author: MURDOCK, Justice.

text:
    The INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF MONTGOMERY v. George Earl RUSSELL et al.
    1091215.
    Supreme Court of Alabama.
    March 29, 2013.

      Thomas T. Gallion III and Constance C. Walker of Haskell Slaughter Young & Gal-lion, LLC, Montgomery; and Jesse P. Evans III of Haskell Slaughter Young & Rediker, LLC, Birmingham, for appellant.
    Randy Myers and Frank H. Hawthorne, Jr., of Hawthorne & Myers, LLC, Montgomery, for appellees.
    Kimberly 0. Fehl, Legal Department, City of Montgomery, for amicus curiae City of Montgomery in support of the appellant’s application for rehearing.
    Tyrone C. Means of Thomas Means Gil-lis & Seay, PC, Montgomery, for amicus curiae Montgomery County Commission, in support of the appellant’s application for rehearing.
   On Application for Rehearing

MURDOCK, Justice.

The opinion of August 12, 2011, is withdrawn and the following is substituted therefor.

The Industrial Development Board of the City of Montgomery (“the IDB”) appeals, pursuant to Rule 5, Ala. R.App. P., from the Montgomery Circuit Court’s interlocutory order denying its motion for a summary judgment as to the breach-of-contract claims asserted against it by George Earl Russell and Thomas E. Russell, as coexecutors and cotrustees of the wills and testamentary trusts of Earnest W. Russell and Myrtis Russell (“the Rus-sells”) (case no. CV-04-3282), and by Price McLemore, Mary H. McLemore, John Mclnnis, Jr., Timothy N. Mclnnis, Charles R. Mclnnis, William S.- Newell, and the Peoples Bank and Trust Company, as trustee for the Adaline Hooper Trust A and B (“the McLemore group”) (case no. CV-05-1728) (the plaintiffs in both eases are hereinafter collectively referred to as “McLemore/Russell”). We affirm the order of the trial court.

I. Facts and Procedural History

Our opinions in McLemore v. Hyundai Motor Manufacturing Alabama, LLC, 7 So.3d 318 (Ala.2008), and Wheeler v. George, 39 So.3d 1061 (Ala.2009), provide detailed renditions of the facts that culminated in the filing of the instant actions by McLemore/Russell against the IDB and Hyundai Motor Manufacturing Alabama, LLC (“Hyundai”). We quote here portions of those opinions and summarize other pertinent facts necessary to an understanding of the arguments presented in this appeal.

In September 2001, various State and local officials, including officials from the City of Montgomery (“the City”), the IDB, the Montgomery County Commission (“the County”), and the Montgomery Area Chamber of Commerce, began making preparations to secure options to purchase property in the Montgomery area to create an incentive package in the hope that they could persuade Hyundai to build an industrial plant in the Montgomery area for the purpose of manufacturing and assembling motor vehicles. As we explained in Wheeler:

“A significant parcel of land was an essential component of any incentive package. B.M. Ahn, the Hyundai representative in charge of the site selection for the United States plant, testified during his deposition that a critical element of an incentive package offered to an automobile manufacturer was ‘free land’ on which to locate its plant. Ahn also stated that Hyundai had no role in acquiring the land and that land acquisition for an incentive package was the responsibility of the city or the state putting the package together. Officials of the City, the County Commission, and the IDB signed a letter of intent stating that they, ‘in partnership with the State,’ would commit to provide an industrial site at no cost to Hyundai.”

39 So.3d at 1069.

As noted in McLemore, however, “[a]l-though the funds to purchase the property were to be provided by the City and the County only, the option agreements on the property were acquired by the IDB.” 7 So.3d at 322. As we further explained, the IDB’s participation was necessary in order that the transaction “ ‘comply with laws for tax breaks and incentives to the industry.’ ” 7 So.3d at 322 n. 1 (quoting the IDB’s brief).

The Russells owned approximately 328 acres of land in Montgomery County. In the fall of 2001, Reuben Thornton, who was then chairman of the IDB, signed an option agreement on behalf of the IDB for the purchase of the Russells’ property. In February 2002, Thornton, on behalf of the IDB, signed an option agreement with the McLemore group for the purchase of approximately 54 acres of land near the Russell property. Thornton also secured on the IDB’s behalf options to purchase approximately .320 acres from Southdale, LLC, and approximately 807 acres from Helen Kathryn Wheeler and William Newton Phillips, as trustee under the Doris R.H. Phillips Revocable Living Trust Agreement dated February 21, 2001 (“Wheeler/Phillips”).

Each of the option agreements was identical, providing, for an option period of 120 days and providing that “in no event shall the purchase price be less than $4,500 per acre and further provided that the purchase price shall in no event be less than the price per acre paid to any other landowner included in the project planned for the Property.” In early 2002, the option agreements on the property owned by the Russells, Southdale, and Wheeler/Phillips were amended to provide:

“1. It is hereby agreed that the purchase price for the Property is Four Thousand Five Hundred and No/100 Dollars ($4,500.00) per acre. The exact number of acres to be determined by the survey provided by Purchaser.
“2. The option period is hereby extended for a period of 120 days from the Effective Date of the Option, which Effective Date is October 3, 2001. The expiration date of the Option, as extended, is now May 31, 2002.
“3. Except as amended hereby, the Option is in all other respects ratified and confirmed.”

During the acquisition process, another landowner, Joy Shelton, was approached about an option to purchase her property; however, she refused to enter into an option agreement. At that point,

“[t]he IDB decided that the Shelton property was not necessary for the incentive package. By mid-March 2002, the IDB determined that it was not going to designate any additional funds, other than the funds already committed, to this particular project. The State and the IDB sent the incentive package, including the proposed project site, to Hyundai for consideration.
“On March 28, 2002, [however,] Ahn contacted Todd Strange, then the director of the Alabama Development Office. He stated that Hyundai had not decided whether to locate the plant in Montgomery. or in Kentucky but that additional property would need to be acquired for the rail access Hyundai required if Montgomery was to be selected as the site for the Hyundai plant. Ahn informed Strange that he would need an answer by noon of the next day as to whether the property could be acquired. Strange met with various State, City, and County officials to discuss Hyundai’s request. Recognizing that the City and the County would not provide additional funds to acquire more property and that the other option agreements contained most-favored-nation clauses, they decided to ask CSX Transportation, Inc., the rail company, to acquire the option to purchase the Shelton property.”

McLemore, 7 So.3d at 323.

• As explained in McLemore, in response to an inquiry by an official at the Alabama Development Office, a representative of CSX Transportation, Inc., responded with the following e-mail:

“ ‘Regarding the [Shelton property] that will need to be purchased, you asked if CSX would be willing to buy this property for the State and Montgomery at approximately $8,000.00 an acre. There is no contract or option on the property currently and you estimate it will cost us approximately $750,000.00 which you are willing to refund to us in some fashion •during the track construction phase. Randy Evans, [another CSX official,] in principle agreed to this and I ask that you fax us a letter outlining exactly what you have in mind. The purpose of doing it this way rather than what you did in getting control of the other 1600 acres is to avoid paying the other landowners $8,000.00 an acre which would have a negative impact of $10,000,000.00 on the site cost. The railroad does not get good land values in a situation like this and so I think there will be upward pressure on that $8,000 number. Moreover, the other landowners will get wind of this ploy and may create negative community publicity.... In your letter to us we would ask that you indicate exactly how you intend to pay us during the track work construction.”

7 So.3d at 324 (footnote omitted).

Subsequently, Bobby Bright, then may- or of the City and in that capacity an ex officio member of the IDB, was selected as the main representative to meet with Shelton to acquire an assignable option agreement that would name the City, rather than either the IDB or CSX, as the purchaser of the Shelton property. Bright obtained an assignable option naming the City as the purchaser of the property; the purchase price of the property was $12,000 per acre.

