Glasgow v. Jackson Land Surveying, LLC

• Decision Date: 07 April 2017
• Docket Number: 2151016
• Citation: 236 So.3d 111
• Parties: Ronald R. GLASGOW v. JACKSON LAND SURVEYING, LLC
• Court: Alabama Court of Civil Appeals

236 So.3d 111

Ronald R. GLASGOW

v.JACKSON LAND SURVEYING, LLC

2151016

Court of Civil Appeals of Alabama.

April 7, 2017

Ronald R. Glasgow, pro se.

David F. Law, Rockford, for appellee.

THOMAS, Judge.

In May 2016, Ronald R. Glasgow, acting pro se, filed in the Clay Circuit Court ("the trial court") a complaint naming Jackson Land Surveying, LLC ("the surveyor"), as a defendant. Glasgow asserted that the surveyor had negligently performed a survey that had, as a result, incorrectly determined the boundary line between his property and the property owned by John Hatfield. According to the complaint, Hatfield had purchased his property from Sanford Suggs, who had hired the surveyor to perform the survey in preparation for the sale of the property to Hatfield. Glasgow also alleged that the alteration in the boundary line between his and Hatfield's properties as a result of the survey affected his use of an easement. He further asserted that two other sets of adjoining landowners, the Hetisimers and the Hannerses, were also negatively affected by the allegedly incorrect boundary line. Glasgow requested that the dispute regarding the contested boundary line be settled and sought damages in the amount of "$20,000 or less, as determined by the court."

On August 2, 2016, the surveyor moved to dismiss Glasgow's complaint. In its motion, the surveyor stated, without elaboration, that Glasgow had failed to state a claim for relief and that he had failed to join necessary and indispensable parties to the action. The trial court set the motion for a hearing to be held on August 16, 2016.

On August 15, 2016, Glasgow filed an amended complaint. In that amended complaint, Glasgow stated that he had sought and received permission to join the Hetisimers and the Hannerses as additional plaintiffs to the action. Glasgow also added Hatfield and Vickie Sheraron as additional defendants. In addition, in a separate motion, Glasgow sought to have Mrs. John Fables, the owner of the real property upon which the easement he had mentioned in his complaint was situated, added to the action as an "involuntary plaintiff." See Rule 19(a), Ala. R. Civ. P. ("If [a] person [determined to be a necessary party] should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff.").

After the hearing, the trial court entered, on August 16, 2016, an order granting the surveyor's motion to dismiss; the order did not indicate the basis for the dismissal of the claims against the surveyor. That order also denied Glasgow's motion to add Fables as an involuntary plaintiff. The order noted that the "matter [would be] continued generally for service on the remaining parties." Sheraron was served on August 17; Hatfield was served on August 19. On August 20, 2016, the trial court entered an order in which it struck the amended complaint insofar as it attempted to add the Hetisimers and the Hannerses as plaintiffs because, the trial court stated, Glasgow could not add plaintiffs because he was acting as a pro se litigant. Glasgow appealed the trial court's August 16 and August 20 orders to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to Ala. Code 1975, § 12–2–7(6).

The surveyor argues that Glasgow's appeal should be dismissed because, the surveyor says, the appeal was taken from a nonfinal judgment. As the surveyor correctly notes, at the time the trial court entered the August 16, 2016, order, Glasgow had named two additional defendants—Hatfield and Sheraron—in his amended complaint. Typically, the failure of a trial court to adjudicate all claims against all defendants precludes finality. Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990) ("An appeal ordinarily will lie only from a final judgment—i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved."). However, when the trial court entered the dismissal order on August 16, 2016, the only defendant who had been served with process was the surveyor. Rule 4(f), Ala. R. Civ. P., provides:

"When there are multiple defendants and the summons ... and complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment."

