T. Mark Maclin, as administrator ad litem for Ronald Leon Brotherton, deceased v. Justin Congo et al.

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REL: 09/07/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2012 2110546 T. Mark M a c l i n , as a d m i n i s t r a t o r ad l i t e m f o r Ronald Leon B r o t h e r t o n , deceased v. J u s t i n Congo e t a l . Appeal from Limestone C i r c u i t (CV-09-175) Court MOORE, J u d g e . T. Mark M a c l i n , as t h e a d m i n i s t r a t o r a d l i t e m f o r R o n a l d Leon Brotherton, deceased, appeals Limestone C i r c u i t Court ("the t r i a l from a judgment o f c o u r t " ) awarding the damages 2110546 to J u s t i n Congo on h i s c l a i m s r e s u l t i n g accident involving vehicles being Congo. Because subject-matter a c t i o n , we we conclude jurisdiction from a m o t o r - v e h i c l e d r i v e n by that the Brotherton trial court and lacked over the claims a s s e r t e d i n the dismiss the appeal. Procedural History On May business as 26, 2009, Congo Ernest Towing, referred to c o l l e c t i v e l y against Brotherton Congo, and individually Justin Congo as " t h e C o n g o s " ) and a number of and doing (hereinafter filed a complaint fictitiously named d e f e n d a n t s , a l l e g i n g c l a i m s o f n e g l i g e n c e and w a n t o n n e s s . The Congos a l l e g e d , among o t h e r t h i n g s , t h a t , on o r a b o u t June 7, 2007, B r o t h e r t o n had allowed the v e h i c l e he was driving to c o l l i d e w i t h t h e tow t r u c k J u s t i n was d r i v i n g , w h i c h tow t r u c k was owned b y E r n e s t , d o i n g b u s i n e s s as Congo T o w i n g ; t h a t , a result of Brotherton's alleged negligent and/or as wanton o p e r a t i o n o f h i s v e h i c l e , J u s t i n h a d s u f f e r e d i n j u r i e s and h a d incurred alleged damages; negligent and that, and/or as wanton a result of operation of Brotherton's his vehicle, E r n e s t , d o i n g b u s i n e s s as Congo T o w i n g , h a d s u f f e r e d damages 2 2110546 in the f o r m o f l o s t income as a r e s u l t o f t h e damage t o , l o s s o f use of, the On 26, June appearance for tow t r u c k J u s t i n had 2009, filing a J. Mark been Debro suggestion of and driving. filed death" a on "limited behalf of B r o t h e r t o n , n o t i f y i n g t h e t r i a l c o u r t t h a t B r o t h e r t o n had on May 15, 2008. Debro a l s o f i l e d died a " l i m i t e d appearance f o r p u r p o s e o f c o n t e s t i n g s e r v i c e and m o t i o n t o q u a s h , " a s s e r t i n g that Brotherton time the agent had been a r e s i d e n t o f M i s s o u r i ; t h a t , a t summons and or executor complaint; that complaint of had jurisdiction been estate unknown w h e t h e r o p e n e d o r i f an e x e c u t o r service were i s s u e d t o B r o t h e r t o n , Brotherton's i t was had the had an estate been a p p o i n t e d ; improper and over the matter. the received and, trial Debro a l s o f i l e d no the had been thus, that court lacked a supplement t o h i s m o t i o n t o quash, a t t a c h i n g a copy of B r o t h e r t o n ' s death c e r t i f i c a t e t h e r e t o and court quash the s e r v i c e on again requesting Brotherton. t h a t the t r i a l Debro f i l e d an a d d i t i o n a l supplement to h i s motion to quash, a t t a c h i n g a c e r t i f i e d of Brotherton's Brotherton's stated in death daughter, her certificate Dianne affidavit and Brotherton that 3 Brotherton the affidavit Edwards. had died copy of Edwards without 2110546 l e a v i n g a known w i l l a n d t h a t no e s t a t e h a d been o p e n e d on h i s behalf. She stated [Brotherton's] personal also death, no that, one had "[a]t been the time appointed of agent, r e p r e s e n t a t i v e , o r e x e c u t o r t o r e c e i v e s e r v i c e o f any l a w s u i t s on h i s b e h a l f . " The t r i a l court granted the motion t o q u a s h on September 8, 2009. On November 9, 2009, t h e Congos f i l e d a m o t i o n that the trial administrator Rule ad l i t e m 25, A l a . R. Debro motion filed C i v . P., and t o f i l e § On December that complaint, adding ("Progressive"). issued 11, estate, Brotherton's "there i s no 2009, the estate covered J u s t i n Congos alleged pursuant to A l a . Code 1975. t o the Congos' the requirement be