Ermie Lee Milton v. Delta Properties, LLC (Appeal from Elmore Circuit Court: CV-20-900225).

Rel: May 3, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2023-2024
_________________________

CL-2023-0421
_________________________

Ermie Lee Milton

v.

Delta Properties, LLC

Appeal from Elmore Circuit Court
(CV-20-900225)

HANSON, Judge.

This appeal is taken from a judgment entered by the Elmore Circuit

Court finding Ermie Lee Milton in contempt of court with respect to a

judgment entered by that court in June 2021 (which was affirmed by this

court in May 2022 without a published opinion -- see Milton v. Delta
CL-2023-0421

Props., LLC, (No. 2200837, May 20, 2022), 378 So. 3d 517 (Ala. Civ. App.

2022) (table). 1

Milton and plaintiff Delta Properties, LLC ("Delta") each own

parcels of real property in Elmore County that were once a part of a larger

tract. On September 18, 2020, Delta filed a petition for emergency relief,

requesting that the trial court direct Milton to remove all vehicles from a

particular roadway leading to Lake Jordan. Delta also requested that

the trial court issue an injunction against Milton to prevent him from

blocking that roadway in the future. Delta alleged that the roadway in

question separated Milton's parcel of real property from Delta's parcel of

real property and that that roadway was the only means of accessing

Delta's parcel of real property.

On March 8, 2021, Milton's initial attorney filed a request to

withdraw as counsel and sought a continuance of the matter to allow

Milton to retain new counsel. The trial court held a hearing on March

16, 2021, at which the trial court allowed Milton's initial attorney to

withdraw as counsel; at the hearing, testimony was taken from Milton

1We have taken judicial notice of the record in the previous appeal.

See Tompkins v. Wal-Mart Assocs., Inc., 336 So. 3d 195, 198 n.4 (Ala. Civ.
App. 2021).
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and from the surveyor who had divided the larger predecessor tract of

land into subdivisions, including the parties' parcels of real property.

After holding that hearing, the trial court, on March 16, 2021, granted

Delta's petition for emergency relief and ordered Milton to remove all

vehicles from the roadway leading to Lake Jordan and to retain new

counsel within 30 days. Milton then filed a motion requesting that the

March 16, 2021, order be set aside.

The trial court held a hearing on May 25, 2021. The record

indicates that Milton had failed to adhere to the March 16, 2021, order,

such that vehicles were still obstructing the roadway leading to Lake

Jordan. At that hearing, the trial court directed Milton to speak with

Mike Cruise, an employee of the Alabama Department of Environmental

Management ("ADEM"), and the transcript indicates that an off-the-

record discussion was then held. Afterward, the trial court stated on the

record:

"We've been talking -- I've been talking with the various
parties and witnesses with the permission of everybody to do
so. And we've reached some tentative agreement that Mr.
Milton, the Defendant, is going to, within the next 14 days,
look for someone that can remove the cars and pay him a
certain amount of money to remove them."

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Subsequently, on June 7, 2021, the trial court issued a judgment that

stated:

"… [O]n Ma[rch] 16, 2021, an Order was issued by [the trial
c]ourt which stated, 'Defendant, Ermie Lee Milton, is to
remove any automobiles that are inside the 30-foot road that
is the subject matter of this litigation so as to allow the ingress
and egress to property owned by Plaintiff, Delta Properties,
LLC.'

"… Defendant, Ermie Milton, failed to move said
vehicles to allow ingress and egress to the property owned by
Plaintiff, Delta Properties, LLC.

"… [O]n April 15, 2021, Defendant filed a Motion to set
aside Injunctive Relief Ordered and a Motion to Alter, Amend,
or Vacate Order.

"… [O]n May 25, 2021, all parties and their respective
attorneys appeared before the [trial c]ourt. A representative[]
from ADEM[ ] informed the [trial c]ourt that the property
belonging to Defendant, Ermie Milton, was in violation of
their regulations.

"IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that, Defendant, Ermie Milton, is to remove any
and all vehicles from his property and along the roadway to
Lake Jordan. The Defendant shall have 30 days from May 25,
2021 to remove said vehicles."

