text:
    Nolan D. LANKFORD, Appellant v. RENT-A-CENTER, INC. and United States Fidelity & Guaranty Company, Appellees.
    No. 2006-WC-00714-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.

      David L. Walker, attorney for appellant.
    H. Byron Carter, III, attorney for ap-pellees.
    Before KING, C.J., IRVING and ROBERTS, JJ.
   KING, C.J.,

for the Court.

¶ 1. On June 13, 2003, Nolan D. Lank-ford was injured during the course of his employment at Rent-A-Center, Inc. in Horn Lake, Mississippi. Rent-A-Center and its carrier, United States Fidelity & Guaranty Company, admitted Lankford sustained compensable injuries. Lankford continued to work at Rent-A-Center until he was fired on July 18, 2003, receiving his full, pre-injury pay of $519.23 until his termination.

¶ 2. On August 25, 2003, Lankford filed a petition to controvert with the Mississippi Worker’s Compensation Commission, arguing that he was entitled to temporary total disability benefits. A hearing was held on February 9, 2005, before an administrative law judge. The judge considered the existence and extent of temporary disability, the existence and extent of permanent disability, and whether penalties and interest were applicable. The judge found that (1) Lankford was temporarily totally disabled from the period of June 13, 2003 (the date of injury) until January 6, 2004 (the date Lankford reached full maximum medical improvement), and (2) Lank-ford suffered no permanent disability as a result of his injury. Rent-A-Center was ordered to pay temporary total disability benefits at a rate of $331.06 per week from June 13, 2003, through January 6, 2004. Rent-A-Center was given credit for the wages Lankford earned during this time.

¶ 3. On March 10, 2005, Rent-A-Center and United States Fidelity filed a petition for review by the Commission of the administrative law judge’s February 25, 2005 order. On September 26, 2006, the Commission entered an order affirming the administrative judge’s grant of temporary benefits but amending the period of compensation. According to the Commission, Lankford was only temporarily disabled from September 17, 2003 (the date Lank-ford underwent surgery) through November 4, 2003 (the date Lankford could return to restricted duty at work). The Commission found that this was the only time period in which Lankford was incapacitated due to his injuries. It reasoned that Lankford worked from June 13, 2003, until July 18, 2003, with full pay and was not considered disabled during this time. From July 19, 2003, up until the date of his surgery on September 17, 2003, Lankford was admittedly able to work and would have returned to work after November 4, 2003, except for the fact that he was terminated for reasons unrelated to his injuries.

¶ 4. On October 5, 2005, Lankford filed a notice of appeal to the Circuit Court of Desoto County. In the meantime, Reni>-A-Center paid Lankford $2,938.90, the amount determined by the Commission to represent the penalties and interest Rent-A-Center owed Lankford. On March 24, 2006, the circuit court affirmed the Commission’s decision. Lankford appeals before this Court, raising the sole issue of whether the trial court erred in affirming the decision of the Mississippi Workers’ Compensation Commission, which affirmed, but amended the order of the administrative law judge.

¶ 5. Finding no error, we affirm the circuit court’s judgment.

FACTS

¶ 6. Lankford was employed with Rent-A-Center, Inc., in Horn Lake, Mississippi, as a “fast track” management trainee. After training, Lankford was to become an account manager with the store.

¶ 7. On June 13, 2003, Lankford sustained an injury to his left arm while lifting a big screen television during the scope of his employment with Renf-A-Center, Inc. Dr. Bret Sokoloff of Memphis Orthopedic Group treated his injuries. Dr. Sokoloffs initial evaluation assessed Lankford’s injuries as left tennis elbow. However, Lankford’s pain persisted and his condition was later diagnosed as left lateral epicondylitis. Dr. Sokoloff placed Lankford on work restrictions, lifting no greater than ten pounds with his left arm. On August 15, 2003, Lankford’s work restrictions were decreased so that he could lift no greater than twenty-five pounds with his left arm.

¶ 8. On September 17, 2003, Lankford underwent surgery to his left arm. He was released to work on September 26, 2004, with Dr. Sokoloff restricting him to no use of his left arm. On November 4, 2003, Lankford’s restriction changed so that he could now work with his left arm again, but at a lifting maximum of ten pounds for that arm. On December 5, 2003, Dr. Sokoloff released Lankford to full work duty, and on January 6, 2004, Dr. Sokoloff found Lankford had reached maximum medical improvement with no residual impairment. Dr. Sokoloff found that Lankford suffered no permanent partial impairment or restrictions with his left arm due to his June 13, 2005 work injury.

¶ 9. After reviewing the evidence, the administrative law judge found that Lank-ford was entitled to temporary total disability from the date of his injury on June 13, 2003, until January 6, 2004, the date Dr. Sokoloff found Lankford had reached maximum medical improvement. The Commission found Lankford was only entitled to benefits from September 17, 2003, the date he underwent surgery to his left arm, until November 4, 2003, the date Dr. Sokoloff released him to work with restrictions of lifting no more than ten pounds with his left arm. The circuit court affirmed the Commission’s decision, finding it was supported by substantial evidence. Lankford now appeals to this Court.

STANDARD OF REVIEW

¶ 10. The appellate court reviews decision by the Mississippi Workers’ Compensation Commission under a clearly erroneous standard. Smith v. B.C. Rogers Processors, Inc., 743 So.2d 997, 1002(¶ 13) (Miss.Ct.App.1999). “This Court will reverse the commission’s order only if it finds that order clearly erroneous and contrary to the overwhelming weight of the evidence.” Id.

ANALYSIS

Whether the trial court erred in affirming the decision of the Mississippi Worker’s Compensation Commission, which affirmed, but amended the order of the administrative law judge.

¶ 11. Lankford argues that the trial court erred in affirming the Mississippi Workers’ Compensation Commission’s decision to amend the administrative law judge’s decision, in which the Commission found the appropriate period of Lankford’s temporary total disability was from September 17, 2003, until November 4, 2003. The administrative law judge previously found the appropriate period of temporary total disability was from June 13, 2003, until January 6, 2004. Lankford argues that the Commission’s decision was not supported by substantial evidence. Lank-ford argues that, after his surgery, he was placed on restrictions by his physician and could return to work with only the use of his right arm. He asserts that because he could not return to his prior job duties, the Commission’s period of total temporary disability is inaccurate and is not supported by the evidence.

