Rel: 8/15/14




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121380
                             ____________________

                             Andrew J. Gentry III

                                           v.

                      Daniel L. Lindsey, Sr., et al.

                       Appeal from Lee Circuit Court
                                (CV-11-0188)

BRYAN, Justice.

      Andrew J. Gentry III ("Drew Gentry") appeals the Lee

Circuit Court's judgment dismissing his claims against Daniel

Lindsey,       Sr.,     Jackson      Thornton       &    Co.,     P.C.     ("Jackson

Thornton"), Daniel Lindsey, Jr., Justin M. Parnell ("Matt

Parnell"),       Parnell      &   Crum,      and    Wilbur      Investments,        LLC
1121380

("Wilbur Investments").       For the reasons set forth herein, we

conclude that the Rule 54(b) certification was improper, and

we dismiss the appeal.

                     Facts and Procedural History

    In     1992,    Andrew    J.    Gentry,    Jr.   ("Andy     Gentry"),

petitioned for bankruptcy, pursuant to Chapter 11 of the

Bankruptcy Code.       Andy Gentry hired Charles N. Parnell III

("Nick Parnell"), an attorney at Parnell & Crum, to represent

him in the bankruptcy proceedings.         Nick Parnell hired Daniel

Lindsey, Sr., a certified public accountant with Jackson

Thornton, to assist him.           According to Drew Gentry, who is

Andy Gentry's son, Andy Gentry suffered throughout his life

from a mental illness, which, Drew Gentry argues, was not

controllable by medication at the time of the bankruptcy

proceedings.       Drew Gentry argues that, at the time of the

bankruptcy proceedings, Nick Parnell and Daniel Lindsey, Sr.,

knew of Andy Gentry's reduced mental capacity and also knew

that Andy Gentry was terminally ill with AIDS.                Andy Gentry

died in 1995, while the bankruptcy proceedings were pending.

    During the bankruptcy proceedings and prior to Andy

Gentry's    death,     Nick   Parnell    and   Daniel   Lindsey,     Sr.,


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incorporated LeeCo Properties, Inc. ("LeeCo"), in the names of

their minor sons, Matt Parnell and Daniel Lindsey, Jr.    Nick

Parnell and Daniel Lindsey, Sr., persuaded Andy Gentry and the

bankruptcy court to allow the transfer of certain real estate

owned by Andy Gentry to LeeCo in return for either payment of

the debts owed on those properties or the assumption of those

debts.

    The bankruptcy proceedings terminated in 1997.     In 2010,

Nick Parnell and Matt Parnell acquired the interests of Daniel

Lindsey, Sr., and Daniel Lindsey, Jr., in LeeCo.       LeeCo's

assets were later transferred to Wilbur Investments, and LeeCo

was dissolved in December 2010.      Drew Gentry argues that

neither he nor the bankruptcy court received notice of the

transfer of assets from LeeCo to Wilbur Investments.

    In April 2011, Michael Kent, who had had some business

dealings with Andy Gentry, sued Nick Parnell and LeeCo,

alleging claims related to Nick Parnell's conduct during and

after his representation of Andy Gentry in the bankruptcy

proceedings.   In May 2011, Kent moved to add Drew Gentry as a

"second-party plaintiff," arguing that the defendants had

inflicted substantial harm upon the Gentry family and that


                              3
1121380

"[t]he interests of justice and the interests of judicial

economy   [would]    be    served"   by   adding    Drew    Gentry   as   a

plaintiff.

    Drew Gentry was added as a party to the action on June 2,

2011, and, on that same day, he filed a complaint against Nick

Parnell, LeeCo, Parnell & Crum, and various fictitiously named

parties, alleging claims of breach of fiduciary duty and fraud

against Nick Parnell, of conspiracy to defraud against Nick

Parnell, LeeCo, and fictitiously named defendants, and of

negligence against Nick Parnell and Parnell & Crum.                  Drew

Gentry also requested "that the assets of the defendants be

impressed with a constructive trust in favor of ... Drew

Gentry.      Specifically, that the Defendants be judicially

restrained from continuing to convert the monthly rents from

the Mexican Restaurant presently known as 'Cancun' to the

Defendants'    own   use    and   benefit."        Kent's   claims   were

eventually dismissed on Kent's own motion, and Drew Gentry

remains the only plaintiff in the underlying action.