On April 15, 2002, in conformance with option agreements with the Russells, the McLemore group, Southdale, and Wheeler/Phillips, the IDB gave those property owners notice that it was exercising the options on their properties at a price of $4,500 per acre. The IDB then assigned the options to the City and the County. On May 14, 2002, the City and the County purchased the properties for $4,500 per acre.

As for the Shelton property, we further explained in McLemore as follows:

“The City never exercised its option on the Shelton property. On May 22, 2002, Henry Mabry, then director of finance for the State, sent Ahn a letter confirming that the State would be funding the purchase of the Shelton property, stating:
“ ‘This is to confirm that the State of Alabama will provide the funding for the purchase of the 93 acres set aside for Hyundai’s rail yard on the date of closing. This will obviate any need for Hyundai to borrow to pay for this acquisition. In addition, the State will pay the reasonable due diligence costs incurred in connection with Hyundai’s acquisition of this property. This letter of assurance is being provided to you pursuant to Section 3.20 of the Project Agreement.’
“On May 31, 2002, the day the option agreement on the Shelton property was to expire, CSX entered into a real-estate sales contract for the purchase of the property at $12,000 per acre. When Hyundai learned that CSX, and not the State, was to pay for the rail installation and that Hyundai would be expected to enter into a long-term contract with CSX, Hyundai decided to install the rail using its own funds. As a result of Hyundai’s decision not to involve CSX in rail installation, CSX assigned the real-estate contract to Hyundai. According to the assignment contract, CSX assigned the contract to Hyundai on May 28, 2002, three days before the real-estate contract between CSX and Shelton was executed. On July 12, 2002, funds from the State of Alabama Incentives Finance Authority were transferred to Hyundai to pay for the Shelton property, and Hyundai purchased the property.”

7 So.3d at 326.

Subsequently, the Russells and the McLemore group each filed a breach-of-contract action in the Montgomery Circuit Court against the IDB and Hyundai, alleging that the IDB and Hyundai had breached the most-favored-nation clause in the option agreements by not paying them $12,000 per acre for their property. The IDB and Hyundai filed a motion for a summary judgment in each of these actions, which the trial court granted. The Russells and the McLemore group appealed; this Court consolidated those appeals for the purpose of writing one opinion.

This Court affirmed the trial court’s judgment in part and reversed it in part. Specifically, the Court reversed the summary judgment for the IDB as to the Russells’ breach-of-contract claim because “a question for the jury exists as to whether the amended option agreement modified or waived the most-favored-nation clause in the Russells’ original option agreement.” McLemore, 7 So.3d at 334. The McLemore Court also held that “the Russells’ and the McLemore group’s breach-of-contract claims are not barred by the doctrine of merger.” 7 So.3d at 336. Finally, the McLemore Court concluded that

“the provisions ‘[i]f Purchaser elects to exercise this Option the purchase price for the Property shall be determined as follows’ and ‘the purchase price shall in no event be less than the price per acre paid to any other landowner included in the project planned for the Property’ are ambiguous because reasonable persons could differ on whether ‘the price per acre paid to any other landowner included in the project’ refers to a purchase price paid only by the IDB or to a purchase price paid by any purchaser for property included in the project.... Because reasonable persons can differ on the meaning of the clause, i.e., whether the language ‘price per acre paid to any other landowner included in the project’ obligated the IDB to pay the Rus-sells and the McLemore group $12,000 per acre and whether the Shelton property was included as part of the project site, the evidence presents questions for the jury to resolve.... ”

7 So.3d at 338-39.

Southdale and Wheeler/Phillips also filed an action in the Montgomery Circuit Court; they alleged fraud, suppression, breach of contract, rescission, and conspiracy against multiple defendants including the IDB, Thornton, the City, the County, and others, charging that the defendants had conspired to purchase the Shelton property at a higher price than was paid for their property and conspired to do so without complying with the most-favored-nation clause contained in the option agreements. On November 2, 2007, the trial court entered a summary judgment in favor of the defendants on Southdale’s and Wheeler/Phillips’s tort claims on the basis that those tort claims were barred by the applicable statute of limitations. On November 20, 2007, the trial court entered a summary judgment in favor of the defendants on all remaining claims. Southdale and Wheeler/Phillips appealed from the summary judgments.

That appeal was addressed in Wheeler v. George, 39 So.3d 1061 (Ala.2009). Based on statements made by this Court in Wheeler, the IDB filed a motion for a summary judgment in the McLemore/Rus-sell actions, asking the trial court to dismiss the breach-of-contract claims against the IDB. On May 3, 2010, the trial court denied the IDB’s motion. The IDB filed a motion asking the trial court to certify its interlocutory order for a permissive appeal. On May 18, 2010, the trial court certified two controlling questions of law for permissive appeal to this Court. The trial court stated those questions as follows:

“1. Does the Alabama Volunteer Service Act, - [Ala.Code 1975, § 6-5-336,] bar the Plaintiffs’ claims for breach of contract?
“2. Were the obligations under the option contracts signed by the Plaintiffs and the IDB assumed .by the City of Montgomery and Montgomery County, thus barring any claims for breach of contract against the IDB?”

On May 28, 2010, the IDB filed with this Court a petition for permission to appeal the trial court’s denial of its motion for a summary judgment based on the trial court’s certification of the above-quoted questions. This Court granted the petition on August 17, 2010.

II. Standard of Review

“ ‘ “We apply the same standard of review [in reviewing the grant or denial of a summary-judgment motion] as the trial court applied. Specifically, we must determine whether the movant has made a prima facie showing that no genuine issue of material fact exists and that the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So.2d 949, 952-53 (Ala.2004). In making such a determination, we must review the evidence in the light most favorable to the non-movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986). Once the movant makes a prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmovant to produce ‘substantial evidence’ as to the existence of a genuine issue of material fact. Bass v. South-Trust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989); Ala. Code 1975, § 12-21-12.” ’
“Mutual Assurance, Inc. v. Schulte, 970 So.2d 292, 295 (Ala.2007) (quoting Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038-39 (Ala.2004)).”

Panayiotou v. Johnson, 995 So.2d 871, 875-76 (Ala.2008). “Questions of law are reviewed de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala.2006).” McLemore, 7 So.3d at 327 (quoting Catrett v. Baldwin Cnty. Elec. Membership Corp., 996 So.2d 196, 200 (Ala.2008)).

III. Analysis

As the questions certified by the trial court indicate, the IDB argues that the McLemore/Russell breach-of-contract claims against it should be dismissed on two alternative grounds. First, it contends that the Wheeler Court held that the IDB assigned the option agreements to the City and that, therefore, the IDB cannot be held liable for any alleged breach of those option agreements. Second, it contends that the Wheeler Court concluded that the IDB is immune from all claims in tort and contract because of the application of the Volunteer Service Act, § 6-5-336, Ala.Code 1975 (“the VSA”), to the IDB’s chairman, Thornton. The IDB asks this Court, as' it did the trial court, to apply these “holdings” in Wheeler to the breach-of-contract claims brought against it by McLemore/Russell.

Before we address these arguments, however, we begin by noting that McLe-more/Russell argue that the IDB should not be permitted to contend that it is entitled to a summary judgment on their breach-of-contract claims because this Court in McLemore concluded that McLe-more/Russell were entitled to a jury trial on that claim. McLemore/Russell contend that McLemore is the law of the case in this regard. McLemore/Russell observe that this Court has stated that,

“[u]nder the doctrine of the ‘law of the case,’ whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long as the facts on which the decision was predicated continue to be the facts of the case.”

Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala.1987). In essence, McLe-more/Russell take issue with the fact that the IDB filed a second motion for a summary judgment on the same claims this Court addressed in McLemore, raising defenses the IDB pleaded in its answer to the complaint but did not raise in its initial motion for a summary judgment. McLe-more/Russell note that the facts upon which McLemore was decided have not changed, and thus they argue that this Court’s determination that genuine issues of material fact exist concerning their breach-of-contract claims cannot be challenged by the IDB in a second motion for a summary judgment.

The issues raised by the IDB in its second motion for a summary judgment are not the same as the issues raised in the first motion for a summary judgment and on appeal to this Court from the trial court’s ruling on the first motion. Accordingly, there has been no holding by either the trial court or this Court as to the issues raised in the second summary-judgment motion; thus, no “law of the case” has been “established” as to those issues. See Bagley ex rel. Bagley v. Creekside Motors, Inc., 913 So.2d 441, 446 (Ala.2005) (“[T]he doctrine of law of the case ... is inapplicable to this case because we did not, in the original appeal, dispositively decide the issue [now raised].”); Poole v. Prince, 61 So.3d 258, 274 (Ala.2010) (“Because this Court did not definitively address in [the prior appeal] the issue whether a binding contract existed between the parties, the law-of-the-case doctrine does not preclude the trial court’s determination of that issue on remand.”); Lyons v. Walker Reg’l Med. Ctr., Inc., 868 So.2d 1071, 1077 (Ala.2003) (“[0]n remand the issues decided by an appellate court become the ‘law of the case.’ ” (emphasis added)).

We now examine the arguments presented by the IDB. The IDB bases its argument that its assignment of the option agreements to the City relieved it of any liability under those agreements on the following portion of the Wheeler opinion:

“The City first argues that the City was not a party to the option agreements executed by the IDB and therefore was not liable for breach of contract because, it argues, the IDB was not acting as the City’s agent. Under such circumstances, the City says, it is not liable under any breach-of-contract theory. We disagree. Pursuant to Resolution No. 111-2002, adopted by the City in June 2002 in conjunction with the Hyundai project, ‘the IDB did exercise the purchase options, but assigned its rights to purchase thereunder to the City and Montgomery County (the “County”), and the City and County each have issued debt to provide the necessary funds and have acquired the Parcels.’ As the IDB’s assignee, the City assumed the obligations and liabilities of the assigned contracts. Meighan v. Watts Constr. Co., 475 So.2d 829, 834-35 (Ala.1985).”

Wheeler, 39 So.3d at 1083-84 (emphasis added).

In its principal brief, the IDB argues:

“Because the City of Montgomery assumed all of the obligations under the option contracts, there can be no liability for breach of contract on the part of the IDB. To establish a breach of contract, [McLemore/Russell] must show
“ ‘(1) the existence of a valid contract binding the parties to the action, (2) [their] own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.’
“Congress Life Ins. Co. v. Barstow, 799 So.2d 931, 937 (Ala.2001) .... [McLe-more/Russell] cannot prove the first required element — the existence of a valid contract binding the parties to this action. This is because the City of Montgomery assumed all of the obligations under the options. The IDB no longer has any duties, obligations, rights or remedies under the option contracts.”

The IDB essentially argues that, because this Court stated in Wheeler that the City, as the assignee of the option agreements, is potentially liable for breach of contract, the Court impliedly held that the IDB is not liable. We reject this argument for several reasons.

First, the portion of the Wheeler opinion relied upon by the IDB addressed the City’s potential liability for breach of contract; it did not address, much less determine, the IDB’s potential liability for breach of contract.

Second, the IDB cites no authority for its proposition that the assignment of rights under a contract relieves the assign- or of any potential for liability for duties not performed under the assigned contract. Moreover, the law provides no support for such a proposition and, indeed, supports the contrary proposition. In a dissent in DuPont v. Yellow Cab Co. of Birmingham, Inc., 565 So.2d 190, 193 (Ala.1990), Justice Jones explained the distinction between assignment and delegation:

“In the instant case, there exist both an assignment of rights and a delegation of duties. The assignment-delegation distinction is relatively straightforward: rights are assigned; duties are delegated. When a party to a contract transfers his rights under the. contract to a third party, he has made an assignment. If a party to the contract appoints a third party to render performance under the contract, he has made a delegation. Generally speaking, upon assignment of a right, the assignor’s interest in that right is extinguished; however, upon the delegation of a contractual duty, the delegating party remains liable under the contract, unless the contract provides otherwise or there is a novation. Calamari and Perillo’s Hornbook on Contracts, § 18-25 (3d ed.1987). Professor Knapp analogizes the assignment-delegation distinction thusly: ‘If assigning a right is like passing a football, then' delegating a duty resembles more the dissemination of a catchy tune or a communicable disease: Passing it on is not the same as getting rid of it.’ C. Knapp, Problems in Contract Law 1161 (1976).”

(Footnote omitted.) See also Restatement (Second) of Contracts § 318 (1981).

According to the portion of Wheeler relied upon by the IDB, the IDB assigned to the City and the County its rights under the option agreements. Assuming that this assignment of rights carried with it a delegation of the duties owed by the IDB under the agreements, the IDB nonetheless also would have had to demonstrate either (1) that the terms of the contracts allowed the IDB to relieve itself of contractual liability by way of such a delegation or (2) that the parties had entered into novations pursuant to which McLe-more/Russell agreed that the IDB’s obligations had changed. See generally, e.g., Marvin’s, Inc. v. Robertson, 608 So.2d 391, 393 (Ala.1992) (explaining that “ ‘[a] novation is the substitution of one contract for another, which extinguishes the pre-exist-ing obligation and releases those bound thereunder.... In addition; the party alleging a novation has the burden of proving that such was the intention of the parties.’ ” (quoting Pilalas v. Baldwin County Sav. & Loan Ass’n, 549 So.2d 92, 94-95 (Ala.1989) (emphasis omitted))). The IDB does not assert or demonstrate either condition. Accordingly, the trial court’s denial of the IDB’s motion for a summary judgment is not due to be reversed on this ground.

We turn now to the IDB’s argument that it is immune under the VSA from the McLemore/Russell breach-of-contract claims. We first note that the VSA does not grant immunity to governmental or other entities, but grants immunity only to natural persons serving as “volunteers” for certain entities. The VSA, § 6-5-336(c)(4), Ala.Code 1975, defines a “volunteer” as “[a] person performing services for a nonprofit organization, a nonprofit corporation, a hospital, or a governmental entity without compensation, other than reimbursement for' actual expenses incurred.” Section 6-5-336 then provides:

“(d) Any volunteer shall be immune from civil liability in any action on the basis of any act or omission of a volunteer resulting in damage or injury if:
“(1) The volunteer was acting in good faith and within the scope of such volunteer’s official functions and duties for a nonprofit organization, a nonprofit corporation, hospital, or a governmental entity; and
“(2) The damage or injury was not caused by willful or wanton misconduct by such volunteer.”

(Emphasis added.) Further, when the legislature passed the VSA, it declared in § 6-5-336(b):

“(1) The willingness of volunteers to offer their services has been increasingly deterred by a perception that they put personal assets at risk in the event of tort actions seeking damages arising from their activities as volunteers;
“(2) The contributions of programs, activities, and services to communities is diminished and worthwhile programs, activities, and services are deterred by the unwillingness of volunteers-to serve either as volunteers or as officers, directors, or trustees of nonprofit public and private organizations;
“(3) The provisions of this section are intended to encourage volunteers to contribute their services for the good of their communities and at the same time provide a reasonable basis for redress of claims which may arise relating to those services.”