¶ 12. The Mississippi Workers’ Compensation Commission is the trier of fact in workers’ compensation cases. McElveen v. Croft Metals, Inc., 915 So.2d 14, 19(¶ 10) (Miss.Ct.App.2005). The Commission’s orders will only be overturned for errors of law or fact findings unsupported by the evidence. Georgia Pacific Corp. v. Taplin, 586 So.2d 823, 826 (Miss.1991).

¶ 13. The Commission found that the period from September 17, 2003 until November 4, 2003, following the surgery, was the only time during which Lankford’s injury prevented him from earning wages. The Commission found that, up until his dismissal for reasons unrelated to his injury, Lankford continued his usual employment. The Commission noted that but for Lankford’s dismissal, he could have returned to his prior employment. These findings are supported by substantial evidence within the record. This Court is therefore bound by those findings of fact. Accordingly, this Court affirms the limited award of benefits.

¶ 14. THE JUDGMENT OF THE DE-SOTO COUNTY CIRCUIT COURT AFFIRMING THE DECISION OF THE MISSISSIPPI WORKERS’ COMPENSATION COMMISSION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.


source: Caselaw Access Project

author: MYERS, P.J.,

license: Public Domain

text:
    Jack NOFSINGER, Appellant v. Joe IRBY, Appellee.
    No. 2006-CA-01344-COA.
    Court of Appeals of Mississippi.
    July 24, 2007.
    Timothy J. Matusheski and George W. Healy, IV, New Orleans, LA, Attorneys for Appellant.
    Patricia K. Simpson, Gulfport, Attorney for Appellee.
    Before MYERS, P.J., ISHEE and CARLTON, JJ.
   MYERS, P.J.,

for the Court,

¶ 1. Jack Nofsinger filed a negligence action against Joe Irby in the Circuit Court of Harrison County. Specifically, Nofsinger claimed that while he was under the employ of Irby and using Irby’s table saw to cut wooden forms for the construction of a concrete driveway on Irby’s rental property, a wood chip was propelled from the blade striking him in the left eye and resulting in permanent loss of vision to the eye. Nofsinger claims that Irby failed to maintain a safe working environment by not ensuring that the table saw had a safety guard over the blade, that Irby failed to warn Nofsinger of the absence of the safety guard before Nofsinger used the saw, and that Irby did not properly instruct him on the use of the table saw. Irby filed a motion for summary judgment and a hearing was held on the motion. The circuit court granted summary judgment in favor of Irby and subsequently entered a final judgment of dismissal with prejudice on August 1, 2006. Aggrieved by the judgment, Nofsinger appeals, seeking review of the following issue:

WHETHER THE CIRCUIT COURT ERRED IN GRANTING IRBY’S MOTION FOR SUMMARY JUDGMENT?

¶ 2. Finding no error, we affirm.

FACTS

¶3. In May 2003, Joe Irby hired his neighbor, Jack Nofsinger, to help him form a driveway at a rental duplex Irby was building. Nofsinger is an experienced carpenter and construction worker with over twenty-five years of experience, and by his own admission often gave Irby pointers regarding home improvement projects. Irby had hired Nofsinger to perform trim work on his rental properties on at least two prior occasions. On the previous two occasions, Irby paid Nofsinger by the job and neither withheld taxes from Nofsinger’s payment nor provided Nof-singer with a W-2 form.

¶ 4. On May 29, 2003, while helping Irby construct the driveway form, Nofsinger went into the duplex garage and retrieved Irby’s table saw. While Nofsinger was cutting stakes for the driveway form, a wood chip was propelled from the saw blade and struck him in the left eye causing permanent blindness in the eye. Irby’s table saw did not have the proper safety guard over the blade and Nofsinger was using the saw without wearing safety goggles. Nofsinger acknowledged during the summary judgment hearing that he was aware of the danger of using a table saw without a safety guard and goggles, and admitted to doing so on numerous occasions in the past. He also testified to operating similar table saws “a couple of thousand times,” and that if he had been wearing goggles, the wood chip would not have struck him in the eye.

¶ 5. At the summary judgment hearing and on appeal, Nofsinger asserts that he was working at the request of Irby and was either his employee or a business invitee. He claims that Irby owed him a duty of providing a safe working environment and that Irby breached this duty by not placing a safety guard over the saw blade and by not warning him of the danger of operating the saw without a safety guard. Irby argued at the summary judgment hearing, and maintains on appeal, that Nofsinger was an independent contractor and that an exception to the duty to provide an independent contractor applies when, as here, the risk of injury arises from the machinery or appliances located on the premises and intimately connected with that which the contractor has undertaken to repair. Further, Irby asserts that he is absolved of any duty to protect Nofsinger because the danger was inherent to the work performed by Nofsinger and Nofsinger appreciated the danger.

¶6. The circuit court found that Nof-singer was, indeed, an independent contractor and that in accordance with Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App.2005), Irby owed no duty to Nofsinger. The circuit court then granted Irby’s motion for summary judgment. On appeal, Nofsinger contends that the circuit court erred in granting Irby’s motion for summary judgment by relying on Grammar to incorrectly determine that Nofsinger was an independent contractor, by finding that there was no issue of material fact in dispute over Nofsinger’s status, and by finding that Irby had no duty to warn Nofsinger that the table saw was missing a safety guard.

STANDARD OF REVIEW

¶ 7. The standard of review by which an appellate court reviews the grant or denial of a motion for summary judgment under Rule 56(c) of the Mississippi Rules of Civil Procedure is de novo. Grammar, 911 So.2d at 621-22 (¶ 4) (citing McMillan v. Rodriguez, 823 So.2d 1173, 1177 (¶ 9) (Miss.2002)). In accordance with this standard, this Court must examine all evi-dentiary matters before it, and the evidence must be viewed in the light most favorable to the party against whom the motion has been made. Id. Therefore, the non-movant is given the benefit of any doubt, and the movant maintains the burden of demonstrating that no genuine issue of material fact exists. Id. If, upon viewing the evidence in this light, no genuine issue of material fact can be found, and the moving party is entitled to judgment as a matter of law, summary judgment should be granted. Id. Otherwise, the motion should be denied. Id.

