Desiree D. Million v. Albert L. Shumaker. ( 2023 )

Rel: April 7, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Desiree D. Million
v.
Albert L. Shumaker
Appeal from DeKalb Circuit Court
(CV-22-900035)
MENDHEIM, Justice.
Desiree D. Million owns property in Mentone that borders property
owned by Steve Carpenter and Colleen Duffley. A boundary-line dispute
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arose between Million and Carpenter and Duffley. Million, acting pro se,
ultimately commenced an action in the DeKalb Circuit Court against
Carpenter, Duffley, and several other defendants who were involved in
the dispute between Million and Carpenter and Duffley. Among others,
Million named Albert L. Shumaker as a defendant; Shumaker, an
attorney, had been retained by Carpenter and Duffley in relation to the
boundary-line dispute and had sent, on behalf of Carpenter and Duffley,
a cease-and-desist letter to Million. Upon Shumaker's motion, the circuit
court entered an interlocutory order dismissing Shumaker from the
action. Million, again acting pro se, appealed the circuit court's
interlocutory order. We dismiss the appeal.
Facts and Procedural History
According to Million's complaint, Carpenter and Duffley own
property adjacent to Million's property and operate on their property a
hotel, Andiamo Lodge, which is owned by Andiamo Lodge, LLC.1
Carpenter and Duffley hired Johnny Croft, a licensed professional land
surveyor with Croft Land Surveying, Inc., to conduct a survey of their
1Carpenter and Duffley are the only members of Andiamo Lodge,
LLC.
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property and to determine the boundary lines of their property. Croft
conducted the survey on April 14, 2021. According to Million, Croft's
survey did not properly identify the boundary line between Million's
property and Carpenter and Duffley's property. Million asserts that the
relevant boundary line depicted in Croft's survey indicates that a portion
of Million's property is actually owned by Carpenter and Duffley.
Specifically, the boundary-line dispute centers on the width of a portion
of Million's property that she uses as a driveway: Million asserts that the
entirety of the length of her driveway is 50 feet wide; Croft's survey
indicates that the driveway is 40 feet wide at one end and widens to
50 feet wide at the opposite end.
At some point thereafter, Carpenter and Duffley constructed a shed
on the boundary line between Million's property and Carpenter and
Duffley's property depicted in Croft's survey. Million asserts that the
shed constructed by Carpenter and Duffley sits partially on her property.
In January 2022, Million hired William Short, a licensed professional
land surveyor, to conduct a survey of her property and to determine the
boundary lines of her property. Short's survey depicted a different
boundary line between Million's property and Carpenter and Duffley's
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property than did Croft's survey. According to the survey conducted by
Short, the entirety of the length of Million's driveway is 50 feet wide. As
a result, according to Short's survey, the shed constructed by Carpenter
and Duffley sits partially on Million's property. Million asserts that she
notified Carpenter and Duffley of Short's survey and of the discrepancy
between it and Croft's survey.
Subsequently, Carpenter and Duffley retained Shumaker as their
attorney. On January 19, 2022, Shumaker, on behalf of Carpenter and
Duffley, sent Million the following letter:
"I have been requested by Steve Carpenter and Colleen
Duffley to contact you regarding the recent claims you have
made against the ownership and possession of their property
located on County Road 106, Mentone, Alabama.
Mr. Carpenter and Ms. Duffley have engaged the services of
Johnny Croft, a surveyor in Fort Payne, who has surveyed
their property and placed pins at the corners of same. The
lines as established by Mr. Croft clearly show that your claims
as to ownership of their property is contrary to the survey.
This is to request that you cease and desist in your claims to
the Carpenter/Duffley property and your failure to do so will
result in legal action."
Carpenter and Duffley did not, however, pursue legal action against
Million. According to Million's complaint, Short and Croft discussed the
discrepancy between their surveys, and Croft agreed that he had made a
mistake. On February 16, 2022, Croft revised his survey to indicate,
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consistent with Short's survey, that the entirety of the length of Million's
driveway is 50 feet wide. On February 25, 2022, Carpenter and Duffley
sent Million an email, which states, in pertinent part, that Short's survey
"was correct. [Croft's] survey[ was] … wrong. If we had known
[Croft's survey] was wrong the … shed would never have been
placed where it was.
"From our perspective we have three options[:]
"1.) Trade you ten feet of property on north side of your
drive[way] for the 10 feet on the south side of the property.
Simple and effective, actually gives you more trees.
"2.) Move our shed to just inside property lines, and put
up a privacy fence. Costs us, but again, effective.