(Capitalization in original.)

Milton timely appealed from the June 2021 judgment, which

effectively awarded a permanent injunction in favor of Delta and against

Milton (and denied Milton's motion challenging the March 16, 2021,

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order). In May 2022, this court affirmed the June 2021 judgment, citing,

among other cases, Allsopp v. Bolding, 86 So. 3d 952, 962 (Ala. 2011), for

the proposition that Milton’s appellate arguments, i.e., that the trial

court had erred in conducting a hearing without administering oaths to

the parties and witnesses, in referring to evidence purportedly not

properly admitted, and in not calling Milton's witnesses to testify during

the May 25, 2021, hearing -- had not been raised in the trial court so as

to be preserved for appellate consideration.

On June 29, 2021, Delta filed in the trial court what was captioned

a "motion to cite defendant for contempt of court and to impose

sanctions," averring, in pertinent part, that Milton had failed to comply

with the June 2021 judgment and that he should be sanctioned pursuant

to the trial court’s contempt power. Delta filed a similar motion in the

trial court in January 2023. The judge who had rendered the June 2021

judgment disqualified himself from further hearings in the case,

prompting the reassignment of the case to another circuit judge, who set

a hearing for May 16, 2023. Milton moved to continue that hearing,

averring, among other things, that he "ha[d] been working with ADEM

… on a Proposed Administrative Order (POA) and [wa]s … working on a

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Proposed Consent Order regarding the subject property which includes

the alleged road," that "vehicles ha[d] been removed off the alleged road

but [that] illegal dumping of tires … and storm related debris consisting

mostly of fallen trees ha[d] hampered the process"; he denied having

"willfully and wantonly" violated the June 2021 judgment. The trial

court denied the motion to continue and, after a hearing, entered a new

judgment on May 16, 2023, noting, among other things, that the case had

come before the court on the issue of contempt; stating that Milton had

been informed that he would be afforded 7 additional days to remove all

obstructions to Delta's vehicular access to its parcel; awarding attorney’s

fees to Delta, to be paid within 30 days, because of Milton's "continued

disregard" of the trial court’s judgment; and advising that noncompliance

would potentially result in Milton's incarceration. Milton filed a motion

on May 22, 2023, challenging the May 16, 2023, judgment in which he

invoked, among other authorities, Rules 52 and Rule 59, Ala. R. Civ. P.,

and several subdivisions of subsection (b) of Rule 60, Ala. R. Civ. P.;

however, apart from calling for a response from Delta, the trial court did

not expressly rule on Milton's motion.

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Milton filed a notice of appeal from the May 16, 2023, judgment on

May 26, 2023, although his May 22, 2023, motion remained pending in

the trial court at that time. To the extent that Milton's May 22, 2023,

motion constituted a postjudgment motion pursuant to Rules 52 and 59,

there is no indication in the record that the trial court entered an order

granting such relief within 90 days of that motion's having been filed;

thus, by operation of law, any requests for relief under those rules are

deemed denied pursuant to Rule 59.1, Ala. R. Civ. P., and Milton's notice

of appeal, previously held in abeyance, became effective upon that denial

(see Rule 4(a)(5), Ala. R. App. P.). 2

2The denial by operation of law of Milton's May 22, 2023, motion as

to Rules 52 and 59, Ala. R. Civ. P., however, "quickened" the motion as to
its request for relief under Rule 60(b), Ala. R. Civ. P. See Ex parte
Gamble, 709 So. 2d 67, 69-70 (Ala. Civ. App. 1998) (discussing treatment
of motions joining requests under Rule 60(b) with requests seeking relief
under rules as to which Rule 59.1 provides for denial by operation of law).
To the extent that Milton's request for relief pursuant to Rule 60(b)
remained pending in the trial court, the pendency of that motion did not
destroy the finality of May 16, 2023, judgment; as that rule itself
specifies, "[a] motion under … subdivision [(b) of Rule 60] does not affect
the finality of a judgment or suspend its operation." Thus, to the extent
that Delta has contended in its brief on appeal that Milton's appeal is due
to be dismissed because, it contends, it s from a nonfinal judgment, its
position is not well taken. See Musick v. Davis, 80 So. 3d 946, 948 n.2
(Ala. Civ. App. 2011) (holding that possible continued pendency of Rule
60(b) motion would not destroy appellate jurisdiction to review
underlying final judgment); accord R.D.J. v. A.P.J., 142 So. 3d 662, 666
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Milton's brief on appeal assails both the correctness of the trial

