William D. Carpenter v. Shirley H. Jacobs; Tracey E. Martin; Sharon Baber Turner; Marjory Klusman; Leonard W. Mikkelsen; Frank Roberts, Jr.; Wide Open Enterprises, LLC; Yvette H. Jones; Victoria Lynn Dumas Turner; Lorenzo Evans, Jr.; Ramona Evans; Edward R. Slaughter, Jr.; Frances A. Jones; Deborah Ann Gollotte Mabry; Donna Leanne Gollotte; Belinda Faye Gollotte Armour; Annis McGraw; Janine E. Wallace; Estate of Betty Smith Lott, deceased; Janet Lyn Graves; Bradford R. Graves; and Myrtle F. Smith
CourtSupreme Court of Alabama
Date FiledNovember 13, 2026
DocketSC-2026-0206
JudgeCook, J.
StatusPublished
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Full Opinion
Rel: November 13, 2026
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, 2026-2027
_________________________
SC-2026-0206
_________________________
William D. Carpenter
v.
Shirley H. Jacobs; Tracey E. Martin; Sharon Baber Turner;
Marjory Klusman; Leonard W. Mikkelsen; Frank Roberts, Jr.;
Wide Open Enterprises, LLC; Yvette H. Jones; Victoria Lynn
Dumas Turner; Lorenzo Evans, Jr.; Ramona Evans; Edward R.
Slaughter, Jr.; Frances A. Jones; Deborah Ann Gollotte Mabry;
Donna Leanne Gollotte; Belinda Faye Gollotte Armour; Annis
McGraw; Janine E. Wallace; Estate of Betty Smith Lott,
deceased; Janet Lyn Graves; Bradford R. Graves; and Myrtle F.
Smith
Appeal from Mobile Circuit Court
(CV-24-902172)
SC-2026-0206
COOK, Justice.
William D. Carpenter alleges that, since 2018, stormwater runoff
from adjoining properties in the Crown Pointe subdivision ("the
subdivision") has been flowing onto his property and causing damage. In
2020, Carpenter sued the Crown Pointe Owners' Association, Inc. ("the
CPOA"), and the four owners of the properties within the subdivision that
are nearest his property, asserting various tort claims arising from the
alleged runoff.
In April 2022, Carpenter obtained a jury verdict for $200,000,
resulting in a judgment against the CPOA. Before that case proceeded to
trial, Carpenter had entered into written pro tanto settlement
agreements containing releases with three of the lot owners -- Janine E.
Wallace ("Wallace"), Betty Smith Lott ("Lott"), and Myrtle F. Smith
("Smith").1
1The fourth adjoining lot owner, Bradford R. Graves, received a
final judgment in his favor.
The trial court reduced the $200,000 jury verdict for the cumulative
amounts from the pro tanto settlement agreements so that the final
judgment against the CPOA was for $126,504.64, including costs.
2
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According to Carpenter, the drainage problems continued after the
entry of the 2022 judgment. Carpenter also experienced problems in
collecting the 2022 judgment. In response, in August 2024, Carpenter
commenced the present action in the Mobile Circuit Court against (1) the
CPOA; (2) the individual owners and residents of each of the subdivision's
lots ("the 21 Lot Owners");2 (3) a newly created homeowners' association,
Crown Pointe West Homeowners' Association, Inc. ("the CPWHA"), and
(4) fictitiously named defendants. In his complaint, Carpenter also styled
certain claims against "the CPOA Board" and "the CPWHA Board," but
those terms are simply shorthand for the six individuals who served on
one or both of those boards. Each of those six board members owns or
resides on a lot and is thus also one of the 21 Lot Owners. The 21 Lot
Owners therefore consists of the six board members and the remaining
lot owners, who did not serve on either board ("the non-board-member lot
2We note that the term "the 21 Lot Owners" comes directly from
Carpenter's second amended complaint and refers to the fact that there
are 21 lots in the subdivision. It is not meant to imply that there are only
21 individual lot-owner defendants; some lots have multiple owners. This
defendant group is composed of lot owners who served on the CPOA
Board and/or the CPWHA Board as well as non-board-member lot
owners.
3
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owners"). In the present action, Carpenter alleges claims related to the
continued discharge of stormwater runoff onto his property and claims
related to the defendants' alleged efforts to avoid paying the earlier 2022
judgment.
