author: LYONS, Justice.

text:
    Michael BANKER v. CIRCUIT CITY STORES, INC.
    1070424.
    Supreme Court of Alabama.
    Sept. 5, 2008.
    Rehearing Denied Nov. 14, 2008.
    Richard L. Watters, Mobile, for appellant.
    Richard M. Knoth and Breaden M. Douthett of Baker & Hostetler, LLP, Cleveland, Ohio; and W. Austin Mulherin II of Frazer, Greene, Upchurch & Baker, LLC, Mobile, for appellee.
   LYONS, Justice.

Michael Banker appeals pursuant to § 6-5-642, Ala.Code 1975, from the order of the Mobile Circuit Court denying his motion for nationwide class certification in an action pending in that court against Circuit City Stores, Inc. We affirm the order denying class certification.

I. Facts and Procedural History

On August 28, 2000, Banker purchased a Sony CPDE400 computer monitor from a Circuit City store in Mobile for $549.99. Packed with the monitor was a document evidencing a one-year manufacturer’s warranty from Sony. The same day Banker also purchased from Circuit City a three-year service plan for the monitor for $139.99; this service plan, known as the “Computer Support Plus” (“the CSP”), is provided by Circuit City on a variety of computer products.

Banker’s sales receipt from his purchases on August 28, 2000, stated that “this sales receipt and the accompanying terms and conditions constitute your SERVICE CONTRACT.” The “accompanying terms and conditions” are found in a brochure known as the service guide for the CSP, which Circuit City instructed its sales representatives to give to customers who purchase the CSP. The service guide states that the CSP “provide[s] for the repair or replacement (if non-repairable) of the Products(s) resulting from failures that occur during normal usage.” The service guide also states:

“Coverage on your Product(s) begins at 12:01 a.m. on the effective date specified by your sales receipt or, if your Product has a manufacturer’s warranty of more than one year, this Contract coverage will begin one year following your purchase date. However, damage to your Products(s) caused by power surge will be covered under this Contract from the Product purchase date. Coverage ends at 11:59 p.m. on the ending date specified by your sales receipt.”

Thus, the CSP that Banker purchased provided coverage for repairs for damage caused by power surges for four years beginning with the date of purchase, and it provided coverage for repairs resulting for normal usage of the product for three years after the expiration of the manufacturer’s warranty or 12 months of ownership, whichever is less.

Banker’s sales receipt from Circuit City dated August 28, 2000, states that “Computer Support Plus for the SONY CPDE400 starts 08/28/03 and expires 08/28/04.” However, the service guide for the CSP states: “If there is a conflict between the terms of this Contract and information communicated either orally or in writing by one or more of our employees or agents, this Contract shall control.” In a deposition Banker testified that he does not recall whether he received the service guide for the CSP or any document that explained the coverage of the CSP other than his sales receipt.

Banker experienced problems with the monitor during his first year of ownership, and he contacted Circuit City on or about January 24, 2001, to request a replacement monitor. Banker believed that the CSP was a three-year warranty on the monitor that began with the date of purchase and that the CSP required Circuit City to replace the monitor at any instance of a malfunction during his first three years of ownership. In a deposition Banker testified that he believed the CSP constituted a three-year warranty because “the salesperson told [him].” Banker stated that the salesperson for Circuit City stated that “instead of having a one-year warranty, [he could] get a three-year warranty for this price. [Banker] said okay”; he further stated that his understanding was that “instead of having a one-year warranty, [he] would have a three-year warranty.”

When Banker first requested a replacement monitor from Circuit City, Circuit City referred Banker to Sony because the monitor was then under the manufacturer’s warranty from Sony. Banker contacted Sony, and Sony representatives informed Banker that the monitor was covered by a three-year manufacturer’s warranty. Circuit City asserts that it believed that the monitor came with a one-year manufacturer’s warranty because Sony had placed a one-year warranty in the box containing the monitor. In a deposition a designated representative for Circuit City stated that “the fact that the product had a three-year warranty was the mistake, not the fact that it had a three year and we thought it had a one-year warranty.”

After Banker spoke with a Sony representative he again requested a replacement monitor from Circuit City. Circuit City asserts that, although, it says, it was not obligated to replace the monitor, it subsequently gave Banker a replacement monitor. Banker accepted the new monitor from Circuit City. Banker then requested that Circuit City refund the $139.99 he had paid for the CSP. Circuit City refused to refund the purchase price of the CSP because, it said, Banker had already received the full benefit of the CSP by receiving a new monitor from Circuit City.

Banker then sued Circuit City in the Mobile Circuit Court on March 30, 2001, alleging fraud and fraudulent suppression. However, Banker amended his complaint six times and ultimately dismissed the claims of fraud and fraudulent suppression and asserted claims against Circuit City alleging breach of contract, unjust enrichment, and violation of the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. (“the MMWA”). Banker contends that the CSP violates the disclosure requirements of the MMWA because, he says, important terms and conditions of the CSP are not fully, clearly, and conspicuously disclosed in simple and readily understood language. Banker also contends that Circuit City violated the MMWA because, he says, “[n]either the Circuit City sales receipt nor its CSP brochure sufficiently disclosed the fact that the Circuit City extended warranty would primarily run concurrently and be duplicative of the manufacturer’s warranty.” Banker also claimed that Circuit City’s failure to disclose the term, duration, and scope of the CSP constituted a breach of contract. Lastly, Banker claimed that Circuit City was unjustly enriched by the amount he paid for the CSP because, he said, the “payments were for the provision of three years extended service contract coverage and Circuit City provided less than three years of extended warranty coverage.”

Banker moved for the trial court to certify him as the representative for a nationwide class of individuals who had purchased the CSP from Circuit City in connection with the purchase of any computer product. Banker defined the proposed class as follows:

“All persons who from January 1, 2000 to the date this action is certified purchased a consumer product and Circuit City’s service plan, [Computer] Support Plus (hereinafter ‘CSP’) where either:
“• The dates of coverage of the CSP either create an overlap in coverage with the manufacturer’s warranty, OR
“• The dates of coverage of the CSP create gaps in coverage between the warranty and the service plan, OR
“• The dates and scope of coverage of the CSP are not fully, clearly, and conspicuously disclosed to the consumer and its terms and conditions are not presented in simple and readily understood language.”

On November 16, 2007, the trial court entered an order denying Banker’s motion for class certification and stating the following reasons for its denial: Banker had failed to show that his claims are typical of his proposed class; Banker was not an adequate class representative and his proposed class is not ascertainable; and Banker had not met his burden under Rule 23(b)(3), Ala. R. Civ. P., of showing that common questions of fact predominate over the individualized questions that must be addressed for each class member.

II. Standard of Review

It is a well-settled principle that “ ‘[t]his Court applies an abuse-of-discretion standard of review to a trial court’s class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class.’ ” Alfa Life Ins. Corp. v. Hughes, 861 So.2d 1088, 1094 (Ala.2008) (quoting Smart Prof l Photocopy Corp. v. Childers-Sims, 850 So.2d 1245,1248 (Ala.2002)). In Atlanta Casualty Co. v. Russell, 798 So.2d 664, 666 (Ala. 2001), this Court further stated:

“The trial court is endowed with a substantial amount of discretion in determining whether to certify a class, and [an appellate court] will not disturb its determinations without a showing of abuse. Ex parte Holland, 692 So.2d 811, 814 (Ala.1997). In determining whether certification [or the refusal to certify] was proper, we consider whether the party seeking certification produced substantial evidence satisfying the requirements of Rule 23(a), Ala. R. Civ. P.”

III. Analysis

In order to maintain an action as a class action, a plaintiff must establish the prerequisites of Rule 23(a), Ala. R. Civ. P., as well as one of the requirements set forth in Rule 23(b). Alfa Life Ins. Corp. v. Hughes, 861 So.2d 1088, 1094 (Ala.2003). Rule 23(a), “Prerequisites to a Class Action,” provides:

“One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.”

Banker asserts that he has met the prerequisites of Rule 23(a) and that class certification in this cause is proper under Rule 23(b)(2) or Rule 23(b)(3). Rule 23(b) provides:

“(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
“(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
“(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”

Section 6-5-641(e), Ala.Code 1975, provides, in pertinent part: “When deciding whether a requested class is to be certified, the court shall determine, by employing a rigorous analysis, if the party or parties requesting class certification have proved its or their entitlement to class certification under Ala. R. Civ. P. 23.”