court’s May 16, 2023, judgment and that court's subject-matter

jurisdiction to enter it. We deem dispositive Milton's contentions 3

regarding the trial court's jurisdiction to act on Delta's requests to enter

a judgment imposing sanctions upon Milton on the basis that his conduct

constituted contempt, and we pretermit consideration of Milton's other

arguments.

The record on appeal contains no indication that Delta paid a filing

fee on or before filing either of its two motions requesting that the trial

(Ala. Civ. App. 2013); compare Thompson v. State ex rel. Jett, 318 So. 3d
1226, 1228 (Ala. Civ. App. 2020) (dismiss appeal when the only matter
before the trial court as to which an appeal could potentially have been
taken was a unadjudicated Rule 60(b) motion -- the underlying judgment
had been previously affirmed by this court).

3Although Delta correctly notes the general rule that an appellant

can properly argue error based only upon grounds he or she has
adequately raised in the trial court, we observe that, because
" 'jurisdictional matters are of such magnitude that we take notice of
them at any time and do so even ex mero motu,' " Wallace v. Tee Jays
Mfg. Co., 689 So. 2d 210, 211 (Ala. Civ. App. 1997) (quoting Nunn v.
Baker, 518 So. 2d 711, 712 (Ala. 1987)), it is nonetheless true that "this
court may address arguments raised for the first time on appeal that go
to the subject-matter jurisdiction of the trial court." Heaven's Gate
Ministries Int'l, Inc. v. Burnett, 295 So. 3d 72, 77 n.2 (Ala. Civ. App. 2019)
(citing Health Care Auth. for Baptist Health v. Davis, 158 So. 3d 397, 402
(Ala. 2013)).
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court to find Milton in contempt. In Hicks v. Hicks, 130 So. 3d 184 (Ala.

Civ. App. 2012)(plurality opinion), cert. denied, 130 So. 3d 194 (Ala.

2013), this court considered a judgment entered by a trial court in

response to a petition filed by Bona Faye Hicks seeking contempt

sanctions with respect to a previous judgment directing Donald Hicks to

relocate a fence; the judgment under review purported to conclude that

Donald had substantially complied with the underlying judgment. 130

So. 3d at 184. On appeal, Bona Faye contended that the trial court in

Hicks had lacked subject-matter jurisdiction to enter the judgment

denying contempt sanctions because no filing fee had been paid had been

paid at the time that the motion seeking those sanctions had been filed.

130 So. 3d at 186. A majority of this court concluded that Bona Faye's

appeal was due to be dismissed as from a void judgment. 130 So. 3d at

190. Our supreme court denied certiorari review of this court's decision,

although two justices issued special opinions contending that Bona

Faye's failure to pay a filing fee was not jurisdictional. See Ex parte

Hicks, 130 So. 3d 194, 195-97 (Ala. 2013)(Shaw, J., concurring specially);

id. at 197-98 (Moore, C.J., dissenting).

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Although two judges concurred in the main opinion in Hicks, this

court recently had occasion to consider its analysis in Ex parte Standard

Furniture Manufacturing Co., LLC, 333 So. 3d 139 (Ala. Civ. App. 2021),

in which this court reviewed the correctness of a trial court's order

responding to a "postjudgment motion for contempt" filed by William K.

DeFee, a recipient of workers'-compensation benefits, against DeFee's

former employer and its third-party-benefits administrator; the trial

court, in that case, had entered an order deeming the "postjudgment

motion" a separate action, directing that it be so docketed, and

conditionally accepting the recipient's tender of a filing fee subject to the

receipt of guidance from state administrative authorities regarding

whether such a fee was necessary. 333 So. 3d at 141-42.