"3.) Buy your property for $250,000."
Million's complaint states that Million did not respond to Carpenter and
Duffley's email.
On March 7, 2022, Million commenced an action against Carpenter,
Duffley, Andiamo Lodge, LLC, Shumaker, Croft, and Croft Land
Surveying. The claims that Million is asserting against the defendants
are not entirely clear. Million's complaint states, in pertinent part:
"Title 42 Section 1983 Complaint
"4th USC Amendment Deprivation
"Steve Carpenter, Unlawful Detainer of Real Property
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"Colleen Duffley, and DOES[2] Plaintiff Requests an
Order for 1 through 50 Inclusive, Defendants to Vacate, And
Request for Compensatory Damages, and payment from
Defendants.
"Defendants:
"Steve Carpenter -- Unlawful Detainer of Real Property,
Land Encroachment, Cease and Desist letter from his
attorney, Trying to steal my land, mental and physical stress
and duress, Color of authority
"Colleen Duffley -- Unlawful Detainer of Real Property,
Land Encroachment, Cease and Desist letter from her
attorney, Trying to steal my land, mental and physical stress
and duress, Color of authority
"John Croft -- Unlawful Detainer of Real Property per
his licensed land survey, Color of Authority
"Andiamo Lodge -- Unlawful Detainer of Real Property,
Land Encroachment, Color of Authority
"Albert L. Shumaker -- Unlawful Detainer of Real
Property without Due Process, Violation of Constitutional
Rights and Privileges denied to me without due process 1st,
4th, and 8th and or 14th Amendment via Cease and Desist
Letter, Color of Authority
"and DOES Plaintiff Requests an Order for 1 through 50
inclusive
"….
2Although Million's complaint is not abundantly clear, it appears
that her use of the term "DOES" or "DOE" is her attempt to sue
fictitiously named defendants.
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" To: The Court and all Parties of interest, The Plaintiff
Desiree D. Million, hereby sues the above captioned
defendants, Steve Carpenter, Colleen Duffley, Andiamo
Lodge, John Croft, Albert L. Shumaker, and an Order for 1
through 50 inclusive for property deprivation, and conspiracy
to deprive personal and real property from the plaintiff
Desiree D. Million who therefore sues for damages, litigation
fees, hardship, and mental and physical duress, where she
demands redress with punitive damages due to deliberate
actions, causing an undue burden and stress who therefore
sues for compensatory damages of $950,000.00 and Plaintiff
also sues as DOE defendants 1 through 50, the court will be
asked to amend the true names of DOE defendants during the
course of this civil action In and For this Honorable Court."
On April 6, 2022, Carpenter, Duffley, and Andiamo Lodge, LLC,
filed a motion to dismiss the claims asserted against them pursuant to
Rule 12(b)(1) and (6), Ala. R. Civ. P. On April 11, 2022, Shumaker filed
a motion to dismiss the claims asserted against him pursuant to
Rule 12(b)(6). On April 20, 2022, Million filed a response to the pending
motions to dismiss.
On April 29, 2022, Million filed a motion for an "independent land
survey." Million noted the discrepancies between her deed for her
property, Short's survey, and Croft's survey and requested that an
"independent land survey … be conducted by the court."
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On May 9, 2022, Croft filed a motion to dismiss the claims against
him.3 On May 10, 2022, Carpenter, Duffley, and Andiamo Lodge, LLC,
filed additional motions to dismiss. On May 16 and 19, 2022, Million filed
responses to the various motions to dismiss filed by the defendants.
On July 13, 2022, Million filed a motion for both a preliminary and
a permanent injunction against Carpenter and Andiamo Lodge, LLC.
Million stated in her motion that she "desires to purchase or build a shed
on her deeded land" but that she is unable to do so because the shed built
by Carpenter and Duffley is sitting partially on her property where she
desires to build her shed. On July 14, 2022, Carpenter and Andiamo
Lodge, LLC, filed a motion "to strike [Million's] … motion for preliminary
injunction."
On August 22, 2022, following a hearing of which there is no
transcript, the circuit court entered several orders. First, the circuit
court entered an order granting Shumaker's motion to dismiss, stating
that "all claims against … Shumaker are hereby DISMISSED with
3We note that, on May 9, 2022, an attorney, J. David Dodd, filed a
notice of appearance on behalf of Croft and Croft Land Surveying. Dodd,
however, filed the May 9, 2022, motion to dismiss on behalf of Croft alone;
the motion filed on Croft's behalf does not mention Croft Land Surveying.