(Emphasis added.)

The IDB attempts to find support for its position in the following portion of this Court’s opinion in Wheeler:

“It is undisputed that Thornton served as an unpaid volunteer member of the IDB. He was employed full-time in his own insurance business, arid he served as the chairman of the IDB on a voluntary part-time basis. The IDB is a ‘governmental entity as defined in the Volunteer Service Act, § 6-5-336(c)(l). See also Harris v. Ethics Comm’n, 585 So.2d 93, 95 (Ala.Civ.App.1991), in which the Court of Civil Appeals quoted with approval a statement from a trial court’s order stating that industrial development boards ‘clearly reflect attributes and characteristics of a governmental entity.’ Accordingly, Thornton is a volunteer under, the Volunteer Service Act and is entitled to immunity so long as his actions or inactions were not wanton or willful.
“Because we have determined that Thornton is entitled to immunity under the Volunteer Service Act, the IDB is also entitled to immunity. In Hollis v. City of Brighton, 885 So.2d 135, 141-42 (Ala.2004), the plaintiffs sued the City of Brighton, alleging that the city had failed to extinguish a fire at their house and had prevented the plaintiffs from trying to extinguish it. This Court held:
“ ‘The vicarious liability of a putative master under the rule of respon-deat superior depends upon the liability of the putative servant. See Larry Terry Contractors, Inc. v. Bogle, 404 So.2d 613, 614 (Ala.1981) (‘“[W]hen [a] principal and his agent are sued in [a] joint action in tort for misfeasance or malfeasance of the servant, and his liability for the conduct of said servant is under the rule of respondeat superior, a verdict in favor of the servant entitles the master to have the verdict against him set aside.’ ”) (quoting Louisville & N.R.R. v. Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938)), and Gore v. City of Hoover, 559 So.2d 163,165 (Ala.1990), overruled on other grounds, Franklin v. City of Huntsville, 670 So.2d 848 (Ala.1995) (holding that a city could not be held vicariously liable for the act of a magistrate who was immune from liability). Thus, if a putative servant is not liable, either because he is innocent or because he is immune, no liability exists to be visited upon the putative master under the rule of respondeat superior. Id.
“ ‘As discussed above, the firefighters, the putative servants in the case now before us, were volunteers who did not receive compensation for their service as volunteer firefighters. Consequently, they were immune from liability for negligence under the Volunteer Service Act. Because the firefighters were immune from liability for negligence under the Volunteer Service Act, no liability for negligence could befall them to be visited upon the City [of Brighton], the putative master in the case now before us.’
“The IDB cannot be held vicariously liable for the acts of its chairman because Thornton was immune from liability under the Volunteer Service Act. The summary judgment entered in favor of the IDB is due to be affirmed on this alternative ground.”

Wheeler, 39 So.3d at 1089-91 (emphasis added). The IDB argues that the foregoing supports the conclusion that the IDB is immune from liability under the VSA as to McLemore/Russell’s claims of breach of contract.

The principle that an entity may be insulated from vicarious liability that would otherwise result from the misfeasance or malfeasance of its employee or agent where the employee or agent enjoys immunity for his or her acts or omissions is not apposite here. This is a breach-of-contract action against the IDB, a party to the contract at issue, alleging its breach of that contract. The following argument in the brief of the appellees, the Russells and the McLemore group, is meritorious:

“The breach occurred when the IDB failed to pay the full purchase price for the property. [McLemore/Russell] did not sue Reuben Thornton individually because he had no personal liability for the breach by merely signing the option on behalf of the IDB. They also did not sue Mr. Gallion because the election to purchase the property was signed by him in a representative capacity on behalf of the IDB. An individual signing a contract on behalf of a corporate entity has no liability for breach of that contract. If an agent, in [signing] a contract, discloses his principal and makes it appear on the face of the paper that it is the contract of the principal and he signs it as agent, of course the principal is bound, the undertaking being within the agency, and the agent is not. Lutz v. Van Heynigen Brokerage Company, 199 Ala. 620, 625, 75 So. 284, 286 (1917); Professional Business Systems, Inc. v. Kaufman, 507 So.2d 421 (Ala.1987).
“The IDB, in its most recent Motions for Summary Judgment, is confusing agency law, as it pertains to an agent’s authority to sign a contract for his principal, with a master-servant relationship that allows for culpability on the part of the master for the torts of its servants on the theory of respondeat superior. [McLemore/Russell] have not alleged liability against the IDB based upon re-spondeat superior for the acts of its agents. The liability of the IDB in this ease is for breach of a purchase contract by the IDB after it elected to exercise the option through its authorized agent, Mr. Gallion, but failed [ — ie., the IDB failed — ] to pay the full purchase price.”

(Emphasis in original.)

The doctrine of vicarious liability is premised on the fact that an agent or employee has committed his or her own misfeasance or malfeasance — ie., the agent or employee has violated a duty created and imposed by law upon him or her, as an individual — in circumstances under which the law also deems it appropriate to hold accountable the principal. A duty created by contract is one imposed upon the party to the contract, not directly upon the employee or agent of that party. If an employee or agent acting within the scope of his or her employment or agency acts in a manner that causes the principal to be in breach of the principal’s contract, the breach is that of the principal itself, not of the employee, who is not a party to the contract. The concept of vicarious liability is jurisprudentially inapposite (and unnecessary) in such a circumstance.

Finally, it may also be noted that § 11-54-87, Ala.Code 1975, provides, in part, as follows:

“(a) The industrial development board shall have the following powers together with all powers incidental thereto or necessary for the performance of those stated in this subsection:
“(2) To sue and be sued and to prosecute and defend civil actions in any court having jurisdiction of the subject matter and of the parties

(Emphasis added.) To hold that the VSA and the above-quoted portion of this Court’s opinion in Wheeler render an entity immune from all claims — including claims arising in contract — essentially would eliminate any field of operation for the above-emphasized language in § 11-54-87, except where an agent or employee has acted willfully or wantonly. “Statutes should be construed together so as to harmonize the provisions as far as practical.” Ex parte Jones Mfg. Co., 589 So.2d 208, 211 (Ala.1991). Clearly, pursuant to § 11-54-87, industrial development boards are given the power to purchase property and to enter into contracts for that purpose. Although the VSA clothes volunteers— such as members of the IDB’s board of directors — from liability in tort so long as the volunteers’ actions are not willful and wanton, and thereby also renders the IDB itself immune from vicarious liability, § 6-5-336 does not operate to prevent an industrial development board from being sued and facing liability for breaches by it of its contracts. The trial court did not err in denying the IDB’s motion for a summary judgment on this ground.

IV. Conclusion

The trial court’s order denying the IDB’s motion for a summary judgment, in which the trial court rejected the IDB’s arguments that the IDB should be relieved from liability based on its assignment of it rights under the option agreements and that it is immune -from suit under the VSA, is due to be affirmed.

APPLICATION . OVERRULED'; OPINION OF AUGUST 12, 2011, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

STUART, BOLIN, SHAW, AVISE, and BRYAN, JJ., concur.

MOORE, C.J., concurs in the result.

MAIN, J., recuses himself.

      . Such a provision is known as a "most-favored-nation” clause or a "price-escalation” clause.

      . It appears that members of the Montgomery Area Chamber of Commerce approached Shelton at this time about selling her property for inclusion in the project.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    James Kevin WEBB and Nancy Carol Reid Webb v. Freddie Leon MITCHELL, as executor of the estate of Daisy Irene Mitchell, et al. Freddie Leon Mitchell, as executor of the estate of Daisy Irene Mitchell, et al. v. James Kevin Webb and Nancy Carol Reid Webb.
    2111046.
    Court of Civil Appeals of Alabama.
    March 29, 2013.