In denying the former employer's mandamus petition questioning

the propriety of docketing a separate action as to DeFee's effort to seek

contempt sanctions, a majority of this court concluded:

"The materials before us indicate that DeFee wanted to
ensure that he had done all that was necessary to bring a
viable contempt claim against [the former employer and the
third-party-benefits administrator]. In seeking to pay a filing
fee, DeFee referred the trial court to Judge Thomas's dissent
in Stephens v. Nelson, 141 So. 3d 1073, 1079 (Ala. Civ. App.
2013), in which she opined that the judgment entered on the
claims for contempt and injunctive relief that were the subject

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of that appeal was void because no filing fee had been paid.
Accordingly, Judge Thomas wrote, the trial court never
obtained jurisdiction over those claims and the judgment
appealed from was void. Judge Thomas stated that the 'new
actions for contempt and an injunction should have been
assigned a ".01" suffix by the trial court's clerk and would
have required the payment of a new filing fee and new service
of process pursuant to Rule 4, Ala. R. Civ. P.' Id. at 1080.

"[The former employer] argues that the initiation of new
actions with .01 designations and the payment of additional
filing fees are required only in postjudgment contempt
proceedings arising from domestic-relations cases. Alabama
law does not support that contention, however. In Hicks v.
Hicks, 130 So. 3d 184 (Ala. Civ. App. 2012), this court
dismissed an appeal of an order denying a postjudgment
contempt motion arising from a boundary-line dispute
between two adjacent landowners, explaining that, because
no filing fee had accompanied the filing of the motion for
contempt, the trial court had lacked subject-matter
jurisdiction and its order was void.

"Based on Hicks and the cases cited therein, we conclude
that [the former employer] has failed to demonstrate that
DeFee was not required to pay a filing fee or that it has a clear
legal right pertaining to this issue. Accordingly, we decline to
issue a writ of mandamus based on this issue."

333 So. 3d at 143. Notably, the two judges who did not fully join the

majority opinion in Ex parte Standard Furniture declined to dissent from

it: Judge Moore opined that "[n]o language in Rule 70A[, Ala. R. Civ. P.,]

or Alabama caselaw authorizes the initiation of a contempt proceeding

by the mere filing of a postjudgment motion without the payment of an

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appropriate filing fee" and that "any pleading or motion that purports to

initiate a contempt proceeding after entry of a final judgment and

without the payment of a filing fee is treated as a legal nullity," whereas

Presiding Judge Thompson, although noting his previous dissent in

Hicks, opined that our supreme court, in Johnson v. Hetzel, 100 So. 3d

1056, 1057 (Ala. 2012), and Ex parte Courtyard Citiflats, LLC, 191 So.

3d 787, 790 (Ala. 2015), had ruled in a manner consistent with this court's

majority in Hicks. Ex parte Standard Furniture, 333 So. 3d at 147

(Moore, J., concurring in part and concurring in the result); id. at 148-49

(Thompson, P.J., concurring in the result).

Here, although Delta requested the trial court to hold Milton in

contempt and issue sanctions against Milton, asserting that his dilatory

conduct had "cost [Delta] unnecessary court costs and attorney fees,"

Delta did not adhere to appellate precedents concerning compliance with

Ala. Code 1975, § 12-19-70, as a prerequisite to seeking a judgment of

contempt. As a result, the trial court's May 16, 2023, judgment is void

and will not support an appeal; we dismiss the appeal with instructions

to the trial court to vacate that judgment and dismiss Delta's motions

seeking enforcement of the underlying June 2021 judgment. However,

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we would emphasize that our dismissal is without prejudice to Delta's

potential subsequent institution of a proper action seeking contempt

sanctions against Milton accompanied by an appropriate filing fee

following the issuance of this court's certificate of judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

Moore, P.J., and Edwards, Fridy, and Lewis, JJ., concur.

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