    On June 23, 2011, Nick Parnell and Parnell & Crum moved

to have Drew Gentry's complaint dismissed.1           After a hearing,

    1
     Nick Parnell and Parnell & Crum noted in their motion to
dismiss that LeeCo was not included in that motion because it
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1121380

the circuit court entered an order on November 2, 2011,

denying the motion to dismiss as to the breach-of-fiduciary-

duty claim and the request for a constructive trust and

granting   the    motion    as   to       the   fraud,   conspiracy,   and

negligence claims.         The circuit court determined that the

fraud, conspiracy, and negligence claims were governed by the

Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.

Code 1975 ("the ALSLA"), because they were related to Nick

Parnell's representation of Andy Gentry during the bankruptcy

proceedings.     The circuit court went on to find that those

claims would not form a basis for an action by Drew Gentry

and, in the alternative, would be barred by the applicable

statute of limitations.

    Drew Gentry moved the circuit court to alter, amend, or

vacate the November 2 order as to the fraud and conspiracy

claims only.     He argued that, in order to conclude that those

claims were governed by the ALSLA, the circuit court had to

find that Nick Parnell was acting at all relevant times in his

capacity as a lawyer for Andy Gentry as opposed to his

capacity as an officer of LeeCo. Drew Gentry argued that this


had been dissolved in December 2010.       LeeCo was               later
dismissed from the action by consent of the parties.
                                      5
1121380

finding was based on facts that had not yet been established

and that Alabama law allows for recovery by a nonclient for

harm caused "by a fraud directed at [a] client" by the

client's attorney.

    In May 2012, Drew Gentry amended his complaint, adding as

defendants   Wilbur   Investments,     Daniel     Lindsey,    Sr.,   Matt

Parnell, Daniel Lindsey, Jr., and Jackson Thornton.             He also

amended his conspiracy claims to include allegations against

the newly added defendants as well as Nick Parnell and added

new claims of unjust enrichment and violation of the Racketeer

Influenced and Corrupt Organizations Act ("RICO") against Nick

Parnell and the newly added defendants.           He also added claims

of negligence and willful and wanton misconduct against Nick

Parnell.   Parnell & Crum was not listed as a defendant in the

amended complaint.

    Nick Parnell, Matt Parnell, and Wilbur Investments moved

the circuit court to dismiss the amended complaint.              Daniel

Lindsey, Jr., filed a separate motion to dismiss the amended

complaint.      Daniel   Lindsey,     Sr.,   and    Jackson    Thornton

(collectively    referred    to       as   "the     Jackson    Thornton

defendants") also filed a motion to dismiss the amended


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1121380

complaint.    The defendants argued, among other things, that

the amended complaint failed to state a claim upon which

relief can be granted because, they asserted, the claims did

not survive Andy Gentry's death, the claims were barred by the

statutes of limitations, and Drew Gentry did not have standing

to bring the claims.   Drew Gentry opposed those motions.   The

defendants filed various motions in reply to Drew Gentry's

opposition.

    In August 2012, the circuit court held a hearing on the

motions to dismiss the amended complaint and, in February

2013, entered an order granting those motions ("the February

2013 order"). The circuit court found that dismissal based on

statute-of-limitations grounds was "inappropriate at [that]

time" because "it [could not] be said as a matter of law that

the statutes should not be tolled due to [Drew Gentry's]

incompetency."2   The circuit court went on to find, however,

that "the claims expressed in the First Amended Complaint

[did] not survive the death of Andy Gentry and that [Drew




    2
     Drew Gentry argued that, like his father, he suffered
from a mental illness, which, he says, should have tolled the
statutes of limitations on his claims.
                               7
1121380

Gentry] lack[ed] standing to bring them."                    The circuit court

concluded:

         "In sum, the First Amended Complaint makes
    allegations which could conceivably be brought by
    Andy Gentry or the estate of Andy Gentry. It does
    not appear that any of the claims contained in the
    First Amended Complaint can be asserted by Drew
    Gentry. ...