Banker contends that he has satisfied all the requirements of Rule 23 for entitlement to class certification of his claims. Because this issue is dispositive of this appeal, we will first address whether Banker demonstrated that his claims of a violation of the MMWA, breach of contract, and unjust enrichment are typical of the claims of the putative class. See Rule 23(a)(3), Ala. R. Civ. P. This Court has held that “ ‘ “[t]he essence of the typicality requirement is that the relationship between the injury to the class representatives and the conduct affecting the entire class of plaintiffs must be sufficient for the court to properly attribute a collective nature to the challenged conduct.” ’ ” Avis Rent A Car Sys., Inc., v. Heilman, 876 So.2d 1111, 1117 (Ala.2003) (quoting Atlanta Cas. Co. v. Russell, 798 So.2d at 668, quoting in turn Warehouse Home Furnishing Distnbs., Inc. v. Whitson, 709 So.2d 1144, 1149 (Ala.1997)).

The trial court found that Banker’s claims were not typical of the putative class because, it reasoned, Banker was not injured by his purchase of the CSP in that Circuit City provided him with a new monitor. The order of the trial court states:

“[Banker] asserts that he was injured, but in reality mistakenly believed— based solely upon alleged oral representations — that the manufacturer’s warranty had been superseded by the CSP and that Circuit City would replace the product if it malfunctioned for three years following its purchase. Put simply, [Banker] entered into a bargain, misunderstood the terms, received exactly what he believed the benefit of his bargain to be, and then demanded and now demands a refund of consideration. The Court has difficulty perceiving what constitutes [Banker’s] ‘injury,’ and counsel’s argument at the hearing that the ‘violation ... occurred when he bought a warranty that was unclear’ does not answer how Mr. Banker was injured, if at all, and how that injury is similar to any injury suffered by the class. (Transcript at 50). Logic dictates that it is not. [Banker] has not suggested how [he] was deprived of any benefit of his perceived bargain, or how he was deprived of anything under the terms of the CSP. By the CSP’s terms, the most [Banker] would be entitled to was a ‘new or factory reconditioned Product.’ (CSP at ¶ 6) [Banker] received a new monitor about which he has no complaints.”

Banker asserts that his damages are not related to whether Circuit City satisfied the terms of the CSP; rather, he asserts, his damages are the cost of the CSP. Banker asserts that he and all other members of the putative class have been harmed by Circuit City’s alleged failure to provide “proper disclosures ... concerning the CSP service contract so that he could make an informed decision, at the point of sale, as to whether or not to purchase the CSP.” Banker’s brief at p. 39. Banker contends that the only differences among the members of the putative class would be the various products purchased and the amount each member paid for his or her CSP. Banker contends that his claims are typical of all the members of the putative class because Circuit City uses a form document for the CSP; therefore, he says, documents substantially similar to the documents he received form the basis of the claims of all members of the putative class.

Banker further contends that this case is analogous to Keele v. Wexler, 149 F.3d 589, 592 (7th Cir.1998), in which the United States Court of Appeals for the Seventh Circuit affirmed a class-certification order. In Keele, Karen Keele had written a personal check to a Wal-Mart discount store for $85.26; the check was later dishonored by Keele’s bank. 149 F.3d at 590. Wal-Mart retained a law firm that subsequently sent Keele a debt-collection letter stating that Keele must pay the law firm the amount of the dishonored check, a $20.00 service charge, and a $12.50 collection fee. 149 F.3d at 590. Keele subsequently paid the law firm the amount of the dishonored check and the service charge, but not the collection fee. 149 F.3d at 591. Keele sought class certification for claims against the law firm of violations of the Fair Debt Collection Practices Act (“the FDCPA”) and the Colorado Fair Debt Collection Practices Act (“the CFDCPA”). 149 F.3d at 592. Relevant to Banker’s argument, Keele claimed that the CFDCPA prohibited the law firm from seeking a collection fee from Wal-Mart debtors in Colorado, and the trial court certified a class as to this claim. 149 F.3d at 592.

On appeal, the law firm argued that Keele’s claim that the law firm could not seek a collection fee from Wal-Mart debtors was not typical of the class because she never paid the collection fee. 149 F.3d at 592. The Court of Appeals for the Seventh Circuit held that Keele’s claim was typical of the claims of the class. 149 F.3d at 595. That court held:

“By mailing the form letters seeking the $12.50 collection fee, the [law firm] engaged in the same course of conduct towards Keele and the members of classes A and B. These individuals are now suing the [law firm] under the FDCPA and CFDCPA, alleging violations of the same statutory sections under the same legal theory.”

149 F.3d at 595. Banker contends that just as Keele’s nonpayment of the collection fee was immaterial to her class-action claim that the law firm illegally sought to recover collection fees from Wal-Mart debtors, his receipt of a new monitor from Circuit City is immaterial to whether Circuit City violated the disclosure requirements of the MMWA.

Circuit City contends that the trial court properly found that Banker failed to meet his burden of proving that his claims are typical of those of the putative class. See Rule 23(a)(3), Ala. R. Civ. P. Circuit City contends that Banker failed to show how he was injured because, it says, Banker received the full benefit of the CSP and proof of injury and damage are necessary to allegations of violations of the MMWA, unjust enrichment, and breach of contract. Circuit City first notes that the United State Supreme Court has interpreted subsection (3) of Rule 23(a), Fed.R.Civ.P., to require a class representative to “ ‘ “possess the same interest and suffer the same injury” as the class members.’ ” General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (quoting East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), quoting in turn Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974)). Circuit City contends that because Banker received the full benefit of what he thought he had purchased, he has not suffered the same alleged injury as other putative class members and therefore that his claims cannot be typical of the claims of the putative class. Circuit City further notes that in Rodriguez, 431 U.S. at 403-04, 97 S.Ct. 1891, the United States Supreme dealt with whether named plaintiffs were representative of a class and held that the named plaintiffs “lacked the qualifications to be hired as line drivers. Thus, they could have suffered no injury as a result of the alleged discriminatory practices, and they were, therefore, simply not eligible to represent a class of persons who did allegedly suffer injury.” (Footnote omitted.)

Circuit City also contends that Banker’s reliance on Keele is misplaced because, it says, unlike the FDCPA, the MMWA does not provide for statutory damages. Rather, the MMWA provides for only compensatory and equitable relief, for which individualized proof of damage is required. Circuit City notes that in Keele the Seventh Circuit stated that the “FDCPA does not require proof of actual damages as a precursor to the recovery of statutory damages.” 149 F.3d at 593 (footnote omitted). Although Keele’s claim regarding the collection fee was made pursuant to the CFDCPA, the Seventh Circuit also noted that its “legal discussion of the FDCPA is equally applicable to the CFDCPA” because the CFDCPA is patterned after the FDCPA. 149 F.3d at 594 n. 6.

We agree that Keele is distinguishable from the present case because the MMWA requires proof of injury to recover under its provisions. See 15 U.S.C. § 2310(d). Subsection (d) of the MMWA, titled “Civil action by consumer for damages, etc.; jurisdiction; recovery of costs and expenses; cognizable claims,” provides that “a consumer who is daw,aged by the failure of a supplier, warrantor, or service contractor to comply with any obligation under this chapter, or under a written warranty, implied warranty, or service contract, may bring sint for damages and other legal and equitable relief .... ” 15 U.S.C. § 2310(d)(1) (emphasis added). Thus, the MMWA does not provide that a consumer may recover statutory damages.

Banker has not been damaged by Circuit City’s alleged violation of the disclosure requirements of the MMWA or by Circuit City’s alleged breach of contract, nor has Circuit City been unjustly enriched; Banker accepted a new monitor from Circuit City without any reservations or conditions. Banker asserts that his damages and the damages of every member of the putative class is the cost of the CSP. Yet Banker has received more than three times his cost of the CSP — $139.99— by accepting a new monitor from Circuit City, which was worth $549.99. We note that Banker also alleges that because of Circuit City’s alleged failure to provide proper disclosures about the terms and conditions of the CSP he was unable to make an informed decision about purchasing the CSP. However, had Banker been given the information he claims he lacked, the most he could have saved was $139.99, the amount of the CSP, which he presumably would have declined to purchase. And, once again, Banker is faced with the undisputed fact that he unconditionally accepted a benefit from Circuit City substantially in excess of the amount he claims he could have saved by not purchasing the CSP. Likewise, because Circuit City has conferred upon Banker a benefit in excess of his claimed out-of-pocket loss, which Banker accepted unconditionally before he commenced his action, his status is not typical of other putative class members who might have claims against Circuit City for disgorgement of sums as to which Circuit City has allegedly been unjustly enriched. We are not here dealing with the effect of a presuit tender of compensatory damages in the context of a fraud claim because Banker dismissed the fraud count of his complaint. Likewise we are not dealing with the payment of compensatory damages by a third party because it is undisputed that the replacement monitor was furnished by Circuit City, not Sony.

