Rel: April 21, 2023

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) 229-0650), of any typographical or other 

errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

________________________

SC-2022-0818

_________________________

Debra Ann Kawzinski 

v. 

Sheryl Lyne, individually and as personal representative

of the Estate of Robert L. Kawzinski, deceased

Appeal from Elmore Circuit Court

(CV-22-900026)

MENDHEIM, Justice.
SC-2022-0818

2

Sheryl Lyne, individually and as the personal representative of the 

estate of Robert L. Kawzinski, deceased, commenced an action in the 

Elmore Circuit Court against Debra Ann Kawzinski ("Debra Ann") to 

quiet title to a piece of real property to which Lyne and Debra Ann both 

claim an ownership interest. Lyne further requested that the circuit 

court require the property to be sold and the proceeds divided among the 

rightful owners of the property. The circuit court entered a summary 

judgment in favor of Lyne. Debra Ann appealed. We dismiss Debra 

Ann's appeal as untimely filed.

Facts and Procedural History

It is undisputed that Robert L. Kawzinski ("Robert") and Debra Ann 

were married on September 14, 1991. On September 1, 2004, Robert and 

Debra Ann purchased, as joint tenants with the right of survivorship, a 

piece of real property and a house ("the property") located in Elmore 

County.

On February 8, 2008, in a separate action, the circuit court entered 

a "final decree of divorce" divorcing Robert and Debra Ann. According to 

the divorce judgment, "[s]ince the purchase of the [property], it is 

undisputed that [Debra Ann] has resided at the [property] and [Robert] 
SC-2022-0818

3

has resided at" a separate home owned by Robert. Concerning the 

property, which is at issue in this case, the circuit court's divorce 

judgment stated that the parties agreed that "the [estimated] value of 

the ... property [was] approximately $325,000.00 to $330,000.00." The 

divorce judgment further stated:

"The ... property ... shall be listed with a local real estate 

company or agent and sold at fair market value. The net 

proceeds from the said sale shall be equally divided by and 

between the parties. [Robert] shall select the real estate 

company and/or agent with which to list the [property] and 

have the [property] listed within 21 days of the date of this 

decree. [Debra Ann] shall be allowed to continue to reside [at]

the [property] until such time as the [property] sells. [Debra 

Ann] shall fully cooperate, with [Robert] and/or his agents in 

arranging for the sale of same and shall make the [property]

available for viewing, showing and/or inspection at any and 

all reasonable times pending the closing on same."

According to Debra Ann's affidavit testimony, Robert, contrary to the 

divorce judgment, never listed the property for sale.

On March 1, 2008, Robert executed his will, which named Lyne as 

the personal representative of his estate and left her "[a]ll the rest, 

residue and remainder of the property which I may own at the time of my 

death, real, personal and mixed, tangible and intangible, of whatsoever 

nature and wheresoever situated, including all property which I may 

acquire or become entitled to after the execution of this will ...." On 
SC-2022-0818

4

August 15, 2021, Robert died, having never attempted to sell the 

property. On September 24, 2021, Lyne filed Robert's will with the 

Elmore Probate Court and petitioned for letters testamentary. On 

November 4, 2021, the probate court granted Lyne's petition and issued 

her letters testamentary naming her the personal representative of 

Robert's estate.

On December 30, 2021, Lyne's attorney sent Debra Ann a letter, 

which states, in pertinent part:

"As you know, [Robert] owned a one-half (1/2) interest in 

the ... property ....

"Pursuant to your divorce decree with [Robert], the 

property ... was to be sold and the proceeds from such sale 

were to be divided equally between [Robert] and yourself. At 

the time of your divorce, the ... property was estimated to be 

valued at $330,000.00. Also, according to the divorce decree, 

this estimation was agreed to by you.

"As personal representative of the Estate of Robert L.

Kawzinski, Ms. Lyne must secure all of [Robert's] assets. That 

said, Ms. Lyne is not interested in trying to remove you from 

the ... property; and, as such, would like to extend an offer to 

you to purchase [Robert's] one-half (1/2) interest in the real 

property for $165,000.00. Ms. Lyne believes this to be a 

reasonable resolution to this matter. However, if you are not 

agreeable to this solution, Ms. Lyne is prepared to seek legal 

action against you to have the property sold."
SC-2022-0818

5

On January 28, 2022, Debra Ann's attorney sent a letter rejecting Lyne's 

offer concerning the property.