         "For the foregoing reasons, the Court finds that
    [Drew] Gentry's First Amended Complaint is due to be
    and is hereby DISMISSED."

    The Jackson Thornton defendants, Daniel Lindsey, Jr., and

the Parnell defendants (comprising Nick Parnell, Matt Parnell,

Parnell & Crum, and Wilbur Investments) moved the circuit

court to make its February 2013 order a final judgment,

pursuant    to    Rule    54(b),    Ala.        R.   Civ.    P.      Drew   Gentry

"conditional[ly]         assent[ed]"       to    the   Rule       54(b)   motions,

arguing that he "ha[d] no objection to the February [2013]

order being made final" but only after he had had time to

file, and the circuit court had had time to consider, a motion

to alter, amend, or vacate the February 2013 order.                       He filed

a motion to alter, amend, or vacate the order on March 7,

2013.      He    later    amended   that        motion      to    add   additional

authority in support of his arguments.                   Daniel Lindsey, Jr.,

and the Jackson Thornton defendants separately responded to

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1121380

the   motion   to   alter,   amend,   or   vacate,   and   the   Parnell

defendants adopted their arguments.

      The circuit court denied Drew Gentry's motion and, on

March 20, 2013, entered a certification, pursuant to Rule

54(b), making final the dismissal of the claims against Daniel

Lindsey, Jr., the Jackson Thornton defendants, Matt Parnell,

Parnell & Crum, and Wilbur Investments. The circuit court did

not make final the dismissal of the claims in the amended

complaint against Nick Parnell, presumably because claims

remained pending against him in the original complaint.

      Drew Gentry appealed the circuit court's judgment to the

Court of Civil Appeals.       In August 2013, the Court of Civil

Appeals transferred the appeal to this Court, citing a lack of

subject-matter jurisdiction.          Daniel Lindsey, Jr., and Nick

Parnell separately moved this Court to dismiss them from the

appeal.   Daniel Lindsey, Jr., argued that Drew Gentry had not

listed him on the notice of appeal and that the notice of

appeal did not "give[] any indication of an intent to appeal

the judgment in favor of [Daniel] Lindsey, Jr."            Nick Parnell

argued that claims remained pending against him in the circuit

court, that "there ha[d] been no final judgment against him,"


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1121380

and that "the [circuit] court's [March 20 judgment] did not

include him."     This Court denied the motion filed by Daniel

Lindsey, Jr., but granted Nick Parnell's motion and dismissed

him from the appeal.

                           Discussion

    Drew Gentry raises several issues that, he argues, this

Court must address on appeal. However, we cannot consider the

merits of his arguments because the circuit court's Rule 54(b)

certification was improper and, thus, Drew Gentry's appeal is

due to be dismissed.      See generally Fuller v. Birmingham-

Jefferson Cnty. Transit Auth., [Ms. 1090436, December 20,

2013] ___ So. 3d ___, ___ (Ala. 2013) (concluding that "the

trial court's certification of finality under Rule 54(b) is

ineffective, and, there being no final judgment, both the

appeal    and   cross-appeal   are   dismissed   for   lack   of

jurisdiction").

    This Court recently stated in Grant v. Breland Homes,

LLC, [Ms. 1121405, June 13, 2014] ___ So. 3d ___, ___ (Ala.

2014):

               "'With respect to the finality of
          judgments adjudicating fewer than all
          claims in a case, Rule 54(b), Ala. R. Civ.
          P., provides:

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1121380


              "'"When more than one claim for
              relief is presented in an action,
              ... 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. ... [I]n the absence of
              such determination and direction,
              any order or other form of
              decision,   however    designated,
              which adjudicates fewer than all
              the claims or the rights and
              liabilities of fewer than all the
              parties shall not terminate the
              action as to any of the claims or
              parties, and the order or other
              form of decision is subject to
              revision at any time before the
              entry of judgment adjudicating
              all the claims and the rights and
              liabilities of all the parties."