We conclude that the trial court did not exceed its discretion in finding that Banker failed to sustain his burden of showing that his claims are typical of the claims of the putative class. Banker’s claims of violations of the MMWA, breach of contract, and unjust enrichment are not typical of the putative class because Banker has not suffered any damage from the alleged wrongful conduct out of which the claims of the putative class arise.

IV. Conclusion

Because we find that Banker’s claims are not typical of the claims of the putative class, we pretermit consideration of all other arguments by Banker and Circuit City. We affirm the order denying class certification.

AFFIRMED.

COBB, C.J., and STUART, BOLIN, and MURDOCK, JJ., concur.

      . “Federal cases construing the Federal Rules of Civil Procedure are persuasive authority in construing the Alabama Rules of Civil Procedure, which were patterned after tire Federal Rules of Civil Procedure.’’ Ex parte Novartis Pharms. Corp., 975 So.2d 297, 300 n. 2 (Ala. 2007).


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Ex parte HENSEL PHELPS CONSTRUCTION COMPANY. (In re Thomas Childers v. Carter-Burgess, Inc., et al.)
    1070877.
    Supreme Court of Alabama.
    Oct. 17, 2008.

      Samuel M. Ingram and Patrick L. Hays, Jr., of Carpenter, Ingram & Mosholder, LLP, Montgomery, for petitioner.
    Richard E. Crum of Shealy, Crum & Pike, P.C., Dothan, for respondent.
   MURDOCK, Justice.

Hensel Phelps Construction Company (“Hensel Phelps”) petitions this Court for a writ of mandamus directing the trial court to vacate its February 14, 2008, order denying Hensel Phelps’s motion to dismiss Thomas Childers’s claim against it and to enter a dismissal in its favor. We grant the petition and issue the writ.

Facts and Procedural History

On October 28, 2003, while acting within the line and scope of his employment with Wal-Mai-t Stores, Inc., Childers injured his leg when he fell while performing maintenance on the roof of the Wal-Mart distribution-center building in Pike County. Childers filed a complaint on October 27, 2005, one day before the expiration of the statute of limitations, against Carter-Burgess, Inc. (“Carter-Bui’gess”), Nixon & Laird Architects/Engineers, P.C. (“Nixon & Laird”), his supervisor at Wal-Mart, Charles Murray, and several fictitiously named defendants allegedly “responsible for constructing, building and/or maintaining the premises in question, including the stairwell-hatch-area, where the accident which is the subject of this case occurred.” The complaint stated with regard to the fictitiously named defendants that their “true and correct names are unknown at present but will be added by amendment when ascertained.”

The summons and complaint were mailed to the location Childers believed to be the principal address of Carter-Burgess and Nixon & Laird on October 27, 2005. Childers did not serve any discovery with the summons and complaint. Childers’s counsel claims that the Pike County circuit clerk informed him on November 3, 2005, that service had been perfected on Nixon & Laird, and that on November 7, 2005, the clerk’s office informed him that service had been perfected on Carter-Burgess. The service copies of the summons and complaint intended for Nixon & Laird and for Carter-Burgess, however, were returned as undeliverable on November 15, 2005.

Murray was served, and on November 28, 2005, he filed a motion to dismiss the claims against him. The motion was set for a hearing several times; Hensel Phelps alleges — and Childers does not dispute — • that each time the hearing date neared, Childers requested that it be postponed to allow for service of Carter-Burgess and Nixon & Laird. Childers’s counsel contends that he made numerous attempts to serve both Nixon & Laird and Carter-Burgess, but that, at the time, Carter-Burgess maintained approximately 40 locations nationwide, making service difficult. Wal-Mart Stores, Inc., moved to intervene on February 23, 2006, and the trial court granted Wal-Mart’s motion on February 27, 2006.

On July 5, 2006, Childers served The Corporation Company, the registered agent for Carter-Burgess. On August 3, 2006, Carter-Burgess and Nixon & Laird filed a motion to dismiss the claims against them, alleging that Childers failed to serve them in a timely manner. Following a January 9, 2007, hearing, the trial court denied the motion, provided that Childers perfect service on Nixon & Lair’d within 30 days. Service was perfected on Nixon & Laird on February 5, 2007. Childers’s counsel avers that, once service was perfected on Nixon & Lair’d, he began talking with Carter-Burgess’s attorneys about the identities of other possible entities involved with the construction of the Pike County Wal-Mart distribution-center building, and that in these conversations Hensel Phelps’s name was mentioned for the first time.

On February 6, 2007, Carter-Burgess and Nixon & Laird filed a notice to serve discovery on Childers, Murray, and inter-venor Wal-Mart. On March 9, 2007, counsel for Carter-Burgess wrote Childers’s counsel and Wal-Mart’s counsel to alert them that their clients were overdue in responding to Carter-Burgess’s discovery motion. Carter-Burgess filed a motion to compel discovery against Childers on March 22, 2007. The trial court granted this motion on May 8, 2007, ordering Childers to respond within 30 days. Childers responded to the Carter-Burgess discovery request on June 7, 2007. On May 10, 2007, Carter-Burgess filed a notice of intent to serve subpoena on nonparties, including Hensel Phelps. On June 6, 2007, Carter-Burgess served a nonparty subpoena on Hensel Phelps.

On September 13, 2007, 23 months after the filing of the original complaint, Child-ers filed an amended complaint that added Hensel Phelps as a defendant, assex-ting a claim of negligence and/or wantonness against all the defendants named in the amended complaint. It is undisputed that Childers never filed any formal discovery before filing the amended complaint.

Hensel Phelps filed its motion to dismiss on October 31, 2007, asking the trial court to dismiss the claim against it on the ground that the statute of limitations had expired with regard to any claims against it. Childers did not file a response to the motion to dismiss. On Febi’uary 14, 2008, the trial court denied Hensel Phelps’s motion to dismiss, stating, in pertinent part: “[T]he Court having reviewed and considered the [motion to dismiss], the supporting brief, and argument of counsel, and not being pei’suaded that [Hensel Phelps] is entitled to the requested relief, it is ... ORDERED AND ADJUDGED that the above referred to motion to dismiss is denied.” (Capitalization in original.) Hensel Phelps subsequently filed this petition for a writ of mandamus.

Standard of Review

“ ‘ “A writ of mandamus is an extraordinai’y remedy, and it 'will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an impei'ative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ” ’
“Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) .... A writ of mandamus is the proper means by which to seek review of a denial of a motion to dismiss filed by a party originally listed as a fictitiously named defendant ‘when “the undisputed evidence shows that the plaintiff failed to act with due diligence in identifying the fictitiously named defendant as the party the plaintiff intended to sue.” ’ Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 596-97 (Ala.2005) (quoting Ex parte Snow, 764 So.2d 531, 537 (Ala.1999)) ....”

Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1289-1290 (Ala.2008).

Analysis

The question presented is whether the trial court exceeded its discretion in denying Hensel Phelps’s motion to dismiss, in essence determining that Childei's’s substitution of Hensel Phelps for one of the fictitiously named defendants in the amended complaint of September 13, 2007, relates back to the filing of the original complaint of October 27, 2005. This Court has previously stated that Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P., “‘allow a plaintiff to avoid the bar of a statute of limitations by fictitiously naming defendants for which actual parties can later be substituted.’ ” Ex parte Chemical Lime of Alabama, Inc., 916 So.2d 594, 597 (Ala. 2005) (quoting Fulmer v. Clark Equip. Co., 654 So.2d 45, 46 (Ala.1995)). Rule 9(h), Ala. R. Civ. P., provides:

“When a party is ignoi*ant of the name of an opposing party and so alleges in the party’s pleading, the opposing party may be desigxiated by any name, and when that party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.”

Rule 15(c)(4), Ala. R. Civ. P., provides that “[a]n amendment of a pleading relates back to the date of the original pleading when ... relation back is permitted by principles applicable to fictitious party-practice pursuant to Rule 9(h), Ala. R. Civ. P.”

In order to invoke the relation-back principle of Rule 15(c) in regard to fictitious-party practice under Rule 9(h), a plaintiff

“(1) must state a cause of action against the party named fictitiously in the body of the original complaint and (2) must be ignorant of the identity of the fictitiously named party, in the sense of having no knowledge at the time of the filing that the later-named party was in fact the party intended to be sued.”

Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala.1996).

“A plaintiff is ignorant of the identity of a fictitiously named defendant when, after exercising due diligence to ascertain the identity of the party intended to be sued, he lacks knowledge at the time of the filing of the complaint of facts indicating to him that the substituted party was the party intended to be sued. Likewise, to invoke the relation-back principle of Rule 15(c), a plaintiff, after filing suit, must proceed in a reasonably diligent manner to determine the true identity of a fictitiously named defendant and to amend his complaint accordingly.”

