Jewel Campbell v. Ethel C. Taylor

REL:07/03/2014

Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
_________________________

1110057
_________________________

Jewel Campbell et al.

v.

Ethel C. Taylor et al.
_________________________

1110104
_________________________

Gladys A. Campbell and Paula Buettner

v.

Jewel Campbell et al.

Appeals from Baldwin Circuit Court
(CV-09-900617)
1110057; 1110104
PER CURIAM.

In case no. 1110057, Jewel Campbell, Acie A. Campbell,

William J. Campbell, Jr., Roy J. Campbell, Eva Campbell,

William C. Campbell, Kelly Calvert, and Amanda Givens ("the

plaintiffs") appeal from a summary judgment in favor of Ethel

C. Taylor, Paula Buettner, Gladys A. Campbell, Jason Bennett,

and Mendi1 Bennett ("the defendants") in this dispute stemming

from a judgment entered in 2006 in the administration of an

estate. In case no. 1110104, Paula Buettner and Gladys A.

Campbell, two of the above defendants, cross-appeal from the

denial of their motion to strike certain affidavits filed by

the plaintiffs in opposition to the defendants' summary-

judgment motion. For the reasons discussed below, we affirm

the judgment in case no. 1110057; our holding in case no.

1110057 renders moot the cross-appeal, case no. 1110104.

Facts and Procedural History

These appeals involve a challenge to the disposition of

the estate of A.V. Campbell, Sr. (hereinafter sometimes

referred to as "the testator"), who died in 1977. He had at

least four children: A.V. Campbell, Jr., William J. Campbell,

1
The spelling of Mendi's name appears in the record both
as "Mindi" and as "Mendi."
2
1110057; 1110104
Sr.,2 Ethel C. Taylor, and Archie Paul Campbell. His will was

admitted to probate in 1977; those proceedings languished in

the probate court until 2005. During this time, A.V.

Campbell, Jr., and Archie Paul Campbell died. Ethel was

ultimately named the executrix of the estate.

In 2005, Gladys A. Campbell, one of Archie Paul

Campbell's descendants, filed a petition under Ala. Code 1975,

§ 12-11-41,3 to remove the probate proceedings to the Baldwin

Circuit Court ("the 2005 circuit court action"). She alleged,

2
William J. Campbell, Sr., had predeceased his father,
dying in 1972.
3
That Code section states:

"The administration of any estate may be removed
from the probate court to the circuit court at any
time before a final settlement thereof, by any heir,
devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
of any such estate, without assigning any special
equity; and an order of removal must be made by the
court, upon the filing of a sworn petition by any
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
of any such estate, reciting that the petitioner is
such heir, devisee, legatee, distributee, executor,
administrator or administrator with the will annexed
and that, in the opinion of the petitioner, such
estate can be better administered in the circuit
court than in the probate court."
3
1110057; 1110104
among other things, that Ethel, as the executrix, had failed

to have the estate's property devised under the terms of the

will. The case-action summary in the record for the 2005

circuit court action4 indicates that the following persons

were ultimately named parties to the 2005 circuit court

action: Ethel, who is the testator's daughter and executrix;

Paula Buettner, Gladys, and Barbara Campbell, relatives of

Archie Paul Campbell; and Jewel Campbell, William J. Campbell,

Jr., Amanda Givens, and Kelly Calvert, descendants of William

J. Campbell, Sr.

After several hearings, the circuit court, on November

28, 2006, issued a judgment that, among other things,

distributed property according to the testator's will ("the

2006 judgment"). Specifically, certain property was awarded

separately to (1) Ethel, (2) to Paula and Gladys, and (3) to

"the heirs at law of William J. Campbell[, Sr.]." Jewel

appealed from that judgment, and this Court affirmed the

circuit court's judgment without issuing an opinion. Campbell

4
We take judicial notice of the record in that action,
which came before this Court in a prior appeal discussed
below. See Morrow v. Gibson, 827 So. 2d 756, 762 (Ala. 2002).
4
1110057; 1110104
v. Estate of Campbell (No. 1060567, Sept. 28, 2007), 22 So. 3d

531 (Ala. 2007) (table).