After some procedural back and forth, and the filing of a second
amended complaint, most of the 21 Lot Owners sought dismissal of the
claims against them under Rule 12(b)(6), Ala. R. Civ. P.3 As explained
below, the chief claim against the 21 lot owners is that they allegedly own
an undivided interest in a common area that is draining onto Carpenter's
property. Those defendants dispute the claim of ownership. They argue
that the CPOA instead owns the drainage easement at issue and that,
even if they owned an undivided interest in this property, there are no
allegations that they have done anything to create this alleged drainage
problem. Among the 21 Lot Owners are Wallace and Smith, who
3Nearly all the 21 Lot Owners joined the motion to dismiss filed by
Marjory Klusman apart from Edward R. Slaughter, Jr., and Frances A.
Jones (the owners of Lot 15) and Mary Roberts (a CPOA board member
and resident of Lot 7). The former two defendants filed their own separate
motions while the latter, Mary Roberts, according to the record, did not
file a motion to dismiss despite the fact that the other resident of Lot 7,
Frank Roberts, Jr., did so.
4
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additionally argue that their written pro tanto settlement agreements
should be enforced and thus bar any further claims against them.
The circuit court eventually granted both the motion to dismiss
Carpenter's claims against the non-board-member lot owners (see note 3,
supra) and the motion to enforce Wallace and Smith's settlement
agreements. Although claims against the CPOA and the six board
members -- including the claims asserted against those board members
as lot owners -- remain pending, the circuit court certified its orders as
final pursuant to Rule 54(b), Ala. R. Civ. P.
Carpenter now appeals, arguing that the circuit court erred in
dismissing his claims against the non-board-member lot owners and in
enforcing Wallace's and Smith's settlement agreements. Before we may
consider the merit of those arguments, however, we must first determine
whether the circuit court properly certified its dismissal orders as final
under Rule 54(b). For the reasons set forth below, we conclude that the
Rule 54(b) certification was improper and, therefore, that this appeal is
due to be dismissed.
Facts and Procedural History
I. The Subdivision
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SC-2026-0206
The subdivision is a 21-lot residential development in Mobile
County that is subject to a recorded declaration of covenants, conditions,
restrictions, and easements ("the Declaration"). Every lot owner in the
subdivision is a member of the CPOA. The Declaration provides that
"[e]ach conveyance of Lots 1 through and including 21 of the herein
described Property shall also include for each such Lot an undivided
1/21st interest in and to the Common Property subject to the provisions
hereinafter contained." The map of the recorded plat depicts a 10-foot
"drainage and utility easement" adjacent to and south of Lots 18 through
21 ("the drainage easement"). Carpenter alleges that, since 2018,
stormwater has flowed downhill from the drainage easement behind lots
18 through 21 and has damaged his property.
II. Carpenter's 2020 Action and the Pro Tanto Releases
In July 2020, Carpenter filed suit against the CPOA, Wallace, Lott,
Smith, and Bradford R. Graves (see note 1, supra) in the Mobile Circuit
Court.4 In his complaint, Carpenter alleged claims of negligence,
4Wallace (Lot 18), Lott (Lot 19), Graves (Lot 20), and Smith (Lot 21)
were named in the 2020 action because of their ownership of the lots in
the subdivision closest to Carpenter's property.
6
SC-2026-0206
wantonness, trespass, nuisance, and "negligent channelization" arising
from the stormwater runoff onto his property ("the 2020 action").
Before trial, Carpenter entered into pro tanto settlements with
Wallace, Lott, and Smith. The release Carpenter executed in favor of
Wallace on March 5, 2021, provided, in part:
"In keeping with the foregoing, this Pro Tanto Release shall
preclude any actions or claims for any future water intrusions
or other water related claims against Releasees unless such
claims arise from material changes made to Releasee's
property after the execution of this document."
The release Carpenter executed in favor of Smith on April 3, 2022,
provided, in part:
"This Pro Tanto Release shall preclude any actions or claims
by … Carpenter (or those succeeding to the rights of
Carpenter) against Myrtle Smith for future water intrusions
alleged to occur on Carpenter's property unless such claims
arise from a material change to the drainage on or from
Myrtle Smith's property. Examples of a material change or
material changes to Myrtle Smith's property would be
removing or altering the existing berm; altering changing or
adding underground piping; installing additional gutters
and/or down spouts; and/or taking any other action that would
materially change or alter the presently existing stormwater
drainage on Myrtle Smith's property."