Ex parte FMC Corp., 599 So.2d 592, 593-94 (Ala.1992) (emphasis added). Thus, it is incumbent upon the plaintiff to exercise due diligence to determine the true identity of defendants both before and after filing the original complaint. It is also incumbent upon the plaintiff to “substitute the named defendant for the fictitious party within a reasonable time after determining the defendant’s true identity,” and “ ‘the same policy considerations which require a plaintiff to amend his complaint within a reasonable time after learning the defendant’s true identity also require the plaintiff to proceed in a reasonably diligent manner in determining the true identity of the defendant.’ ” Crawford, 678 So.2d at 1060 (quoting Kinard v. C.A. Kelly & Co., 468 So.2d 133, 135 (Ala.1985) (emphasis added)).

Hensel Phelps contends that the evidence is undisputed that Childers did not exercise due diligence in attempting to ascertain its true identity and that Child-ers did not amend his complaint within a reasonable time after determining Hensel Phelps’s true identity. For his part, Childers contends that it is “very much in dispute” whether he “did nothing to ascertain the names of fictitiously named parties.” He argues that “[f]ormal discovery is not the only investigative means by which to determine the identity of a party” and that Hensel Phelps “cannot know what steps were taken ... to determine the identity of the fictitiously named parties.” (Childers’s brief at 6.)

In making this argument, Childers lowers the standard for ascertaining the true identity of a fictitiously named defendant from “due diligence” to doing “something.” He attempts to force Hensel Phelps into the impossible position of proving a negative: demonstrating that Childers did absolutely nothing to obtain the company’s true identity when a defendant’s knowledge of a plaintiffs activity is necessarily limited to evidence in the record.

The facts before us show that 23 months elapsed between the filing of the original complaint and the filing of the amended complaint that named Hensel Phelps as a defendant. For all that appears from the materials before us and from the briefs of the parties, during this 23 months, Child-ers conducted little, if any, informal discovery in an effort to determine the identity of Hensel Phelps as one of the fictitiously named defendants. In that period, Child-ers also failed to conduct any formal discovery for the purpose of ascertaining the true identities of the fictitiously named defendants. Although it is true that formal discovery is not the only method of determining the identity of a fictitiously named defendant, it commonly is vital to demonstrating due diligence because it provides objective evidence of the plaintiffs case activity. Furthermore, Childers did not amend his complaint and specifically name Hensel Phelps as a defendant until seven months after he discovered its identity and over three months after Carter-Burgess filed a nonparty subpoena on Hensel Phelps.

“The recalcitrant plaintiff cannot ... use the [relation-back] rule to gain what might otherwise amount to an open-ended statute of limitations.” Kinard, 468 So.2d at 135. This Court has determined on numerous occasions that case activity similar to or even greater than Childers’s demonstrated activity in this case constituted a lack of due diligence on the part of the plaintiff. See, e.g., Crowl v. Kayo Oil Co., 848 So.2d 930 (Ala.2002) (finding that plaintiffs failure to do anything for over a year and a half to ascertain the identity of the defendant constituted a lack of due diligence); Jones v. Resorcon, Inc., 604 So.2d 370 (Ala.1992) (finding lack of due diligence in determining the identity of a fictitiously named manufacturer of a fan when plaintiff failed to seek an order from the court compelling inspection of the fan at issue); Ex parte Klemawesch, 549 So.2d 62 (Ala.1989) (concluding that plaintiff did not act with due diligence when she did not initiate any discovery until over two years after filing the original complaint); and Bowen v. Cummings, 517 So.2d 617 (Ala. 1987) (holding that plaintiff failed to comply with the spirit or letter of Rule 9(h) and Rule 15(c)(4), Ala. R. Civ. P., when he made no effort to ascertain the identity of fictitiously named defendant doctor).

In short, “[f]ictitious party practice ... was not intended for use whenever it is merely inconvenient for the plaintiff to learn the name of the true defendant.” Bowen, 517 So.2d at 618. Childers plainly failed to comply with the rules governing fictitious-party practice in his overall delay in ascertaining Hensel Phelps’s identity and in waiting seven months after obtaining knowledge of the identity of Hensel Phelps as a defendant to amend his complaint. Accordingly, the petition for the writ of mandamus is granted. The trial court is directed to vacate its order denying Hensel Phelps’s motion to dismiss and to enter a dismissal for Hensel Phelps on Childers’s claim against it.

PETITION GRANTED; WRIT ISSUED.

COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.

      . Childers states that, at that time, Nixon & Laird was a subsidiary of Carter-Burgess.

      . Childers’s only defense to this lack of filing discovery is the length of time it took him to properly serve Carter-Burgess and Nixon & Laird. The facts show, however, that Child-ers must shoulder a large part of the blame for the significant delay in perfecting service on these entities.


author: THOMPSON, Presiding Judge.

text:
    Jerry Wilson HARRELSON, Jr., and Terri Elizabeth Harrelson v. Jerry Wilson HARRELSON, Sr.
    2070426.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2008.

      Albert C. Bulls III, Tuskegee Institute; and Kenneth E. Wright, Dadeville, for appellants.
    Roger W. Pierce of Haygood, Cleveland, Pierce, Mattson & Thompson, LLP, Auburn, for appellee.
   THOMPSON, Presiding Judge.

On January 25, 2005, Jerry Wilson Har-relson, Sr. (“Jerry”), filed a petition in the Tallapoosa Probate Court (“the probate court”) seeking to probate the will of his father, Horace Wilson Harrelson (“Horace”). On that same date, the probate court entered orders admitting the will to probate and granting letters testamentary allowing Jerry to serve as executor of Horace’s estate. Thereafter, Jerry Wilson Harrelson, Jr. (“Will”), and Terri Elizabeth Harrelson (“Terri”) filed a petition in the probate court asking that court to require Jerry to obtain a bond. Will and Terri are Jerry’s children and are Horace’s grandchildren. The documents filed in the probate court indicate that Will and Terri are estranged from their father and that they expected to inherit a combined total of more than $450,000 from the proceeds of certain certificates of deposit (“CDs”) that, they asserted, were part of Horace’s estate.

In July 2005, Jerry filed a petition in the probate court and in the Tallapoosa Circuit Court (“the circuit court”) seeking to remove the proceedings pertaining to the administration of Horace’s estate to the circuit court. Both the probate court and the circuit court entered orders approving the transfer of the matter to the circuit court.

In the circuit court, on July 20, 2006, Will and Terri filed a document they entitled “Verified Motion for a Declaratory Judgment.” We note, however, that “[t]he substance of a motion and not its style determines what kind of motion it is.” Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997). Will and Terri’s July 20, 2006, motion did not initiate a separate declaratory-judgment action; rather, that motion was, in substance, a motion seeking a summary judgment pursuant to Rule 56, Ala. R. Civ. P. Accordingly, we hereinafter refer to that motion as a summary-judgment motion.

In their July 20, 2006, summary-judgment motion, Will and Terri alleged that Jerry had improperly altered the title to certain CDs owned by Horace to reflect joint ownership with rights of survivorship in the CDs by Horace and Jerry. Will and Terri alleged that Jerry had breached his fiduciary duty to Horace in altering the ownership of the CDs, and they sought a determination that the CDs were the property of Horace’s estate. Will and Terri submitted certain exhibits in support of their July 20, 2006, summary-judgment motion.

Jerry opposed the July 20, 2006, summary-judgment motion, and he later filed his own motion for a summary judgment. Jerry submitted a number of exhibits in support of his summary-judgment motion. Will and Terri filed an opposition to Jerry’s summary-judgment motion, which they also supported with certain evidentia-ry submissions.

On October 31, 2007, the circuit court entered a summary judgment in favor of Jerry in which it concluded that Jerry was the rightful owner of all the CDs in dispute and that Will and Terri were not entitled to any portion of the proceeds of those CDs. Will and Terri filed a postjudgment motion, which the circuit court denied. Will and Terri timely appealed, and our supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

A motion for a summary judgment is properly granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). “When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the nonmovant to present ‘substantial evidence’ creating a genuine issue of material fact.” Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999) (quoting Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989)). “Substantial evidence” is “evidence of such a weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

The record indicates that, during their lifetimes, Horace and Christine Harrelson, Horace’s wife and Jerry’s mother, had accumulated a total of eight CDs with a total value of approximately $458,000. Three separate banks, Aliant Bank, Bank of Dadeville, and Colonial Bank, had each issued more than one of the eight CDs. Horace and Christine held each of the CDs as joint owners with the right of survivor-ship.

On May 30, 2000, Horace executed his will. Horace’s will provided, in pertinent part, that Christine was to inherit Horace’s entire estate. In the event that Christine predeceased Horace, the will provided that Jerry was to inherit Horace’s home and the funds in a Merrill Lynch account and that the “rest and remainder” of his estate was to be placed in a trust for Will and Terri. Christine died in October 2004, and Horace survived her. Although Horace made no specific bequest to them in his will, Will and Terri believed they would inherit the proceeds of the eight CDs as the “rest and remainder” of Horace’s estate.

