On Application for Rehearing
The opinion of August 13, 2010, is withdrawn, and the following is substituted therefore.
James F. Hilgers and Carolyn M. Hilgers ("the Hilgerses"), along with Hilgers Real Estate Investments, LLC (the Hilgerses and Hilgers Real Estate Investments, LLC, are hereinafter referred to collectively as "the Hilgers defendant"), appeal from a summary judgment entered by the Jefferson Circuit Court in favor of Jefferson County on its claims against the Hilgers defendants and from a summary judgment entered by the circuit court in favor of the Water Works Board of the City of Birmingham ("the WWB") on the claims stated in the Hilgers defendants' third-party complaint against the WWB. We dismiss the appeal for want of subject-matter jurisdiction.
Facts and Procedural History
In April 2008, Jefferson County filed a complaint in the Small Claims Division of the Jefferson District Court, seeking to enforce the liens that it had placed on three properties owned by the Hilgerses for unpaid sewer-service charges. In its complaint, Jefferson County sought to obtain a monetary judgment against the Hilgerses in the amount of the liens. The Hilgerses did not occupy any of the properties
On September 26, 2008, Jefferson County moved the circuit court for a summary judgment. The Hilgerses responded to Jefferson County's motion for a summary judgment and filed a motion to dismiss the action for failure to join an indispensable party—namely, the WWB. Jefferson County then amended its complaint, adding Hilgers Real Estate Investments, LLC, as an additional defendant and claiming that it was the owner of a fourth property on which Jefferson County had a lien for unpaid sewer-service charges. On November 20, 2008, the Hilgers defendants filed motions seeking to add the WWB as an additional party to the action, which the circuit court eventually granted.
On February 16, 2009, Jefferson County filed a renewed motion for a summary judgment. The Hilgers defendants responded to Jefferson County's renewed motion for a summary judgment. The circuit court entered a summary judgment in favor of Jefferson County on March 25, 2009, reaffirming Jefferson County's liens on the three properties owned by the Hilgerses. The circuit court later amended its summary judgment in response to a motion to reconsider filed by Jefferson County, making the judgment effective as to the claim relating to the property owned by Hilgers Real Estate Investments, LLC, and awarding Jefferson County a monetary judgment against the Hilgers defendants in the amount of the liens on all four properties. The circuit court denied a motion to reconsider filed by the Hilgers defendants.
On May 29, 2009, the Hilgers defendants filed a third-party complaint against the WWB, alleging a breach-of-contract claim and a negligence claim. The WWB subsequently filed a motion to dismiss the Hilgers defendants' third-party complaint. The circuit court held a hearing on the WWB' motion to dismiss, and, because it considered information outside the pleadings, treated the WWB's motion as a motion for a summary judgment. The circuit court entered a summary judgment in favor of the WWB on October 27, 2009. The Hilgers defendants subsequently appealed to this court.
None of the parties has raised the issue of this court's subject-matter jurisdiction over this appeal. However, because jurisdictional matters are of such magnitude, this court is permitted to notice a lack of jurisdiction ex mero motu. See Reeves v. State, 882 So.2d 872, 874 (Ala.Civ.App.2003).
Ex parte Seymour, 946 So.2d 536, 538 (Ala.2006).
Alabama Const. 1901, Local Amendments, Jefferson County, § 4 (Off. Recomp.), which, among other things, grants Jefferson County the authority to "make any reasonable and nondiscriminatory rules and regulations fixing [sewer-service] rates and charges, [and] providing for the payment, collection and enforcement thereof," provides, in pertinent part:
Act No. 619, Ala. Acts 1949, which, according to its title, "authorize[s] Jefferson County to construct, improve, extend and repair sewers and sewerage treatment plants in [Jefferson] [C]ounty and to levy and collect sewer rentals or sewer service charges as provided in [what is now Ala. Const. 1901, Local Amendments, Jefferson County, § 4 (Off. Recomp.),]" and "provide[s] for the method of foreclosing any assessments which remain unpaid," provides, in Section 13, that
The Municipal Public Improvement Act, codified at Ala.Code 1975, § 11-48-1 et seq., governs the establishment of and the foreclosure of municipal assessments for public improvements. Alabama Code 1975, § 11-48-33, provides:
Thus, Ala. Const. 1901, Local Amendments, Jefferson County, § 4 (Off. Recomp.), and Act. No. 619 grant Jefferson County the constitutional and statutory authority to place liens on the Hilgers defendants' properties for unpaid sewer-service charges and prescribes that any such liens "shall be foreclosed in such manner as may be provided by law for foreclosing municipal assessments for public improvements." In turn, § 11-48-33, which governs the enforcement of municipal assessments for public improvements, provides the method by which Jefferson County may obtain a monetary judgment in the amount of the liens against the owners of the property. Section § 11-48-33 expressly grants subject-matter jurisdiction over an action to enforce such liens to the circuit court. However, Jefferson County brought its action in the district court, which, accordingly, has no subject-matter jurisdiction to enforce the liens.