The claims against Wallace and Smith in the 2020 action were dismissed
with prejudice.
7
SC-2026-0206
On April 7, 2022, a jury returned a $200,000 verdict in Carpenter's
favor against the CPOA. That verdict was reduced by the $84,000 paid in
the pro tanto settlements, and Carpenter recorded a judgment against
the CPOA for $126,504.64, including costs ("the 2022 judgment").
III. Events After the Entry of the 2022 Judgment
Carpenter alleges that, after the entry of the 2022 judgment, the
CPOA Board took steps to keep him from collecting it. In early August
2022, Carpenter garnished the CPOA's bank account for $1,516.18.
Carpenter alleges that, on August 26, 2022, the CPOA Board opened a
checking account in the names of board members Barbara W. Cain and
Mary M. Roberts and directed the lot owners to pay their dues and
assessments to Cain or Roberts rather than to the CPOA. The CPOA filed
a Chapter 7 bankruptcy petition on June 9, 2023. In August 2023, the
CPOA Board voted to form the CPWHA, and the lot owners were later
instructed to pay their dues to the CPWHA. The bankruptcy court
dismissed the CPOA's petition for cause on July 23, 2024.
During the same period, the CPOA arranged for drainage work
behind Lots 18 through 21. The minutes of an August 18, 2022, special
meeting of the CPOA Board state:
8
SC-2026-0206
"We are still going to have to fix the problem of water
onto Mr. Carpenter's property. Wade Jones, Brad Graves and
Barbara Cain met with Daniel Leggett to get an estimate of
the fix. Have not received a bid from him yet."
On September 19, 2022, The Grounds Guys submitted a proposal
addressed to "Crown Pointe HOA" for "[d]rainage for behind the first 4
houses." In November 2022, the CPOA levied a special assessment on the
owners of each of the subdivision's 21 lots that included $11,119.59 for
The Grounds Guys. According to Carpenter, The Grounds Guys
performed the work in March 2023.
IV. The Present Action
On August 21, 2024, Carpenter commenced this action against the
CPOA, the CPWHA, and the owners of the subdivision's 21 lots in the
Mobile Circuit Court. Certain counts are styled as allegations against
"the CPOA Board" and/or "the CPWHA Board." In his operative pleading,
the second amended complaint filed on August 25, 2025, Carpenter
defines "the CPOA Board" as six individuals: Wade L. Jones, Barbara W.
Cain, Mary E. Jackson, Diane Mikkelsen, Janice Gollotte, and Mary M.
Roberts; and defines "the CPWHA Board" as the same group, with the
exception of Roberts. Because every member of the CPWHA Board also
served on the CPOA Board, we refer to these individuals in our discussion
9
SC-2026-0206
as "the six board members" even though Roberts served only on the
CPOA Board.
The second amended complaint refers to the defendants that are
owners and residents of each lot as "the 21 Lot Owners."5 Each of the six
board members owns or resides on a lot and is therefore also one part of
the 21 Lot Owners. Wade Jones and Diane Mikkelsen own their lots
jointly with their spouses, Yvette H. Jones (Lot 9) and Leonard W.
Mikkelsen (Lot 6); and Mary Roberts resides on Lot 7, which is owned by
Frank Roberts, Jr.; and Mary Jackson and Janice Gollotte reside on Lots
1 and 16 respectively. Thus, due to these overlapping definitions,
Carpenter effectively makes allegations against each of the six board
members both as a member of the CPOA Board and/or the CPWHA
Board, and as members of the 21 Lot Owners. The remainder of the 21
Lot Owners group are the non-board-member lot owners, including
Wallace and Smith, against whom all claims have been dismissed. These
non-board-member lot owners are the defendants before us in the present
appeal.
5See note 2, supra.
10
SC-2026-0206
In his second amended complaint, Carpenter asserts 15 counts, the
first 5 of which concern the stormwater runoff. In counts 1 through 5,
Carpenter asserted negligence, wantonness, trespass, nuisance, and
"negligent channelization" against "the CPOA," "the CPOA Board," "the
CPWHA," "the CPWHA Board," and "the 21 Lot Owners."