On May 30, 2000, the same date on which he had executed his will, Horace also executed a durable power of attorney appointing Jerry as his attorney-in-fact. Among other things, in that durable power of attorney, Horace authorized Jerry to take the following actions:

“5. Open banking accounts, either savings, checking or other, in such Bank or Banks as from time to time appear wise and endorse all checks, drafts or credits, payable to me, draw drafts upon my account, in my name, or in his name, as Attorney-in-Fact, borrow such money as is or may be necessary in his judgment and in the interest of my properties, or purchase such investments as might be appropriate in his judgment from any accumulations in my said Bank account or accounts.
“6. Place in effect, renew or purchase insurance of any kind whatsoever, and pay any insurance premium due on that insurance in effect, and file such claims as may from time to time arise with those insurance companies appropriate to any loss.
“7. Transact all business and do each, every and all act or acts or things and execute all writings, assurance or instruments or legal documents of every kind or nature, which may be requisite, necessary, essential or proper to effect any and all of the foregoing, as the same pertains to me, with the same validity and as fully as I could do, if present and personally acting, with full power of substitution, and I do hereby ratify and confirm whatsoever my Attorney-in-Fact hereby nominated and appointed shall and may do, pursuant hereto.”

On December 10, 2004, Jerry used the durable power of attorney to redeem each of the eight CDs; Jerry purchased eight new CDs, naming himself and Horace as joint owners with rights of survivorship in the new CDs. Aliant Bank issued four of those CDs with a total value of $217,058.71; Bank of Dadeville issued two CDs with a total value of $135,006; and Colonial Bank issued two CDs totaling $66,034.26 in value. It is undisputed that the eight new CDs were funded entirely by funds owned by Horace and that Jerry did not contribute any amounts to those CDs. Horace was not present when Jerry obtained the new CDs.

Horace died on January 3, 2005. Thereafter, Aliant Bank, Bank of Dadeville, and Colonial Bank each paid to Jerry the proceeds from the new CDs that each of those institutions had issued. In the probate court and in the circuit court, Will and Terri disputed that Jerry was the rightful owner of the proceeds from the CDs.

Will and Terri contend that Jerry breached his fiduciary duty to Horace by placing the new CDs in his and Horace’s names as joint tenants with rights of sur-vivorship; as an alternative theory, they contend that Jerry held his title in the CDs as an agent for Horace. In them evidentiary filings in the circuit court, Will and Terri submitted documents demonstrating that Jerry, using the durable power of attorney, redeemed the eight CDs held in Horace’s and Christine’s names and obtained the new CDs in both his and Horace’s names. In addition, Will and Tem submitted the affidavit of their mother, Sharon Harrelson, who testified that on December 15, 2004, Horace told her, among other things, that

“he had provided for his grandchildren [ (Will and Terri) ] in his Will and that they would not have to work if they did not want to. In addition, [Horace] said that they should not want for anything and that each of them could build a house if they wanted. I also remember that Horace made me promise that if Jerry did not give [Will and Terri] their money, I would hire a good attorney for the kids.”

In response, Jerry argued that Horace directed him to place the CDs in their joint names and that he used the durable power of attorney to fulfill Horace’s wishes. In support of that argument, Jerry submitted as attachments to his summary-judgment motion the deposition testimony of Sandra Pope, a customer-service representative for the Bank of Dadeville, and Gayle Huff, a customer-service representative for Ali-ant Bank. Both Pope and Huff made statements indicating that, as the circuit court summarized, “Horace was a knowledgeable banking customer who was smart in handling his money.”

In addition, Pope testified that, at some point after Christine’s death but before Jerry redeemed the old CDs and obtained the new CDs, Horace had sat at her desk and had told her and another Bank of Dadeville employee that he wanted to place Jerry’s name on the CDs. Huff testified that, in an effort to verify that the durable power of attorney Jerry had prof-erred remained in effect and had not been revoked, she called Horace to inquire whether Jerry had the authority to transfer the ownership of the CDs into his and Horace’s names. Huff testified that “I just asked [Horace] was it all right for Jerry to do this, that Jerry was here. And he said, yes, he was not able to come.” Jerry presented no evidence pertaining to the CDs issued by Colonial Bank.

In entering its summary judgment in favor of Jerry, the circuit court noted that Will and Terri had failed to present any evidence in contradiction to the testimony of Pope and Huff. The circuit court also relied on § 35-4-7, Ala.Code 1975, which provides:

“When one joint tenant dies before the severance, his interest does not survive to the other joint tenants but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivor-ship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.”

On appeal, Will and Terri argue that the circuit court erred in entering its summary judgment in favor of Jerry. Initially, we note that Will and Terri cite several different legal theories and a number of cases in support of their arguments on appeal. However, only one of those case citations, Sevigny v. New South Federal Savings & Loan Ass’n, 586 So.2d 884 (Ala.1991), was cited to the circuit court, and the remaining citations in Will and Terri’s brief on appeal are all cited in Sevigny, supra.

Will and Terri argue that Jerry breached his fiduciary duty to Horace and that Jerry held the CDs as an agent for Horace rather than in his own name. In asserting that argument, Will and Terri rely on Sev-igny v. New South Federal Savings & Loan Ass’n, supra, and the cases cited therein.

In Sevigny, Sevigny and McAdory were the nieces of Munn. Before his death, Munn gave Sevigny and McAdory a power of attorney to handle his financial affairs. Munn’s assets included four CDs from various financial institutions. For various reasons, McAdory became concerned about whether the power of attorney was sufficient to enable Sevigny and her to handle Munn’s financial affairs, so she instructed the financial institutions holding the CDs to alter the CDs to provide that Munn, Sevigny, and McAdory owned the CDs jointly with rights of survivorship. In addition to her own signature, McAdory obtained the signatures of Munn and Sev-igny to effect that alteration to the ownership of the CDs.

After Munn’s death, Sevigny claimed a one-half interest in the CDs. However, McAdory argued that she and Sevigny had owned interests in those CDs only as agents for Munn. The trial court concluded that the evidence supported McAdory’s claims and concluded that McAdory and Sevigny had obtained their interests in the CDs only as agents for Munn. Accordingly, the trial court found that the proceeds of the CDs were payable to Munn’s estate. Our supreme court affirmed, holding, in part:

“A power of attorney is defined as ‘[a]n instrument in writing whereby one person, as principal, appoints another as his agent and confers authority to perform certain specified acts or kinds of acts on behalf of [a] principal. An instrument authorizing another to act as one’s agent.... The agent is attorney in fact....’ Black’s Law Dictionary 1171 (6th ed.1990). When one accepts the agency, she implicitly covenants to use the powers conferred upon her for the sole benefit of the party conferring such power, consistent with the purposes of the agency relationship. See, Dudley v. Colonial Lumber Co., 223 Ala. 533, 137 So. 429 (1931). Therefore, when one accepts the power of attorney, she impliedly covenants to use the powers bestowed upon her for the sole benefit of the one conferring that power on her, consistent with the purposes of the agency relationship represented by the power of attorney. Powers of attorney will be strictly construed, restricting the powers to those expressly granted and those incidental powers that are necessary to effectuate the expressed powers. Hall v. Cosby, 288 Ala. 191, 258 So.2d 897 (1972). The principal-agency relationship is fiduciary in nature and imposes upon the agent a duty of loyalty, good faith, and fair dealing. See, Williams v. Williams, 497 So.2d 481 (Ala.[1986]); Lauderdale v. Peace Baptist Church of Birmingham, 246 Ala. 178,19 So.2d 538 (1944).
“ ‘An agent sustains a position of trust toward his principal and in all transactions affecting the subject of the agency, the law dictates that he must act in the utmost good faith and must make known to his principal each and all material facts within his knowledge which in any way affect the transaction and subject matter of his agency.
“ ‘The law sedulously regards this principle and acts of an agent which tend to violate this fiduciary obligation are prima facie voidable ... and are considered, in law, as “frauds upon confidence bestowed.” ’
“[Myers] v. Ellison, 249 Ala. 367, 369, 31 So.2d 353, 355 (1947). (Citations omitted.) (Emphasis added.) An agent is not permitted to occupy a position that would allow her to profit as a result of that agency relationship. Lauderdale v. Peace Baptist Church of Birmingham, supra. In Lesnick v. Lesnick, 577 So.2d 856, 859 (Ala.1991), this Court held that a guardian’s commingling of the funds of her ward with those of her own and those owned jointly, thereby making it impossible to determine whose funds were used for what purposes, was sufficient cause for the probate court to include jointly owned property in an accounting, because ‘[the] joint tenancy principle of law does not defeat a guardian’s obligations to act in her fiduciary capacity as custodian of the ward’s estate.’ The agent, if otherwise competent, may testify as a witness as to the nature and extent of her authority. See, McCarty v. Skelton, 233 Ala. 531, 172 So. 901 (1937).”