               "'"If a trial court certifies a
          judgment as final pursuant to Rule 54(b),
          an appeal will generally lie from that
          judgment." Baugus v. City of Florence, 968
          So. 2d 529, 531 (Ala. 2007) (emphasis
          added).    However, this Court will not
          consider   an  appeal   from   a   judgment
          certified as final under Rule 54(b) if it
          determines that the trial court exceeded
          its discretion in concluding that there is
          "no just reason for delay." Rule 54(b);
          see also Scrushy v. Tucker, 955 So. 2d 988,
          996 (Ala. 2006) ("Whether there was 'no
          just reason for delay' is an inquiry

                              11
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          committed to the sound discretion of the
          trial court, and, as to that issue, we must
          determine whether the trial court exceeded
          its discretion.").

               "'A trial court exceeds its discretion
          in determining that there is "no just
          reason for delay" when "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."'" Schlarb
          v. Lee, 955 So. 2d 418, 419–20 (Ala. 2006)
          (quoting Clarke–Mobile Counties Gas Dist.
          v. Prior Energy Corp., 834 So. 2d 88, 95
          (Ala. 2002), quoting in turn Branch v.
          SouthTrust Bank of Dothan, N.A., 514 So. 2d
          1373, 1374 (Ala. 1987)).          See also
          Centennial Assocs., Ltd. v. Guthrie, 20 So.
          3d 1277, 1281 (Ala. 2009) ("'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 brought after the [trial] court
          renders its decision on the remaining
          claims or as to the remaining parties.'"
          (quoting 10 Charles Alan Wright et al.,
          Federal Practice and Procedure § 2659
          (1998))).'

    "Loachapoka Water Auth., Inc. v. Water Works Bd. of
    Auburn, 74 So. 3d 419, 422-23 (Ala. 2011).

         "In Smith v. Slack Alost Development Services of
    Alabama, LLC, 32 So. 3d 556 (Ala. 2009), Slack Alost
    sued Tony Smith and Albert Weems, alleging breach of
    contract for failing to complete their condominium
    purchase. Smith & Weems Investments, LLC, was added
    as a party because it was the entity named in a
    standby letter of credit obtained as part of the

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    contract for the purchase of a condominium unit.
    Slack Alost moved for a summary judgment against
    Weems, but not against Smith or Smith & Weems
    Investments. The trial court granted the motion and
    certified the summary judgment as final pursuant to
    Rule 54(b). Smith and Smith & Weems appealed. On
    appeal, this Court held:

               "'In the instant case, it is apparent
          that at least some of the issues presented
          in the still pending claim against Smith
          are the same as the issues presented in the
          appeal now brought by Smith and Smith &
          Weems Investments. Weems and Smith are
          business partners accused of breaching the
          same real-estate contract, and ... Weems
          and Smith have both argued that Slack Alost
          never presented them with the original
          offering statement or the amended offering
          statement for the Bel Sole condominium
          development, in violation of § 35–8A–408.
          In Centennial Associates, Ltd.[ v. Guthrie,
          20 So. 3d 1277 (Ala. 2009,] we stated that
          "'[i]t 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 brought after
          the [trial] court renders its decision on
          the remaining claims or as to the remaining
          parties.'" 20 So. 3d at 1281 (quoting 10
          Charles Alan Wright et al., Federal
          Practice and Procedure § 2659 (1998)).
          Repeated appellate review of the same
          underlying facts would be a probability in
          this case, and, in light of this Court's
          stated policy disfavoring appellate review
          in a piecemeal fashion, see Dzwonkowski v.
          Sonitrol of Mobile, Inc., 892 So. 2d 354,
          363 (Ala. 2004), we accordingly hold that
          the trial court exceeded its discretion in


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          certifying the judgment entered against
          Weems as final pursuant to Rule 54(b).'

    "32 So. 3d at 562-63.