Under those first five counts, the second amended complaint alleges
that "[t]he owners of the twenty-one (21) lots are also 1/21st undivided
interest owners of the Subdivision’s Common Property, including, but not
limited to, the Drainage Easement," and that "[t]he Drainage Easement
is specifically identified on the recorded plat for the Subdivision along the
southern boundary of Lots 18, 19, 20 and 21." (Emphasis added.)
Carpenter attached to the second amended complaint this plat and the
Declaration. Building on that premise, each count alleges that, since
April 7, 2022, the defendants have failed to "construct, install, preserve,
maintain and/or repair the Drainage Easement," causing water to be
"piped, diverted, channelized, collected, cast onto and/or inundate and
damage Carpenter and his real property."
Whether the drainage easement is "Common Property" at all,
however, is disputed. As is alleged in the complaint, the Declaration
11
SC-2026-0206
defines "Common Property" as "those areas of land shown on the recorded
plat of the Property not shown as individual Lots but shown as 'Detention
& Planting Area,' 'Detention Area,' 'Common & Detention Area' and also
any property which may be in the future conveyed to the Association."
Carpenter reads that definition to reach the drainage easement, which
he describes as part of the subdivision's stormwater system, carrying
water "from west to east to a concrete ditch and storm water detention
area."
The 21 Lot Owners who moved to dismiss read it differently. They
contend that the drainage easement lies within Lots 18 through 21 rather
than on "Common Property," which is defined as "those areas of land
shown on the recorded plat of the [subdivision] not shown as individual
Lots." They also note that, unlike the detention area, which the plat
labels "Detention Area (Common Area)" and which the developer deeded
to the CPOA in 1999, the drainage easement carries no "common area"
label. And they point out that the Declaration separately reserves
drainage easements "as shown on the recorded plat" to the developer.
They further contend that, whatever the Common Property includes, title
to it rests with the CPOA, not the individual lot owners. We do not resolve
12
SC-2026-0206
that dispute; we note it only because it bears on the discussion below
regarding the relationship between the dismissed claims and those still
pending. See Part I.A of the "Discussion" section, infra.
Counts 6 through 15 concern the 2022 judgment. Count 6, which
alleges a violation of the Alabama Uniform Voidable Transactions Act,
see § 8-9B-1, et seq., Ala. Code 1975, and count 7, which alleges a
conspiracy, are captioned against the CPOA, the CPOA Board, Cain,
Roberts, the CPWHA, and the CPWHA Board, but each also seeks relief
from the 21 Lot Owners. Count 8 alleges negligence by the CPOA Board
and the CPWHA Board. Count 9 alleges that the 21 Lot Owners
negligently paid their dues and assessments to Cain or Roberts, as the
CPOA Board had directed, and later to the CPWHA. Counts ten, eleven,
and twelve, which are asserted against both the CPOA Board and the 21
Lot Owners, allege the negligent failure to pay the 2022 judgment, the
negligent filing of the bankruptcy petition, and the negligent creation of
the CPWHA. Count 13 seeks a judgment declaring each lot owner liable
for 1/21st of the 2022 judgment. Counts 14 and 15 seek to pierce the
corporate veil and to impose successor liability, and each demands "[t]he
13
SC-2026-0206
amount of Carpenter's 4/7/22 unsatisfied judgment" from the CPOA, the
CPOA Board, the CPWHA, the CPWHA Board, and the 21 Lot Owners.
V. The Wallace and Smith Release Rulings
On September 27, 2024, Wallace moved to dismiss the claims
against her or, alternatively, to enforce her release, and Smith joined that
motion on November 19, 2024. Carpenter filed a response in opposition.
After a hearing on December 20, 2024, the circuit court granted the
motion on February 18, 2025, and dismissed Carpenter's claims against
Wallace and Smith.
Carpenter appealed that decision to this Court on February 18,
2025. However, we dismissed that appeal on November 20, 2025, for lack
of appellate jurisdiction because no final judgment had been entered. See
Carpenter v. Wallace (No. SC-2025-0552, Nov. 20, 2025)(order).
VI. The Non-Board-Member Lot Owners' Dismissals and the Rule 54(b)
Certification
On August 25, 2025, while that appeal was pending, Carpenter filed
his second amended complaint, which continued to name Wallace and
Smith among the 21 Lot Owners. After their appeal was dismissed by our
Court, Carpenter moved on December 18, 2025, for the circuit court to
certify the order dismissing the claims against Wallace and Smith as
14
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final under Rule 54(b). He argued that the releases "are unique to
Wallace and Smith" and that, absent immediate review, the circuit court
might have to "hold another trial that includes Wallace and Smith as
defendants."