Sevigny v. New South Fed. Savs. & Loan Ass’n, 586 So.2d at 886-87.

The difference between this case and Sevigny, supra, is that, with regard to the CDs issued by Aliant Bank and the Bank of Dadeville, the record in this case does not contain substantial evidence indicating that Jerry held his interest in those CDs as an agent of Horace, nor is there evidence indicating that Jerry breached his fiduciary duty to Horace with regard to those CDs. Rather, the undisputed evidence is that Horace consented to Jerry becoming a joint owner with rights of sur-vivorship in those six CDs. Will and Terri presented evidence indicating that, a few days after the change in the ownership interests for those six CDs was effected, Horace told their mother that they could expect a substantial inheritance from him. However, Will and Terri did not present any evidence indicating that Horace had not intended to allow Jerry to place himself as an owner of the six CDs or that he did not know about that change in ownership of those CDs. In contrast, Jerry presented evidence indicating that Horace had intended that Jerry use the power of attorney to change the ownership of the CDs held by Aliant Bank and the Bank of Dadeville and that Horace had given his permission for Jerry to do so. There is no contention in this case that Horace lacked capacity or was unable to direct his financial transactions until the date of his death. Accordingly, we conclude that, with regard to the six CDs issued by Aliant Bank and the Bank of Dadeville, the facts of this case are distinguishable from those of Sev-igny, supra, and that Will and Terri have failed to demonstrate error with regard to their arguments on the issues of agency and fiduciary duty.

Will and Terri also argue that the language contained in the durable power of attorney, quoted earlier in this opinion, did not authorize Jerry to create an interest for himself in the CDs. In Lamb v. Scott, 648 So.2d 972, 973 (Ala.1994), our supreme court held that, when a power of attorney did not specifically state that an agent could convey property to herself, the agent was without power to do so. See also Dillard v. Gill, 231 Ala. 662, 166 So. 430 (1936) (affirming a judgment setting aside conveyances made by a husband to himself pursuant to a power of attorney for the wife).

However, in Miller v. Jackson Hospital & Clinic, 776 So.2d 122 (Ala.2000), our supreme court held that a power of attorney was not required to specifically grant a patient’s uncle the right to file a personal-injury action seeking damages for injuries sustained by the patient because the initiation of the litigation did not involve self-dealing. In reaching its holding in that case, our supreme court distinguished the facts of that case from those of Lamb v. Scott, supra. The supreme court stated:

“The situation presented by Lamb [v. Scott, supra] involved self-dealing. This Court held that in order to act against the intent of the donee as expressed in her will, the attorney-in-fact had to have the express authority to do so. 643 So.2d at 973. In other words, this present case is distinguishable from Lamb. The power of attorney in Lamb made no express grant of authority to engage in self-dealing, and the self-dealing appeared to go against the true intent of the donee. See, also, Hall v. Cosby, 288 Ala. 191, 258 So.2d 897 (1972), and Dillard v. Gill, 231 Ala. 662, 166 So. 430 (1936) (holding that authority to self-deal must be specifically granted).”

Miller v. Jackson Hosp. & Clinic, 776 So.2d at 124-25. Similarly, in Lisenby v. Simms, 688 So.2d 864, 867 (Ala.Civ.App. 1997), this court noted that “it is clear that our supreme court has determined that conveyances of real property and transfers of personal property by the donee to himself are not authorized under a power of attorney unless such powers are expressly granted.”

The transfer by Jerry of an interest in the CDs to himself was arguably an instance of self-dealing. The undisputed evidence, however, indicates that Jerry created his interest in the CDs issued by Aliant Bank and the Bank of Dadeville either at Horace’s direction or with Horace’s consent. Thus, it is irrelevant whether the power of attorney specifically granted Jerry the authority to self-deal with regard to those six CDs because Jerry was acting at the direction of or with the permission of Horace. Will and Terri do not contend that Jerry lacked authority under the power of attorney to take actions as directed by Horace. Further, Will and Terri have conceded in their brief submitted to this court that they are not contending that Horace lacked the capacity to properly make financial decisions until the time of his death. Accordingly, because the evidence indicates that the transfer of the interest in the CDs issued by Aliant Bank and the Bank of Dadeville to Jerry was done with Horace’s consent, we cannot say that Will and Terri have demonstrated error with regard to this argument. Miller v. Jackson Hosp. & Clinic, 776 So.2d at 124-25.

In their motion for a summary judgment, Will and Terri alleged that Jerry had acted without authority in transferring to himself an interest in the CDs. See Ex parte General Motors Corp., 769 So.2d 903, 908 (Ala.1999) (“1 “[A] party seeking summary judgment always bears the initial responsibility of informing the ... court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any’ which it believes demonstrate the absence of a genuine issue of material fact.” ’ ”) (quoting Lawson State Cmty. Coll. v. First Continental Leasing Corp., 529 So.2d 926, 936 (Ala.1988), quoting in turn Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In response, Jerry presented substantial evidence regarding Horace’s intent with regard to the CDs issued by Aliant Bank and the Bank of Dadeville, two of the three financial institutions that issued the new CDs; however, Jerry did not present any evidence pertaining to whether he had authority from Horace to transfer to himself an interest in the two CDs issued by Colonial Bank. The power of attorney did not specifically allow Jerry to engage in transactions that might constitute self-dealing, and there is no specific evidence indicating that Horace consented to or directed Jerry to transfer to himself an interest in the two CDs issued by Colonial Bank. Accordingly, we must conclude that the circuit court erred in entering a summary judgment in favor of Jerry with regard to the two CDs issued by Colonial Bank.

We affirm the summary judgment as it pertains to the CDs issued by Aliant Bank and the Bank of Dadeville. We reverse that part of the summary judgment pertaining to the ownership of the CDs issued by Colonial Bank and remand the case to the circuit court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . In his own motion for a summary judgment, Jerry did not address his authority to transfer an interest in the two CDs issued by Colonial Bank to himself as a joint owner with Horace.


text:
    Don MARTIN v. Guy PHILLIPS.
    2070351.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2008.

      Clifford L. Callis, Gadsden, for appellant.
    George C. Day, Jr., Gadsden, for appel-lee.
   THOMPSON, Presiding Judge.

Don Martin appeals from a partial summary judgment entered by the Etowah Circuit Court in favor of Guy Phillips. Because the notice of appeal was untimely filed, we dismiss the appeal for lack of appellate jurisdiction.

Facts and Procedural Background

In 1958, Alabama Power Company acquired fee-simple title to certain real property located in Cherokee County for the purpose of creating the Weiss Lake reservoir. As it relates to the present case, the property obtained by Alabama Power Company included all the land lying below the contour line marking 565 feet above sea level. After 1958, certain real property located next to the Weiss Lake reservoir was subdivided and became known as Griffin Subdivision Number 4 (“the subdivision”).

Phillips and Martin own adjacent parcels of real property located in the subdivision. Martin owns lot three; Phillips owns lot four. Though he owns it, Phillips does not reside on lot four. The lots are located adjacent to or near a slough on the Weiss Lake reservoir.

A dispute arose between Phillips and Martin, and, on February 4, 1999, Phillips sued Martin. Phillips alleged that in October 1996, at Martin’s request, he gave Martin permission to clear a path across the corner of his property so that Martin could walk back and forth to the property of a friend who lived on the other side of the slough. In doing so, Phillips alleged, he specifically told Martin not to remove any dirt from Phillips’s property. Not only did Martin disregard this limitation and remove dirt from Phillips’s property, he cleared a road, instead of a path, through Phillips’s property. Phillips alleged that, in response to Martin’s exceeding the scope of permission granted him, Phillips erected fence posts and several “no trespassing” signs on his property. Martin, Phillips alleged, pulled up those fence posts and continued to cross Phillips’s property. Phillips alleged that, in December 1996, he returned to his property in the subdivision and found that Martin had caused heavy machinery to cross it and that Martin had built a seawall bordering the slough 30 feet from the corner of Phillips’s property.

Based on the foregoing allegations, Phillips alleged that Martin had committed a trespass on his property that was continuing and that, as a result of the trespass, the value of his property had been diminished; he further alleged that he had suffered emotional distress and mental anguish. Phillips sought an award of $100,000.

