Cathedral of Faith Baptist Church, Inc. v. Moulton, et al., [Ms. 1200062, June 25, 2021] __ So. 3d __ (Ala. 2021). The Court (Bolin, J.; Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur) dismisses an appeal from a judgment of the Jefferson Circuit Court purporting to dismiss forgery, fraud, conspiracy, conversion, and unjust enrichment claims on the basis of statute of limitations defenses, finding the circuit court was without authority to sua sponte assert and apply a statute of limitations defense for Defendants against whom default judgments have been entered for failure to appear and defend in the action when those default judgments were non-final because the circuit court had expressly reserved the right to entertain Plaintiff’s claim for damages at a later date and the defaulting Defendants had not raised the statutes of limitations as affirmative defenses in responsive pleadings. Citing (Ms. **18-20) Waite v. Waite, 891 So. 2d 341, 343-44 (Ala. Civ. App. 2004), the Court reiterates the principle that a circuit court’s authority to sua sponte raise an affirmative defense on behalf of a defendant and dismiss an action based on that defense is limited to matters of jurisdiction:
“Other courts ... have concluded that a trial court may dismiss an action on its own motion, but only if the basis for that dismissal is jurisdictional. See People v. Matulis, 117 Ill. App. 3d 876, 454 N.E.2d 62, 73 Ill. Dec. 318 (1983) (the trial court erred in dismissing, sua sponte, the action because the defect was not jurisdictional). See also Diamond Nat’l Corp. v. Dwelle, 164 Conn. 540, 325 A.2d 269 (1973); Lease Partners Corp. v. R & J Pharmacies, Inc., 329 Ill. App. 3d 69, 768 N.E.2d 54, 263 Ill. Dec. 294 (2002); Adams v. Inman, 892 S.W.2d 651 (Mo. Ct. App.1994); and Neal v. Maniglia (No. 75566, April 6, 2000) (Ohio Ct. App. 2000) (not published in Ohio Appellate Reports or in Northeastern Reporter). In two of those cases, the courts determined that the statute of limitations served as a jurisdictional basis that supported affirming a trial court’s sua sponte dismissal of an action. Diamond Nat’l Corp. v. Dwelle, supra; Neal v. Maniglia, supra. However, in several of the other cases, the courts concluded that, although a trial court is permitted to dismiss an action based on a lack of jurisdiction, the statute of limitations is not a proper basis for such a dismissal because the statute of limitations is an affirmative defense that must be raised by a party. Lease Partners Corp. v. R & J Pharmacies, Inc., supra; Adams v. Inman, supra. See also McCarvill v. McCarvill, 144 Or. App. 437, 441, 927 P.2d 115, 116 (1996) (a trial court ‘may not raise defenses on its own and then dismiss the complaint on the basis of its determination of the defenses’); Francke v. Gable, 121 Or. App. 17, 853 P.2d 1366 (1993) (a trial court may not raise an affirmative defense on behalf of a defendant and then dismiss the action based on that defense).
“The doctrines of res judicata and collateral estoppel are affirmative defenses, Rule 8(c), Ala. R. Civ. P.; Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 516 (Ala. 2002), and do not affect a court’s jurisdiction to consider an action. Affirmative defenses may be waived if they are not pleaded by a party against whom a claim is asserted. Rule 8(c), Ala. R. Civ. P.; Bechtel v. Crown Cent. Petroleum Corp., 451 So. 2d 793 (Ala. 1984) (citing 2A J. Moore, Federal Practice § 8.27[3] at 8-251 (2d ed. 1948)). By its actions in the present case, the trial court, in essence, asserted the affirmative defenses of the doctrines of res judicata and collateral estoppel on behalf of the defendants and dismissed the matter based on those affirmative defenses.
“After careful consideration, we find most persuasive the reasoning of the courts that have held that, although a trial court may dismiss an action on its own motion on a jurisdictional basis, affirmative defenses such as the statute of limitations or the doctrine of res judicata are not jurisdictional bases upon which a court may base a sua sponte dismissal.”
Id. Because the Jefferson Circuit Court lacked the authority to sua sponte raise the affirmative defense of the statute of limitations on behalf of the defaulted Defendants, it could not dismiss the claims against those Defendants on the basis of the statute of limitations defense. Accordingly, the non-final interlocutory default judgments entered against those Defendants remained pending and there was no finality to support the appeal as required by Ala. Code § 12-22-2 and Ala. R. Civ. P. 54(b).