On June 2, 2009, the underlying action was filed in the

Baldwin Circuit Court ("the trial court"). The plaintiffs

purport to be the heirs of William J. Campbell, Sr. Some of

the plaintiffs participated in the 2005 circuit court action;

others did not. This new action was described as a "complaint

to set aside judicial decree" and was alleged to be filed

"pursuant to Rule 60(b) of the Alabama Rules of Civil

Procedure as an independent action for the purpose of setting

aside" the 2006 judgment. The plaintiffs contended that, as

the heirs of William J. Campbell, Sr., they were also heirs of

A.V. Campbell, Sr., and were thus entitled to certain

ownership interests in the property distributed in the 2005

circuit court action. The plaintiffs further alleged that

they had not all been "named as parties" in the 2005 circuit

court action and that they "were not before the [circuit

court] at the time of the final adjudication." They thus

alleged that they were "not subject to" and "not bound by" the

2006 judgment, and they asked that it be set aside. Of the

defendants in the underlying action, Ethel, Paula, and Gladys

5
1110057; 1110104
participated in the 2005 circuit court action; Jason Bennett

and Mendi Bennett did not.

After various motions and after granting a motion by the

defendants to strike certain affidavit testimony filed by the

plaintiffs, the trial court purported to enter a summary

judgment in favor of Ethel. The plaintiffs appealed, and the

Court of Civil Appeals dismissed the appeal as being from a

nonfinal judgment, Campbell v. Taylor, 76 So. 3d 258 (Ala.

Civ. App. 2011). The proceedings resumed in the trial court.

Ethel again moved for a summary judgment. The remaining

defendants also filed a motion for a summary judgment. The

plaintiffs responded with their own filings in opposition, and

the defendants moved to strike certain affidavit testimony

supplied by the plaintiffs with their opposition. The trial

court, without stating the findings on which its decision was

based, ultimately granted the defendants' summary-judgment

motions and denied their motions to strike. In case no.

1110057, the plaintiffs appeal the summary judgment in favor

of the defendants. In case no. 1110104, Paula and Gladys

cross-appeal from the trial court's denial of their motion to

strike.

6
1110057; 1110104
Discussion

The complaint in the underlying action sought, pursuant

to Rule 60(b), Ala. R. Civ. P., to set aside the 2006 judgment

as "void," in substance, seeking relief from the 2006 judgment

under Rule 60(b)(4), Ala. R. Civ. P. ("[T]he court may

relieve a party or a party's legal representative from a final

judgment, order, or proceeding for the following reasons: ...

the judgment is void ...."). On appeal, as in the trial

court, the plaintiffs contend that all the plaintiffs were

"necessary parties" to the administration of the estate but

that some of them did not receive notice of the 2005 circuit

court action, were not served with pleadings filed in that

action, and were not properly named as parties. Thus, the

plaintiffs argue, the 2006 judgment is "void."

"'The standard of review on appeal
from the denial of relief under Rule
60(b)(4) is not whether there has been an
abuse of discretion. When the grant or
denial of relief turns on the validity of
the judgment, as under Rule 60(b)(4),
discretion has no place. If the judgment is
valid, it must stand; if it is void, it
must be set aside. A judgment is void only
if the court rendering it lacked
jurisdiction of the subject matter or of
the parties, or if it acted in a manner
inconsistent with due process. Satterfield

7
1110057; 1110104
v. Winston Industries, Inc., 553 So. 2d 61
(Ala. 1989).'

"Insurance Mgmt. & Admin., Inc. v. Palomar Ins.
Corp., 590 So. 2d 209, 212 (Ala. 1991). In other
words, if the underlying judgment is void because
the trial court lacked subject-matter or personal
jurisdiction or because the entry of the judgment
violated the defendant's due-process rights, then
the trial court has no discretion and must grant
relief under Rule 60(b)(4)."

Allsopp v. Bolding, 86 So. 3d 952, 957 (Ala. 2011). See also

Bowen v. Bowen, 28 So. 3d 9, 14 (Ala. Civ. App. 2009) (holding

that a Rule 60(b)(4) motion will be granted only when the

prior judgment is void and not merely voidable).

It is under this standard that we review the trial

court's ruling; however, the plaintiffs on appeal do not

explicitly present their arguments in terms of the framework

of the above three grounds--a lack of subject-matter

jurisdiction, a lack of personal jurisdiction over the

parties, or a violation of due process. Instead, they cite

caselaw holding generally that all heirs are proper and

necessary parties in estate actions like the 2005 circuit

court action. See Jacobs v. Murphy, 245 Ala. 260, 263, 16 So.