DISCUSSION

¶ 8. Nofsinger first contends that the circuit court erred in applying the opinion of Grammar to determine Nofsinger’s status as an independent contractor. We review the facts and issues presented in Grammar, finding that they are strikingly similar to those presented here. Grammar, a housekeeper for the Dollars, slipped in a puddle of water while cleaning the Dollars’ bathroom. She brought a negligence action asserting, as Nofsinger does here, that the defendants were responsible for her injuries for failure to maintain a safe working environment and failure to warn. Grammar asserted that she was either an employee or an invitee; the Dollars argued that she was an independent contractor. In the case at bar, Nofsinger argues that since this Court found that Grammar’s status was “inconsequential to the outcome of the case,” the factors this Court weighed in analyzing whether or not Grammar was an independent contractor are not of precedential value. Id. at 625 (¶ 14). In support of this argument, Nofsinger cites the supreme court decision of Aetna Ins. Co. v. Commander, 169 Miss. 847, 855, 153 So. 877, 879 (1934), holding that where appellate consideration of a question is not necessary, and does not affect the decision of the case, the language is not to be regarded as precedent. While we recognize the rule promulgated in Commander, we find that the rule is inapplicable in this case.

¶ 9. In this Court’s opinion in Grammar we ultimately concluded that Grammar’s status as either an independent contractor, employee, or invitee did not affect the outcome of the case, but we did not hold that consideration of the question was not necessary. This Court’s opinion in Grammar analyzed the facts as if Grammar had been an independent contractor, then an employee, and finally an invitee. We determined that under either of the three scenarios, Grammar had produced no evidence demonstrating that the Dollars had breached any duty they might have owed to her. Grammar, 911 So.2d at 625 (¶ 14). Accordingly, the analysis this Court employed in arriving at that opinion is as much of precedential value as it would have been had we determined Grammar’s status and then ruled that she had produced no evidence of a breach of duty. Furthermore, the Court of Appeals decisions are final unless the Supreme Court grants certiorari review. M.R.A.P. 17(a). Our supreme court did not grant certiorari review of Grammar, and until Grammar is overruled by an intervening decision of our supreme court or this Court, it remains appropriate precedent upon which a trial court may rely to determine the factors to be weighed when determining independent contractor status. Accordingly, the circuit court did not err in applying the independent contractor factors enunciated in Grammar.

¶ 10. Nofsinger next argues that the circuit court erred in determining that Nofsinger was an independent contractor and that no issue of material fact remained in dispute as to whether he was an employee or invitee. In arriving at this decision the circuit court relied on the following analysis from Grammar:

An independent contractor, as adopted by the courts, is defined as “a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Texas Co. v. Mills, 171 Miss. 231, 243, 156 So. 866, 869 (1934) (citing Restatement (First) of Agency § 2 (1933)); Gray, 850 So.2d at 184 (¶ 14). An employer is under a duty to provide an independent contractor with a reasonably safe work environment or give warning of danger. Mississippi Chemical Corp. v. Rogers, 368 So.2d 220, 222 (Miss.1979). An employer is relieved of the duty of informing an independent contractor of a danger at the work site if the independent contractor knows of that danger. Id.
As an exception to the general rule requiring the owner or occupier of premises to furnish a safe place of work to an independent contractor and employees thereof, the owner or occupier is under no duty to protect them against risks arising from or intimately connected with defects of the premises, or of machinery or appliances located thereon, which the contractor has undertaken to repair. Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267, 271 (Miss.1970). Additionally, the owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known, or as to which he and his employees “assumed the risk.” Id. Furthermore, when a danger exists, which is inherent to the work the independent contractor is employed to perform, or which arises from or is intimately connected with the work to be performed, the employer’s duty to protect the contractor is absolved. Coho Resources Inc. v. McCarthy, 829 So.2d 1, 10-11 (¶¶ 20-21) (Miss.2002). Additionally, the premises owner’s liability is limited by the extent to which he has “devolved upon the contractor the right and fact of control of the premises and the nature of the work.” Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 185 (Miss.1989).
When determining whether an individual acting for another is an “employee” or “independent contractor,” the Mississippi Supreme Court has consistently expressed the need to consider a variety of facts, which include: (a) the extent of control exercised by the employer over the details of the work; (b) whether the one employed is engaged in a distinct occupation or business; (c) the skill required in the particular occupation; (d) whether the employer or workman supplies the instrumentalities, tools, and place of work; (e) the length of time for which the person is employed; (f) the method of payment, i.e., whether by the time or by the job; and (g) whether the work is part of the regular business of the employer. MESC v. Plumbing Wholesale Co., 219 Miss. 724, 732, 69 So.2d 814, 818 (1954), Estate of Dulaney v. Miss. Employment Sec. Comm’n, 805 So.2d 643, 646(¶ 13) (Miss.Ct.App.2002). Additionally, whether an individual is an employee or independent contractor depends on the facts, not someone’s summary characterization of the relationship. Gray, 850 So.2d at 183 (¶ 11).

Grammar, 911 So.2d at 622-23 (¶¶ 7-9).

¶ 11. Using the above analysis in arriving at its decision, the circuit court considered the previous working relationships of the parties, the undisputed fact that Irby neither withheld taxes from Nofsinger’s payment nor provided W-2 forms, the fact that Nofsinger had over twenty-five years of experience in carpentry and often gave Irby advice on projects, and the fact that Nofsinger, not Irby, determined the elevation and radius of the driveway more closely aligned Nofsinger’s status with that of an independent contractor than that of an employee or invitee. The circuit court further held that the exception noted above applied to this case to absolve Irby’s duty to provide a safe workplace, and that Nof-singer’s knowledge of carpentry and extensive prior use of saw blades, combined with his admission that he appreciated the risk of operating the saw without a safety guard or goggles, absolved Irby of any liability he may have had for a failure to warn of the dangers of using the saw without a safety guard or goggles.