Marjory Klusman, Edward R. Slaughter, Jr., and Frances A. Jones
each moved to dismiss the claims against them under Rule 12(b)(6), and
they renewed their motions after Carpenter filed the second amended
complaint. Many of the other 21 Lot Owners moved to join the Klusman
motion, including the five of the six board members that were also on the
CPWHA Board -- Wade Jones, Diane Mikkelsen, Janice Gollotte,
Barbara Cain, and Mary Jackson -- and the circuit court granted all the
motions for joinder.
The dismissal motions made several overlapping arguments. First,
the moving defendants argued that Carpenter sought to hold them liable
solely because of their membership in the CPOA and that the
Declaration's grant of an "undivided interest" in the Common Property
did not make them responsible for the drainage easement. They argued
that Alabama's nonprofit-corporation statutes shield members from
personal liability for a corporation's obligations. Their final argument
15
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was that the second amended complaint failed to state a claim by not
alleging any conduct by any of them that could support the veil-piercing
or successor-liability counts.
Carpenter's response in opposition contended that his second
amended complaint makes direct tort claims against the 21 Lot Owners
"as co-owners of the Subdivision’s Common Property, including the
Drainage Easement, for their individual negligent and wanton failure to
maintain it," not derivative claims for the CPOA's debts. (Emphasis
added.) He additionally argued that the nonprofit-corporation statutes
protect members from vicarious liability for corporate obligations but not
from liability for their own torts.
After a hearing in January 2026, the circuit court entered an order
on February 13, 2026, dismissing the claims against the non-board
member lot owners, a subset of the 21 Lot Owners, and identifying the
CPOA and the six board members, the remaining subset of the 21 Lot
Owners, as the defendants against whom the case would proceed.
Carpenter then asked the circuit court to certify the dismissal order as to
all the dismissed non-board-member lot owners as final.
16
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On February 23, 2026, the circuit court entered an amended order.
The amended order again dismissed the claims against the non-board-
member lot owners -- many of whom submitted briefs in the present
appeal. The amended order stated that the case would proceed against
the CPOA and the six board members -- Barbara Cain, Mary Jackson,
Diane Mikkelsen, Wade Jones, Janice Gollotte, and Mary Roberts.6 It
noted that default judgments had been previously entered against the
CPWHA via a separate order. The order then granted Carpenter's motion
for the entry of a final judgment as to Wallace and Smith and the other
non-board-member lot owners, stating:
"Plaintiff's Motion for Entry of Final Judgment … as to
Wallace and Smith is hereby GRANTED.
"The Court expressly determines that there is no just reason
for delay and directs entry of Final Judgment dismissing
Plaintiff's claims against all the dismissed Defendants."
Following the entry of the amended order, Lott's Estate moved for
clarification, noting that as an owner of an adjacent lot, it was potentially
in a different position in terms of liability from the other parties joining
6Joyce Jackson Moon, the trustee of the trust that owns Lot 1,
joined the motion to dismiss but is neither listed as dismissed nor listed
among the remaining defendants.
17
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the Klusman motion to dismiss, which it had also joined, because
"plaintiff alleges there has been work on and off the drainage easement
since the pro tanto settlement of April 3, 2022 which has materially
altered drainage so as to damage the Carpenter property." The circuit
court denied the motion, on February 26, 2026, stating: "There is nothing
to clarify. All claims against the estate of Betty Smith [Lott], of whatever
nature, arising from this action were dismissed in their entirety as stated
in the Amended Order." All the claims against the CPOA and the six
board members remain pending in front of the circuit court.
Standard of Review
In reviewing a circuit court's order certifying its judgment as final
pursuant to Rule 54(b), Ala. R. Civ. P., the standard of review is as
follows:
" 'Whether the action involves separate claims and whether
there is a final decision as to at least one of the claims are
questions of law to which we will apply a de novo standard of
review. Whether there was "no just reason for delay" is an
inquiry committed to the sound discretion of the trial court,
and, as to that issue, we must determine whether the trial
court exceeded its discretion.' "
Rogers v. Cedar Bluff Volunteer Fire Dep't, 387 So. 3d 131, 135 (Ala.