2d 859, 862 (1944) (noting in the administration of an estate

removed from the probate court to the circuit court that "[i]n

all suits in equity respecting the lands of decedent his heirs

8
1110057; 1110104
at law are necessary parties"); Irwin v. Irwin, 227 Ala. 140,

141, 148 So. 846, 847 (1933) (stating in the context of

administration of an estate removed from the probate court to

the circuit court that the heirs at law are "proper parties"

and "necessary to a full and complete relief"); and Irwin v.

J.S. Reeves & Co., 222 Ala. 647, 647-48, 133 So. 692, 692

(1931) (rejecting the argument that "the heirs of decedent

[and] distributees of the estate" are not "proper parties" in

an administration of an estate removed "into the equity

court"); see also Cook v. Castleberry, 233 Ala. 650, 653, 173

So. 1, 3 (1937) (stating that the administrator of the estate

of a deceased distributee is a "necessary party" to the

administration of an estate in equity). The lack of necessary

parties, the plaintiffs argue, rendered the 2006 judgment

"void."

This 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. Burnette, 341 So. 2d 118 (Ala. 1976)));

Rogers v. Smith, 287 Ala. 118, 123, 248 So. 2d 713, 717 (1971)

9
1110057; 1110104
("[T]he absence of necessary or indispensable parties ... is

a jurisdictional defect ...."). See also J.C. Jacobs Banking

Co. v. Campbell, 406 So. 2d 834 (Ala. 1981); Johnston

v. White-Spunner, 342 So. 2d 754, 759 (Ala. 1977); and Burnett

v. Munoz, 853 So. 2d 963 (Ala. Civ. App. 2002). But see

Holland v. City of Alabaster, 566 So. 2d 224 (Ala. 1990)

(addressing the issue of the absence of an indispensable party

as one of error on the part of the trial court). This is so,

even after the adoption in 1973 of Rule 19, Ala. R. Civ. P.,

which addresses the "Joinder of Persons Needed for Just

Adjudication." Indeed, Rule 19 wholly fails to speak in terms

of jurisdiction, and nothing in that rule indicates that if

the court fails to address the necessity or indispensability

of a particular party or does address, and errs with regard to

the resolution of, Rule 19 concerns, any ensuing judgment is

void. See Adams v. Boyles, 610 So. 2d 1156, 1157 n.1 (Ala.

1992) (reiterating "that failure to join even an indispensable

party does not automatically compel dismissal").

Other decisions appear to refer to the joinder of

necessary or indispensable parties as a statutory requirement

for certain actions or as a requirement of "due process." See

Holland v. Flinn, 239 Ala. 390, 392, 195 So. 265, 267 (1940)

10
1110057; 1110104
(stating that due process required the presence of certain

parties so that those parties "have their day in court" and

further noting that, although "[t]he Declaratory Judgment Act

... required necessary parties to be brought in," "the

presence of necessary parties is jurisdictional"), and A.S. v.

M.W., 100 So. 3d 1112, 1114 (Ala. Civ. App. 2012) (holding

that a judgment adjudicating paternity was "void for failure

to join ... an indispensable party" required by Ala. Code

1975, § 26–17–603).

Other references to the lack of necessary or

indispensable parties impacting "jurisdiction" refer to issues

of personal jurisdiction. See Burnett v. Munoz, 853 So. 2d at

965 (holding that the failure to join a necessary party

rendered the trial court without "jurisdiction" to affect the

rights of that party); Holland v. City of Alabaster, 566 So.

2d at 228 (noting that the trial court "must have jurisdiction

over the [omitted party] before proceeding to adjudicate any

issues affecting that entity's interests"); Johnston v.

White-Spunner, 342 So. 2d at 759 ("Rendering final judgment

without jurisdiction over those indispensable parties renders

that judgment void."); and Rogers v. Smith, 287 Ala. at 123,

248 So. 2d at 717 ("A judgment or decree is not binding on

11
1110057; 1110104
anyone unless the court rendering the same had jurisdiction of

the parties and the subject matter of the cause.").

Despite the language in prior decisions referring to the

lack of a necessary or indispensable party as an issue of

"jurisdiction," it is clear that the court in the 2005 circuit

court action possessed subject-matter jurisdiction in that

case. Specifically, a circuit court's subject-matter

jurisdiction is derived from the Alabama Constitution and the

Alabama Code. Ex parte Seymour, 946 So. 2d 536, 538 (Ala.