¶ 12. As previously mentioned, Nofsinger contends that he is either an employee or an invitee. Again, we reference our previous analysis in Grammar:

A business invitee is defined as someone who enters onto another’s premises at the invitation of the owner for the purpose of benefitting both parties. Ball v. Dominion Ins. Corp., 794 So.2d 271, 273 (¶ 9) (Miss.Ct.App.2001). The duty owed to an invitee is of a higher standard, in that the occupant or owner has a duty to warn the invitee of dangerous conditions if they are not readily apparent, of which the occupant knows or should reasonably know through the exercise of reasonable care. Anderson v. B.H. Acquisition Inc., 771 So.2d 914, 918 (¶ 7) (Miss.2000).... Conversely, a social guest is a licensee or one who enters the property of another for his own benefit, pleasure, or convenience and with the implied permission of the owner. Sharp v. Odom, 743 So.2d 425, 429 (¶ 5) (Miss.1999). The duty owed to a licensee or social guest is to refrain from willfully or wantonly injuring the guest. Id. The basis of the inviter’s liability for injuries sustained by the invitee on the premises rests on the owner’s superior knowledge of the danger, and thus, as a general rule, he is not hable for an injury to an invitee resulting from a danger which was known to the invitee, was obvious or should have been observed by the invitee in the exercise of reasonable care, from a condition which was as well known or as obvious to the invitee as to the inviter, or from a danger which the invitee should reasonably have appreciated before exposing himself to it, or which the inviter had no reason to believe would not be discovered by the invitee. Jackson Ready-Mix Concrete, 235 So.2d at 270. Furthermore, there is no duty to warn the invitee of a defect or danger which is known to him or which is as well-known to the invitee as to the owner or occupant, or which is obvious or which should be observed by the invitee in the exercise of ordinary care. Id.

Grammar, 911 So.2d at 624 (¶ 12).

¶ 13. The facts in the record, viewed in the light most favorable to Nofsinger, do not support his position that Irby breached a duty of care by not placing a safety guard over the saw blade, by not warning him of the absence of the safety guard, nor by not properly instructing him on how to use the saw. The undisputed facts in the record are that Nofsinger has worked in the carpentry and construction industry for more than twenty-five years. Nofsinger has superior knowledge in the industry than that possessed by Irby. Further, Nofsinger has used table saws similar to the one at issue here and without goggles or a safety guard “thousands of times,” and Nofsinger admitted that he appreciated the danger of doing so. Therefore, whether Nofsinger was an independent contractor, an employee, or an invitee is of no moment to the ultimate decision on the issue of summary judgment. Under the appropriate analysis for either of the three statuses claimed, Nofsinger appreciated or should have appreciated the risks associated with using the table saw without the appropriate safety equipment and his assumption of that risk absolves Irby of the liability claimed. Nofsinger has failed to produce any evidence demonstrating that Irby breached any duty owed to him, and, therefore, summary judgment is affirmed.

¶ 14. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.


author: SMITH, Justice.

text:
    Charles M. FOGARTY and Jane C. Fogarty v. PARKER, POE, ADAMS, and BERNSTEIN, L.L.P., et al.
    1040335.
    Supreme Court of Alabama.
    Aug. 18, 2006.
    As Modified on Denial of Rehearing Jan. 12, 2007.

      James B. Pittman, Jr., Daphne, for appellants.
    Allan R. Chason of Chason & Chason, P.C., Bay Minette, for appellees.
    L. Ann Grace of Grace, Evans & Matthews, Huntsville; and Joe Espy III of Melton, Espy & Williams, Montgomery, for amicus curiae Attorneys Insurance Mutual of Alabama, Inc., in support of the appellees’ application for rehearing.
   SMITH, Justice.

The plaintiffs below, Charles M. Fogarty and Jane C. Fogarty, appeal from the trial court’s judgment dismissing all claims against the defendants, J. Keith Jones, John T. Baron, and Parker, Poe, Adams, and Bernstein, L.L.P. We affirm in part, reverse in part, and remand.

Facts and Procedural History

Parker, Poe, Adams, and Bernstein is a North Carolina law firm. Jones and Baron are licensed attorneys who practice at that firm; Jones and Baron are apparently licensed to practice law in various states, but they are not licensed to practice law in Alabama (hereinafter all three appellees will collectively be referred to as “Parker Poe”).

The Fogartys are residents of South Carolina; they were minority members in three closely held companies: Confederate Money, LLC; Pleasure Island Hotel Corporation; and Victory Ventures, LLC. All of these companies were organized under the laws of Alabama and were involved in a failed real-estate venture in Gulf Shores, Alabama. The majority shareholder in the venture was MacPherson Group, Inc., which is made up of Gary Southworth, Ann Bearden, and James Bearden.

In early 2002, the Fogartys became concerned by a sudden deterioration in the finances of the venture. Based on this concern, the Fogartys traveled to Gulf Shores and met with Robert Grant, the accountant for Confederate Money. Based on statements made by Grant, the Fogartys suspected that Southworth and the Beardens had made numerous misrepresentations regarding the affairs of the venture. Jane Fogarty later returned to Robert Grant’s office, where she was permitted only limited access to certain Confederate Money records located at Grant’s office. Around March 2002, the Fogartys initiated their ongoing attempts to obtain certain accounting information and other records of the failed real-estate venture from the MacPherson Group, Inc. The Fo-gartys allege that Southworth illegally deposited Confederate Money funds into a MacPherson Group checking account.

Parker Poe delivered a letter to the Fogartys on April 17, 2002, explicitly stating that it represented the MacPherson Group and Southworth, and stating that the Fogartys would not be allowed to inspect and copy the records of Confederate Money. It is unclear whether at that time Parker Poe was also representing Confederate Money. According to the Fogartys, Parker Poe repeatedly threatened legal action against them if they continued to seek access to the records and to claim that Southworth and the MacPherson Group had committed fraud. The Fogar-tys allege that Parker Poe misrepresented to them Alabama law by stating that under Alabama law the Fogartys were not entitled to review the books and records of Confederate Money. After the Fogartys had retained their own attorney, they received a letter from Parker Poe in July 2002, stating that the Fogartys were already in possession of all the records of Confederate Money. The Fogartys then attempted to meet again with Robert Grant, but Parker Poe sent letters to the Fogartys stating that the Fogartys did not have the right to contact Grant. According to the complaint, in August 2003, Parker Poe explicitly stated that it had represented Confederate Money. Parker Poe never produced the business records the Fogartys were seeking. According to the complaint, Parker Poe removed the books and records of Confederate Money from Alabama specifically to prevent the Fogar-tys from having access to those books and records.