On February 1, 2022, Lyne, individually and as the personal 

representative of Robert's estate, filed a complaint in the circuit court 

against Debra Ann seeking to quiet title to the property and seeking a 

sale of the property for a division of the proceeds, pursuant to § 35-5-20 

et seq., Ala. Code 1975. On March 11, 2022, Debra Ann filed an answer 

to Lyne's complaint.

On March 23, 2022, Lyne filed a motion for a summary judgment.

Lyne argued that she is entitled to a "one-half undivided interest [in the 

property] as the sole devisee of the real property owned by the estate of 

Robert ...." Lyne further argued that the property cannot be equitably 

divided or partitioned and requested that the circuit court order that the 

property be sold and distribute the proceeds of the sale between Lyne and 

Debra Ann. On April 15, 2022, Debra Ann filed a response to Lyne's 

summary-judgment motion and also requested that a summary judgment 

be entered in her favor.

On April 20, 2022, the circuit court entered an order granting 

Lyne's summary-judgment motion. The circuit court's order states:
SC-2022-0818

6

"Upon hearing the argument and review of the 

pleadings, this court finds that the motion for summary 

judgment is due to be granted in [Lyne's] favor as there is no 

genuine issue of a material fact and [Lyne] is entitled to a 

summary judgment as a matter of law. The Estate is a half 

owner of the interest in the [property], as it took the same 

interest as Robert Kawzinski owned before his death. The 

court hearing that this is a residential property as such the 

same cannot be equitably divided."

On May 20, 2022, Debra Ann filed a motion requesting a stay of 

execution of the circuit court's April 20, 2022, order granting Lyne's 

summary-judgment motion and requesting that the circuit court set a 

supersedeas bond, because Debra Ann intended to appeal the circuit 

court's order. On May 22, 2022, the circuit court denied Debra Ann's 

motion, stating that its April 20, 2022, order was "not a final judgment."

On June 7, 2022, Lyne filed a motion requesting "leave to list real 

property for sale." Lyne noted in her motion that the circuit court, in its 

April 20, 2022, order, had stated that the property "is a residential 

property [and] as such the same cannot be equitably divided." 

Accordingly, Lyne requested "that the [property] be sold at private sale, 

and that [she] have the sole authority to list and market the [property]." 

On June 8, 2022, the circuit court entered an order, stating: "Issue of the 

summary judgment this date is moot as presented with [Lyne's] 
SC-2022-0818

7

summary judgment already ruled upon on April 20, 2022. Parties talking. 

Reset for 9:00 a.m. on July 7, 2022."

On July 7, 2022, the circuit court entered an order stating that the 

"[o]rder of 4-20-2022 is made final for appeal purposes." On August 18, 

2022, Debra Ann appealed to this Court.

Discussion

We must first consider whether this Court has jurisdiction over 

Debra Ann's appeal. On September 19, 2022, after Debra Ann had filed 

her notice of appeal, Lyne filed with this Court a motion requesting that 

we dismiss Debra Ann's appeal as untimely filed. Citing Bedgood v. 

McConico, 30 So. 3d 451, 453 (Ala. Civ. App. 2009), Lyne argues that the 

circuit court's April 20, 2022, order directing the sale of the property was 

a final judgment and that, thus, pursuant to Rule 4(a)(1), Ala. R. App. P., 

Debra Ann was required to file her notice of appeal within 42 days of its 

entry. Because Debra Ann undisputedly did not file her notice of appeal 

within 42 days of the entry of the circuit court's April 20, 2022, order, 

Lyne argues that Debra Ann's appeal is untimely and must be dismissed.