Under Rule 4(f), the August 16, 2016, order was final as to the surveyor. See Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n.2 (Ala. 1984) (denying, pursuant to Rule 4(f), a motion to dismiss an appeal on the basis that the judgment appealed from was not final because there remained unserved defendants below); Williams v. Fox Television Stations of Birmingham, Inc., 959 So.2d 1120, 1122 (Ala. Civ. App. 2006) (concluding that a summary judgment entered in favor of the only party that had been served at the time of the entry of that judgment was a final judgment at the time of its entry), overruled on other grounds by Ex parte Luker, 25 So.3d 1152 (Ala. 2007) ; and Harris v. Preskitt, 911 So.2d 8, 14 (Ala. Civ. App. 2005) (stating that an unserved defendant had never been a party to the action and that the judgment was final as to the served defendants without need for a judgment dismissing the unserved defendant). Accordingly, we will consider the merits of Glasgow's appeal insofar as it involves that aspect of the August 16, 2016, order dismissing the claims against the surveyor.

As noted, the trial court did not explain its basis for granting the motion to dismiss the claims against the surveyor. The surveyor argues in its brief on appeal that the dismissal was proper under Rule 12(b)(6), Ala. R. Civ. P., because Glasgow could not show that the surveyor had breached any duty to Glasgow because, it says in its brief on appeal, it "was hired by Mountain Streams Realty to survey property owned by Suggs" and Glasgow was therefore, it contends, not a "foreseeable plaintiff." Our review of a dismissal order under Rule 12(b)(6) is well settled.

" ‘ "On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.], is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." ’ "

Donoghue v. American Nat'l Ins. Co., 838 So.2d 1032, 1036 (Ala. 2002) (quoting C.B. v. Bobo, 659 So.2d 98, 104 (Ala. 1995), quoting in turn Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993) ).

Indeed, as the surveyor contends, a plaintiff like Glasgow seeking to establish that a defendant is negligent must prove, among other things, "a duty to a foreseeable plaintiff." Martin v. Arnold, 643 So.2d 564, 567 (Ala. 1994) ("To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury."). The surveyor contends, in essence, that Glasgow's status as a stranger to the contract under which the survey was performed prevents him from being a "foreseeable plaintiff," i.e., one to whom the surveyor owed a duty. However, contrary to the surveyor's contention that negligence cannot lie where a plaintiff has no privity of contract, a person to whom a party owes a duty—i.e., a "foreseeable plaintiff"—includes a third party who could foreseeably be injured if a party to a contract fails to properly carry out its duties under that contract. QORE, Inc. v. Bradford Bldg. Co., 25 So.3d 1116 (Ala. 2009) ; Vick v. HSI Mgmt., Inc., 507 So.2d 433 (Ala. 1987) ; and Federal Mogul Corp. v. Universal Constr. Co., 376 So.2d 716, 724 (Ala. Civ. App. 1979) ("[A] plaintiff may nevertheless recover in negligence for [a] defendant's breach of duty where [the] defendant negligently performs his contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable.").

In QORE, our supreme court explained the concept that a duty to a third party could arise under a contract:

"In Harris v. Board of Water & Sewer Commissioners of Mobile, 294 Ala. 606, 613, 320 So.2d 624, 630 (1975), this Court held that ‘where one party to a contract assumes a duty to another party to that contract, and it is foreseeable that injury to a third party—not a party to the contract—may occur upon a breach of that duty, the promissor owes that duty to all those within the foreseeable area of risk.’ A breach of such a duty that results in injury to a third party who is ‘within the foreseeable area of risk’ is actionable negligence. Id."

QORE, 25 So.3d at 1124. However, our supreme court further explained that a party seeking to recover under a negligence theory based on a contract between others must prove that it relied on the proper performance of the contract. Id. at 1124–25.

"Even when a third party is not in privity with the parties to a contract and is not a third-party beneficiary to the contract, the third party may recover in negligence for breach of a duty imposed by that contract if the breaching party negligently performs the contract with knowledge that others are relying on proper performance and the resulting harm is reasonably foreseeable."

Id. at 1124 (citing Cincinnati Ins. Cos. v. Barber Insulation, Inc., 946 So.2d 441, 446–47 (Ala. 2006) ).

We find Cincinnati Insurance Companies v. Barber Insulation, Inc., particularly instructive. The...