Because of Parker Poe’s actions, the Fo-gartys allege, they were unable to investigate how the funds they had contributed to the venture had been used and the financial status of Confederate Money, a company in which they were minority members. The Fogartys also allege that they are due statutory penalties as a result of Parker Poe’s role in wrongfully preventing the Fogartys from inspecting the company’s records.

On January 16, 2004, the Fogartys sued 13 defendants, including Parker Poe. The complaint stated 14 counts, all of which arise out of the failed real-estate development venture in Gulf Shores. The Fogar-tys’ complaint sought a preliminary injunction (count 1) and a declaratory judgment (count 2). The complaint also sought damages for money owed (count 3), oppression (count 4), breach of fiduciary duty (count 5), conversion (count 6), fraud, suppression, and misrepresentation (count 7), conspiracy to defraud and suppress (count 8), and civil theft/embezzlement (count 9). The complaint further alleged violations under the Alabama Limited Liability Company Act, § 10-12-1 et seq., Ala.Code 1975 (count 10), and the Alabama Business Corporation Act, § 10-2B-1.01 et seq., Ala. Code 1975 (count 11). Finally, the complaint alleged abuse of corporate form (count 12), a derivative action (count 13), and the unauthorized practice of law (count 14). The unauthorized-practice-of-law claim is specifically directed at Parker Poe, but all of the counts in the complaint include demands for relief against the “defendants” generally.

On April 21, 2004, Parker Poe filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss all of the claims against them. The grounds for the motion were: (1) that it affirmatively appeared from the complaint that the Fogartys were not clients of Parker Poe for purposes of a legal-malpractice action because, it alleged, the Fo-gartys were not in privity with Parker Poe and Parker Poe thus owed no legal duty to the Fogartys; (2) that it affirmatively appeared from the complaint that the Fogar-tys’ claims arose out of the rendition of legal services by Parker Poe and that the Fogartys’ exclusive remedy for such claims is under the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975 (“the ALSLA”) and no claim is made under that act; and (3) that no cause of action exists in Alabama either for the unauthorized practice of law or for the violation of the Alabama Rules of Professional Conduct, which prohibit the unauthorized practice of law.

On June 28, 2004, the trial court entered the following notation on the case-action summary: “Motion to dismiss granted as to J. Keith Jones, John T. Baron, and Parker, Poe, Adams and Bernstein, L.L.P.” The Fogartys filed a motion to alter, amend, or vacate the judgment of dismissal, which the trial court denied. On November 8, 2004, the trial court certified the order as final under Rule 54(b), Ala. R. Civ. P. The Fogartys appealed.

Standard of Review

“This Court must review de novo the propriety of a dismissal for failure to state a claim and must resolve all doubts in favor of the plaintiff:
“ ‘It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala. R. Civ. P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979)....
“ ‘Where a 12(b)(6)[, Ala. R. Civ. P.,] motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).’
“Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985)

Bay Lines, Inc. v. Stoughton Trailers, Inc., 838 So.2d 1013, 1017-18 (Ala.2002).

Analysis

On appeal, the Fogartys have not specifically stated which of the 14 counts in the complaint they contend should not have been dismissed for failure to state a claim against Parker Poe. It appears that the actions alleged in counts 1-6, 9, 12, and 13 are not applicable to Parker Poe, and the Fogartys have not specifically mentioned those counts in their brief to this Court. We will thus consider whether the trial court erred in dismissing counts 7 (fraud, suppression, and misrepresentation), 8 (conspiracy to defraud and suppress), 10 (violations of the Alabama Limited Liability Company Act), 11 (violations of the Alabama Business Corporation Act), and 14 (unauthorized practice of law).

On appeal, Parker Poe asserts the same three grounds for dismissal of the Fogar-tys’ claims against it for failure to state a claim upon which relief can be granted as Parker Poe raised in its motion to dismiss. While it is unclear the precise grounds on which the trial court granted the motion to dismiss for failure to state a claim, the three grounds for dismissal asserted by Parker Poe in its Rule 12(b)(6) motion are the only grounds addressed by either party on appeal.

First, Parker Poe alleges that the motion to dismiss for failure to state a claim was properly granted because, it argues, all of the claims alleged in the complaint arise solely out of the rendition of legal services by Parker Poe, and the exclusive remedy for such claims is the ALS-LA, and the Fogartys make no claim under the ALSLA in the complaint. We disagree with Parker Poe’s assertion that the ALSLA is the exclusive remedy for the Fogartys’ claims against it. The ALSLA applies only to allegations of legal malpractice, i.e., claims against legal-service providers that arise from the performance of legal services, and only to allegations against attorneys licensed to practice law in the State of Alabama. Thus, it does not apply to Parker Poe in the present ease.

The ALSLA is codified at §§ 6-5-570 to -581, Ala.Code 1975, and creates one form of action against legal-service providers, as follows:

“There shall be only one form and cause of action against legal service providers in courts in the State of Alabama and it shall be known as the legal service liability action and shall have the meaning as defined herein.”

§ 6-5-573, Ala.Code 1975.

The ALSLA defines a legal-service provider as:

“Anyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and the members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers.”

§ 6-5-572(2), Ala.Code 1975.

In Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So.2d 800 (Ala.1999), this Court thoroughly discussed the issue of the applicability of the ALSLA to claims against legal-service providers that do not arise from the performance of legal services. In Cunningham, a lawyer sued a law firm, alleging breach of contract and negligence or wantonness arising out of a fee-splitting arrangement in an underlying case. Cunningham, 727 So.2d at 801-02. After a thorough examination of the language of the entire act, this Court held that “the ALSLA does not apply to an action filed against a ‘legal service provider’ by someone whose claim does not arise out of the receipt of legal services. ” Cunningham, 727 So.2d at 804 (emphasis added).

Counts 7, 8, 10, 11, and 14 of the complaint do not allege tortious conduct resulting from the receipt of legal services by the Fogartys from Parker Poe. Also, Parker Poe, in arguing that no “privity” existed between itself and the Fogartys, expressly states that it never provided legal services to the Fogartys. Therefore, it appears that the ALSLA does not apply to the Fogartys’ claims; thus, it cannot be, as Parker Poe asserts, their exclusive remedy.