2006). Here, § 12–11–41 clearly authorizes the circuit court

to administer the estate in that case, which was properly

removed to the circuit court from the probate court. The

inclusion of a necessary or indispensable party is not what

provides the court with jurisdiction, although, in some

instances, the lack of a necessary or indispensable party may

deprive the action, for purposes of justiciability, of the

requisite adversity. See Stamps v. Jefferson Cnty. Bd. of

Educ., 642 So. 2d 941 (Ala. 1994).

The cases cited by the plaintiffs--Jacobs and Irwin,

supra--do not hold otherwise. Specifically, those cases refer

to the necessity of certain parties in an administration of an

estate removed from the probate court as a requirement to

12
1110057; 1110104
exercise "jurisdiction" in equity. Jacobs states that the

"heirs at law are necessary parties" in actions involving a

decedent's lands, but this is for the purpose of properly

exercising equitable powers:

"'All persons interested in a suit in equity, and
whose rights will be directly affected by the
decree, must be made parties, unless they are too
numerous, or some of them are beyond the reach of
process, or not in being; and in every case there
must be such parties before the court as to insure
a fair trial of the issue in behalf of all.'"

Jacobs, 245 Ala. at 263, 16 So. 2d at 862 (quoting Culley v.

Elford, 187 Ala. 165, 172, 65 So. 381, 383 (1914)). Irwin too

notes the connection between the presence of necessary parties

and the proper exercise of equitable powers, stating that the

presence of "proper parties" is "necessary to a full and

complete relief, according to the jurisdiction and rules in

equity .... That is, having the right and assuming

jurisdiction of the parties and properties, equity will grant

full relief." 227 Ala. at 141, 148 So. at 847. As Justice

Murdock noted in his special writing in Ex parte Green, 58 So.

3d 135, 154-57 (Ala. 2010), a court's authority to exercise

equitable powers, sometimes referred to as "equity

jurisdiction," is distinct from subject-matter jurisdiction.

Thus the Court in Jacobs noted, in the quotation above, that

13
1110057; 1110104
while "[a]ll persons interested in a suit in equity ... must

be made parties," some parties may be excepted when they "are

too numerous, ... beyond the reach of process, or not in

being." 245 Ala. at 263, 16 So. 2d at 862. There need only

"be such parties before the court as to insure a fair trial of

the issue in behalf of all." 245 Ala. at 263, 16 So. 2d at

862. All such parties are not required for the court to

properly exercise equitable power; the presence of all parties

is not a prerequisite to subject-matter jurisdiction.

Given that § 12-11-41 provided the court in the 2005

circuit court action with subject-matter jurisdiction, the

2006 judgment is not void for lack of subject-matter

jurisdiction.

We thus turn to the issue whether the 2006 judgment is

"void" for lack of personal jurisdiction.5 When a party is

not served or joined in an action and the trial court thus

acquires no jurisdiction over it, the judgment is deemed

"void" "for purpose[s] of Rule 60(b)(4)." Ex parte Wilson

Lumber Co., 410 So. 2d 407, 409 (Ala. 1982). See also Ex

5
There is no explicit argument before us that the 2006
judgment was "void" on the ground of lack of due process;
therefore, we do not address that Rule 60(b)(4) ground.

14
1110057; 1110104
parte Pate, 673 So. 2d 427, 429 (Ala. 1995) ("If a court lacks

jurisdiction of a particular person, or if it denied that

person due process, then the court's judgment is void."), and

Horizons 2000, Inc. v. Smith, 620 So. 2d 606, 607 (Ala. 1993)

("A judgment rendered against a defendant in the absence of

personal jurisdiction over that defendant is void.").

First, we note that under certain circumstances the lack

of personal jurisdiction is subject to waiver, i.e., "defects

in personal jurisdiction ... can be waived," which

distinguishes personal jurisdiction from subject-matter

jurisdiction, which "'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.'" J.T.

v. A.C., 892 So. 2d 928, 931 (Ala. Civ. App. 2004) (quoting

C.J.L. v. M.W.B., 868 So. 2d 451, 453 (Ala. Civ. App. 2003)).

