Dahyalal H. PATEL
Ashish SHAH, individually and in his capacity as president, treasurer, director, and controlling shareholder of Subway No. 43092, Inc.; Ramesh Shah, individually and in his capacity as secretary of Subway No. 43092, Inc.; and Subway No. 43092, Inc.
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from Madison Circuit Court (CV-12-901307).
W. Holt and Angela M. Schaefer of Bradley Arant Boult
Cummings LLP, Huntsville, for appellant.
Patrick O. Miller and Timothy P. Pittman of Dick &
Miller, P.C., Huntsville, for appellees.
H. Patel filed an action seeking to enforce his ownership
rights as a shareholder in Subway No. 43092, Inc. ("the
corporation"), against shareholder Ashish Shah
("Shah"); Shah's father, Ramesh Shah
("Ramesh"); and the corporation (hereinafter
referred to collectively as "the Shah defendants").
The Madison Circuit Court entered a summary judgment in favor
of the Shah defendants. Patel appeals. We affirm in part and
reverse in part.
Facts and Procedural History
2007, Shah, the owner of eight Subway restaurants in and
around Madison County, prepared to open a ninth Subway
restaurant in Huntsville ("the restaurant"). In
July 2008, Shah formed the corporation for the purposes of
owning and operating the restaurant. Shah owned 90 percent of
the stock of the corporation and Ramesh owned 10 percent.
2008, Patel met with Shah about Shah's plan to open the
restaurant. At some point, Patel and Shah orally agreed that
Patel would purchase a 25 percent ownership interest in the
corporation. Because Shah estimated that start-up costs for
the restaurant would be $240,000, Patel agreed to purchase a
25 percent interest in the corporation for $60,000, payable
in monthly installments. After the restaurant opened in
December 2008, Shah began making periodic distributions of
profits to Patel.
April 2009, Shah orally agreed to sell Patel an additional
five percent interest for $12,000, which Patel paid that
month. In December 2009, Patel began making the monthly
payments on the purchase price for his original 25 percent
interest, and he eventually paid the $60,000. Accordingly,
Patel owned a 30 percent interest in the corporation, and he
continued to receive distributions of profits of the
September 2012, Patel sued the Shah defendants, alleging that
Shah had misrepresented the start-up costs for the restaurant
in calculating the price of Patel's 25 percent interest.
Patel alleged that the actual start-up costs were $140,000
rather than $240,000, as Shah had represented. Accordingly,
Patel alleged that he either overpaid for his interest or
acquired more than a 50 percent interest in the corporation.
Patel further alleged that the distributions of profits he
received were not proportional to his interest, even assuming
that his interest was 30 percent. In addition, he claimed
that Shah had withheld Patel's share of franchise-sales
commissions that the corporation received from its
franchisor, Doctor's Associates, Inc. Finally, Patel
alleged that Shah had engaged in illegal business practices
such as hiring illegal immigrants and filing false tax
returns. Patel's complaint asserted claims of breach of
contract and unjust enrichment. Patel also asserted several
tort claims, including claims of shareholder
oppression, civil conspiracy, breach of fiduciary duties,
fraudulent suppression, misrepresentation, conversion, waste,
statutory violations, and fraud. The Shah defendants
asserted several counterclaims against Patel. The circuit
court consolidated Patel's case with cases filed by other
persons against Shah relating to the ownership and operation
of other restaurants. The restaurant was subsequently sold to
a third party in 2016, and the proceeds were placed in escrow
pending final resolution of Patel's action.
Shah defendants moved for a summary judgment in Patel's
case based on their affirmative defense that Patel's
breach-of-contract claim was barred by the Statute of Frauds,
§ 8-9-2, Ala. Code 1975. The Shah defendants also argued
that Patel's tort claims were barred by the applicable
statutes of limitations and that, if they were not
time-barred, there were no genuine issues of material fact as
to those claims. The circuit court granted the motion for a
summary judgment. The circuit court later dismissed the Shah
defendants' counterclaims on August 20, 2018. Patel filed
his notice of appeal on October 1, 2018. The other
consolidated cases remain pending in the circuit court.
Standard of Review
review a summary judgment de novo. McClendon v. Mountain
Top Indoor Flea Market, Inc., 601 So.2d 957, 958 (Ala.
"`A summary judgment is proper when there is no
genuine issue of material fact and the moving party is
entitled to a judgment as a matter of law. Rule 56(c)(3),
Ala. R. Civ. P. The burden is on the moving party to make a
prima facie showing that there is no genuine issue of
material fact and that it is entitled to a judgment as a
matter of law. In determining whether the movant has
carried that burden, the court is to view the evidence in a
light most favorable to the nonmoving party and to draw all
reasonable inferences in favor of that party. To defeat a
properly supported summary judgment motion, the nonmoving
party must present "substantial evidence"
creating a genuine issue of material fact —
"evidence of such weight and quality that fair-minded
persons in the exercise of impartial judgment can
reasonably infer the existence of the fact sought to be
Pritchett v. ICN Med. Alliance, Inc., 938 So.2d 933,
935 (Ala. 2006) (quoting Capital Alliance Ins. Co. v.
Thorough-Clean, Inc., 639 So.2d 1349, 1350 (Ala. 1994)).
addressing the merits of Patel's appeal, we first address
this Court's jurisdiction to consider the appeal while
the other consolidated cases remain pending below. By
granting the Shah defendants' summary-judgment motion and
dismissing the Shah defendants' counterclaims against
Patel, the circuit court resolved all the claims and disposed
of all the parties in Patel's case. At that time, Patel
could not immediately appeal the judgment in his case without
an order from the circuit court certifying the judgment as
final under Rule 54(b), Ala. R. Civ. P. See Hanner v.
Metro Bank & Protective Life Ins. Co., 952 So.2d
1056, 1061 (Ala. 2006) (holding that "a trial court must
certify a judgment as final pursuant to Rule 54(b), Ala. R.
Civ. P., before a
judgment on fewer than all the claims in a consolidated
action can be appealed").
11 days after the circuit court dismissed the counterclaims,
after having earlier entered the summary judgment, in
Patel's case, this Court overruled Hanner in
Nettles v. Rumberger, Kirk & Caldwell, P.C., 276
So.3d 663 (Ala. 2018). We held that, "[o]nce a final
judgment has been entered in a case, it is immediately
appealable, regardless of whether it is consolidated with
another still pending case." Nettles, 276 So.3d
at 669. After Nettles was released, Patel filed his
notice of appeal in his case. Hence, this case presents the
question whether Patel was ...