On February 20, 2003, Phillips filed an amendment to his complaint, adding three claims: (1) private nuisance; (2) taking of littoral or riparian rights; and (3) easement by prescription. The second of these additional counts, taking of littoral or riparian rights, is the count at issue in the present appeal. In that count, Phillips alleged:

“2. [Martin’s] installation of the seawall as aforesaid, and filling in behind so as to create land where there had been water, cut off all access to the water as [Phillips] had prior to such action on the part of [Martin].
“3. [Martin’s] said installation and maintenance constitutes a taking of [Phillips’s] littoral or riparian rights, as a consequence of which [Phillips] and his property have been damaged.
“4. [Phillips] is entitled by Section 6-2-33(1), Ala.Code (1975), as amended[] to recovery of hereditaments such as said littoral or riparian rights.
“5. [Phillips] is entitled to issuance of an injunction by this court.
“WHEREFORE, [Phillips] demands judgment against [Martin] as follows:
“A. Enjoining [Martin’s] continuing taking of [Phillips’s] littoral or riparian rights.
“B. For damages in the amount of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,-000.00), plus costs of court.”

On June 13, 2007, the case went to trial. However, the trial ended in a mistrial because the jury was unable to reach a unanimous verdict.

On July 12, 2007, Phillips filed a motion for a partial summary judgment on a part of the count claiming that Martin had taken his riparian or littoral rights. Specifically, he stated:

“The Count which is the basis of this Motion ... is Count Three, ‘Taking of littoral or riparian rights.’ By that Count, Phillips alleges that Martin’s installation of a seawall, and backfilling behind same so as to create a 30 foot width of land at the end of the slough where there had been water, cut off all access to the water as Phillips had prior to such action by Martin. The Count alleges that such action constituted a taking of Phillips’ littoral or riparian rights, as a consequence of which Phillips and his property have been damaged, and for which an injunction and damages are sought.
“This Motion is being filed to seek a determination by the Court that Phillips, and all subsequent owners of Lot 4 of Griffin Subdivision No. 4, have riparian rights to access the water at Weiss Lake for recreational use across the width of land and seawall constructed by Martin. This Motion further seeks a permanent injunction restraining Martin, his agents, those persons in active concert or participation with him who receive actual notice of such injunction by personal service or otherwise, and any other or subsequent owner of Lot 3 in Griffin Subdivision No. 4, from interfering with exercise by Phillips, and all subsequent owners of Lot 4 of Griffin Subdivision No. 4, of such riparian rights. Summary judgment is not being sought, however, as to damages for any interference by Martin with Phillips’ exercise of such rights, which already may have taken place. Assessment of such damages would be sought, instead, in the form of a jury verdict at trial.”

Martin filed a response to Phillips’s partial-summary-judgment motion, and he filed his own motion for a summary judgment as to all Phillips’s claims.

On September 4, 2007, the trial court entered an order granting Phillips’s motion for a partial summary judgment and denying Martin’s motion for a summary judgment. In pertinent part, the trial court’s order provided:

“1. [Phillipsj’s Motion for Partial Summary Judgment was filed only as to Count Three of his Complaint, ‘Taking of littoral or riparian rights,’ seeking a determination as to the existence of such rights in this case, and further seeking an injunction against interference with the exercise thereof.
“2. ... [I]t is undisputed between the parties that [Phillips] is entitled to exercise riparian rights if his real property in question abuts, adjoins or bounds a navigable body of water. [Martin], by his response, does not dispute that Weiss Lake Reservoir, which is the body of water in question, is a navigable body of water. ... Accordingly, [Phillips] is entitled to judgment as a matter of law on the issue as to which partial summary judgment is sought if there is no genuine issue of material fact as to whether [Phil-lipses real property in question ‘abuts, adjoins or bounds’ Weiss Lake Reservoir.
“3. Based upon materials attached to [Phillipsj’s Motion for Partial Summary Judgment, ... there is no genuine issue of material fact as to whether Lot 4 of Griffin Subdivision No. 4 ..., which is [Phillips]’s property in question, is adjacent to Weiss Lake. Said Lot 4 is adjacent to Weiss Lake.
“4. ... [T]he only question before the Court is whether either [Phillips] or [Martin] is entitled to judgment as a matter of law [on Count 3]. The Court has determined that in the absence of a genuine issue of material fact with respect to Count 3, and given applicable Alabama law, [Phillips] is, indeed, entitled to judgment as a matter of law.
“5. [Phillips], and all subsequent owners of Lot 4 of Griffin Subdivision No. 4 have littoral or riparian rights (hereinafter referred to collectively as ‘riparian rights’) to access the water at Weiss Lake for recreational purposes across the width of land and seawall constructed by [Martin] (which remains the property of Alabama Power Company) ....
“6. The Court hereby issues a permanent injunction restraining [Martin], his agents, those persons in active concert or participation with him who receive actual notice of this Order by personal service or otherwise, and any other or subsequent owners of Lot 3 in Griffin Subdivision No. 4 ... from interfering with exercise by [Phillips], and all subsequent owners of Lot 4 of Griffin Subdivision No. 4, of such riparian rights.
“7. Summary judgment was not sought by [Phillips], and is not granted by the Court upon [Phillips]’s claim for damages for any claimed interference by [Martin] with [Phillips]’s exercise of riparian rights. [Phillips] may seek assessment of any such damages at the trial of the remaining claims in [Phillips]’s complaint.
“8. As noted above, [Martin] also has filed his Motion for Summary Judgment as to Count 1 (Claim of Trespass), Count 2 (Claim of Nuisance), and Count 4 (Claim of Easement by Prescription) of [Phillips]’s Complaint; however, the Court finds that genuine issues of material fact exist with respect to such Counts. Accordingly, [Martini’s Motion for Summary Judgment is due to be, and hereby is denied.
“9. It having been determined by the Court pursuant to Rule 54(a), Alabama Rules of Civil Procedure, that there is no just reason for delay with respect thereto, this Order constitutes a final judgment as to the relief granted hereby.[]”

On September 14, 2007, Martin filed a motion seeking to have the trial court reconsider its grant of Phillips’s partial-summary-judgment motion and its denial of his summary-judgment motion. On October 5, 2007, the trial court entered an order denying Martin’s motion to reconsider.

On November 5, 2007, Martin filed a notice of appeal to the supreme court. That court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Analysis

Martin contends that the trial court erred when it entered a partial summary judgment in favor of Phillips on Phillips’s claim that Martin had taken his riparian rights. We do not reach the merits of this contention, however, because we determine that appellate jurisdiction is lacking in this case.

Rule 4(a)(1), Ala. R.App. P., sets forth the time by which a notice of appeal must be filed. It provides in pertinent part:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from, or within the time allowed by an extension pursuant to Rule 77(d), Alabama Rules of Civil Procedure. In appeals from the following orders or judgments, the notice of appeal shall be filed within 14 days (2 weeks) of the date of the entry of the order or judgment appealed from: (A) any interlocutory order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or to modify an injunction .... ”

“ ‘The timely filing of a notice of appeal is a jurisdictional act.’ Rudd v. Rudd, 467 So.2d 964 (Ala.Civ.App.1985). The failure to appeal within the prescribed time is fatal and requires the dismissal of the appeal. Id.” Allen v. Independent Fire Ins. Co., 743 So.2d 490, 492 (Ala.Civ.App. 1999). Although neither party questions the timeliness of the filing of the notice of appeal in this case, because it is a matter of this court’s jurisdiction, we take notice of the issue ex mero motu. See Brown v. Brown, 808 So.2d 40, 42 (Ala.Civ.App. 2001).

In this case, the trial court entered the order appealed from on September 4, 2007; Martin filed a postjudgment motion that the trial court denied on October 5, 2007; Martin then filed his notice of appeal from the trial court’s order on November 5, 2007. If the trial court’s order constituted a final judgment because of the language in the order purporting to certify it as final under Rule 54(b), Ala. R. Civ. P., Martin’s notice of appeal was timely because he filed it within 42 days from the date on which the trial court denied his post-judgment motion. See Rule 4(a)(3), Ala. R.App. P. (The filing of a postjudgment motion suspends the time by which to file a notice of appeal.). The notice of appeal was not timely filed, however, if the trial court’s purported certification of finality was not effective to render the order a final judgment; in such case, the order remained interlocutory and Martin did not file his notice of appeal within 14 days as required by Rule 4(a)(1) for filing a notice of appeal from an interlocutory order granting an injunction. The question before us, then, is whether the language in the trial court’s partial-summary-judgment order purporting to make it a final judgment under Rule 54(b), Ala. R. Civ. P., is effective.