represented filed an amended Insurance Company that Progressive to Ernest Congo, a t the time of the a c c i d e n t , 4 the estate." Specialty Congos as I n h i s response, h a d n o t met an a u t o m o b i l e - i n s u r a n c e p o l i c y that p o l i c y Maclin to dismiss. Progressive The Mark appearance t o respond t h e Congos b e c a u s e , he a s s e r t e d , T. a n d § 43-2-250, a motion that 43-2-250 appoint f o r Brotherton's a limited Debro a s s e r t e d under court requesting had that and 2110546 that they were seeking uninsured-motorist On filed she worked Mutual trial in from p r o v i s i o n of the December 17, i n the damages 2009, t h e court; Clay the Company under the Clay was policy. affidavit of L e s l i e s t a t e d i n her claims-litigation Insurance Progressive affidavit department ("Shelter"), that Shelter Shelter that of is a M i s s o u r i c o r p o r a t i o n t h a t i s not l i c e n s e d t o s e l l i n s u r a n c e in the an State o f A l a b a m a , and automobile-insurance f o r c e and On e f f e c t on that Brotherton policy the December 17, from finding that Brotherton Shelter date of the 2009, t h e had been i s s u e d that was in full accident. trial had d i e d on May court 10, entered an order 2008, i n t h e State o f M i s s o u r i , a p p o i n t i n g T. M a r k M a c l i n as t h e a d m i n i s t r a t o r litem for Brotherton's estate, defendant i n the a c t i o n . renew h i s trial motion to trial trial court On court substituting Maclin dismiss and to seek revocation lacked 2010, C o n g o s ' amended c o m p l a i n t , a of the 2009, o r d e r b a s e d on h i s a s s e r t i o n subject-matter jurisdiction; d e n i e d D e b r o ' s m o t i o n on J a n u a r y 11, J a n u a r y 18, as Debro f i l e d a l i m i t e d appearance t o c o u r t ' s December 17, t h a t the and ad Progressive filed an a s s e r t i n g t h a t the 5 the 2010. answer t o truck the operated 2110546 by Justin at the time Ernest's policy with motorist coverage a n s w e r was a trial the accident Progressive had filed. of not and, been Progressive was not thus, confirmed also f i l e d that at listed uninsured- the time the a m o t i o n demanding by j u r y . On F e b r u a r y 25, 2010, M a c l i n f i l e d an a n s w e r and a m o t i o n t o d i s m i s s , a s s e r t i n g , among o t h e r t h i n g s , t h a t no e s t a t e been e s t a b l i s h e d on B r o t h e r t o n ' s was no bring estate suit to represent, against a b e h a l f and, that the On J u l y 13, Maclin's 2010, and jurisdiction. response to Maclin's motion to d i s m i s s . court denied motion to thus, that Congos had v i a b l e defendant, court lacked subject-matter trial that The there the 2010. case f o r a t r i a l On Congos f i l e d On May 21, 2010, on J a n u a r y 9, On December 9, 2011, judgment, again matter 2011, and the a motion to withdraw granted the trial court set on the 2012. Maclin f i l e d a s s e r t i n g the t r i a l jurisdiction a dismiss. Progressive f i l e d A u g u s t 30, to trial t h a t m o t i o n by a n o t a t i o n on t h e c a s e - a c t i o n - s u m m a r y s h e e t 15, had failed from a c t i v e p a r t i c i p a t i o n i n the c a s e ; the t r i a l c o u r t July on also 6 a m o t i o n f o r a summary c o u r t ' s l a c k of asserting lack of subjectpersonal 2110546 jurisdiction over Brotherton and summary-judgment m o t i o n was s t a t e d t h a t the Brotherton." affidavit written of Leslie also Clay, of who t o do business court set Maclin's insurance, i n Alabama. 2012. Diane Brotherton was On filed Brotherton's that did not filed own and any had Brotherton w i t h o u t l e a v i n g a known w i l l , on h i s b e h a l f , daughter, t h a t no or responses to Maclin's had assets licensed 2011, the trial for a hearing who on summaryaffidavit stated that Missouri, that a l l died principally in e s t a t e had i n Alabama. Missouri been o p e n e d Brotherton The summary-judgment m o t i o n . 