         "In the present case, review of the nonfinal
    summary judgment in favor of Gulf Coast and of the
    summary judgment entered in favor of Horton and
    Breland that is before this Court on appeal requires
    resolution of the same threshold issue: whether Gulf
    Coast had authority to approve the construction
    applications for lots 13 and 26 in Oak Grove when
    the same applications had already been denied by the
    ARC. Horton, Breland, and Gulf Coast presented the
    same arguments in their summary-judgment motions and
    the same defenses to the plaintiffs' claims.
    Although the summary judgment in favor of Breland
    and Horton is before this Court on appeal, the
    summary judgment in favor of Gulf Coast is not.
    Because the threshold issue in the judgment before
    this Court is identical to the threshold issue in a
    claim still pending before the trial court, we
    conclude that the claims are '"'"so closely
    intertwined that separate adjudication would pose an
    unreasonable risk of inconsistent results."'"'
    Loachapoka Water Auth., 74 So. 3d at 423 (quoting
    Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006)).
    Further, as in Smith, supra, '[r]epeated appellate
    review of the same underlying facts would be a
    probability in this case.' 32 So. 3d at 562. Thus,
    'in light of this Court's stated policy disfavoring
    appellate review in piecemeal fashion,' id. at 562-
    63, we conclude that the trial court exceeded its
    discretion in determining that there was no just
    reason for delay and in certifying as final pursuant
    to Rule 54(b) the summary judgment in favor of
    Horton and Breland."

    As was the case with the claims in Smith v. Slack Alost

Development Services of Alabama, LLC, 32 So. 3d 556 (Ala.


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2009), which was discussed in Grant, "it is apparent that at

least some of the issues presented in the still pending

claim[s] against [Nick Parnell] are the same as the issues

presented in the appeal now brought [against Daniel Lindsey,

Jr., the Jackson Thornton defendants, Matt Parnell, Parnell &

Crum, and Wilbur Investments]."         32 So. 3d at 562.      In fact,

all the claims now before us on appeal were also alleged

against Nick Parnell and are based on the same underlying

facts.

    Moreover, as in Grant, Nick Parnell and the defendants

before us on appeal presented many of the same arguments in

their motions to dismiss and raised the same defenses to Drew

Gentry's claims.      Thus, this Court's review of the nonfinal

dismissal of the claims in the amended complaint against Nick

Parnell in the amended complaint and the dismissal of the

claims against Daniel Lindsey, Jr., the Jackson Thornton

defendants,    Matt   Parnell,     Parnell   &   Crum,   and    Wilbur

Investments   will    "require[]    resolution   of   the   same   ...

issue[s]."    Grant, ___ So. 3d at ___.

    We conclude here, as we did in Grant,

    "that the claims are '"'"so closely intertwined that
    separate adjudication would pose an unreasonable

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    risk of inconsistent results."'"' Loachapoka Water
    Auth.[, Inc. v. Water Works Bd. of Auburn], 74 So.
    3d [419,] 423 [(Ala. 2011)] (quoting Schlarb v. Lee,
    955 So. 2d 418, 419-20 (Ala. 2006)). Further, as in
    Smith[ v. Slack Alost Development Services of
    Alabama, LLC, 32 So. 2d 556 (Ala. 2009)],
    '[r]epeated appellate review of the same underlying
    facts would be a probability in this case.' 32 So.
    3d at 562. Thus, 'in light of this Court's stated
    policy disfavoring appellate review in piecemeal
    fashion,' id. at 562-63, we conclude that the trial
    court exceeded its discretion in determining that
    there was no just reason for delay and in certifying
    as final pursuant to Rule 54(b) the [dismissal of
    Drew Gentry's claims against Daniel Lindsey, Jr.,
    the Jackson Thornton defendants, Matt Parnell,
    Parnell & Crum, and Wilbur Investments]."

Grant,    ___    So.   3d   at   ___.   Because   the   Rule   54(b)

certification was improper, Drew Gentry's appeal is due to be

dismissed.      See Stephens v. Fines Recycling, Inc., 84 So. 3d

867, 879 (Ala. 2011) (holding that the trial court's Rule

54(b) certification was erroneous and concluding that, "[i]n

the absence of a final judgment, this appeal is due to be

dismissed").

    APPEAL DISMISSED.

    Moore, C.J., and Bolin and Main, JJ., concur.

    Murdock, J., concurs in the result.




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