from Tuscaloosa Circuit Court (CV-13-900284)
Howard appeals a summary judgment entered in favor of one of
several defendants, Big M Excavating, Inc. ("Big
M"). Because the judgment is not final, we dismiss the
appeal. The documents included in record on appeal indicate
the following. In 2006 Howard purchased Lot 13 Autumn Ridge
("Lot 13") from Pinnacle Development Properties,
Inc. ("Pinnacle Development"). The septic-tank
system on Lot 13 eventually failed and could not be repaired.
In 2009 Hometown Properties, LLC ("Hometown
Properties"), and Wayne Foster purported to convey to
Howard an additional property ("the S.D. lot") for
Howard's use as a "sewer easement"; however,
according to Howard, he later discovered that neither
Hometown Properties nor Foster owned the S.D. lot. It appears
that the parcel that included the S.D. lot had, instead, been
owned by Hometown Residential Properties, Inc.
("Hometown Residential"), subject to a mortgage in
favor of West Alabama Bank & Trust ("the
certain sewer lines that terminated on the S.D. lot were
connected to the waste-disposal system on Lot 13. In February
2010 the bank foreclosed on Hometown Residential's
mortgage and purchased the parcel that contained the S.D. lot
at the foreclosure sale. Big M purchased the parcel that
contained the S.D. lot from the bank. In 2012 Big M cut the
sewer lines leading from Lot 13 to the S.D. lot.
March 2013 Howard commenced an action in the Tuscaloosa
Circuit Court against Foster, Hometown Properties, Hometown
Residential, Pinnacle Development, and fictitiously named
defendants A-F. In April 2013 Pinnacle Development filed a
motion to dismiss all claims against it, which the circuit
court granted. In May 2013 Foster, Hometown Properties, and
Hometown Residential filed an answer and a motion to dismiss
pursuant to Rule 12(b), Ala. R. Civ. P. Although no such
order appears in the record, the State Judicial Information
System case-action-summary sheet contains the following
entry: "6/25/2013 ... ORDER DENYING MOTION TO DISMISS
AND CANCELLING HEARING." (Capitalization in original.)
December 2013 Howard filed a motion seeking to add Big M as a
defendant, which the circuit court granted. Foster filed a
suggestion of bankruptcy, and the circuit court placed the
action on its administrative docket for a period. In March
2015 Howard filed a motion seeking to return the action to
the circuit court's active docket. Foster filed a motion
to dismiss all claims against him, which reads, in its
"COMES NOW the undersigned attorney for Defendant Wayne
Foster and hereby files this Motion to Dismiss any and all
claims against Defendant Wayne Foster pursuant to the
attached Chapter 7 Discharge Order.
"Further, the undersigned [attorney] moves the Court to
allow him to withdraw as counsel for Hometown Properties,
LLC[, ] and Hometown Residential Properties, Inc., as these
entities have no assets, are no longer doing business, and
counsel has not been retained in this matter by said
the circuit court entered an order granting Foster's
motion to dismiss on March 26, 2015, Howard filed an amended
complaint in which he alleged, in pertinent part, that
"the defendants" were liable for damages for
negligence and wantonness and that Big M, specifically, was
liable for damages for trespass. The circuit court entered an
order dismissing Foster from the action. That order reads, in
pertinent part: "All other claims remain pending."
Thus, Howard's claims against Hometown Properties,
Hometown Residential, Big M, and fictitiously named
defendants A-F remained pending.
filed a motion for a summary judgment, a brief in support,
and certain deeds as exhibits. Howard filed his own affidavit
in response. The circuit court entered a summary judgment in
favor of Big M, which reads, in pertinent part: "Summary
Judgment is entered in favor of Defendant Big M Excavating,
Inc.[, ] on all claims asserted by [Howard] against said
Defendant." The circuit court did not certify the
judgment as final pursuant to Rule 54(b), Ala. R. Civ. P.
filed a motion to reconsider, which the circuit court denied.
On May 10, 2016, Howard filed a notice of appeal to the
Alabama Supreme Court. The appeal was transferred to this
court by the supreme court, pursuant to § 12-2-7(6),
Ala. Code 1975.
the parties do not raise any argument regarding this
court's jurisdiction to consider the appeal,
"jurisdictional 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). See also Ex parte
Smith, 438 So.2d 766, 768 (Ala. 1983)("Lack of
subject matter jurisdiction may not be waived by the parties
and it is the duty of an appellate court to consider lack of
subject matter jurisdiction ex mero motu.").
"'With some exceptions not applicable here, an
appeal lies only from a final judgment. Ex parte
Green, 58 So.3d 135, 144 (Ala. 2010); see also Bean
v. Craig, 557 So.2d 1249, 1253 (Ala. 1990); §
12-22-2, Ala. Code 1975. "The general rule is that a
trial court's order is not final [for purposes of appeal]
unless it disposes of all claims as to all parties."
Dickerson v. Alabama State Univ., 852 So.2d 704, 705
"First Commercial Bank of Huntsville v. Nowlin,
122 So.3d 829, 831 (Ala. 2013) (footnote ...