Because the district court lacked subject-matter jurisdiction over Jefferson County's complaint, its judgment is void. Riley v. Pate, 3 So.3d 835, 838 (Ala.2008). "A void judgment will not support an appeal, and `an appellate court must dismiss an attempted appeal from such a void judgment.'" Colburn v. Colburn, 14 So.3d 176, 179 (Ala.Civ.App.2009) (quoting Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App. 2008)). Consequently, the circuit court never acquired jurisdiction over the Hilgerses' appeal, and that court could take no action other than to dismiss the Hilgerses' appeal. See Ex parte Smith, 438 So.2d 766, 768 (Ala.1983)(opining that "on appeal [for a trial de novo], the circuit court lack[s] subject matter jurisdiction to consider more than a final judgment over which the district court had subject matter jurisdiction"; citing State v. Pollock, 251 Ala. 603, 38 So.2d 870 (1948), and Craig v. Root, 247 Ala. 479, 25 So.2d 147 (1946)). Therefore, the circuit court's judgment is also void. Because the circuit court's judgment is void, this court lacks jurisdiction over the Hilgers defendant' appeal. Colburn, 14 So.3d at 179. Thus, we dismiss the Hilgers defendant' appeal, and we instruct the circuit court and the district court to vacate their respective judgments in this case.
The Hilgers defendant' motion to strike portions of Jefferson County's brief is denied as moot.
APPLICATION OVERRULED; OPINION OF AUGUST 13, 2010, WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED WITH INSTRUCTIONS.
THOMPSON, P.J., and BRYAN, J., concur.
MOORE, J., concurs in part and dissents in part as to the opinion and dissents as to the denial of rehearing, with writing, which PITTMAN, J., joins.
I concur in part and dissent in part as to the majority opinion, and I respectfully dissent from the majority's decision to overrule Jefferson County's application for a rehearing.
Jefferson County's complaint, which was filed in the district court, stated, in pertinent part:
"$2,228.75 Principal "$ 13.92 Interest "$ 744.12 Attorney fees ________________________ "$2,986.79 Total claimed PLUS court costs of $135.00. . . . ". . . . "(7) Sewer Service Fund Fees"
Jefferson County attached copies of the statements of sewer-system liens that it had placed on three properties owned by the Hilgerses, which were associated with the unpaid sewer-service charges Jefferson County sought to recover in it complaint.
"It is well settled that a complaint is to be liberally construed." Calhoun v. Coffee County Comm'n, 706 So.2d 755, 757 (Ala. Civ.App.1997). Under a liberal construction, Jefferson County's complaint stated a claim for both the unpaid sewer-service charges and the enforcement of the liens. After a trial, the district court entered a monetary judgment in favor of Jefferson County. The Hilgerses appealed to the circuit court. Jefferson County moved for a summary judgment. The circuit court initially entered a summary judgment in favor of Jefferson County enforcing the liens. Subsequently, the circuit court amended its judgment to award Jefferson County a monetary judgment on the unpaid sewer-service charges.
Although I agree with the majority opinion that, on an appeal from the district court, the circuit court lacked jurisdiction to enforce the liens against the Hilgerses,
Based on the foregoing, I concur with the majority opinion's dismissal of the appeal with regard to the enforcement of the liens against the Hilgerses; however, I dissent to the majority opinion's dismissal of the appeal with regard to the judgment for Jefferson County on the unpaid sewer-service charges and with regard to the third-party complaint.
PITTMAN, J., concurs.