Saunders v. Ingram, [Ms. 2150852, Apr. 7, 2017] __ So. 3d __ (Ala. Civ. App. 2017). The Court dismissed an appeal from a judgment quieting title to real property as from a non-final judgment. One of the plaintiffs died during the pendency of the case, and although a motion to continue referenced the death of that party, the personal representative of the decedent was never substituted as a party plaintiff. The trial court’s final judgment had quieted title to the disputed property in “the estate of John Ingram, as substituted plaintiff ....” Ms. *5. The Court held that the claim survived in favor of the personal representative but that “no personal representative was substituted as a party pursuant to Rule 25(a)(1).” The Court noted that
[i]t is quite simple under Rule 25 [Ala. R. Civ. P.,] to start the running of the time period for substituting a proper party for a deceased party by filing a clearly designated ‘statement of the fact of death,’ or ‘suggestion of death’ and by serving that statement in accordance with the requirements of the Rule.
Ms. *8, quoting Kissic v. Liberty National Life Insurance Co., 641 So. 2d 250, 252 (Ala. 1994). Noting the requirement that the suggestion of death must be served on a personal representative of the decedent, the Court concluded that a motion to continue referencing the death of the party could not have triggered the six-month limitations period of Rule 25(a)(1) because the motion “indicated that no personal representative had been appointed as of that date.” Ms. *9.
The Court also rejected the plaintiff’s argument that formal substitution was waived because the personal representative of John Ingram’s estate was present at the ore tenus trial. There was no record support for this assertion because “[t]here is no testimony indicating that Taylor had been appointed as a personal representative of John’s estate; Taylor herself did not testify or otherwise participate in the trial ....” Ms. *14. The Court reiterated that
[a]n appellate court is confined in its review to the appellate record[;] that record cannot be ‘changed, altered, or varied on appeal by statements in briefs of counsel,’ and the court may not ‘assume error or presume the existence of facts as to which the record is silent.’
Ms. *14-15, quoting Beverly v. Beverly, 28 So. 3d 1, 4 (Ala. Civ. App. 2009), quoting in turn Quick v. Burton, 960 So. 2d 678, 680-81 (Ala. Civ. App. 2006). The Court concluded that the judgment insofar as the property owned by the decedent was void and that the judgment as to the surviving plaintiff was non-final as it adjudicated fewer than all the pending claims.