7 not not t h a t , at the time of h i s death, property the employed owned were had Ronald or a t t a c h i n g the a r e s i d e n t of P o t t e r s v i l l e , in Missouri, Shelter he records motion a supplement to h i s 2011, the i n which his advertised, December 14, of the automobiles t h a t B r o t h e r t o n garaged that summary-judgment m o t i o n Maclin Mardis, to t h a t S h e l t e r was j u d g m e n t m o t i o n on December 20, of attached stated a g e n t s i n A l a b a m a and J a n u a r y 4, affidavit, to n e v e r been opened f o r the l a t e Maclin policies insurance Maclin's Attached "Probate Court of Limestone County's show t h a t an e s t a t e has Leon Shelter. Congos 2110546 A jury At trial the close was c o n d u c t e d on J a n u a r y of the Congos' case, 11 a n d 12, 2012. Debro, who represented M a c l i n a t t h e t r i a l , f i l e d a m o t i o n f o r a j u d g m e n t as a m a t t e r of law, which the t r i a l court denied. m o t i o n f o r a j u d g m e n t as a m a t t e r the evidence, trial court again lacked asserting, and awarded Ernest, h i m $27,020 among o t h e r things, that the jurisdiction; The j u r y f o u n d On J a n u a r y the trial i n favor of J u s t i n i n damages; i t found i n d i v i d u a l l y and d o i n g b u s i n e s s a w a r d e d h i m no damages. renewed h i s of law at the c l o s e of a l l subject-matter court denied t h a t motion. Debro i n favor of as Congo T o w i n g , b u t 18, 2012, t h e t r i a l court e n t e r e d a j u d g m e n t on t h e j u r y ' s v e r d i c t . On F e b r u a r y 7, 2012, Debro f i l e d "defendant's on b e h a l f alternative of Maclin a document entitled post-judgment motions," i n w h i c h he s t a t e d t h a t he was a p p e a r i n g f o r the l i m i t e d purposes o f making a motion t o s e t a s i d e t h e v e r d i c t and t h e judgment e n t e r e d on t h e j u r y ' s v e r d i c t e n t r y o f an o r d e r g r a n t i n g M a c l i n ' s law or, i n the a l t e r n a t i v e , trial other a motion j u d g m e n t as a m a t t e r of f o r a new t r i a l . The c o u r t e n t e r e d an o r d e r on F e b r u a r y things, denied Maclin's 8 and f o r t h e 9, 2012, t h a t , among alternative postjudgment 2110546 motions. Maclin filed h i s n o t i c e of appeal to this c o u r t on M a r c h 13, 2012. Discussion M a c l i n a r g u e s on a p p e a l subject-matter jurisdiction t h a t t h e t r i a l c o u r t d i d n o t have i n this c a s e b e c a u s e , he s t a t e s , " a p p o i n t m e n t o f an a d m i n i s t r a t o r a d l i t e m b y a c i r c u i t [ c o u r t ] does n o t c r e a t e a l e g a l reach the merits entity w h i c h c a n be s u e d . " of Maclin's argument, however, We do n o t because conclude t h a t the t r i a l court never obtained j u r i s d i c t i o n the cause o f a c t i o n . Brotherton deceased. on May The Congos f i l e d t h e i r 26, 2009. Proceedings At that instituted complaint time, over against Brotherton a g a i n s t an i n d i v i d u a l we was who i s d e c e a s e d a t t h e t i m e t h e a c t i o n i s f i l e d a r e a n u l l i t y a n d do not invoke t h e t r i a l c o u r t ' s j u r i s d i c t i o n . 2101154, A p r i l 2012). The Congos' a c t i o n a g a i n s t B r o t h e r t o n Id. The t r i a l jurisdiction. (Ala. C i v . App. the action f o r lack See Ex p a r t e Owens, 65 So. 3d 2010). 9 therefore o r any f u r t h e r m o t i o n s o r p l e a d i n g s ; i t was r e q u i r e d t o d i s m i s s of subject-matter was c o u r t h a d no j u r i s d i c t i o n t o e n t e r t a i n an amendment o f t h e c o m p l a i n t 955-56 [Ms. 13, 2 0 1 2 ] ___ S o . 3d ___ , ___ ( A l a . C i v . App. v o i d ab i n i t i o . 953, A.E. v. M.C., Because t h e Congos' 2110546 complaint failed jurisdiction, void. See A.E. 448 the v. M.C., trial So. jurisdiction the a c t i o n . ' 2d 443, invoke support the 3d a t See an appeal; an judgment I n s . Co., a l s o A.E., appellate So. court must from such a v o i d judgment." 80 953 (Ala. appeal, albeit dismiss 3d the 949, court to vacate Civ. App. with of entered 876 So. 3d a t 2011). dismiss Reed v. We i n s t r u c t i o n s to i t s v o i d j u d g m e n t and are "A v o i d j u d g m e n t w i l l attempted appeal So. court ("'The a b s e n c e Moore v. J o h n H a n c o c k L i f e (Ala. 2003)."). subject-matter trial r e n d e r s v o i d any (Moore, J . , c o n c u r r i n g i n t h e r e s u l t ) . not court's a l l s u b s e q u e n t a c t i o n s by subject-matter in to an White, therefore the trial orders. APPEAL DISMISSED WITH INSTRUCTIONS. Thompson, P.J., and Pittman, concur. 10 Bryan, and Thomas, J J . ,

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