Dellinger v. Bank

Decision Date13 August 2021
Docket Number1190430
CourtAlabama Supreme Court
PartiesRobbie Dellinger, Joe S. Kimbrough, and Steve Kimbrough, LLC v. Bryant Bank, Audrey Flemming, and Michael Francis Flemming III

Appeal from Jefferson Circuit Court (CV-18-903544)


This case arises from a residential-construction dispute in Jefferson County. Robbie Dellinger and Steve Kimbrough, LLC ("the plaintiffs"), sued Bryant Bank, Audrey Flemming, and Michael Francis Flemming III ("the defendants") for the cost of work performed on the Flemmings' property. The trial court issued a final judgment in favor of the defendants. Later, the plaintiffs filed an amended complaint adding Joe S. Kimbrough as a plaintiff, which the trial court struck. Kimbrough and the plaintiffs ("the construction parties") appealed. Because the construction parties' appeal is untimely, we lack jurisdiction and must dismiss the appeal.

Facts and Procedural History

Audrey and Michael Flemming sought to build an addition to their Birmingham home and secured financing from Bryant Bank to do so. In 2017, the Flemmings were introduced to a contractor Robbie Dellinger, who offered his services for their home-expansion project. Throughout his career, Dellinger performed various jobs in the residential home-building trade and often did business as Home Maintenance and Repair ("HMA"). He also served as a member, officer, and employee of Steve Kimbrough, LLC, for which he did residential contracting work. Steve Kimbrough, LLC, was managed by another contractor, Joe S. Kimbrough, who frequently worked with Dellinger on projects. Dellinger told the Flemmings that HMA was not a licensed home builder but that HMA performed work under the supervision and control of licensed home builder Joe S. Kimbrough and as an employee member, and officer of Steve Kimbrough, LLC. Dellinger took the job and, with Joe S. Kimbrough, began work on the home expansion.

After the work on the home concluded, Dellinger submitted a bill to the Flemmings for labor and materials totaling $421, 744.07. The Flemmings refused to pay. Dellinger sent several letters to the Flemmings threatening to file a lien against their property if they continued to deny him payment, but the Flemmings maintained that they did not owe Dellinger anything.

On September 4, 2018, Dellinger filed and recorded a lien against the Flemmings' home. Two days later, Dellinger filed suit against the defendants in the Jefferson Circuit Court to recover the costs of the home-expansion project and to gain priority over Bryant Bank's mortgage on the Flemmings' property. Within a month, the defendants moved to dismiss Dellinger's claims based on lack of subject-matter jurisdiction. They argued that because Dellinger was not a licensed home builder, Alabama's home-builder licensure statute, §34-14A-1 et seq., Ala Code 1975, deprived him of the ability to bring his claims. Specifically, they cited § 34-14A-14(d), Ala. Code 1975 which states that "[a] residential home builder, who does not have the license required, shall not bring or maintain any action to enforce the provisions of any contract for residential home building which he or she entered into in violation of" the home-builder licensure statute.

The trial court held a hearing on the defendants' motions to dismiss. Before the trial court could rule on those motions, Dellinger amended his complaint to add Steve Kimbrough, LLC as a plaintiff. The defendants responded with new motions containing arguments similar to those asserted in their first motions to dismiss. This time, however, they styled their motions as "Motions to Dismiss, or in the Alternative Motions for Summary Judgment," and attached supporting affidavits. They argued that the plaintiffs still could not bring their claims because neither held the home-builder's license necessary to do so. Although Joe S. Kimbrough possessed a home-builder's license as an individual, Steve Kimbrough, LLC, did not possess the required license.

The trial court held a hearing on the defendants' new motions on March 12, 2019, and had before it materials outside the pleadings, including affidavits submitted by both sets of parties. On May 29, 2019, the trial court entered an order granting the defendants' motions ("the May order"). The trial court held that because § 34-14A-14(d) barred Dellinger and Steve Kimbrough, LLC, from bringing their claims, it lacked subject-matter jurisdiction over the case. Accordingly, it dismissed, with prejudice, any and all claims asserted by Dellinger and Steve Kimbrough, LLC, against the defendants.