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prejudice." (Capitalization in original.) Second, the circuit court entered
an order stating that "all claims against … Croft Land Surveying … are
hereby DISMISSED with prejudice." 4 (Capitalization in original.) Third,
the circuit court entered an order denying Million's motion for a
preliminary injunction. Finally, the circuit court entered the following
order concerning Carpenter, Duffley, and Andiamo Lodge, LLC:
"This cause came for hearing on August 15, 2022, on …
Steve Carpenter, Colleen Duffley, and Andiamo Lodge[,
LLC]'s motion to dismiss. After consideration of the testimony
and evidence presented at the hearing, it is ORDERED,
ADJUDGED and DECREED as follows:
"1. The court finds that Andiamo Lodge[, LLC,] owns no
real property made subject to this suit. As such, … Andiamo
Lodge[, LLC]'s motion is due to be granted. All claims against
Andiamo Lodge[, LLC,] are hereby DISMISSED.
"2. All claims against … Steve Carpenter and Colleen
Duffley regarding any assertion under Title 42 [of the United
States Code] are hereby DISMISSED.
"3. For any remaining claims against … Steve Carpenter
and/or Colleen Duffley regarding the alleged land line
dispute, [Million] shall amend her complaint within thirty
(30) days to provide a more clear and concise statement of her
allegations.
4As noted above, Croft Land Surveying did not file a motion to
dismiss, only Croft did. See note 3, supra. The circuit court has not
entered an order concerning the claims against Croft, who did file a
motion to dismiss. It appears that Million's claims against Croft are still
pending in the circuit court.
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"4. Further, each party shall submit to the court within
thirty (30) days the names of two (2) land surveyors that they
would cho[o]se to nominate to the court to appoint for an
independent survey of the disputed property. The court will
select a surveyor from that list. The cost of said survey will be
split equally among the parties."
(Capitalization in original.)
On August 23, 2022, Shumaker filed a motion requesting that the
circuit court certify as final, pursuant to Rule 54(b), Ala. R. Civ. P., its
order dismissing, with prejudice, all the claims against him. On
August 29, 2022, before the circuit court ruled on Shumaker's Rule 54(b)
motion, Million filed a notice of appeal to the Court of Civil Appeals;
Million's appeal was later transferred to this Court. On September 11,
2022, after Million had already appealed, the circuit court purported to
enter an order certifying as final, pursuant to Rule 54(b), its August 22,
2022, order granting Shumaker's motion to dismiss.
On February 6, 2023, after having issued a show-cause order on
December 12, 2022, this Court's Clerk's Office issued an order dismissing
Carpenter, Duffley, Andiamo Lodge, LLC, Croft, and Croft Land
Surveying from Million's appeal. The Clerk's Office's order states that
the circuit court's August 22, 2022, orders concerning those parties were
not final judgments and, thus, cannot serve as the basis for an appeal,
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which is correct. Accordingly, the only remaining appellee before this
Court is Shumaker.
Discussion
As noted above, the circuit court's order dismissing Million's claims
against Shumaker was an interlocutory order because it did not
adjudicate the rights or liabilities of all the parties. It is well established
that "[a]n order in an action involving multiple parties or claims that fails
to adjudicate the rights or liabilities of all the parties is ordinarily not a
final order and therefore will not support an appeal. … Rule 54(b)[, Ala.
R. Civ. P.]; Tubbs v. Brandon, 366 So. 2d 1119 (Ala. 1979)." Foster v.
Greer & Sons, Inc., 446 So. 2d 605, 607 (Ala. 1984) (overruled on other
grounds by Ex parte Andrews, 520 So. 2d 507 (Ala. 1987)). In the present
case, at the time Million commenced her appeal on August 29, 2022, the
circuit court had not entered a Rule 54(b) order certifying as final its
August 22, 2022, order granting Shumaker's motion to dismiss. After
Million commenced her appeal, the circuit court, on September 11, 2022,
purported to enter a Rule 54(b) order certifying as final its August 22,
2022, order in favor of Shumaker, but that order was a nullity. See
Foster, 446 So. 2d at 607 ("The [Rule] 54(b)[, Ala. R. Civ. P.,] orders
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entered after the appeal was taken were nullities, since the trial court
was without power at that time to enter them. Thames v. Gunter-Dunn,
Inc., 365 So. 2d 1216 (Ala. 1979)."). This is so because, "[w]hen an appeal
is taken, unless it is from a proper Rule 54(b)[, Ala. R. Civ. P.,] order, the
appeal divests the lower court of jurisdiction over the case until the
appellate court provides a disposition of the appeal -- even if the appeal
is premature, i.e., from a nonfinal judgment." Erskine v. Guin, [Ms.
