Ronald R. Glasgow
Jackson Land Surveying, LLC
from Clay Circuit Court (CV-16-6)
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."
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.
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
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).
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.
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
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)).
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
QORE, our supreme court explained the concept that a
duty to a third ...