Michael Barry v. Kristin Sullivan (Appeal from Jefferson Circuit Court: CV-21-902540).

Rel: March 7, 2025

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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2023-0613
_________________________

Michael Barry

v.

Kristin Sullivan

Appeal from Jefferson Circuit Court
(CV-21-902540)

EDWARDS, Judge.

Michael Barry, as the sole member of Liamleen, LLC, owns a house

and lot located at 1701 12th Street South in Birmingham ("the Barry

property"); Barry, or one of the various LLCs owned by Barry, has owned

that property since 1991, but Barry has never resided on the Barry

property, which he uses as a rental property. In 2018, Kristin Sullivan
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and her parents, M. Kit Waters and Keith R. Waters, purchased a

property located at 1703 12th Street South in Birmingham ("the Sullivan

property") from Talon Construction, Inc. In 2021, Sullivan constructed a

wooden fence between the Sullivan property and the Barry property.

Barry objected to the construction of the fence; he contended that a large

portion of the fence had been constructed on the Barry property.

In September 2021, Barry commenced in the Jefferson Circuit

Court ("the trial court") an action against Sullivan only, requesting that

the trial court order her to remove the fence and seeking damages for

trespass. Sullivan answered Barry's complaint and filed a counterclaim

in which she sought to establish the fence line as the boundary line

between the Sullivan property and the Barry property. After a trial, the

trial court entered a judgment in favor of Sullivan in which it, among

other things, established the boundary line between the properties.

Barry filed a postjudgment motion on June 6, 2023, and Sullivan filed a

response to that motion on July 19, 2023. On September 1, 2023, Barry

filed a notice of appeal to this court; pursuant to Rule 4(a)(5), Ala. R. App.

P., that notice of appeal was held in abeyance until the denial of his

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postjudgment motion by operation of law on September 5, 2023. 1 Barry's

appeal, although initially transferred to our supreme court in November

2023, was transferred here in August 2024, after that court concluded

that, pursuant to Coprich v. Jones, [Ms. SC-2023-0675, June 21, 2024]

___ So. 3d ___ (Ala. 2024), this court was the appropriate appellate forum;

the supreme court's transfer order also stated that, if this court were to

determine that the amount in controversy exceeded the $50,000

monetary limit of this court's general civil appellate jurisdiction, this

court must nonetheless hear the appeal pursuant to our supreme court's

discretionary-transfer authority under subsection (6) of Ala. Code 1975,

§ 12-2-7. In compliance with our supreme court's directives, see Ala.

Code 1975, § 12-3-16, we proceed to consider Barry's appeal.

1Rule 59.1, Ala. R. Civ. P., provides that a postjudgment motion

that is not ruled on by the court within 90 days is deemed denied at the
expiration of the 90-day period. The 90th day following Barry's filing of
his postjudgment motion on June 6, 2023, was Monday, September 4,
2023, which was a state holiday, see Rule 6, Ala. R. Civ. P. Therefore,
Barry's postjudgment motion was deemed denied on Tuesday, September
5, 2023. See First Alabama State Bank v. McGowan, 758 So. 2d 1116
(Ala. Civ. App. 2000), and Richburg v. Cromwell, 428 So. 2d 621 (Ala.
1983); see also Williamson v. Fourth Ave. Supermarket, Inc., 12 So. 3d
1200, 1203-04 (Ala. 2009).
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In his reply brief to this court, Barry argues that the trial court

erred by failing to join M. Kit Waters and Keith R. Waters, Sullivan's

parents and cotenants of the Sullivan property, to the action. He

contends that, because they are cotenants and, therefore, have an

interest in the Sullivan property and the outcome of this boundary-line

dispute, the Waterses are necessary parties under Rule 19, Ala. R. Civ.

P. We agree.

Rule 19 provides, in pertinent part:

"(a) … A person who is subject to jurisdiction of the court
shall be joined as a party in the action if (1) in the person's
absence complete relief cannot be accorded among those
already parties, or (2) the person claims an interest relating
to the subject of the action and is so situated that the
disposition of the action in the person's absence may (i) as a
practical matter impair or impede the person's ability to
protect that interest or (ii) leave any of the persons already
parties subject to a substantial risk of incurring double,
multiple, or otherwise inconsistent obligations by reason of
the claimed interest. If the person has not been so joined, the
court shall order that the person be made a party. If the
person should join as a plaintiff but refuses to do so, the
person may be made a defendant, or, in a proper case, an
involuntary plaintiff. If the joined party objects to venue and
joinder of that party would render the venue of the action
improper, that party shall be dismissed from the action.

"(b) … If a person as described in subdivision (a)(1)-(2)
hereof cannot be made a party, the court shall determine
whether in equity and good conscience the action should
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proceed among the parties before it, or should be dismissed,
the absent person being thus regarded as indispensable. The
factors to be considered by the court include: first, to what
extent a judgment rendered in the person's absence might be
prejudicial to the person or those already parties; second, the
extent to which, by protective provisions in the judgment, by
the shaping of relief, or other measures, the prejudice can be
lessened or avoided; third, whether a judgment rendered in
the person's absence will be adequate; fourth, whether the
plaintiff will have an adequate remedy if the action is
dismissed for nonjoinder.