See also Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So. 2d 45

(Ala. 2003) (holding that insufficient service of process may

be waived); Hall v. Hall, 122 So. 3d 185, 190 (Ala. Civ. App.

2013) ("'A defense alleging a lack of personal jurisdiction

because of insufficiency of service of process, however, can

be waived if the defendant submits himself or herself to the

15
1110057; 1110104
jurisdiction of the trial court.'" (quoting Klaeser v. Milton,

47 So. 3d 817, 820 (Ala. Civ. App. 2010))); and Rule 12(h)(1),

Ala. R. Civ. P. ("A defense of lack of jurisdiction over the

person ... is waived ... if it is neither made by motion under

this rule nor included in a responsive pleading or an

amendment thereof ....").

Second, the removal of the administration of an estate

from the probate court to the circuit court is not a new

action, but simply the continuation of the action in another

forum:

"'[W]hen the administration of an estate is removed
from the probate court to the circuit court, the
circuit court typically takes the proceeding where
the probate court left off.' Ex parte Farley, 981
So. 2d 392, 396 (Ala. 2007); see also Estate of
Autry v. McDonald, 332 So. 2d 377, 379 (Ala. 1976);
Ex parte Stephens, 233 Ala. 167, 169, 170 So. 771,
773 (1936) ('When the circuit court, in the exercise
of its unquestioned jurisdiction, reached out and
brought before it for administration the estate ...,
it took over that estate, and the proceedings had
therein, just where they stood when the same were
taken over. The order of removal did not serve to
set aside or to annul what had been properly done
theretofore in the probate court, but rather to
"pick up the proceedings" where the probate court
had left off....')."

Sims v. Estate of West, 90 So. 3d 770, 772-73 (Ala. Civ. App.

2012). Thus, when the administration of an estate is removed

16
1110057; 1110104
to the circuit court, the circuit court "pick[s] up the

proceedings where the probate court had left off." Sims, 90

So. 3d at 773 (internal quotation marks omitted). Further,

this Court has explicitly held that notice to the parties of

the removal under § 12-11-41 of the administration of an

estate from the probate court to the circuit court is not

required: "[Section] 12-11-41 neither expressly nor impliedly

requires that any party receive notice of a petition for

removal .... Since removal is a matter of right, notice is

unnecessary." Ex parte Clayton, 514 So. 2d 1013, 1018 (Ala.

1987).

Portions of the probate court record included in the 2005

circuit court action indicate that Jewel and William J.

Campbell, Jr., both filed a "waiver of notice and consent to

probate" in the probate proceeding. Additionally, the probate

court, on April 22, 1977, appointed a guardian ad litem for

Roy and Acie, who were minors at the time, and ordered that

they and their mother be served with notice of the probate

court proceeding. Another document indicates that the

guardian ad litem subsequently appeared before the court in

the proceedings and filed a pleading "deny[ing] each and every

17
1110057; 1110104
allegation contained in such proceedings and demand[ing] proof

thereof." For all that appears, these four plaintiffs were

parties to the probate court action; no notice to them was

required when the action was transferred to the circuit court.

Clayton, supra.6 Thus, a lack of personal jurisdiction as to

these parties has not been demonstrated.

Kelly Calvert and Amanda Givens were not parties to the

original probate court action.7 Both, however, were named as

parties in the 2005 circuit court action and both were

represented by the same counsel who represented Jewel and

William J. Campbell, Jr., although that counsel later withdrew

from representing Amanda, who then proceeded pro se. No

challenge to the circuit court's exercise of personal

jurisdiction is found in the record of the 2005 circuit court

action; any issue as to personal jurisdiction was therefore

6
Further, both Jewel and William J. Campbell, Jr.,
actually participated in the 2005 circuit court action: both
were represented by counsel. Jewel even filed an appeal from
the court's judgment. See Campbell v. Estate of Campbell,
supra.
7
Kelly and Amanda's mother, Janice Calvert, who died in
1987, was a party to that case and, like Jewel and William J.
Campbell, Jr., filed a "waiver of notice and consent to
probate" in that proceeding.

18
1110057; 1110104
waived. J.T., supra; Hall, supra; and Rule 12(h)(1), Ala. R.

Civ. P.

