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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2010-2011

1091121

Bernals, Inc., and Maria E. Adan
v.
Kessler-Greystone, LLC
Appeal from Jefferson Circuit Court
(CV-08-467)

WOODALL, Justice.

Maria E. Adan appeals from a default judgment for
$84,271.24 in favor of Kessler-Greystone, LLC. ("Kessler"), on
Kessler's claim against Adan and Bernals, Inc ("Bernals"),
seeking accelerated rental payments and attorney fees.
Bernals appeals from a summary judgment in favor of Kessler

for $130,029.44 in attorney fees and the same accelerated
rental payments on Kessler's claim against Adan and Bernals
and in favor of Kessler on counterclaims that Bernals asserted
against Kessler. We vacate the judgments, dismiss the action,
and dismiss the appeal.

I. Facts and Procedural History

This dispute arose out of a "Lease Agreement made and
entered into on ... the 8th day of June, 2005, between Taylor
Properties, LLC [('Taylor'),] an Alabama limited liability
company, or its successors and assigns (hereinafter called
'Landlord'), and Bernals, Inc., [an] Alabama corporation
(hereinafter called 'Tenant')." The leased premises consisted
of suites 113 and 114 in a building in Shelby County known as
Greystone Park. "The Leased Premises [were] to be used and
occupied by Tenant" as a "Cuban Restaurant -- Dine In & Take
Out." The lease was signed by Maria E. Adan, the sole owner
of Bernals. Bernals subsequently used the leased space to
operate a Cuban restaurant called Cuban Grill 280.  Adan also
executed a "guarantee of lease," whereby she agreed to
personally guarantee "full and prompt payment of rent."

On September 1, 2005, Taylor entered into a contract with
Brentwood Properties, Inc. ("Brentwood"), whereby Brentwood
agreed to manage and operate the Greystone Park premises on
behalf of Taylor ("the Brentwood-Taylor agreement").  As part
of its responsibilities under the Brentwood-Taylor agreement,
Brentwood was to collect all rents due from the tenants of
Greystone Park. In addition, the Brentwood-Taylor agreement
specified that Brentwood was to "take all reasonable necessary
action to enforce tenant leases, including but not limited to
serving tenants with notices to vacate the leased premises ...
and undertaking collection and eviction procedures."  The
Brentwood-Taylor agreement was to terminate on August 31,
2007, or upon the sale of Greystone Park. On February 1,
2007, Taylor sold Greystone Park to Kessler.

On February 7, 2008, Brentwood sued Bernals and Adan
alleging breach of contract. Brentwood's complaint stated:

"1. On or about the 8th day of June, 2005, the

Plaintiff, Brentwood Properties, Inc., and the

Defendant, Bernals, Inc., entered into a written

lease agreement for certain premises in the building

known as Greystone Park ....

"2. On or about the 25th day of July, 2005, ... Adan

... executed a personal guaranty for the above

stated written lease agreement.

"3. [Bernals and Adan] breached the said agreements
by failing to pay the proper rental amounts, by
failing to pay the proper late fees, and by failing
to pay the proper utility fees.

"4. [Brentwood] claims a reasonable attorney's fee

... pursuant to the said agreements.

"WHEREFORE, [Brentwood] demands judgment against the

Defendants in the sum of [$75,000], plus a

reasonable sum as attorney's fees, plus interest and

costs."
Several months later, on July 1, 2008, Brentwood entered into
a written property-management agreement with Kessler ("the
Brentwood-Kessler agreement"), similar to the Brentwood-Taylor
agreement.

On March 20, 2009, Brentwood filed a motion for a summary
judgment. In their reply to that motion, Bernals and Adan
argued that Brentwood had no standing to sue based on an
alleged breach of the lease agreement because Brentwood was
not a party to the lease agreement.  On April 13, 2009, the
trial court denied Brentwood's summary-judgment motion.

On April 14, 2009, Brentwood filed a motion to substitute
Kessler for itself in the action. The trial court granted
that motion. On April 17, 2009, Bernals filed counterclaims
against Kessler alleging breach of contract, fraud, breach of
warranty of quiet enjoyment, trespass, and negligence.

A bench trial of the case was scheduled for April 28,
2009. A few days before that date, a dispute surfaced for the
first time regarding the spelling of Adan's name. Adan's name
had appeared in the style of the complaint and on subsequent
pleadings and motions as "Marca E. Adan," and the action had
been so styled.

On the day set for trial, the parties -- including Adan
-- appeared in court.  The dispute over Adan's name was again
taken up at that time. It is undisputed that no such person
as "Marca" E. Adan exists. It is likewise undisputed that
"Maria" E. Adan had signed the lease and the guarantee and
that she and her counsel were present in court on the day set
for trial.

According to Adan's affidavit, the proceedings ended
after approximately an hour, and the trial was to be continued
to a later date. Nevertheless, on May 1, 2009, the trial
court entered, in pertinent part, the following order:

"Upon oral motion made by the plaintiff,
Kessler-Greystone, LLC, the name of the defendant,
Marca E. Adan, is hereby changed to reflect the
Defendant's correct and proper name, Maria E. Adan.