"(c) … A pleading asserting a claim for relief shall state
the names, if known to the pleader, of any persons as
described in subdivision (a)(1)-(2) hereof who are not joined,
and the reasons why they are not joined."

We first note that Barry's tardy assertion of this issue is not fatal.

Our supreme court has explained that the

"failure of the plaintiff or the trial court to add a necessary
and indispensable party, and of the defendant to raise the
absence of such party in his or her pleadings, does not
necessarily dispose of the issue. This defect can be raised for
the first time on appeal by the parties or by the appellate court
ex mero motu."

J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 850 (Ala. 1981).

We considered whether cotenants were necessary parties to a

boundary-line dispute in Hall v. Reynolds, 60 So. 3d 927, 930-31 (Ala.

Civ. App. 2010):

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"Hall argues that the trial court, pursuant to Rule 19,
[Ala. R. Civ. P.,] should have joined the other heirs of David
Hall as parties in this action seeking to establish the
boundary line between the Hall property and the Moorer
property. In Bryan v. W.T. Smith Lumber Co., 278 Ala. 538,
543, 179 So. 2d 287, 291 (1965), our supreme court stated that
'tenants in common are necessary parties in [a suit to settle a
disputed boundary].' Although Bryan was decided before Rule
19 was adopted in 1973, '[t]he Committee Comments to Rule
19, Ala. R. Civ. P., note that this rule, in pragmatic terms,
embodies the preexisting common law governing the joinder
of necessary or indispensable parties.' Neal v. Neal, 856 So.
2d 766, 780 (Ala. 2002). See Committee Comments on 1973
Adoption of Rule 19 ('General principles developed from the
terminology of indispensable, proper and necessary, remain
applicable.'). Thus, Bryan is applicable to this case.

"In Morris v. Owens, 292 Ala. 159, 290 So. 2d 646 (1974),
our supreme court addressed whether a joint tenant with a
right of survivorship should be joined in an action to establish
a boundary line. In determining that the joint tenant in
Morris was a necessary and indispensable party, the supreme
court stated:

" 'To determine a disputed boundary all joint
tenants with the right of survivorship, as well as
all parties who own an interest in involved lands,
should be parties to the proceedings in order for
the court to have before it the title to the property
which is sought to be affected by the decree.'

"292 Ala. at 160-61, 290 So. 2d at 648. The supreme court
further stated:

" 'In holding that a mortgagee was a
necessary party to a disputed boundary line suit

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this court in Rollan v. Posey, 271 Ala. 640, [645-
46,] 126 So. 2d 464, [469] (1961) stated:

" ' "In a suit to settle a disputed
boundary, this court said: 'The Court
must have before it title to the property
which is sought to be affected by the
decree." Easterling v. Cleckler, 269 Ala.
660, [662,] 115 So. 2d 516, 517 [(1959)].
Other courts have said that in a
boundary suit necessary parties
included: all persons who have a direct
interest in the result of the
proceedings, Atkins v. Hatton, (Eng.), 2
Anstr. 386, 145 Reprint 911; Watkins
v. Childs, 80 Vt. 99, 66 A. 805 [(1907)];
Hazard Coal Corp. v. Getaz, 234 Ky.
817, 29 S.W.2d 573 [(1930)]; McDonald
v. Humble Oil & Refining Co., Tex. Civ.
App., 78 S.W.2d 1068 [(1935)]; Cady v.
Kerr, 11 Wash. 2d 1, 118 P.2d 182
[(1941)][;] 137 A.L.R. 713; tenants in
common, Pope v. Melone, 2 A.K. Marsh.
239, 9 Ky. 239 [(1820)]; and
remaindernmen and revisioners,
Bayley v. Best, 5 Eng. Ch. 659, 39
Reprint 253.' (Emphasis supplied[.])"

" 'In Bryan v. W.T. Smith Lumber Company,
278 Ala. 538, 179 So. 2d 287 (1965), this court held
that tenants in common are necessary parties in a
suit to settle a disputed boundary.'

"Morris, 292 Ala. at 160, 290 So. 2d at 647-48. See also Davis
v. Burnette, 341 So. 2d 118 (Ala. 1976) (stating that a joint
tenant should have been joined in an action seeking
reformation of a deed to certain property); and 7 Charles A.
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Wright et al., Federal Practice and Procedure § 1621 (3d ed.
2001) (stating that, under Rule 19, Fed. R. Civ. P., which is
substantially similar to Alabama's Rule 19, generally 'when
all cotenants will be affected by the judgment or when the
absence of some of them will prevent complete justice from
being rendered to everyone interested in the land, all the
cotenants must be joined')."

Hall, 60 So. 3d at 930-31.

The record reflects that the Waterses are cotenants of the Sullivan

property with Sullivan. Like the heirs in Hall, the Waterses "were not

joined and no determination was made regarding whether it was feasible

to join them or, if it was not feasible, whether the action should proceed

in their absence." Id. at 931-32. Thus, in accordance with Hall, "we

reverse the trial court's judgment, and we remand the case for the trial

court to conduct further proceedings consistent with this opinion and the

procedure proscribed by Rule 19." Id. at 932.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Moore, P.J., and Hanson and Lewis, JJ., concur.

Fridy, J., recuses himself.

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