      John F. Porter III, Scottsboro, for appellants/cross-appellees James Kevin Webb and Nancy Carol Reid Webb.
    Gary W. Lackey of The Lackey Law Firm, Scottsboro, for appellees/cross-ap-pellants Freddie Leon Mitchell, as executor of the estate of Daisy Irene Mitchell, et al.
   DONALDSON, Judge.

This appeal and cross-appeal follow a judicial determination of a boundary line between coterminous adjoining properties. Because the judgment from which the appeal and cross-appeal were taken did not adjudicate the claims or interests of all parties nor adjudicate all of the claims for relief contained in the complaint, the judgment is not final and the appeal and the cross-appeal must be dismissed.

Facts

Daisy Irene Mitchell, Leon Mitchell, Shirley M. Smith, and Kay M. Rayburn (hereinafter referred to collectively as “the Mitchells”) own certain land in Jackson County that adjoins land owned by James Kevin Webb and Nancy Carol Reid Webb (“the Webbs”). The Mitchells filed a complaint seeking a judgment determining the ownership rights to a certain strip of property (“the disputed property”) and declaring the location of the correct boundary line between their properties. The Mitch-ells also sought temporary injunctive relief, permanent injunctive relief, and damages for trespass. The trial court granted temporary injunctive relief restraining the Webbs from certain acts relating to the disputed property. The Webbs answered the complaint asserting ownership to the disputed property and denying that the boundary line was located where the Mitchells claimed. The Webbs sought a determination that the boundary line was in a different location. Following a pretrial conference in March 2008, the trial court entered the following order:

“Based upon the assertions of [the Mitchells] that the disputed strip of property was used in the past by adjoining land owners for access, namely Addie Wilhelm, Rupert Shelton and Mildred Moore, this matter is continued to allow [the Mitchells] 30 days to amend their pleadings to add said persons as parties to prevent multiplicity of litigation.”

The Mitchells amended the complaint on May 8, 2008, to add Addie Wilhelm, Rupert Shelton, and Mildred Moore as defendants (hereinafter collectively referred to as “the added defendants”). The Mitchells asserted that the added defendants each owned property adjoining either the Mitchells’ property or the Webbs’ property and accessed that property by using an old road bed located within the disputed property. The Mitchells asserted that any ruling by the court on the boundary line between their property and the Webbs’ property would affect the added defendants’ ability to access their own property. In their claim for relief, the Mitchells sought an order “adjudicating the respective rights of the various parties” as to the disputed property. The amended complaint further incorporated all of the claims and allegations contained in the original complaint.

On May 15, 2008, the Webbs responded to the amended complaint by generally denying the allegations in the complaint and reasserting their position as to ownership of the disputed property and the eor-rect location of the boundary line. The Webbs also stated:

“The Court’s establishment of the boundary line between the property of the [Mitchells] and the property of [the Webbs] does not impede or impair the property rights of the Defendants Addie Wilhelm, Rupert Shelton or Mildred Moore. If these [added] Defendants are landlocked, then they are entitled to an easement by necessity or by implication over the property of the [Mitchells] but are not entitled to an easement or right of way over and along the property of [the Webbs]. Any roadway that was formerly used by any of the added Defendants has been abandoned by non-use for more than twenty years.”

The Webbs further asked the court to establish the boundary line between the Webbs’ property and Mitchells’ property in a manner “which by necessity would also establish the property line between [the Webbs] and the [added] Defendant, Mildred Moore.”

On June 4, 2008, Mildred Moore filed an answer to the amended complaint without counsel and stated:

“1. Yes, I Mildred Moore do own property behind the Plaintiff, Irene Mitchell. Over the years our right of way to our land had been through the Disputed Area. Which we have always thought was on the Plaintiffs land.
“2. Yes we- have been using the old road bed as access to our land. During the last 15 years my Grandson and Great Grandson have walked this road bed as a path to my land to deer hunt and turkey hunt.
“3. I hope that we can continue to use the old road bed as access to our property as in the past.”

On June 8, 2010, Addie Wilhelm, one of the added defendants, filed an answer without counsel. She admitted owning land adjacent to the Mitchells’ property, but denied knowing anything about the location of the boundary line between the Mitchells’ property and the Webbs’ property.

On June 12, 2008, Rupert Shelton, one of the added defendants, filed an answer without counsel stating that the disputed property was not “well-defined” but denying that he had any ownership interest in the disputed property as depicted by a drawing attached to the amended complaint. He also stated:

“3. Should Defendant SHELTON’s access to his property be found to cross the disputed property, SHELTON hereby claims and reserves his continued right to access his property via the disputed property.
“4. Defendant SHELTON has accessed his property via disputed road bed within last twenty (20) years.”

The Webbs filed a “Response to Answer of Rupert Shelton to Amended Complaint.” The response was conditional in several respects, claiming in part that Shelton’s access to their land had been permissive and limited and that they intended to continue to allow this type of access. Further, the Webbs suggested that the claims of Shelton may be more closely aligned with claims of Daisy Irene Mitchell, a plaintiff in the action.

In their brief on appeal, the Mitchells included an illustration that displays the property owned by each party. The Mitchells state:

“This case centers on that portion of the [Webbs’ and Mitchells’] coterminous boundary between the 90° westward turn of County 168 shown in the Illustration, and the northern boundary of the three parcels of the ‘Added Defendants’ also shown in the Illustration.”

Regarding the claims of the added defendants, the Mitchells state as follows:

“The Amended Complaint in this action, joining these three Defendants ... sought adjudication of the rights of those Defendants — Addie Wilhelm, Rupert Shelton, and Mildred Moore — to access their properties along the ‘wagon trail’ labeled on the Illustration. For various reasons, including the deaths of Wilhelm and Moore and uncertainty over the status of their estates, the Circuit Court chose not to determine that claim at the hearing on April 4, 2011.”

A trial was conducted on September 20, 2010, and April 4, 2011. When the proceeding began on September 20, the following occurred: ■

“THE COURT: ... And I’m ready if y’all are, gentlemen.
“[COUNSEL FOR THE WEBBS]: Judge, I believe all the plaintiffs are actual parties, and I want to make sure of that. With the changes and additions, I believe that is correct.
“THE COURT: Why don’t we address that. There was some issue about somebody having died.
“[COUNSEL FOR THE MITCH-ELLS]: Well, yeah. Judge, if I could address that, and I’m referring to the tax map, which shows three 16-acre strips—
“THE COURT: Yes, sir.
“[COUNSEL FOR THE MITCH-ELLS]: — that adjoined both these plaintiffs and these defendants, and the dispute has to do with a continuation of this road that I’m pointing to—
“THE COURT: Yes, sir.
“[COUNSEL FOR THE MITCH-ELLS]: — that comes up the mountain here and has traditionally been used as an access by those three 16-acre landowners. They were added as parties some time ago, and since they’ve been added, two of them have passed away, Addie Wilhelm, who passed away months ago, if not over a year ago, and then Mrs. Curtis Moore, who I didn’t know until this morning had passed away much more recently. The other one — the other 16-acre strip landowner is Rupert Shelton. And they have filed a pro se answer, but they’re not here either. So basically the situation .as it exists this morning is that we have two landowners who are parties to the case who have passed away, and I don’t know the condition of their estate, whether there has been a probate or anything like that.
“THE COURT: Those are landowners of the 16-acre strips; is that correct?
“[COUNSEL FOR THE MITCH-ELLS]: Correct, your Honor.
“THE COURT: Is that your understanding, [counsel for the Webbs]?
“[COUNSEL FOR THE WEBBS]: It is my understanding.
“THE COURT: Are those folks necessary parties to the case? It looked to me like the dispute was up there on the curve.
“[COUNSEL FOR THE MITCH-ELLS]: Well, see, the problem is that—
“THE COURT: If there is no access, it leaves them landlocked.
“[COUNSEL FOR THE MITCH-ELLS]: Our contention is that the old roadbed, which constitutes essentially the disputed area, was a continuation of this county road that went on up the mountain and had traditionally been used by these parties for access to their land. And so I added them for two reasons: Number one, they had a lot of knowledge about the use of the disputed strip down through the years; number two, to prevent a future claim against the plaintiffs for private condemnation of the right-of-way in the event that we prevail or in the event that the Webbs prevail. Either party that prevails may in the future want to cut'them off, and if they’re parties, then any issues they had to prevent a future claim against the plaintiffs for private condemnation of the right-of-way in the event that we prevail or in the event that the Webbs prevail. Either party that prevails may in the future want to cut them off, and if they’re parties, then any issues they had could be better addressed.
“THE COURT: Well, I think the issue of access will just have to be raised at the appropriate time.
“[COUNSEL FOR THE MITCH-ELLS]: That suits me fine.
“THE COURT: Not today. And obviously if they’re not properly before the Court, we can’t address any issues they may have here today, but we’ll do what we can between these parties that are present.
“[COUNSEL FOR THE MITCH-ELLS]: All right.
“THE COURT: Unless somebody has got a better idea.
“[COUNSEL FOR THE WEBBS]: No, sir.”