Eva and William C. Campbell were not yet born at the time

of the initiation of the probate court proceedings. Their

father, Dennie Rudolph Campbell, had been a party to those

proceedings and had also filed a "waiver of notice and consent

to probate." Dennie died in 1999. Nothing before us

indicates what happened in the probate court regarding his

interests after he died: it appears that no suggestion of

death was filed and that no substitution of parties under Rule

25, Ala. R. Civ. P., occurred.8

Eva and William C. Campbell claim to be heirs of A.V.

Campbell, Sr., through Dennie and argue that they were thus

necessary parties to the 2005 circuit court action; they

therefore contend that their failure to be named as parties

renders the 2006 judgment "void." Again, as we held above,

the failure to join a necessary party did not render the 2006

8
Testimony in the record indicates that both Eva and
William C. Campbell were actually present at the courthouse
during hearings conducted in the 2005 circuit court action;
for all that appears, they had actual notice that the
administration of the estate was proceeding in the circuit
court.

19
1110057; 1110104
judgment void for lack of subject-matter jurisdiction. In

their brief on appeal, the plaintiffs do not present a direct

argument as to the issue of personal jurisdiction; instead,

they rely on the argument that the lack of necessary parties

itself rendered the judgment void. In support of that

argument, they cite Maxwell v. State, 656 So. 2d 882 (Ala.

Civ. App. 1995), and Mickens v. Calame, 497 So. 2d 505 (Ala.

Civ. App. 1986). Maxwell stands for the general proposition

that Rule 60(b)(4) relief is applicable when the court that

entered the prior judgment "either lacked subject matter

jurisdiction, lacked personal jurisdiction over one or more of

the parties, or otherwise functioned in a manner which was not

consistent with the principles of due process." 656 So. 2d at

884. Mickens stands for the proposition that a default

judgment may be set aside as "void" under Rule 60(b)(4) where

the summons and complaint "fail[ed] to conform" with Rule 4,

Ala. R. Civ. P.9

9
They further cite in their reply brief Johnston v.
White-Spunner, supra, and Rogers v. Smith, supra, both of
which, as noted above, indicate that a judgment is "void" if
the trial court did not have subject-matter or personal
jurisdiction.

20
1110057; 1110104
Neither of these decisions addresses whether a probate

court or, after removal of proceedings under § 12-11-41, a

circuit court has personal jurisdiction over the heirs to the

estate of one who was previously a proper party in the case.10

And those cases do not demonstrate that the failure to join

Eva and William C. Campbell in the 2005 circuit court action

rendered the 2006 judgment "void" for purposes of Rule

60(b)(4). Rule 28(a)(10), Ala. R. App. P., requires that the

parties present in their brief the legal authorities that

support their position. "If they do not, the arguments are

waived." White Sands Grp., L.L.C. v. PRS II, LLC, 998 So. 2d

1042, 1058 (Ala. 2008). Given that the lack of personal

jurisdiction is subject to waiver, see Rule 12(h)(1), and

J.T., 892 So. 2d at 931, and that no authority is presented

showing that the court in the 2005 circuit court action lacked

personal jurisdiction, the plaintiffs have not demonstrated on

appeal that their Rule 60(b)(4) motion was due to be granted

for lack of personal jurisdiction over Eva and William C.

Campbell. See Clements v. Clements, 990 So. 2d 383, 396 (Ala.

10
Indeed, another case cited on appeal, Cook, supra,
suggests that the administrator of Dennie's estate was a
necessary party.

21
1110057; 1110104
Civ. App. 2007) (holding that a personal-jurisdiction argument

was "waived and this court will not consider it for the first

time on appeal"), and Ex parte Phil Owens Used Cars, Inc., 4

So. 3d 418, 428-29 (Ala. 2008) (Murdock, J., concurring in the

rationale in part and concurring in the result (citing Rule

28(a)(10) and concluding that a party had not on appeal

sufficiently argued that personal jurisdiction did not

exist)); cf. Pruitt v. Palm, 671 So. 2d 105 (Ala. Civ. App.

1995) (affirming the denial of a motion under Rule 60(b)

challenging a judgment as void for lack of personal

jurisdiction because the record was silent as to the facts and

allegations supporting the appellant's arguments). For these

reasons, the trial court's summary judgment denying the

plaintiffs' Rule 60(b)(4) motion, case no. 1110057, is

affirmed. Our holding in case no. 1110057 renders moot the

challenge presented in the cross-appeal, case no. 1110104, and

we dismiss that appeal.

