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 ("Wilbur Investments"). For the reasons set forth herein, we conclude that the Rule 54(b) certification was improper, and we dismiss the appeal.
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., incorporated Lee-Co 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
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 "[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.
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 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
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 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."
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 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
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," 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.
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] 147 So.3d 907, 915 (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] 156 So.3d 391, 395 (Ala.2014):
As was the case with the claims in Smith v. Slack Alost Development Services of Alabama, LLC, 32 So.3d 556 (Ala.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, 156 So.3d at 396.
We conclude here, as we did in Grant,
Grant, 156 So.3d at 397. 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.