Ten days after the trial court issued the May order, Dellinger and Steve Kimbrough, LLC, amended their complaint again. In addition to reasserting all claims previously brought by Dellinger and Steve Kimbrough, LLC, the second amended complaint added Joe S. Kimbrough as a plaintiff. The construction parties filed two motions requesting that the trial court reconsider its ruling in the May order. The first of those motions was a "Motion to Reconsider" filed on June 9, 2019. That motion specifically stated that it was not a motion to alter, amend, or vacate pursuant to Rule 59(e), Ala. R. Civ. P. The second motion, filed on June 28, 2019, was a Rule 59(e) motion to alter, amend, or vacate the May order. The defendants jointly moved to strike the second amended complaint and contested the construction parties' other motions.

The trial court denied the construction parties' motion to alter, amend, or vacate on August 27, 2019. It granted the defendants' motion to strike the second amended complaint in January 2020. This appeal followed on February 19, 2020.[1]

The construction parties primarily argue that the trial court erred in denying them the ability to amend the complaint again after the issuance of the May order. In their view, the May order was not a final judgment, and Rules 15 and 78, Ala. R. Civ. P., entitled them to add Joe S. Kimbrough via subsequent amendment. The defendants view the May order as a final judgment that began the construction parties' time to appeal. Because the construction parties did not appeal until well after the time allowed by Rule 4, Ala. R. App. P., the defendants argue that this Court should dismiss the appeal as untimely.

Standard of Review

This Court has consistently held that the timeliness of a notice of appeal is a matter of jurisdiction. See, e.g., Beatty v. Carmichael, 293 So.3d 874, 877 (Ala. 2019) ("[W]ithout a timely filed notice of appeal, the jurisdiction of this Court is not invoked, meaning that this Court has no authority or power to review the judgment being appealed."); Harden v. Laney, 118 So.3d 186, 187 (Ala. 2013) (" 'Timely filing of the notice of appeal is a jurisdictional act. It is the only step in the appellate process which is jurisdictional.' ") (citation omitted)); Holmes v. Powell, 363 So.2d 760, 762 (Ala. 1978) (noting that the "timely filing of the notice of appeal is jurisdictional"). We may consider jurisdictional matters ex mero motu. Harden, 118 So.3d at 187 (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987)).


The dispositive question here is whether the trial court's May order was a final judgment. If the May order served as a final judgment, the clock for appealing began to run from the date of the order. In that scenario, the construction parties did not appeal in time -- even when their postjudgment motions are accounted for. On the other hand, if the May order was not a final judgment, the construction parties' appeal was timely because there was no final order from which to appeal until the trial court struck their second amended complaint in January 2020.

A. The May Order Was a Final Judgment

After the plaintiffs filed the amended complaint, the defendants filed "Motions to Dismiss, or in the Alternative Motions for Summary Judgment." While it is undisputed that the trial court granted those motions in some form, the precise action taken by the trial court in the May order is now contested by the parties. The construction parties assert that the May order merely granted the defendants' motions to dismiss under Rule 12(b)(1), Ala. R. Civ. P. In their view, the case was still alive after the entry of the May order and they could still amend the complaint under Rules 15 and 78, Ala. R. Civ. P. The defendants argue that the record supports their position -- that is, that the May order granted their summary-judgment motions under Rule 56, Ala. R Civ. P., and resolved the entire case.

When assessing whether a trial court has sufficiently issued a final judgment, we look to the substance of the order and not the particular words used by the trial court. See Rule 58(b), Ala. R. Civ. P.; Deutsche Bank Nat'l Trust Co. v. Karr, 306 So.3d 882, 888-89 (Ala. 2020) (examining the substance of the trial court's order to determine if a final judgment had been entered); Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316 (Ala. 2001) (same). "A written order or a judgment will be sufficient if it is signed or initialed by the judge ... and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication." Rule 58(b).

The May order was signed by the trial judge, and its substance "indicate[d] an intention to adjudicate" the case through summary judgment. This intention is clear based on the circumstances surrounding the order and the text of the order itself. First, the defendants definitively moved for summary judgment, and those motions were properly before the trial court. Second, the trial court was within its power to enter summary judgment at the time the defendants made their motions. The trial court based its order on the conclusion that it lacked subject-matter...

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