Conclusion

The trial court's judgment in favor of the defendants

denying the plaintiffs' Rule 60(b)(4) motion is affirmed; the

cross-appeal is dismissed as moot.

22
1110057; 1110104
1110057 -- AFFIRMED.

Moore, C.J., and Bolin, Parker, Shaw, Wise, and Bryan,

JJ., concur.

Murdock, J., concurs in the rationale in part and concurs

in the result.

Main, J., concurs in the result.

1110104 -- APPEAL DISMISSED AS MOOT.

Moore, C.J., and Bolin, Parker, Murdock, Shaw, Main,

Wise, and Bryan, JJ., concur.

23
1110057; 1110104
MURDOCK, Justice (concurring in the rationale in part and
concurring in the result in case no. 1110057 and concurring in
case no. 1110104).

I agree with the analysis of the main opinion in case no.

1110057 with respect to whether a judgment is "void" for lack

of joinder of necessary or indispensable parties. I would add

that Professors Wright and Miller also are in "agreement":

"Because an objection to the failure to join a
person who should be regarded as indispensable under
Rule 19(b) may be raised as late as on an appeal
from a final judgment or by the court on its own
motion, the impression is created that a failure to
join is jurisdictional, since ordinarily only
jurisdictional defects are treated in this fashion.
Thus, it is not surprising that cases can be found
that speak of nonjoinder as ousting the court of
jurisdiction. Since the indispensable-party
doctrine is equitable both in its origin and nature,
however, scholarly commentary as well as the vast
majority of courts reject this 'jurisdictional'
characterization."

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice & Procedure § 1611 (3d ed. 2001) (emphasis added).

I do not agree with the rationale offered by the main

opinion, however, for affirming the trial court's judgment as

to some of the plaintiffs. The main opinion reasons that

"this Court has explicitly held that notice to the parties of

the removal under § 12-11-41[, Ala. Code 1975,] of the

administration of an estate from the probate court to the

24
1110057; 1110104
circuit court is not required." ___ So. 3d at ___ (emphasis

added; emphasis omitted). Be that as it may, the issue before

us does not concern a lack of notice of the removal of the

administration of the estate, but a lack of notice and an

opportunity to participate in a particular proceeding

initiated by a petition filed some 28 years after the estate

proceedings were initiated. Specifically, the contention

before us is that some of the plaintiffs did not receive

notice or an opportunity to respond to a petition filed in

200611 or to participate in the proceedings that ensued from

that petition and that resulted in what the main opinion

refers to as the 2006 judgment. I cannot agree that merely

because Jewel Campbell, William J. Campbell, Jr., Acie A.

Campbell, and Roy J. Campbell were not entitled to notice of

the removal in 2005 of the administration of the estate of

A.V. Campbell, Sr., from the probate court to the circuit

court, they also were not entitled to notice of the 2006

11
The main opinion uses the term "2005 circuit court
action." The estate-administration proceedings were initiated
in 1977 and were removed to the circuit court pursuant to a
removal petition filed in June 2005. The dispute as to the
ownership of certain land that was adjudicated in the 2006
judgment, however, was the subject of a specific petition
seeking that adjudication filed on July 10, 2006.

25
1110057; 1110104
petition and an opportunity to participate in the proceedings

ensuing therefrom.

That said, as to Jewel Campbell and William J. Campbell,

Jr., I would affirm the 2006 judgment (as does the main

opinion), but I would do so on the different ground that both

of those parties either received notice of the 2006 petition

and the ensuing proceedings and/or did in fact participate in

those proceedings in a manner sufficient to give rise to a

waiver of any deficiency in his or her notice of the same.

As to Acie and Roy, I also would affirm on a different

ground than that stated in the main opinion. Elsewhere in the

main opinion, it is stated that "the plaintiffs do not present

a direct argument as to the issue of personal jurisdiction;

instead, they rely on the argument that the lack of necessary

parties itself rendered the judgment void." ___ So. 3d at

___. That is, we are not presented in this appeal with an

argument differentiating among the plaintiffs for purposes of

application of the principles of in personam jurisdiction (or,

for that matter, the doctrine of res judicata) in relation to

the 2006 judgment. As discussed, the argument that the

judgment as a whole is void for failure to join necessary

26
1110057; 1110104
parties is without merit. I therefore concur in the result

reached by the main opinion as to Acie and Roy in case no.

1110057.

27