BE&K INC. v. Baker
Decision Date | 05 September 2003 |
Citation | 875 So.2d 1185 |
Parties | BE&K, Inc., et al. v. Alex D. BAKER et al. |
Court | Alabama Supreme Court |
James W. Gewin and Philip J. Carroll III of Bradley Arant Rose & White, LLP, Birmingham; and Hewitt L. Conwill of Conwill & Justice, Columbiana, for appellants BE&K, Inc., and BE&K Properties, Inc.
William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham; and Frank C. Ellis, Jr., of Wallace, Ellis, Fowler & Head, Columbiana, for appellants Polar Property Development, Inc., and Polar Real Estate Corporation.
James A. Harris, Jr., James A. Harris III, and Clyde O. "Tres" Westbrook III of Harris & Harris, LLP, Birmingham; and James W. Fuhrmeister of Allison, May, Alvis, Fuhrmeister, Kimbrough & Sharp, Birmingham, for appellees Alex D. Baker; SNA, Inc.; Baker, Inc.; and Ron Carlson.
BE&K, Inc., BE&K Properties, Inc., Polar Real Estate Corporation, and Polar Property Development, Inc. (hereinafter referred to collectively as "the counterclaim defendants"), appeal, pursuant to Ala. R.App. P. 5, from the trial court's interlocutory order denying their motions for judgment on the pleadings. We granted permission to appeal, and we now dismiss the appeal without prejudice.
Polar-BEK Company ("Polar-BEK") is a joint venture consisting of two corporations—BE&K Properties, Inc., and Polar Property Development, Inc. Polar-BEK owns Iberia Corporation ("Iberia"). Polar-BEK and Iberia are partners in several partnerships with Alex D. Baker; SNA, Inc.; Baker, Inc.; and Ron Carlson (hereinafter referred to collectively as "the Baker defendants").
Polar-BEK and Iberia initiated this action by filing a complaint against the Baker defendants in the Shelby Circuit Court. In their complaint, after identifying their partnerships with the Baker defendants, Polar-BEK and Iberia alleged that "certain disputes have arisen among certain of the partners," and requested "that the court conduct an equitable accounting as to each partnership and declare the rights, obligations and liabilities of the partners in each partnership." The complaint also contained what it described as "alternative" breach-of-contract claims against Alex D. Baker.
The Baker defendants answered the complaint, stating counterclaims against Polar-BEK and Iberia. The parties to this appeal agree that the Baker defendants' claims are compulsory counterclaims, as defined by Ala. R. Civ. P. 13(a). The counterclaims against Polar-BEK and Iberia remain pending in the trial court.
The Baker defendants did not limit their counterclaim to Polar-BEK and Iberia. Instead, they also asserted their claims against the counterclaim defendants, which were made parties to the counterclaim, as allowed by Ala. R. Civ. P. 13(h). After answering the counterclaim, the counterclaim defendants filed motions for a judgment on the pleadings as to the claims asserted against them in the counterclaim, contending that each claim was barred by the applicable statute of limitations. On December 17, 2002, the trial court denied the motions for a judgment on the pleadings.
The counterclaim defendants promptly requested that the trial court enter the certification required by Ala. R.App. P. 5(a), which would allow them to request permission from this Court to appeal from the interlocutory order denying their motions for a judgment on the pleadings. On January 9, 2003, pursuant to the counterclaim defendants' request, the trial court entered the following order:
(Emphasis added.) On January 22, 2003, the counterclaim defendants filed in this Court a petition for permission to appeal under Ala. R.App. P. 5, which this Court granted on February 11, 2003.
As previously stated, this is an appeal by permission, pursuant to Ala. R.App. P. 5. Rule 5 was amended effective June 1, 2002. Since that date, Rule 5 has provided, in pertinent part:
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