Rupert Shelton, an added defendant, appeared and testified when the proceedings resumed on April 4, 2011. His testimony appears to have been directed to the location of the boundary line and not to his ability to access his property.

During one portion of the cross-examination of James Webb, counsel for the Mitchells questioned him regarding whether he would allow the added defendants to access a portion of the disputed property if the trial court determined the location of the boundary line to be where he asserted it was.' James Webb testified:

“Q. How do you feel about use of the roadbed [located -within the disputed property]?
“A. If they want to continue to use between the property line and the fence line, that is fine with me.
“Q. What about in the area where the roadbed gets across your survey line before it gets to other property owners [i.e., the added defendants] back there? How do you feel about that?
“A. I have a problem with that.
“Q. You got a problem with it?
“A. Yes, sir.
“Q. Basically regardless of what the uses have been down through the decades, then you say that whatever your survey says is what you want to do regardless whether Mr. Shelton’s family, Mr. Wilhelm’s family, Ms. Moore’s family, the Mitchells, people in McBroom Hollow and all back through have used that roadbed, then you want to shut it down?
“A. That’s correct.”

On August 22, 2011, the trial court entered an order containing detailed findings of fact and granting the following relief:

“1. The court finds the issues in favor of the [Mitchells] against the [Webbs],
2. The boundary between the parties is fixed as the east margin of the pavement of County Road 168 and extending southwardly along the east margin of the old roadbed that runs or formerly ran onto the mountain which lies at the rear of the parties’ real estate.
8. The [Mitchells] are allowed 120 days herefrom to- submit to the court a precise description of this boundary prepared by a licensed real estate surveyor, along 'With a suggested order fixing the same as the boundary. Alternatively, the parties are free to agree where the east boundary lies on the ground and submit their agreement to the court by suggested order for entry.
4. Costs of this action are taxed to the [Mitchells] for which execution may be had according to law.
5. Except as stated in paragraph 3, above, this .is a final, appealable order for all purposes. ■
6. Pending further order of the court, no one shall block, obstruct, restrict, interfere or attempt to do the same with the Webbs’ driveway or their free ingress and egress from the same.”

The order did not address the Mitchells’ claims for damages for trespass or for permanent injunctive relief. Consistent with the discussions that occurred before the trial, the order also did not address the interests of the added defendants.

The Webbs promptly filed a motion asking the trial court to either make a determination that the August 22 order was “fínál” for purposes of Rule 54(b), Ala. R. Civ. P., or, alternatively, to delete paragraph 5 of that order. The Webbs asserted that neither the Webbs nor the Mitchells could determine the impact of the order on their property interests until the survey referenced in paragraph 3 of the order was completed. On October 11, 2011, the trial court entered an order stating as follows:

“Upon consideration of the [Webbs’] Motion to Certify Order pursuant to Rule 54(b), Alabama Rules of Civil Procedure, the Court finds that its Order of August 22, 2011 does not determine all issues pending before the Court and that there are remaining issues to be resolved. Therefore, the Court’s Order of August 22, 2011 is NOT certified as a final Order pursuant to Rule 54(b), Alabama Rules of Civil Procedure, any previous statement of the Court notwithstanding.”

On November 21, 2011, the Webbs filed a “Motion for Reconsideration or in the Alternative to Alter, Amend or Vacate” the August 2011 order. The trial court held a hearing on the motion on January 30, 2012. Only the Mitchells and the Webbs were present. On February 13, 2012, the trial court entered an order denying the motion to alter, amend, or vacate as “being premature,” because the survey referenced in the August 2011 order had not yet been approved and incorporated into a judgment. In that same February order, the court adopted a survey establishing the boundary line between the Mitchells and Webbs and stated: “This is a final, appeal-able order for all purposes.” The Webbs filed another motion to alter, amend, or vacate the February 2012 order. That motion was denied following a hearing.

Both the Mitchells and the Webbs filed timely appeals from the February 2012 order. The Webbs primarily argue that the evidence did not support the order determining the location of the boundary line, while the Mitchells' argue that the survey adopted by the court was not consistent with the location of the boundary line described generally in the August 2011 order. In their brief, the Mitchells note a “potential judisdictional flaw” in that the August 2011 and February 2012 orders did not address their claims for damages or for permanent injunctive relief. The Mitchells claim that the testimony presented at trial established their right to damages and for injunctive relief.

Discussion

“Generally, this court’s appellate jurisdiction extends only to final judgments. § 12-22-2, Ala.Code 1975.

“‘A judgment is generally not final unless all claims, or the rights or liabilities of all parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.’

Laney v. Garmon, 25 So.3d [478] at 480 [ (Ala.Civ.App.2009) ].”

Austin v. Austin, 102 So.3d 403, 406 (Ala.Civ.App.2012).

There are two reasons why the appeals in this case are not from a final judgment. First, the claims of the Mitch-ells for damages and permanent injunctive relief were not addressed. See, e.g., Hall v. Reynolds, 27 So.3d 479 (Ala.2009)(dismissing an appeal when the order establishing a boundary line did not address the claims for damages and for injunctive relief); Day v. Davis, 989 So.2d 1118 (Ala.Civ.App.2008) (dismissing an appeal when a judgment establishing a boundary line did not address remaining tort claims). The Mitchells assert that they presented sufficient testimony at trial to establish their claims for damages and for permanent injunctive relief, i.e., they assert their claims were not waived by failing to present evidence on these claims at the trial. We agree. Therefore, the order did not adjudicate all of the rights and liabilities of the Mitchells and the Webbs and cannot support an appeal.

Second, the trial court’s orders did not address the claims involving the added defendants. . The discussions between counsel for the Mitchells and Webbs before trial indicate that those parties intended to have a separate trial if necessary regarding the interests of the added defendants. However, a separate trial of certain claims remains part of a single case, and an order resolving claims in one trial is not final and will not support an appeal. See Day v. Davis, supra (noting the distinction between a separate trial and a severed case). The claims involving .the added defendants were not severed, and the issues pertaining to those claims were not tried by the’ parties during trial. No party requested a default against any party properly named and served but not appearing at trial. Therefore, the claims involving the added defendants remain pending.

