Merrick v. Merrick

Decision Date11 September 2020
Docket Number2190324
Citation321 So.3d 1268
Parties Brian James MERRICK v. Brandi Rhodes MERRICK
CourtAlabama Court of Civil Appeals

Terinna S. Moon of Moon & Melvin, LLC, Prattville, for appellant.

Chip Cleveland of The Cleveland Firm, LLC, Prattville, for appellee.


Brian James Merrick ("the husband") appeals from an order entered by the Autauga Circuit Court ("the trial court") in a divorce proceeding between him and Brandi Rhodes Merrick ("the wife"). We dismiss the appeal as being from a nonfinal judgment.

The husband and the wife married on July 17, 2010, and separated in February 2018. On April 11, 2018, the wife filed a petition in the trial court seeking a legal separation from the husband. Thereafter, the husband filed an answer and a counterclaim for a divorce, and the wife filed a reply to the husband's counterclaim. The wife subsequently amended her pleadings to also seek a divorce.

On February 8, 2019, the husband and the wife filed a third-party complaint in the divorce proceeding. The third-party complaint asserted claims against Ben Milam and U Park U Sell, LLC ("UPUS"), an Alabama limited-liability company of which Milam is a member, alleging breach of a purported loan agreement and fraud. Those claims purportedly arose out of a $33,000 loan or investment that the husband and the wife had made regarding UPUS.

The record includes a civil summons issued to UPUS in conjunction with the third-party complaint. The summons was filed on February 18, 2019, and the return on service in the summons reflects that the summons and a copy of the third-party complaint were served on Milam, who is the registered agent for UPUS, on February 15, 2019. The record before us includes no civil summons issued to Milam, individually, and it is unclear whether he was served with process in his individual capacity. The State Judicial Information System case-action-summary sheet includes an entry stating that Milam appeared pro se; there is no indication that UPUS retained counsel. See Progress Indus., Inc. v. Wilson, 52 So. 3d 500, 507-08 (Ala. 2010) (stating that a corporate officer, who is a layperson, may not appear on behalf of the corporation). Neither Milam nor UPUS filed an answer to the third-party complaint.

The trial court conducted ore tenus proceedings on August 6, 2019, and November 6, 2019. During those proceedings, counsel for the husband and counsel for the wife requested that the trial court enter a default judgment regarding their third-party claims; neither Milam nor UPUS appeared at trial. On December 26, 2019, the trial court entered a "Final Decree of Divorce" purporting to divorce the husband and the wife, to divide their marital property, and to award the wife rehabilitative alimony. The December 2019 order also included the following: "That the [husband and the wife] have obtained a judgment against Ben Milam in the sum of $35,000.00 compensatory damage[s] and $35,000.00 punitive damages." The December 2019 order makes no reference to the purported third-party claims against UPUS.

The husband filed a purported postjudgment motion, which he subsequently amended, requesting that the trial court modify its property division and arguing, in part, that the rehabilitative-alimony award to the wife was not supported by the evidence and exceeded his ability to pay. On January 17, 2020, the husband filed a notice of appeal, and, thereafter, the trial court purported to enter an order on February 11, 2020, regarding the husband's purported postjudgment motion.

The February 2020 order purported to make certain adjustments to the property division between the husband and the wife but left the rehabilitative-alimony provision "as originally ordered."

"[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987). "The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case." Owens v. Owens, 739 So. 2d 511, 513 (Ala. Civ. App. 1999). We directed the husband and the wife to file letter briefs addressing whether a final judgment has been entered in this case in light of the trial court's apparent failure to adjudicate the third-party claims against UPUS. See, e.g., Deutsche Bank Nat'l Tr. Co. v. Karr, 306 So. 3d 882, 890 (Ala. 2020) (stating that a final judgment must leave nothing for further adjudication and that a nonfinal judgment will not support an appeal). They responded by filing a joint letter brief arguing that the trial court's order did adjudicate the claims against UPUS. We disagree.

In their joint letter brief, the husband and the wife argue that the purported adjudication of their claims against Milam was also an adjudication of their claims against UPUS. According to the husband and the wife, Milam and UPUS are "interchangeable third party defendants" because Milam is the registered agent, and allegedly the sole member, of UPUS. However, the third-party complaint clearly asserts claims against two separate defendants, Milam, in his individual capacity, and UPUS, a limited-liability company. A limited-liability company is a distinct legal person from its members. See Ala. Code 1975, § 10A-5A-3.01, and the Comment to that Code section. The December 2019 order references only the adjudication of the claims against Milam; UPUS is never mentioned in that order. The third-party complaint includes no allegations that UPUS is a sham entity or that its existence could be ignored for purposes of adjudicating the claims asserted in the third-party complaint. Also, in tension with the interchangeability argument, the husband and the...

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2 cases
  • M.R.E. v. M.J.E.
    • United States
    • Alabama Court of Civil Appeals
    • 11 d5 Setembro d5 2020
  • Merrick v. Merrick
    • United States
    • Alabama Court of Civil Appeals
    • 29 d5 Outubro d5 2021
    ...Horton, supra. As noted above, on September 11, 2020, this court dismissed the husband's appeal as being from a nonfinal judgment, see Merrick, supra. On November 4, the husband and the wife filed a joint motion to sever their claims against Milam and UPUS "so the parties can proceed in a s......

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