2023) (quoting Scrushy v. Tucker, 955 So. 2d 988, 996 (Ala. 2006)).
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Discussion
As an initial matter, we note that the parties all appear to agree
that the circuit court's Rule 54(b) certification was proper and that the
present appeal is properly before us. However, because the propriety of a
Rule 54(b) certification is a jurisdictional matter, this Court must make
an independent, de novo, determination of the Rule 54(b) certification
before we can consider the merits of the arguments being raised by the
parties in this appeal. See Martin v. PEI Ohio, Inc., 423 So. 3d 354, 357-
58 (Ala. 2025) (citing Fuller v. Birmingham-Jefferson Cnty. Transit
Auth., 147 So. 3d 907, 911 (Ala. 2013)); see, e.g., Richey v. Morris, 389 So.
3d 347, 348 (Ala. 2023).
For this Court to exercise jurisdiction, the appeal must be from a
final judgment or from a judgment certified as final under Rule 54(b). See
Foster v. Greer & Sons, Inc., 446 So. 2d 605, 609-10 (Ala. 1984). Rule
54(b) provides, in pertinent part:
"When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon
an express direction for the entry of judgment."
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"Nevertheless, ' " [t]he trial court cannot confer appellate jurisdiction
upon this [C]ourt through directing entry of judgment under Rule 54(b)
if the judgment is not otherwise 'final.' " ' " Hulsey v. Build Art, LLC, [Ms.
SC-2025-0564, Apr. 17, 2026] ____ So. 3d ____, ____ (Ala. 2026) (quoting
Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 362 (Ala. 2004),
quoting in turn Robinson v. Computer Servicenters, Inc., 360 So. 2d 299,
302 (Ala. 1978)).
This Court has described Rule 54(b) as containing three
requirements: "(1) the action must involve separate claims; (2) at least
one of the claims must have been finally decided; and (3) the trial court
must expressly determine that there is no just reason for delay." Martin,
423 So. 3d at 358 (citing Scrushy, 955 So. 2d at 996).
The first two requirements are met here because the amended order
disposed of all of Carpenter's claims against each of the non-board-
member lot owners. The amended order also recited that there was no
just reason for delay, which is " ' sufficient to indicate an intent to certify
an order as a final order under Rule 54(b),' " even though the order does
not cite the rule. Bowling v. U.S. Bank Nat'l Ass'n, 380 So. 3d 1030, 1033
n.1 (Ala. 2023) (quoting Elkins v. Carroll, 220 So. 3d 290, 297 (Ala. 2016)).
20
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Turning to the third requirement, we review the circuit court's
determination that there was no just reason for delay "for excess of
discretion." Bowling, 380 So. 3d at 1033. In reviewing that determination,
we begin with the settled principle that Rule 54(b) certifications are
disfavored by our Court. As we recently reiterated:
" ' " It bears repeating, here, that ' " [c]ertifications
under Rule 54(b) should be entered only in
exceptional cases and should not be entered
routinely." ' State v. Lawhorn, 830 So. 2d 720, 725
(Ala. 2002) (quoting Baker v. Bennett, 644 So. 2d
901, 903 (Ala. 1994), citing in turn Branch v.
SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373
(Ala. 1987)). ' " ' Appellate review in a piecemeal
fashion is not favored.' " ' Goldome Credit Corp. [v.
Player, 869 So. 2d 1146, 1148 (Ala. Civ. App.
2003)] (quoting Harper Sales Co. v. Brown,
Stagner, Richardson, Inc., 742 So. 2d 190, 192
(Ala. Civ. App. 1999), quoting in turn Brown v.
Whitaker Contracting Corp., 681 So. 2d 226, 229
(Ala. Civ. App. 1996)) (emphasis added)."
" ' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala.
2004). Also, a Rule 54(b) certification should not be entered if the
issues in the claim being certified and a claim that will remain
pending in the trial court " ' are so closely intertwined that separate
adjudication would pose an unreasonable risk of inconsistent
results.' " Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp.,
834 So. 2d 88, 95 (Ala. 2002) (quoting Branch v. SouthTrust Bank
of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987)).' "
Hulsey, ____ So. 3d at ____ (quoting Schlarb v. Lee, 955 So. 2d 418, 419-
20 (Ala. 2006)). Rule 54(b) certifications " ' " should be granted only in
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exceptional cases and 'should not be entered routinely or as a courtesy or
accommodation to counsel.' " ' " Martin, 423 So. 3d at 358 (quoting Branch
v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987)).