The next question is whether the February 2012 order was intended to be reviewable under Rule 54(b), Ala. R. Civ. P., which provides in pertinent part:

“When ... multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer that all of the ... parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. ... [I]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

The February 13, 2012, order does not contain all of the required, although perhaps archaic, language of 54(b) nor does it reference the subsection of the rule. The order was certainly entered immediately and indicates it is “final” and “appealable.” Importantly, both the Mitchells and the Webbs have treated the order as appealable. There are circumstances in- which an appellate court can infer that an order was intended to be certified as .final under Rule 54(b) even when all of the language required by the rule was not used. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 87 (Ala.1985) (concluding that the statement “ ‘[t]he Court further finds there is no just reason for delay in the entry of said final judgment’ ” was sufficient to make a judgment final pursuant to Rule 54(b)); see also Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000) (noting that “if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then [an appellate court] will treat the order as a final judgment” even though the order may not contain all the language indicating that it is, in fact, an order directing the entry of a final judgment). But we must hold that the order in this case is not sufficient under Rule 54(b) because the record does not reflect that consideration was given to the Mitchells’ remaining claims or the claims involving the added defendants and whether there was a express determination that there was “no just reason for delay” in certifying the interlocutory order as final. A trial court is not required to certify an interlocutory order as final under Rule 54(b), nor is it required to articulate the reasons for the decision. But if an interlocutory order is certified as final, a determination must have been made by the trial court that the adjudicated and the remaining claims are not “ ‘so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” Hetzel v. Fleetwood Trucking Co., 90 So.3d 180, 182 (Ala.Civ.App.2012) (quoting Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263 (Ala.2010), quoting in turn other cases (some quotation marks omitted))(dismissing an appeal from an improperly certified interlocutory order). Although such a determination is not binding upon an appellate court, an expression on the record or within the order itself as to the reasoning of the trial court would be of great assistance in reviewing an order certified as final under rule 54(b).

If only the claims involving the added defendants remained, it would be appropriate to remand the case to the trial court for it to consider whether the order should bé certified as final under Rule 54(b):

“ ‘When it appears from the record that [an] appeal was taken from an order which was not final, but which could have been made final by a Rule 54(b) certification, we will remand the case to the trial court for a determination as to whether it chooses to certify the order as final, pursuant to Rule 54(b), and, if it so chooses, to enter such an order and to supplement the record to reflect that certification. The judgment will be taken as final as of the date the 54(b) certification is entered....
“ ‘... [I]f this Court remands the case to the trial court for the opportunity of making such a certification, the trial court will have the limited jurisdiction to enter a 54(b) certification if, in its discretion, it decides the entry of. such a certification is appropriate.’
“Foster v. Greer & Sons, Inc., 446 So.2d 605, 609-10 (Ala.1984), overruled on other grounds, Ex parte Andrews, 520 So.2d 507, 510 (Ala.1987).”

Hanner v. Metro Bank & Protective Life Ins. Co., 952 So.2d 1056, 1061-1062 (Ala.2006). But the remaining issues also involve the non-adjudicated claims of the Mitchells for damages and for permanent injunetiye relief, not just claims involving the added defendants, and separate adjudication of these claims and the previously revolved claims would “ ‘pose an unreasonable risk of inconsistent results.’ ” Hetzel, 90 So.3d at 182. This court lacks jurisdiction to hear the appeals because all claims of all parties have not been adjudicated, and accordingly, the appeal and the cross-appeal must be dismissed.

APPEAL — DISMISSED.

CROSS-APPEAL — DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ. concur.

      . Daisy Irene Mitchell died during the course of the litigation. The executor of her estate, Freddie Leon Mitchell, was substituted in her place.

      . It appears Mildred Moore died at some point during the litigation, but the record does not reflect that any substitution was made in her place.

      . Addie Wilhelm died during the litigation. Russell David Wilhelm and Roger Jeff Wilhelm, as coexecutors of her estate, were substituted in her place.

      . The “illustration” appears to be an ariel photograph of the parties’ properties and surrounding areas, with lines superimposed on the photograph to depict the location of the parties’ properties.

      .Section 35-3-3, Ala.Code 1975, provides that a court may order a survey “after the ' entry of judgment” if the boundary lines at issue are otherwise ascertainable by reference to "well-known permanent landmarks.” This statute does not prohibit the court from ordering a survey at any other time including before the final establishment of the boundary line. See, e.g., § 35-3-20, Ala.Code 1975; Rule 706, Ala. R. Evid. In an appropriate case, reference to § 35-3-3 could be useful in determining whether an otherwise interlocutory judgment should be certified as final pursuant to Rule 54(b), Ala. R. Civ. P., before the preparation of the survey.

      . This motion was filed more than 30 days after the entry of the order; however, the order did not determine all of the issues between the parties. Therefore, it remained “subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Rule 54(b), Ala. R. Civ. P. Because the judgment was nonfinal, the time periods of Rule 59, Ala. R. Civ. P., were not applicable.

      . The August 2011 order enjoins certain activity from being taken that interferes with the Webbs’ rights, but not the Mitchells’ rights.

      . With electronic filing and other modern court practices, whether the requirement in the rule of "express[ly] directing]” the entry of a judgment by the Clerk remains necessary is questionable. For example, an order rendered by the court and electronically filed is deemed to be "entered” at the same time. Rule 58(a)(5) and (c), Ala. R. Civ. P.

      . The certification of an order under 54(b) should only be granted in ‘‘exceptional” cases. See Hetzel v. Fleetwood Trucking Co., 90 So.3d 180 (Ala.Civ.App.2012) (citing cases).


author: THOMAS, Judge.

text:
    Debra A. DUNN v. Harold E. DUNN, Sr.
    2111121.
    Court of Civil Appeals of Alabama.
    April 5, 2013.
    Pete J. Valias, Mobile, for appellant.
    Habib Yazdi, Mobile, for appellee.
   THOMAS, Judge.

Harold E. Dunn, Sr. (“the husband”), and Debra A. Dunn (“the wife”) were married on January 13, 2005. There are no children of the marriage. On November 28, 2011, the wife filed a complaint in the Mobile Circuit Court seeking a divorce and a division of the marital assets and debts. On April 26, 2012, the case was called for a trial; at trial, the wife appeared pro se and the husband was represented by an attorney. That same day, the circuit court entered its judgment, which incorporated the parties’ settlement agreement (“the settlement agreement”), ■ which also was reached that same day. The judgment divorced the parties, awarded the marital residence to the husband, and awarded a 1999 Dodge Avenger automobile to the wife; each party retained the personal property that was in his or her possession. On May 25, 2012, the wife, then represented by an attorney, filed a verified motion to alter, amend, or vacate the April 26, 2012, judgment or, in the alternative, for a new trial. A hearing on the wife’s post-judgment motion was held on July 6, 2012. The circuit court heard the arguments of the parties’ attorneys, and, that same day, it entered its judgment denying the wife’s postjudgment motion without stating its reasons.

On August 17, 2012, the wife filed a timely appeal with this court seeking our review of one issue — whether the circuit court exceeded its discretion by .denying the wife’s postjudgment motion without taking testimony at the postjudgment hearing. The wife complains that, at the time she reached the settlement agreement with the husband, she suffered from various medical problems, was unable to afford an attorney, and was “intimidated and coerced by [the husband and the hus-bandj’s attorney.” She alleges that she was unaware of her ability to request an award that would include alimony or an interest in the marital residence.