Furthermore, it appears that the ALS-LA applies only to attorneys who are licensed to practice law in Alabama. Parker Poe argues that it was “engaged in the practice of law in the State of Alabama” and, thus, falls under the second prong of the ALSLA’s definition of a legal-service provider. However, this Court has expressly stated that “[t]he plain language of § 6-5-572(2), as well as that of the other portions of the ALSLA, clearly indicates that the Legislature intended for the ALS-LA to apply only to lawyers and to entities that are composed of members who are licensed to practice law within the State of Alabama.” Alabama Educ. Ass’n v. Nelson, 770 So.2d 1057, 1059 (Ala.2000) (emphasis added).

According to the complaint, Jones and Baron were not licensed to practice law within the State of Alabama, and Parker Poe does not dispute this allegation. Thus, the ALSLA would not apply to the claims against Parker Poe, and the ALS-LA could not be the Fogartys’ exclusive remedy. The trial court erred, therefore, in granting Parker Poe’s Rule 12(b)(6) motion on Parker Poe’s first stated ground.

Next, Parker Poe alleges that no cause of action exists in Alabama for the unauthorized practice of law. The Fogar-tys, however, argue that Armstrong v. Brown Service Funeral Home West Chapel, 700 So.2d 1379 (Ala.Civ.App.1997), does recognize such a cause of action. Parker Poe, in turn, argues that this Court should overrule Armstrong.

In Armstrong, certain customers brought an action against a funeral home, alleging fraudulent suppression and the unauthorized practice of law under § 34-3-6, Ala.Code 1975. Armstrong, 700 So.2d at 1380. Section 34-3-6, Ala.Code 1975, provides, in pertinent part:

“(a) Only such persons as are regularly licensed have authority to practice law.
“(b) For the purposes of this chapter, the practice of law is defined as follows: “Whoever,
“(1) In a representative capacity appears as an advocate or draws papers, pleadings or documents, or performs any act in connection with proceedings pending or prospective before a court or a body, board, committee, commission or officer constituted by law or having authority to take evidence in or settle or determine controversies in the exercise of the judicial power of the state or any subdivision thereof; or
“(2) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, advises or counsels another as to secular law, or draws or procures or assists in the drawing of a paper, document or instrument affecting or relating to secular rights; or
“(3) For a consideration, reward or pecuniary benefit, present or anticipated, direct or indirect, does any act in a representative capacity in behalf of another tending to obtain or secure for such other the prevention or the redress of a wrong or the enforcement or establishment of a right; or
“(4) As a vocation, enforces, secures, settles, adjusts or compromises defaulted, controverted or disputed accounts, claims or demands between persons with neither of whom he is in privity or in the relation of employer and employee in the ordinary sense;
“is practicing law.”

In Armstrong, the complaint alleged that the customers and the funeral home had entered into a burial contract pursuant to which the customers were charged $175 for assistance with preparing certain Social Security, legal, and insurance forms. 700 So.2d at 1380. The funeral home filed a motion to dismiss for failure to state claim under Rule 12(b)(6), Ala. R. Civ. P., and the trial court granted the motion. The Court of Civil Appeals reversed the trial court’s order, holding that the fraudulent-suppression claim and the unauthorized-practice-of-law claim were “cognizable theories of law which may, upon proof of the proper facts, entitle the plaintiffs to recover against the defendant.” 700 So.2d at 1382. Thus, Armstrong did recognize a cause of action for the unauthorized practice of law.

In the present situation, as was the case in Armstrong, the Fogartys have stated a claim alleging the unauthorized practice of law under § 34-3-6, Ala.Code 1975. In accordance with that statute, the Fogartys have alleged that Jones and Baron were not licensed to practice law in Alabama, that Jones and Baron were making representations concerning Alabama law for both the majority shareholders of Confederate Money and for Confederate Money itself, and that the Fogartys were injured as a result. Therefore, it appears that the Fogartys can prove a set of facts entitling them to relief on this claim; thus, the trial court erred in dismissing count 14 under Rule 12(b)(6).

Parker Poe seems to concede that if a private cause of action for the unauthorized practice of law does exist and if the ALSLA does not apply to this claim, then the Fogartys have stated a claim upon which relief can be granted. However, Parker Poe asks this Court to overrule Armstrong and to hold that the unauthorized practice of law is not a cognizable claim in Alabama. We are not persuaded to do so. In Alabama, the unauthorized practice of law is a criminal act. Section 34-3-7, Ala.Code 1975, states:

“Any person, firm or corporation who is not a regularly licensed attorney who does an act defined in this article to be an act of practicing law is guilty of a misdemeanor and, on conviction, must be punished as provided by law. Any person, firm or corporation who conspires with, aids and abets another person, firm or corporation in the commission of such misdemeanor must, on conviction, be punished as provided by law.”

This Court has long recognized that “[e]ven though an act may constitute a crime, if it also results in injury to the person or property of another, the act may still be the basis of a civil action for damages.” Martinson v. Cagle, 454 So.2d 1383, 1385 (Ala.1984). Therefore, the Armstrong decision, which recognizes a private cause of action for the unauthorized practice of law, is consistent with Alabama caselaw that recognizes a private cause of action for a criminal act that results in injury.

Furthermore, Armstrong is consistent with the law in other jurisdictions recognizing the unauthorized practice of law as a private cause of action. In McMahon v. Advanced Title Services Co. of West Virginia, 216 W.Va. 413, 607 S.E.2d 519 (2004), the Supreme Court of Appeals of West Virginia recognized the right of a plaintiff to predicate a claim for relief upon allegations of the unauthorized practice of law. In making this recognition, that court listed several other jurisdictions, including Alabama, that recognize such a claim:

“Our research indicates that in cases from a number of jurisdictions, courts have recognized the right of plaintiffs to predicate claims for damages and other relief upon allegations of the unauthorized practice of law by a defendant. See, e.g, Armstrong v. Brown Service Funeral Home West Chapel, 700 So.2d 1379 (Ala.Civ.App.1997) (claims for damages and class action relief for unauthorized practice held cognizable); American Abstract and Title Co. v. Rice, [186 S.W.3d 705 (Ark.2004) ] (unfair trade practices and class action claims cognizable, existence of State Bar Committee on unauthorized practice did not oust trial court of jurisdiction); accord, Speights v. Stewart Title Guaranty Co., [186 S.W.3d 715 (Ark.2004) ]; Herman v. Prudence Mutual Casualty Company, 41 Ill.2d 468, 244 N.E.2d 809 (1969) (plaintiff could seek injunctive relief against unauthorized practice); Kim v. Desert Document Services, 101 Wash.App. 1043 ... (Div. 1 2000) (unpublished) (plaintiffs could bring private action asserting unauthorized practice of law), review denied, 142 Wash.2d 1026, 21 P.3d 1149 (2001); J.H. Marshall & Associates v. Burleson, 313 A.2d 587 (D.C.1973) (individual plaintiff had standing to seek injunction against unauthorized practice of law); Dressel v. Ameribank, 468 Mich. 557, 664 N.W.2d 151 (2003) (plaintiffs asserted class action claim for unauthorized practice); accord, Perkins v. CTX Mortgage Co., 137 Wash.2d 93, 969 P.2d 93 (1999); but compare Reliable Collection Agency, Ltd. v. Cole, 59 Haw. 503, 584 P.2d 107 (1978) (statute prohibiting unauthorized practice of law did not confer standing).”

216 W.Va. at 417, 607 S.E.2d at 523.

The decision in Janssen v. Guaranty Land Title Co., 571 S.W.2d 702 (Mo.Ct.App.1978), is the only example cited by Parker Poe in which the unauthorized practice of law was not recognized as a private cause of action. That decision is easily distinguishable from the present case. In Janssen, the plaintiffs based their cause of action on Missouri Supreme Court Rule 5.25, which stated: “No provision of Rule 5 shall limit the right of any individual to seek any remedy afforded by law, nor shall this Rule constitute an exclusive method for regulating the practice of law.” 571 S.W.2d at 706. Based on this Rule the Missouri Court of Appeals held:

“Rule 5 deals generally with complaints and proceedings arising out of the practice of law and provides the procedure for investigating charges against persons, firms, or corporations accused of illegally practicing law. The intendment of Rule 5 and the procedures thereunder is to protect the public and those charged with the administration of justice from individuals who are not qualified and duly licensed attorneys; to maintain the integrity of the courts and the honorable profession of the practice of law. The main purpose is not punishment, and certainly not punishment through the device of punitive damages. Placed in its proper context, Rule 5.25 should be interpreted to preserve traditional remedies at law for individuals who are harmed by unscrupulous lawyers or by persons acting in an unauthorized legal capacity. Such choses in action may be based, for example, on a theory of fraud, or of negligence. But plaintiffs may not bootstrap the injury suffered by virtue of a defective title into a cause of action for the unauthorized practice of law.”

571 S.W.2d at 706 (citations omitted; footnote omitted).

Unlike Janssen, the present cause of action is based on statutes that specifically prohibit the unauthorized practice of law, that make the unauthorized practice of law criminal, and that expressly authorize some punishment. See §§ 34-3-6 and 34-3-7, Ala.Code 1975. Also, the Fogartys are not attempting to “bootstrap” the alleged injury suffered into a cause of action for the unauthorized practice of law. Instead, the Fogartys allege that they were directly injured by the misrepresentations of Alabama law made by Parker Poe. Therefore, the reasoning set forth in Jans-sen is unconvincing and inapplicable in the present situation. Parker Poe fails to provide this Court with any convincing reason to overrule Armstrong, and we decline to do so. Because Alabama does recognize a cause of action for the unauthorized practice of law, we need not address Parker Poe’s alternative argument regarding whether Alabama recognizes such a cause of action based on a violation of the Alabama Rules of Professional Conduct.

Finally, Parker Poe asserts that the Fo-gartys cannot bring a legal-malpractice claim against Parker Poe because no privity existed between the Fogartys and Parker Poe. However, the Fogartys expressly state that they did not allege a legal-malpractice claim in their complaint, and a review of the complaint does not reveal any claims of legal malpractice. (Fogar-tys’ reply brief at 15.) Therefore, we see no need to determine whether there was sufficient privity to support a legal-malpractice claim.

The sole issue before us is whether the trial court erred in granting Parker Poe’s motion to dismiss. Our standard of review requires us to reverse an order dismissing a claim if the plaintiff could possibly prove any set of facts allowing for recovery. Fontenot v. Bramlett, 470 So.2d 669 (Ala.1985); Bay Lines, supra. For the reasons already discussed, Parker Poe’s motion to dismiss for failure to state a claim should not have been granted based on its arguments premised on the rendition of legal services, the ALSLA, or the unavailability in Alabama of a cause of action for the unauthorized practice of law.

Examining the individual allegations in the complaint also leads us to conclude that the Rule 12(b)(6) motion should not have been granted as to all of the Fogar-tys’ claims. As already noted, it appears that counts 1-6, 9, 12, and 13 have no application to Parker Poe, and, on appeal, the Fogartys do not make any explanation of how those claims would apply. However, considering our standard of review on a dismissal under Rule 12(b)(6) and our liberal construction of a complaint, it does not appear “beyond a doubt” that the Fogar-tys could not prove any set of facts entitling them to relief on count 7 (fraud, suppression, and misrepresentation), count 8 (conspiracy to defraud and suppress), count 10 (violations of the Alabama Limited Liability Company Act), count 11 (violations of the Alabama Business Corporation Act), and count 14 (unauthorized practice of law).

According to Rule 8(a), Ala. R. Civ. P., a claim for relief need only contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader deems himself entitled.

As to counts 7 and 8, the Fogartys allege that Parker Poe engaged in fraud, suppression, and misrepresentation, and that it conspired to defraud the Fogartys. It appears that the Fogartys could prove a set of facts that would support a claim for fraud, suppression, and misrepresentation, or conspiracy to defraud, and Parker Poe does not offer any explanation as to why these particular claims should be dismissed except for the implausible arguments discussed above.