This Court considers five factors to help determine whether a trial
court has exceeded its discretion in finding no just reason for delay:
" ' " ' (1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the need for
review might or might not be mooted by future developments
in the [trial] court; (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time; (4)
the presence or absence of a claim or counterclaim which could
result in a set-off against the judgment sought to be made
final; (5) miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of trial, frivolity
of competing claims, expense, and the like.' " ' "
Martin, 423 So. 3d at 358 (quoting Lighting Fair, Inc. v. Rosenberg, 63
So. 3d 1256, 1264 (Ala. 2010), quoting in turn MCI Constructors, LLC v.
City of Greensboro, 610 F.3d 849, 855 (4th Cir. 2010), quoting Braswell
Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335-36 (4th Cir. 1993))
(emphasis added).
Underlying those factors and this Court's analysis is a concern for
judicial economy:
" ' It is uneconomical for an appellate court to review facts on
an appeal following a Rule 54(b) certification that it is likely
to be required to consider again when another appeal is
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brought after the [trial] court renders its decision on the
remaining claims or as to the remaining parties.
" ' An appellate court also should not hear appeals that
will require it to determine questions that remain before the
trial court with regard to other claims.' "
Centennial Assocs., Ltd. v. Guthrie, 20 So. 3d 1277, 1281 (Ala. 2009)
(quoting 10 Charles Alan Wright et al., Federal Practice and Procedure §
2659 (1998)).
Carpenter argues that the dismissals "turned on issues unique to
the dismissed defendants," that "no remaining claim requires the trial
court to determine the scope or enforceability of [the releases]," and that,
unlike Hulsey, this appeal does not involve "identical claims based upon
identical theories remain[ing] pending against another defendant."
Carpenter's brief at xi-xii. We disagree. The possibility of mootness
weighs decisively against certification here. See, e.g., Lighting Fair, 63
So. 3d at 1264-66.
I. The Possibility of Mootness
"Our Court construes the mootness factor broadly, and we
frequently decline to consider appeals of orders certified under Rule 54(b)
when pending claims 'c[an] cause some of the claims at issue on appeal
to become moot.' " Martin, 423 So. 3d at 358-59 (quoting Rogers, 387 So.
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3d at 136; see, e.g., Cox v. Parrish, 292 So. 3d 312 (Ala. 2019); Richardson
v. Chambless, 266 So. 3d 684 (Ala. 2018). In Rogers, for example, the trial
court certified as final a summary judgment for two fire-service
organizations that had been sued on the theory that they were vicariously
liable for the actions of a volunteer firefighter, while the claim against
the firefighter himself remained pending. 387 So. 3d at 132-35. Because
the organizations' liability depended on whether the firefighter would be
found liable at trial, our Court determined that review "would require
this Court to resolve claims that are potentially moot," and we dismissed
the appeal. Id. at 137. In other words, if a jury ultimately found for the
remaining defendant (the firefighter), it would not matter whether the
organizations could be legally liable for the firefighter's actions.
Although the possibility of mootness is not always immediately
dispositive, the principle of mootness, as discussed in cases like Rogers,
dictates our conclusion here. Carpenter's complaint can be broken into
two categories of claims that were dismissed against the non-board-
member lot owners: (1) counts 1 through 5 ("the drainage counts") seek
recovery of damages for stormwater runoff since April 7, 2022, and (2)
counts 6 through 15 ("the judgment-collection counts") ultimately seek
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payment of the 2022 judgment while alleging misconduct on the part of
the defendants to evade its collection.
Carpenter alleges those same two groups of counts against the
remaining defendants -- the CPOA and the six board members. And, like
the organizations in Rogers, the non-board member lot owners' alleged
liability as to these two groups of counts largely turns on the conduct of
others -- the CPOA, which commissioned the drainage work behind Lots
18 through 21, and the six board members, who allegedly directed to
whom the non-board-member lot owners should pay their dues. As a
result, the resolution of the claims that remain pending below could
eliminate the need for us to review any of the dismissals now before us.