On October 20, 2022, this Court's Clerk's Office issued a show-cause 

order requiring Debra Ann to "show cause unto this Court ... as to why 
SC-2022-0818

8

this appeal should not be dismissed for lack of jurisdiction as untimely 

filed." On October 27, 2022, Debra Ann filed a response to the show-cause 

order. Debra Ann does not disagree with Lyne's assertion that the circuit 

court's April 20, 2022, order was a final, appealable judgment, but she 

asserts that she did not file a notice of appeal within 42 days of the entry 

of the circuit court's April 20, 2022, order because she relied upon the 

circuit court's May 22, 2022, order, in which the circuit court stated that 

its April 20, 2022, order was "not a final judgment." Debra Ann states 

that she, "relying on the [circuit] court's [May 22, 2022,] order[,] waited 

until there was a 'Final Order' to proceed with her appeal." Debra Ann 

notes that she did file her appeal within 42 days of the entry of the circuit 

court's July 7, 2022, order, in which the circuit court stated that its 

April 20, 2022, order "is made final for appeal purposes." Debra Ann 

states that her "action and timing of filing of the appeal is an excusable 

neglect due to her relying on the [circuit] court's own orders in this 

matter"; Debra Ann cites no authority in support of her position.

This Court set forth the relevant legal principles concerning the 

jurisdictional issue before us in Jetton v. Jetton, 502 So. 2d 756, 758-59 

(Ala. 1987):
SC-2022-0818

9

"It is a well established rule that, with limited 

exceptions, an appeal will lie only from a final judgment which 

determines the issues before the court and ascertains and 

declares the rights of the parties involved. Kelley v. U.S.A. Oil 

Corp., 363 So. 2d 758 (Ala. 1978); Alabama Public Service 

Commission v. Redwing Carriers, Inc., 281 Ala. 111, 199 

So. 2d 653 (1967). However, as this Court has previously 

noted, decrees and orders entered in equity proceedings 

involving the sale of real property for division of the proceeds 

present an unusual situation:

"'Equity decrees may be partly final and 

partly interlocutory. A decree which ascertains 

and declares the rights of the parties and settles 

the equities is a final decree, although it provides 

for further proceedings under the direction of the 

court in order to make the final decree effective, 

such decree is interlocutory and remains within 

the control of the court because as to such decree 

and further proceedings thereunder the cause 

remains in fieri. ...

"'This rule is strikingly illustrated in suits in 

equity to sell lands for division. When the court 

orders the land sold, that decree is final insofar as 

it will support an appeal. Three illustrations of our 

entertaining appeals from such decrees are Berry 

v. Berry, 266 Ala. 252, 95 So. 2d 798 [(1957)]; 

Coppett v. Monahan, 267 Ala. 572, 103 So. 2d 169

[(1958)]; Raper v. Belk, 276 Ala. 370, 162 So. 2d 

465 [(1964)]. We have also held that the decree 

confirming the sale is the final decree in judicial 

proceedings for the sale of lands for division, Pettit 

v. Gibson, 201 Ala. 177, 77 So. 703 [(1917)]; and 

that a sale of land for division among joint owners 

is not binding until confirmed by the court.'
SC-2022-0818

10

"Taylor v. Taylor, 398 So. 2d 267, 269 (Ala. 1981), quoting 

Sexton v. Sexton, 280 Ala. 479, 195 So. 2d 531 (1967)."

As noted above, Lyne relied upon Bedgood, supra, in arguing that 

Debra Ann's appeal should be dismissed as untimely filed. In Bedgood, 

the Court of Civil Appeals dismissed an appeal from a judgment ordering 

the sale of real property because the appellant, who had been a defendant 

in the trial court, had failed to file his notice of appeal within the time

frame set forth in Rule 4, Ala. R. App. P. The Court of Civil Appeals, 

relying upon the principles set forth above from Jetton, stated:

"[The plaintiffs] filed a complaint against [the 

defendants], seeking a sale of property for a division of the 

proceeds, pursuant to § 35-5-20 et seq., Ala. Code 1975. 

