judgment. This court noted that the pendency of the husband’s contempt petition, along with another contempt petition filed after the entry of the postjudgment order, did not affect the finality of the divorce judgment from which the wife appealed because the contempt petition initiated a ‘ “separate and independent proceeding” from the underlying action.’ Wilcoxen v. Wilcoxen, 907 So.2d at 449 n. 1 (quoting Opinion of the Clerk No. 25, 381 So.2d at 59).
“In this case, the husband filed his petition seeking the imposition of sanctions based on the wife’s allegedly contemptuous conduct after the entry of the final judgment of divorce. A motion or petition seeking the imposition of sanctions based on a finding of contempt initiates an independent proceeding that requires the payment of a filing fee. Opinion of the Clerk No. 25, supra; see also Wilcoxen v. Wilcoxen, supra. The payment of a filing fee is a jurisdictional act. Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002). The husband did not pay a filing fee in support of his July 1, 2004, motion. Therefore, the husband did not properly invoke the jurisdiction of the trial court, and its September 22, 2004, contempt order is void for want of subject-matter jurisdiction.”

Kaufman v. Kaufman, 934 So.2d 1073, 1082 (Ala.Civ.App.2005) (footnote omitted). See also Johnson v. Hetzel, 100 So.3d 1056 (Ala.2012) (the circuit court did not have jurisdiction to enter judgment dismissing a prisoner’s complaint; thus, that judgment was void); Hall v. Hall, 122 So.3d 185 (Ala.Civ.App.2013) (the contempt petitions were nullities because they purported to initiate a new contempt action that should have been assigned a “.02” suffix by the trial court’s clerk and that would have required the payment of a new filing fee); Haynes v. Haynes, 97 So.3d 781 (Ala.Civ.App.2012) (in action initiated by filing of petition for criminal contempt, the wife failed to pay the applicable docket fee or to file a verified statement of substantial hardship, rendering the trial court’s judgment of contempt void for lack of subject-matter jurisdiction); and Vann v. Cook, 989 So.2d 556 (Ala.Civ.App.2008) (the parties failed to pay requisite docketing fees, and, thus, orders made by trial court concerning modification of default judgment were void).

In the case at bar, the husband’s emergency motion for contempt was filed as a part of a the initial divorce action, case number DR-09-1260. The emergency motion, which was filed subsequent to the entry of the final divorce judgment, sought to hold the wife in contempt of court for violating the provision of the trial court’s judgment of divorce concerning the requirement that the wife “catch-up” on the mortgage payments within 45 days of the entry of the judgment of divorce. Because the emergency motion initiated a new cause of action for contempt of court, it should have been assigned an “.01” suffix by the trial court clerk and the husband should have paid the filing fee required by § 12-19-71 (a)(7), Ala.Code 1975. Because no filing fee was paid, the trial court lacked subject-matter jurisdiction to consider the emergency motion. Thus, the November 2011 contempt order is void. “ ‘[Bjecause a void judgment -will not support an appeal, we vacate the trial court’s judgment and dismiss the appeal.’ ” Johnson, 100 So.3d at 1057 (citing Hunt Transition & Inaugural Fund, Inc. v. Grenier, 782 So.2d 270, 274 (Ala.2000)).

AFFIRMED IN PART; VACATED IN PART; APPEAL DISMISSED IN PART.

MOORE, J., concurs.

THOMPSON, P.J., concurs in the result, without writing.

PITTMAN and THOMAS, JJ., recuse themselves.

      . The record reveals that a new trial judge was assigned the case early in 2011 due to the retirement of the previous trial judge who had entered the December 2009 pendente lite order and the temporary restraining order.

      . Rule 43 provides: "When the death of a party has been suggested, the proceeding shall not abate, but shall continue or be disposed of as the appellate court may direct.”

      . The wife's brief on appeal includes documentation that is not in the record certified by the trial court clerk. We recognize the difficulty the wife’s original attorney experienced in this case due to the unavailability of the trial transcript and the delay this caused in obtaining a record. Nonetheless, we cannot consider the additional documentation.
      "As we have stated on many prior occasions, '[a]n appellate court is confined in its review to the appellate record, that record cannot be "changed, altered, or varied on appeal by statements in briefs of counsel,” and the court may not "assume error or presume the existence of facts as to which the record is silent.” ' Beverly v. Beverly, 28 So.3d 1, 4 (Ala.Civ.App.2009) (quoting Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006)).”

        Dreading v. Dreading, 84 So.3d 935, 937 (Ala. Civ.App.2011).

      . This court has previously recognized that filing a motion for contempt to enforce an interlocutory order of a trial court does not initiate a new action. Thus, no filing fee is required when a motion for contempt is filed before the entry of a final judgment of divorce. See Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007) ("[T]he filing of the contempt motion would not be considered as having initiated a separate proceeding.”).