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12/16/11

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.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2011-2012 _________________________ 2100017 _________________________ Anniebelle Simmons v. John Simmons and Lori Simmons Appeal from Autauga Circuit Court (CV-08-207) On Application for Rehearing PER CURIAM. The opinion of August 12, 2011, is withdrawn, and the following is substituted therefor. Anniebelle Simmons ("Anniebelle") appeals from a judgment in favor of John Simmons ("John") and Lori Simmons ("Lori").

2100017 We affirm. On September 18, 2008, John and Lori sued Anniebelle, alleging that, on February 6, 1996, they had entered into a contract with Donald J. Simmons ("Donald"), who was John's father, and Anniebelle, who was Donald's wife, for the

purchase of a house in Prattville ("the house"). John and Lori further alleged that the contract provided that, as

consideration for Donald and Anniebelle's agreeing to convey the house to them, John and Lori agreed to pay Donald and Anniebelle a down payment in the amount of $10,000 and to make the monthly payments on the mortgage encumbering the house. John and Lori also alleged that they had performed their obligations under the contract; that Donald had died; and that, after Donald died, Anniebelle had claimed that John and Lori had been renting the house and had no right to a

conveyance of the title to the house. As relief, John and Lori sought a judgment (1) declaring the parties' rights and (2) awarding damages based on theories of breach of contract and misrepresentation. On October 28, 2008, Anniebelle filed an answer to the complaint in which she (1) denied that she and Donald had

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2100017 agreed to sell the house to John and Lori, (2) averred that John and Lori had been renting the house, and (3) asserted, among other affirmative defenses, the Statute of Frauds. On October 31, 2008, Tracy a Birdsong, pleading the on attorney behalf of

representing

Anniebelle,

filed

Marryann Wingard,1 Anniebelle's daughter. That pleading was titled "Notice of Joinder of Party Pursuant to Rule 19[, Ala. R. Civ. P.]," and stated: "COMES NOW Marryann Wingard by and through counsel ... and hereby gives notice that she is a necessary party defendant in the above styled cause, in that [the house] is owned jointly by Anniebelle Simmons and Marryann Wingard with right of survivorship." On January 6, 2009, the trial court entered an order in which it apparently treated the pleading filed by Birdsong on behalf of Wingard as a motion. The order stated that, "[u]pon proper service of complaint, the joinder motion [is] to be granted." Although the record does not indicate that any subsequent attempt was made to formally serve Wingard with process, attorney Karen Materna filed a notice of appearance on January 29, 2009, which stated:

Two different versions of Wingard's given name appear in the record -- Marryann and Mary Ann.
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2100017 "COMES NOW Karen Materna, and of Appearance as counsel for Anniebelle Simmons and Marryann above-styled matter. Counsel, appearance requests: files her Notice the Defendants, Wingard in the in making her

"1. That all notices of continuances, trial settings, docket settings, or otherwise, announcements or notices regarding said case be forwarded to her at her address. "2. That the name of counsel be entered herein on the appropriate Court records and she be designated as counsel of record." (Emphasis added.) On March 6, 2009, Anniebelle asserted a counterclaim against John and Lori. In her counterclaim, Anniebelle alleged that there was no written agreement between the parties and that John and Lori were in unlawful possession of the house. She asserted claims of ejectment and violation of the Alabama Litigation Accountability Act ("the ALAA"),

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