In Grantham v. Vanderzyl, 802 So.2d 1077 (Ala.2001), our supreme court stated:

“Ordinarily, an appeal can be brought only from a final judgment. Ala.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay. When the trial court enters an order that disposes of one of several claims, and 1) makes the ‘express determination that there is no just reason for delay’ in making that order final and 2) expressly directs ‘the entry of judgment,’ the order is final, Rule 54(b), and thus appealable, Committee Comments on 1973 Adoption of Rule 54(b).
“If an order does not completely dispose of or fully adjudicate at least one claim, a court’s Rule 54(b) certification of the order is not effective. See Haynes v. Alfa Fin. Corp., 730 So.2d 178 (Ala.1999). Damages are only one portion of a claim to vindicate a legal right, even though the damages claimed may consist of several elements. See id. at 181. An order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery. See Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 382 (Ala.1987).”

802 So.2d at 1079-80.

In State v. Brantley Land, L.L.C., 976 So.2d 996 (Ala.2007), our supreme court reviewed an order, purportedly made final pursuant to Rule 54(b), in which the trial court granted the State of Alabama a fee-simple interest in certain real property it had sought to condemn but reserved the question of compensation owed the owners of the property for a trial. On appeal by the State, the supreme court addressed the propriety of the certification of finality under Rule 54(b). It stated:

“In James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997), this Court stated:
“ ‘Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (Rule 54(b) “confers appellate jurisdiction over an order of judgment only where the trial court ‘has completely disposed of one of a number of claims, or one of multiple parties’ ” (emphasis in Tanner)).’
713 So.2d at 941. As the James Court further stated, ‘ “[ojnly a fully adjudicated whole claim against a party may be certified under Rule 54(b).’” 713 So.2d at 942 (quoting Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir.1987) (emphasis in Sidag)). Similarly, in Precision American Coip. v. Leasing Seivice Corp., 505 So.2d 380, 381 (Ala.1987), this Court held that the partial summary judgment at issue in that case did not ‘completely dispose[ ] of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim.’ ”

976 So.2d at 999 (footnote omitted). The supreme court concluded that the trial court’s order vesting the State with title to the real property but failing to award compensation to the landowners from whom the property was taken “[did] not present [it] with a ‘fully adjudicated whole claim,’ ... and that, therefore, the trial court erred in directing the entry of a final judgment as to that order.” Id. at 1001.

In Certain Underuniters at Lloyd’s, London v. Southern Natural Gas Co., 939 So.2d 21 (Ala.2006), the plaintiff, which operated approximately 14,000 miles of natural-gas pipeline, sued several insurance companies, alleging that it was entitled to liability-insurance coverage for, among other things, damages that it had been required to pay, or would be required to pay, because of environmental contamination at hundreds of sites located along its pipelines, including several compressor stations located in Alabama. Because of the complexity of the case and the number of sites involved, the trial court determined to try the case in multiple phases. The first trial phase involved the parties’ claims and defenses related to two of the compressor stations in Alabama. Following that initial trial, the trial court entered a judgment for the plaintiff, including an award of money damages, which it purported to make final pursuant to Rule 54(b). The insurance companies appealed to our supreme court.

Quoting several eases, the supreme court wrote:

“ ‘[F]or a Rule 54(b) certification of finality to be effective, it must fully adjudicate at least one claim or fully dispose of the claims as they relate to at least one party.’ Haynes v. Alfa Fin. Corp., 730 So.2d 178, 181 (Ala.1999).
“ ‘If an order does not completely dispose of or fully adjudicate at least one claim, a court’s Rule 54(b) certification of the order is not effective. See Haynes v. Alfa Fin. Corp., 730 So.2d 178 (Ala.1999). Damages are only one portion of a claim to vindicate a legal right, even though the damages claimed may consist of several elements. See id. at 181. An order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery. See Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 382 (Ala. 1987).’
“Grantham v. Vanderzyl, 802 So.2d 1077,1080 (Ala.2001).
“ ‘To be sure, the trial court recited the formula for certification of a judgment pursuant to Rule 54(b), Ala. R. Civ. P. However, “[n]ot every order has the requisite element of finality that can trigger the operation of Rule 5Jf(b).” Goldome Credit Corp. v. Player, 869 So.2d 1146, 1147 (Ala.Civ. App.2003) (emphasis added). A claim is not eligible for Rule 54(b) certification unless it has been completely resolved by the judgment. In that regard, it must be remembered that “[djamages are [an element] of a claim to vindicate a legal right.” Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001).
“ ‘ “Where the amount of damages is an issue, ... the recognized rule of law in Alabama is that no appeal will lie from a judgment which does not adjudicate that issue by ascertainment of the amount of those damages.” Moody v. State ex rel. Payne, 351 So.2d 547, 551 (Ala.1977). “That a judgment is not final when the amount of damages has not been fixed by it is unquestionable.” “Automatic” Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala.1977) (recitation of the Rule 54(b) formula was ineffective to render appealable a judgment that resolved liability, but reserved the issue of damages for future resolution). “[T]he trial court cannot confer appellate jurisdiction upon this [C]ourt through directing entry of judgment under Rule 54(b) if the judgment is not otherwise ‘final.’ ” Robinson v. Computer Servicenters, Inc., 360 So.2d 299, 302 (Ala.1978). Thus, it is well-established that a claim for which damages are sought is insufficiently adjudicated for Rule 54(b) purposes until the element of damages is resolved; a judgment resolving only liability in an action seeking damages cannot be certified as final pursuant to Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656 (Ala.1993).
“ ‘That this case suffers from this defect is self-evident. The trial court purported to certify for appellate review the default judgment of 35 counterclaims, 29 of which sought damages that are yet to, be determined. Because the trial court’s order was ineffective to confer appellate jurisdiction over those counterclaims, the judgment, as it relates to the 29 counterclaims seeking damages, is nonfinal and nonreviewable at this time.’
“Dzwonkoivski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361-62 (Ala.2004).”

939 So.2d at 28-29. In Southern Natural Gas Co., the supreme court determined that the plaintiffs “claims for relief [sought] to vindicate one legal right and allege[d] several elements of damage with respect to claims for declaratory relief and damages relating to the PCB contamination at” five of the compressor stations located in Alabama. Id. at 30 (internal quotation marks omitted). It held that, although the trial court’s purported judgment adjudicated that claim as it related to two of the five compressor stations, it “necessarily le[ft] open the question of additional damages with respect to the other three compressor stations,” and, as a result, did not completely dispose of the claim. Id. (internal quotation marks omitted). Thus, the supreme court dismissed the appeal as having been taken from a nonfinal judgment.

In the present case, the trial court entered a partial summary judgment in favor of Phillips on only that portion of his taking-of-riparian-rights claim seeking an injunction; it did not adjudicate that portion of the very same claim seeking money damages. As noted in Southern Natural Gas Co., supra, damages are an element of a claim, one which, in the present case, remains unadjudicated. Because the trial court did not adjudicate the entirety of Phillips’s taking-of-riparian-rights claim, but, instead, left a portion of that claim for later determination, the trial court’s order did not qualify for certification as a final judgment under Rule 54(b). As such, the purported certification of the order was ineffective, see Southern Natural Gas Co., supra, and the order remains interlocutory in character.

As noted above, Rule 4(a)(1), Ala. R.App. P., provides that an appeal may be taken from an interlocutory order granting an injunction but that the notice of appeal must be filed within 14 days of the entry of the order. In the present case, Martin did not file his notice of appeal within 14 days of the entry of the order from which he has appealed. Because the filing of a timely notice of appeal is a prerequisite to the exercise of appellate jurisdiction, see Allen v. Independent Fire Insurance Co., 743 So.2d 490, 492 (Ala.Civ.App.1999), this court lacks jurisdiction and must dismiss the appeal.

Conclusion

The order appealed from, granting an injunction against Martin, the appellant, was not capable of certification as a final judgment under Rule 54(b). As a result, the language in the order purporting to certify it as such was without effect, and the order remains interlocutory in nature. Although the order was appealable because it granted an injunction, Martin did not file his notice of appeal in a timely manner, thus depriving this court of jurisdiction over his appeal. Therefore, the appeal is dismissed.

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . "The term ‘riparian rights’ refers to the rights of owners of land abutting a stream, while the term ‘littoral rights’ refers to the rights of owners of land abutting the surface waters of a lake or the sea. ... Courts now commonly use the word ‘riparian’ when describing water rights in either context.”

        Wehby v. Turpin, 710 So.2d 1243, 1246 n. 2 (Ala. 1998).

      . Though Phillips cited § 6-2-33(1), Ala.Code 1975, we assume he was referring to § 6-2-33(2), which provides a 10-year statute of limitations “for the recovery of lands, tenements or hereditaments, or the possession thereof ....”

      . Although the trial court cited Rule 54(a), Ala. R. Civ. P., in its order, we assume the trial court was referring to Rule 54(b), the first sentence of which reads:
      "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”