1200401, Jan 6. 2023] ___ So. 3d ___, ___ (Ala. 2023). Consequently,
Million's appeal as to the circuit court's August 22, 2022, order in favor
of Shumaker is due to be dismissed as having been taken from a nonfinal
judgment.
We note that this Court has adopted a procedure by which, rather
than dismissing an appeal from a nonfinal judgment, we may remand the
case in certain circumstances. In Foster, this Court stated:
"In light of the purpose behind Rule 54(b)[, Ala. R. Civ.
P.,] we take this opportunity to announce a new procedure in
this Court. When it appears from the record that the 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)
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certification is entered. This should not be viewed as an
attempt to promote the improper use of Rule 54(b), but only
as a means of advancing the policy behind Rule 54(b) in a
proper case. Rule 54(b) certifications should be granted only
in exceptional cases and 'should not be entered routinely or as
a courtesy or accommodation to counsel.' Page v. Preisser, 585
F.2d 336, 339 (8th Cir. 1978).
"This approach does not conflict with the rule stated in
Thames v. Gunter-Dunn, Inc., 365 So. 2d 1216 (Ala. 1979). It
is still true that the trial court is without jurisdiction to enter
a Rule 54(b) certification after an appeal is taken. However, if
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. Adoption of this procedure will advance the
policy considerations underlying Rule 54(b) by speeding up
the process of reaching the merits in a proper case. It
eliminates the inconvenience and cost of dismissing the
appeal and then taking a new appeal after obtaining the
Rule 54(b) certification."
446 So. 2d at 609-10 (footnote omitted).
In the present case, however, we are dismissing the appeal filed by
Million, rather than remanding the case pursuant to the procedure
announced in Foster, because it is not clear at this point in the
proceedings whether the circuit court's August 22, 2022, order in favor of
Shumaker could be properly certified as final under Rule 54(b). As noted
in Foster, a remand under the procedure announced in Foster imbues the
trial court with "the limited jurisdiction to enter a 54(b) certification if,
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in its discretion, it decides the entry of such a certification is appropriate."
446 So. 2d at 610. In the present case, however, it is not entirely clear
exactly what claims Million has asserted against the defendants. In fact,
in its August 22, 2022, order concerning Million's claims against
Carpenter, Duffley, and Andiamo Lodge, LLC, the circuit court
specifically ordered Million to "amend her complaint within thirty (30)
days to provide a more clear and concise statement of her allegations."
Dismissing the appeal will allow the circuit court to receive Million's
amended complaint, which will hopefully allow the circuit court to
discern the actual claims Million is asserting. Until there is greater
clarity concerning Million's claims, it does not seem prudent at this
juncture to remand the case and limit the circuit court's jurisdiction to
simply choosing whether to enter a Rule 54(b) certification of the
interlocutory order dismissing Million's claims against Shumaker.
A Rule 54(b) certification is not proper if " ' "the issues in the claim
being certified and a claim that will remain pending in the trial court
' "are so closely intertwined that separate adjudication would pose an
unreasonable risk of inconsistent results." ' " ' " Fuller v. Birmingham-
Jefferson Cnty. Transit Auth., 147 So. 3d 907, 911 (Ala. 2013) (quoting
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Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1263 (Ala. 2010)).
Although the claims Million has asserted are not entirely clear, it appears
from the allegations in her complaint that she has asserted claims
making this case more than a simple boundary-line dispute. For
instance, Million has asserted, among other things, claims of conspiracy
against all the defendants (Million alleged that she is suing the
"defendants … for property deprivation, and conspiracy to deprive
personal and real property from the plaintiff Desiree D. Million ….").
Conspiracy claims against all the defendants, including Shumaker,
alleging that they conspired to deprive Million of her property, would be
closely intertwined with one another, raising the risk of inconsistent
results from separate adjudication. Accordingly, we do not think it wise
to remand this case to the circuit court, and to vest that court with the
limited jurisdiction to determine whether to enter a Rule 54(b)
certification, rather than dismissing the appeal and allowing the circuit
court to determine the exact claims Million has asserted and then to
determine if a Rule 54(b) certification is appropriate as to any of the
orders it entered on August 22, 2022.
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Conclusion
Based on the foregoing, we dismiss Million's appeal as having been
taken from a nonfinal judgment.
APPEAL DISMISSED.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur.
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