Count 10 alleges violations under the Alabama Limited Liability Company Act against “defendants” generally and demands judgment for various types of relief the Fogartys believe they are entitled to. Included in the Alabama Limited Liability Company Act is § 10-12-16, Ala.Code 1975, which provides:

“(a) Each limited liability company shall keep at the office referred to in subdivision (1) of subsection (a) of Section 10-12-15 the following records:
“(1) A current list of the full name and last known business or residence street address of each member, and each manager, if any.
“(2) A copy of the filed articles of organization and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any documents have been executed.
“(3) Copies of the limited liability company’s federal, state, and local income tax returns and reports, if any, for the three most recent years.
“(4) Copies of any then effective operating agreements including any amendments thereto.
“(5) Copies of any financial statements of the limited liability company for the three most recent years.
“(b) Those records, and any other books and records of the limited liability company, wherever situated, are subject to inspection and copying for any proper purpose at the reasonable request, and at the expense of, any member or the member’s agent or attorney during regular business hours. Any agent, member, or manager of a limited liability company who, without reasonable cause, refuses to allow any member or the member’s agent or attorney to inspect or copy any books or records of the limited liability company for any proper purpose shall be personally liable to the member for a penalty in an amount not to exceed 10 percent of the fair market value of the membership interest of the member, in addition to any other damages or remedy.”

(Emphasis added.)

In their complaint, the Fogartys allege that Parker Poe was acting as an agent of Confederate Money and that it, without reasonable cause, refused to allow the Fo-gartys to inspect certain records even though the Fogartys were members of the limited liability company. If proven, these facts could support a claim for relief under § 10-12-16, Ala.Code 1975. Therefore, the motion to dismiss should not have been granted as to count 10.

Count 11 alleges violations under the Alabama Business Corporation Act. This allegation may be construed to include violations of § 10-2B-16.02, Ala. Code 1975, which provides, in part:

“(a) A shareholder of a domestic corporation or of a foreign corporation with its principal office within this state is entitled to inspect and copy, during regular business hours at the corporation’s principal office, or if its principal office is outside this state, at a reasonable location within this state, specified by the corporation, any of the records of the corporation described in Section 10-2B-16.01(e) if he or she gives the corporation written notice of his or her demand at least five business days before the date on which he or she wishes to inspect and copy.
“(b) A shareholder of a domestic corporation or of a foreign corporation with its principal office within this state who shall have been a holder of record of shares for 180 days immediately preceding his or her demand or who is the holder of record of at least five percent of the outstanding shares is entitled to inspect and copy during regular business hours at a reasonable location within this state specified by the corporation, or in the case of accounting records of the corporation, if the records are maintained outside the state and inspection and copying within this state is impracticable, at a reasonable location outside the state specified by the corporation, for any proper purpose, all of its books, papers, records of account, minutes and record of shareholders, if the shareholder gives the corporation written notice of his or her demand, stating the purpose therefor, at least five business days before the date on which he or she wishes to inspect and copy....
“(c) Any officer or agent who, or a corporation which, without reasonable cause, shall refuse to allow any such shareholder, or his or her agent or attorney so to examine and make copies of and extracts from its books, papers, records of account, minutes and record of shareholders, for any proper purpose, shall be liable to such shareholder for a penalty of an amount not to exceed 10 percent of the value of the shares owned by such shareholder, in addition to any other damages or remedy afforded him or her by law. It shall be a defense to an action brought to collect the penalty specified in this section that the person suing therefor within the two years next preceding the demand has sold or offered for sale any list of shareholders of such corporation, or any other corporation or knowingly has aided or abetted any person in procuring any list of shareholders, or improperly has used any information secured through any prior examination of the books, papers, records of account, minutes or record of shareholders, or was not acting in good faith or for a proper purpose in making this demand.”

(Emphasis added.)

Again, under the facts alleged in the complaint, the Fogartys contend that Parker Poe was acting as “an agent” who obstructed the Fogartys from examining certain records. If proven, these facts could support a claim for relief. Therefore, the motion to dismiss for failure to state a claim should not have been granted as to count 11.

Finally, count 14 alleges that Parker Poe was engaged in the unauthorized practice of law and that there existed a causal connection between this practice and the injuries suffered by the Fogartys. As discussed earlier, contrary to Parker Poe’s allegation, Alabama does recognize such a cause of action. The facts alleged by the Fogartys may support a claim for relief; thus, the motion to dismiss should not have been granted as to count 14. Furthermore, as already discussed, this claim was the only claim that specifically referenced Parker Poe, and Parker Poe appears to concede that if Alabama recognizes such a cause of action then the Fogartys have stated a claim upon which relief could be granted.

Conclusion

We express no opinion on the merits of the case; however, we affirm the trial court’s dismissal for failure to state a claim as to counts 1-6, 9, 12, and 13, and we reverse as to counts 7, 8, 10, 11, and 14. We remand the cause for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

NABERS, C.J., and WOODALL, STUART, and PARKER, JJ., concur.

LYONS, J., recuses himself.

      . Count 1 seeks a preliminary injunction to freeze the assets of the real-estate venture, and it is not alleged that Parker Poe has any control over the spending of those assets. Count 2 seeks a judgment declaring the interest of each party in the various limited liability companies, and it is undisputed that Parker Poe does not have any ownership interest in any of the limited liability companies. Count 3 seeks money owed the Fogartys from capital contributions made toward the real-estate venture. Parker Poe does not control the funds of the real-estate venture, and, based on the facts alleged in the complaint, there is no indication that Parker Poe had any involvement whatsoever in the alleged capital contributions. Counts 4 and 5 allege oppression and breach of fiduciary duty by the majority shareholders in the real-estate venture, and Parker Poe is not a shareholder in the venture. Count 6 alleges conversion of funds, and it is apparent from the factual allegations in the complaint that this allegation concerns conversion of the assets of the venture by the majority shareholders, not Parker Poe, for their own personal use. Count 9 alleges civil theft/embezzlement, again stemming from the alleged personal use of funds dedicated to the venture by the majority shareholders, not Parker Poe. Count 12 specifically alleges that “Southworth, the Beardens, [Gerald] McGill, [Eric] Nelson, and/or [Robert] Young” in their capacities as "stockholders, officers or managers” of the real-estate venture abused the corporate and limited-liability forms of the various entities involved in the venture for their own personal advantage. Parker Poe is not named in that count, and there are no factual allegations in the complaint that Parker Poe is a stockholder, officer, or manager of any of the entities involved in the venture or that Parker Poe made personal use of the corporate or limited-liability form of any of those entities. Finally, count 13 is a derivative action directed specifically at the "directors, officers, and/or managers” of the real-estate venture, and again it is not alleged that Parker Poe fits any of those descriptions.