According to the State Judicial Information System, on 

February 20, 2007, the trial court entered an order directing 

that the property be sold for division. In a sale-for-division 

case, both the order directing the sale and the subsequent 

order confirming the sale are considered final judgments for 

purposes of appeal. Jetton v. Jetton, 502 So. 2d 756, 758-59 

(Ala. 1987). On March 14, 2007, [one of the defendants] filed 

a timely Rule 59(e), Ala. R. Civ. P., motion seeking to alter or 

vacate the trial court's February 20, 2007, order, thus 

suspending the time for filing a notice of appeal. See

Rule 4(a)(3), Ala. R. App. P. On June 12, 2007, 90 days after

[the defendant] filed his Rule 59(e) motion, that motion was 

denied by operation of law. See Rule 59.1, Ala. R. Civ. P. 

Consequently, the 42-day period for [the defendant] to file his 

notice of appeal commenced running on June 12, 2007. See

Rule 4(a)(3). Therefore, [the defendant] had until July 24, 

2007, to file his notice of appeal. [The defendant] filed his 

notice of appeal to the supreme court on October 3, 2008, well 
SC-2022-0818

11

after the time for filing an appeal had expired. Therefore, we 

must dismiss the appeal. See Rule 2(a)(1), Ala. R. App. P. ('An 

appeal shall be dismissed if the notice of appeal was not 

timely filed to invoke the jurisdiction of the appellate court.')."

Bedgood, 30 So. 3d at 453 (footnotes omitted; emphasis added).

As indicated by the emphasized portion of the above-quoted portion 

of Bedgood, it is well established in Alabama that, "[i]n a sale-for-division 

case, both the order directing the sale and the subsequent order 

confirming the sale are considered final judgments for purposes of 

appeal. Jetton v. Jetton, 502 So. 2d 756, 758-59 (Ala. 1987)." Id. Based on 

Jetton and Bedgood, and contrary to the circuit court's mistaken belief, 

the circuit court's April 20, 2022, order directing that the property be sold

was a final judgment capable of being appealed. Regardless of the 

confusion created by the circuit court's misguided orders that followed 

the final April 20, 2022, order, Debra Ann was required to file her notice 

of appeal of the circuit court's April 20, 2022, order within 42 days of its 

entry in order to properly invoke the jurisdiction of this Court. This she 

undisputedly did not do. Thus, we must dismiss Debra Ann's appeal for 

lack of jurisdiction.

We note, however, that Debra Ann may still have the opportunity 

to seek appellate relief. In Bedgood, even though the Court of Civil 
SC-2022-0818

12

Appeals dismissed the appeal in that case for lack of jurisdiction, the 

Court of Civil Appeals went on to note:

"[The defendant] untimely filed his notice of appeal from 

the trial court's February 20, 2007, order directing the sale for 

division. The record on appeal does not contain an order 

confirming any subsequent sale of the property made 

pursuant to the February 20, 2007, order. As noted, an order 

confirming a sale for division is appealable. Jetton, supra. In 

such an appeal, the appellant is 'entitled to raise objections 

arising from both the initial judgment ordering the land sold, 

and from the judgment confirming the sale, so long as the trial 

judge was given an opportunity to rule on such objections.'

Jetton, 502 So. 2d at 759."

Bedgood, 30 So. 3d at 453. The same appears to be true in the present 

case; the record on appeal does not contain an order confirming any sale 

of the property made pursuant to the circuit court's April 20, 2022, order. 

Accordingly, should such an order be entered below, Debra Ann could

appeal that order and would be "'entitled to raise objections arising from 

both the initial judgment ordering the land sold, and from the judgment 

confirming the sale, so long as the trial judge was given an opportunity 

to rule on such objections.' Jetton, 502 So. 2d at 759." Id.

Conclusion

Based on the foregoing, Debra Ann's notice of appeal was not timely 

filed to invoke the jurisdiction of this Court. Accordingly, we dismiss 
SC-2022-0818

13

Debra Ann's appeal. See Rule 2(a)(1), Ala. R. App. P. ("An appeal shall 

be dismissed if the notice of appeal was not timely filed to invoke the 

jurisdiction of the appellate court.").

APPEAL DISMISSED.

Parker, C.J., and Wise, Bryan, Sellers, Stewart, Mitchell, and Cook, 

JJ., concur.

Shaw, J., concurs in the result, without opinion.