Generally, allegations of fraud, duress, or coercion, if proven, may be grounds to set aside a divorce judgment. See Barganier v. Barganier, 669 So.2d 933, 938 (Ala.Civ.App.1995) (citing Kunkel v. Kunkel, 547 So.2d 555, 556 (Ala.Civ.App.1989)) (“A separation agreement incorporated into a divorce judgment must be fair, reasonable, and just, and free from fraud, duress, or other coercion.”). However,

“ ‘[a]n agreement reached in settlement of litigation is as binding on the parties as any other contract.... Moreover, there is a strong policy of law favoring, compromises and settlements of litigation, especially in suits involving families, since the honor and peace of the family is often at stake.’
“Porter v. Porter, 441 So.2d 921, 923 (Ala.Civ.App.1983). However, in the context of a divorce judgment, our courts have held that the trial court is not bound by the parties’ agreement but may accept the agreement or reject the agreement, in whole or in part. See, e.g., Porter, 441 So.2d at 924; see also Mullins v. Mullins, 770 So.2d 624 (Ala.Civ.App.2000); Kohn v. Kohn, 52 Ala.App. 636, 296 So.2d 725 (Civ.App.1974).”

Allen v. Allen, 903 So.2d 835, 840 (Ala.Civ.App.2004).

The wife contends that the circuit court erred by refusing to hear her testimony at the postjudgment hearing regarding her allegations of fraud, duress, or coercion occurring on April 26, 2012. A review of the transcript of the .hearing on the post-judgment motion reveals that the circuit-court judge did not allow the wife’s attorney to elicit any testimony on the, wife’s behalf. The entire proceeding consists of arguments of counsel, which are not considered evidence. See Singley v. Bentley, 782 So.2d 799, 803 (Ala.Civ.App.2000.) The following exchange took place at the beginning of the postjudgment hearing:

“[The wife’s attorney]: I filed the [post-judgment motion] on. [the wife]’s behalf after — when this Court rendered a divorce on — Judgment of Divorce on April the 26th of 2012 based on what was allegedly an agreement of the parties. I was going to have her testify.
“THE COURT: Well, I’m not going to have new testimony. I mean, you can argue why the Judgment of Divorce was entered in error.
“[The wife’s attorney]: Well, there was no testimony taken originally. This was — I’m actually asking for the divorce to be set aside and to reopen the case, but I can argue this particular motion.
“THE COURT: No, no, no. No, no, no. I’ll — you can make your argument, but I want just the legal argument as to why this divorce decree was in error.”

Thereafter the wife’s attorney argued that the wife had reached the settlement agreement when she was without the assistance of an attorney, under the stress of “a lot of different medical problems,” and coerced by the husband’s alleged “abusive and controlling” intimidation of her. The wife’s attorney further argued that the husband had committed fraud by failing to disclose his Social Security income and his employment income and by convincing the wife that he did not own the marital residence.

The husband’s attorney opposed the taking of further testimony because, he said, the wife had failed- to request a continuance at the April 26, 2012, trial and had failed to provide evidence of her medical problems or that she was intimidated into reaching the settlement agreement. Furthermore, the husband’s attorney said that the wife had failed to provide evidence indicating that the husband had committed fraud.

In Claybrook v. Claybrook, 56 So.3d 652 (Ala.Civ.App.2010), we concluded that the trial court had exceeded its discretion by denying the wife’s motion to alter, amend, or vacate the divorce judgment, which had incorporated the parties’ settlement agreement. We reversed the judgment of the trial court and remanded the cause, instructing the trial court to conduct further proceedings. Claybrook, 56 So.3d at 658. In Claybrook, the wife admitted that she had signed a settlement agreement but claimed that she had been coerced by the husband to do so. Id. at 658-59. She had not had the assistance of an attorney when she entered into the settlement agreement. Id. at 659. Before the divorce judgment was entered, the wife had filed a motion repudiating the settlement agreement and alleging coercion and threats of domestic violence; she informed the trial court that she no longer consented to the provisions of the settlement agreement because, she said, the settlement agreement was inequitable. Id. at 653. Furthermore, “[t]he wife submitted numerous exhibits in support of her motion.” Id. The trial court incorporated the settlement agreement into its divorce judgment without mentioning the wife’s repudiation of the settlement agreement. Id. The wife filed a post-judgment motion, with supporting exhibits, and, after a hearing, the trial court denied the wife’s motion. Id. at 654-55. Thus, other than the timing of the wives’ repudiations of the settlement agreements, the obvious difference between Claybrook and this case is the fact that the wife in this case failed to attach supporting exhibits to her filings.

In Whitman v. Whitman, 75 So.3d 1192, 1194 (Ala.Civ.App.2011), we considered the issue whether a trial court’s failure to conduct a requested postjudgment hearing on a divorce judgment that had incorporated the parties’ settlement agreement constituted reversible error. Whitman, 75 So.3d at 1193-94. In Whitman, we reversed the judgment and remanded the cause for the trial court to hold an eviden-tiary hearing. Id. at 1194. In reaching our conclusion, we discussed the wife’s allegations in her postjudgment motion that included specific grounds to set aside the divorce judgment. Id. at 1193. In Whitman, like in Claybrook, supra, the wife had attached an affidavit and supporting exhibits to her postjudgment motion. Whitman, 75 So.3d at 1193. This court concluded that, based on the affidavit and supporting exhibits, which were a part of the record on appeal, there was probable merit to the wife’s postjudgment contentions. Id.

In Wicks v. Wicks, 49 So.3d 700, 702 (Ala.Civ.App.2010), we determined that the trial court erred by refusing to hold a requested hearing on the husband’s post-judgment motion in which he had claimed that the wife had committed fraud by failing to disclose pertinent information to the court in a divorce proceeding. Again, the trial court had incorporated the parties’ settlement agreement into its divorce judgment. Id. at 700. The husband had filed a motion to stay enforcement of the agreement before the divorce judgment was entered and had referenced that filing in his postjudgment motion. Id. We concluded that his fraud allegation, if proven, might be a ground to set aside the agreement; thus, we reversed the judgment and remanded the cause, relying on Dubose v. Dubose, 964 So.2d 42 (Ala.Civ.App.2007). Id. at 702.

In Dubose, the trial court entered a divorce judgment that incorporated the purported agreement of the parties. 964 So.2d at 44. The husband alleged in “his verified postjudgment motion” that he had not signed any documents pertaining to the divorce. In footnote 1 we explained that

“ ‘ “[a] verified pleading may be treated as an affidavit and used in the action in any way in which an affidavit would be suitable[,]” ’ provided that the pleading ‘ “contain[s] facts that the affi-ant knows to be true of his or her own knowledge and [has] a certain level of factual specificity.” ’ Ex parte Quinlan, 922 So.2d 914, 917 (Ala.2005) (quoting 5A Charles Alan Wright & Arthur K. Miller, Federal Practice and Procedure: Civil 3d § 1339 (2004)).”

964 So.2d at 44 n. 1.

In this case, the wife did not attach affidavits or supporting exhibits as did the parties in Claybrook, Whitman, and Wicks; however, like the motion in Dubose, the wife’s postjudgment motion was verified. We treat the wife’s verified post-judgment motion, which contained factual specificity regarding the wife’s alleged reason for proceeding pro se at the trial, her alleged medical problems, and the alleged abusive relationship with the husband that, she said, resulted in her feeling coerced by the husband and his attorney, as an affidavit. Furthermore, she specified the amount and the type of property she brought to the marriage.

We conclude that the circuit court exceeded its discretion by failing to conduct an evidentiary hearing on the wife’s post-judgment motion. We therefore reverse the circuit court’s order denying the wife’s postjudgment motion, and we remand the cause with instructions that the circuit court conduct an evidentiary hearing. However, on remand, the circuit court shall independently determine whether the evidence the wife presents establishes that the divorce judgment should be set aside.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, MOORE, and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs in the result, without writing.