That is so for every dismissed non-board-member lot owner, including
Wallace and Smith.7
7Wallace and Smith also contend that their pro tanto releases from
the 2020 action bar Carpenter's claims against them. This additional
defense only reinforces this analysis. To prevail against Wallace and
Smith, Carpenter would need to defeat both the same defenses that all of
the non-board-member lot owners have and defeat the releases that
Wallace and Smith have. And Carpenter's argument that the releases'
exceptions apply rests on the same CPOA-commissioned drainage work
at issue in the claims still pending against the CPOA and the six board
members. We express no opinion on the scope or enforceability of either
release.
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A. The Drainage Claims (Counts 1 Through 5)
Counts 1 through 5 assert negligence, wantonness, trespass,
nuisance, and "negligent channelization" against the "CPOA, the CPOA
Board, CPWHA, the CPWHA Board, and the 21 Lot Owners." Those
counts assert the same allegations as to every defendant: that each lot
owner holds an undivided 1/21st interest in the subdivision's "Common
Property," which Carpenter says includes the drainage easement, and
that, since April 7, 2022, all the defendants' actions or inactions have
caused stormwater to be piped, diverted, and channelized onto his
property. Those same counts remain pending against the CPOA and the
six board members (all of whom, as part of the 21 Lot Owner group own
lots and are therefore alleged to be 1/21st owners of the Common
Property).
The resolution of the pending claims could moot the ones before us.
The factfinder may determine that the drainage easement is not
"Common Property," and, thus, an essential argument of Carpenter for
the liability of the non-board-member lot owners would be defeated. Or,
a factfinder may determine that the drainage conditions on the Common
Property -- including the work the CPOA commissioned from The
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Grounds Guys -- did not cause the damage Carpenter alleges or that no
defendant breached a duty owed to him. If so, Carpenter's identical
claims against the dismissed non-board-member lot owners, which rest
on their alleged shared interest in that same property, would fail for the
same reason, and there would be nothing left for us to review. See Rogers,
387 So. 3d at 137; see also Bowling, 380 So. 3d at 1035 (holding Rule 54(b)
certification improper because adjudicated and pending claims arose "out
of the same fact pattern and involve[ed] overlapping allegations and
evidence" and "ultimately center[ed] on the same basic theory").
B. The Judgment-Collection Claims (Counts 6 Through 15)
The possibility of mootness equally applies to the counts concerning
the 2022 judgment. Counts 6 through 15 all concern whether, and from
whom, Carpenter may collect the 2022 judgment. Counts 6 through 8 and
10 through 12 challenge the conduct of the CPOA and the six board
members after that judgment was entered -- directing dues to an account
held by Cain and Roberts, filing a bankruptcy petition, and forming the
CPWHA -- and those counts remain pending against the CPOA and the
six board members. The factfinder will have to determine if that alleged
conduct by the CPOA and the six board members was wrongful.
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Carpenter's claims against the dismissed non-board member lot
owners depend on the outcome of those pending claims. Count 9 alleges
that the 21 Lot Owners, and thus also the subset of dismissed non-board-
member lot owners before us, negligently paid their dues and
assessments to Cain or Roberts, and later to the CPWHA, as the CPOA
Board had directed. Counts 14 and 15 seek to hold the defendants
responsible for the CPOA's debt by piercing its corporate veil or by
imposing successor liability. Whether those payments were actually
wrongful is bound up with the pending counts 6 and 7 against the six
board members, challenging the same transfers as voidable, as part of a
conspiracy.
If the factfinder determines that the six board members did nothing
wrong in directing those payments, Carpenter's claim before us that the
non-board-member lot owners were negligent in following that direction
would appear to be irrelevant. As in Rogers, then, the non-board-member
lot owners' alleged liability on these counts depends on the outcome of
claims that have not yet been tried. 387 So. 3d at 136-37.
We express no opinion on how the circuit court should resolve any
of the pending claims. We hold only that, because the resolution of those
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claims could moot some or all the claims presented in this appeal, the
second factor weighs sufficiently against certification.
II. Remaining Considerations
No remaining considerations justify piecemeal review. Carpenter
argued to the circuit court that, if this Court were to wait until after trial
and then reverse the dismissal orders, the circuit court "would have to
hold another trial that includes Wallace and Smith as defendants." That
possibility, however, exists whenever a trial court resolves the claims
against fewer than all the defendants, and it is not the sort of harsh effect
that justifies piecemeal review