"Further, the Court finds that service of the
Summons and Complaint was properly made upon said
defendant, Maria E. Adan, at her personal residence

address, and that said defendant, Maria E. Adan, is
the signatory to the said lease agreement and
personal guaranty forming the basis to the
plaintiffs, Kessler-Greystone, LLC's, Complaint.

"Further, the Court finds that the defendant,
Maria E. Adan, failed to appear for trial in the
above-referenced matter.

"Therefore, judgment by default is hereby
entered in favor of plaintiff, Kessler-Greystone,
LLC, and against defendant, Maria E. Adan, in the
amount of Eighty-Four Thousand Two Hundred
Seventy-One and 24/100 Dollars ($84,271.24), plus
costs of court."

(Emphasis added.)

Adan moved to set aside the default judgment.  That
motion was denied.  On December 11, 2009, Kessler filed a
motion for a summary judgment on Bernals's conterclaims
against it and a renewed motion for a summary judgment on its
claims against Bernals. On February 2, 2010, the trial court
granted Kessler's motion for a summary judgment as to
Bernals's counterclaims and entered a judgment against Bernals
in the sum of $130,029.44.

On February 16, 2010, Kessler filed a motion to revise
the judgment against Adan to coincide with the amount of the
judgment entered against Bernals. On February 26, 2010,
Bernals filed a motion to alter, amend, or vacate the judgment

against it. On March 29, 2010, the trial court denied
Kessler's motion to revise the judgment against Adan.  On
April 2, 2010, the trial court denied Bernals's motion to
alter, amend, or vacate the judgment.

On May 13, 2010, Bernals and Adan filed a notice of
appeal to this Court from those judgments.  On appeal, they
renew their challenge to Brentwood's standing to commence this
action, that is, to invoke the subject-matter jurisdiction of
the trial court. That challenge is dispositive of this case.

II. Discussion

The question of standing implicates the subject-matter
jurisdiction of the court. Ex parte Howell Eng'g & Surveying,
Inc., 981 So. 2d 413, 419 (Ala. 2006).  "When a party without
standing purports to commence an action, the trial court
acquires no subject-matter jurisdiction." State v. Property
at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999).
Moreover, "[t]he jurisdictional defect resulting from the
plaintiff's lack of standing cannot be cured by amending the
complaint to add a party having standing." Cadle Co. v.
Shabani, 4 So. 3d 460, 463 (Ala. 2008). "When the absence of
subject-matter jurisdiction is noticed by, or pointed out to,

the trial court, that court has no jurisdiction to entertain
further motions or pleadings in the case. It can do nothing
but dismiss the action forthwith." Id. When a circuit court
lacks subject-matter jurisdiction, all orders and judgments
entered in the case, except an order of dismissal, are void ab
initio. Redtop Market, Inc. v. State, [Ms. 1060855, December
30, 2010] ___ So. 3d ___ (Ala. 2010). Thus, if Brentwood
lacked standing to commence this action, then the absence of
subject-matter jurisdiction was not cured by the substitution
of Kessler, and every order and judgment entered by the trial
court is void.

"Standing ... turns on 'whether the party has been
injured in fact and whether the injury is to a legally
protected right.'" 2018 Rainbow Drive, 740 So. 2d at 1027
(quoting Romer v. Board of County Comm'rs of the County of
Pueblo, 956 P.2d 566, 581 (Colo. 1998) (Kourlis, J.,
dissenting)). Brentwood's initial complaint sought damages
and attorney fees from Bernals and Adan for an alleged breach
of the lease agreement, alleging therein that Brentwood leased
the premises to Bernals. However, it is undisputed that
Brentwood was not a party to the lease agreement. "'It is

well-settled law that 'one not a party to, or in privity with
a contract, cannot sue for its breach.'" Dunning v. New
England Life Ins. Co., 890 So. 2d 92, 97 (Ala. 2003) (quoting
Twine v. Liberty Nat'l Life Ins. Co., 294 Ala. 43, 50, 311 So.
2d 299, 305 (1975)).

Kessler's sole response to the jurisdictional challenge
is an assertion that Brentwood had standing to sue based on a
breach of the lease agreement as a third-party beneficiary of
that agreement. See Russell v. Birmingham Oxygen Serv., Inc.,
408 So. 2d 90 (Ala. 1981) (noting that "a third person has no
rights under a contract between others," and no standing to
sue based on a breach of that contract, "unless the
contracting parties intend that the third person receive a
direct benefit enforceable in court"). According to Kessler,
"the lease agreement entered into between Taylor ... and
Bernals on June 8, 2005, was for the benefit of the property
manager, Brentwood, .... because on September 1, 2005, Taylor
and Brentwood entered into [a] written agreement whereby
Brentwood agreed to manage and operate the property on behalf
of Taylor." Kessler's brief, at 15 (emphasis added).

This argument is without merit.  It proposes that the
purpose of the lease agreement was to benefit Brentwood by
providing Brentwood some property to manage.  This argument
confuses cause and effect and has the proverbial "tail wagging
the dog." As a matter of common experience, leases are made
for the intended benefit of the lessor and lessee. In other
words, managers of rental property under separate agreements
benefit only incidentally from the lessor-lessee relationship.
See generally John D. Calamari & Joseph M. Perillo, The Law of
Contracts

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