Leonard L. Hixon v. Premier Medical Group, Inc.

Rel: December 12, 2025

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,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

_________________________

SC-2025-0368
_________________________

Leonard L. Hixon

v.

Premier Medical Group, Inc.

Appeal from Mobile Circuit Court
(CV-24-903106)

COOK, Justice.

On December 5, 2022, Leonard L. Hixon underwent a medical

procedure at the Springhill Medical Center to remove a mass that had
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developed on the right side of his face. Dr. Kent L. Burton and other

medical professionals performed the procedure. Afterward, Hixon

allegedly suffered complications, including facial paralysis on the right

side of his face.

In December 2024, two years after that procedure took place, Hixon

sued, among others, Premier Medical Group, Inc. ("Premier"), in the

Mobile Circuit Court. In his complaint, Hixon alleged claims pursuant to

the Alabama Medical Liability Act ("the AMLA"), § 6-5-480 et seq. and §

6-5-540 et seq., Ala. Code 1975. Specifically, he alleged, among other

things, that Premier was vicariously liable for the actions of Dr. Burton

under the doctrine of respondeat superior ("the vicarious-liability claim").

Although Dr. Burton was also listed as a named defendant in the

caption of the complaint, he was not formally listed as a "party" within

the complaint. Additionally, Hixon did not serve a summons and

complaint on Dr. Burton.

In January 2025, Hixon amended his complaint to formally include

Dr. Burton as a party in his allegations. Hixon then served Dr. Burton

with a summons and copy of that amended complaint.

In response, Dr. Burton moved to dismiss the claims against him

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with prejudice on the basis that Hixon's claims against him in the

amended complaint were time-barred because Hixon had failed to bring

them within two years of his alleged injuries as required by the AMLA.

After Hixon's counsel filed a response stating "no opposition" to Dr.

Burton's motion, the trial court dismissed the claims against him with

prejudice. In doing so, however, the trial court noted that the case

remained active as to all other defendants in the action, including

Premier.

With Dr. Burton no longer a party to the action, Premier moved for

a summary judgment in its favor on the basis that, under the doctrine of

respondeat superior, a principal cannot be held vicariously liable for the

conduct of its agent when the claims against the agent have been

dismissed with prejudice. Hixon opposed Premier's motion on the basis

that the trial court had made clear in its order dismissing the claims

against Dr. Burton that the case remained active against all remaining

defendants, including Premier. He also filed a separate motion pursuant

to Rule 60, Ala. R. Civ. P., in which he asked the trial court to correct

what he described as a "clerical mistake" in its order by clarifying that it

had dismissed the claims against Dr. Burton without prejudice.

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Following a hearing, the trial court granted Premier's motion.

Hixon appealed. For the reasons stated below, we affirm that judgment.

Facts and Procedural History

I. Hixon's Original and Amended Complaints

As stated above, on December 5, 2022, Hixon underwent surgery to

have a mass removed from the right side of his face. Although Hixon

apparently began experiencing complications, including facial paralysis,

soon after that surgery, it was not until two years later on December 2,

2024, that Hixon brought the present action against 11 named

defendants, including Premier.

While Dr. Burton was listed as a named defendant in the original

complaint's caption, he was not listed in the "Parties" section of the

complaint. Additionally, although Hixon served Premier and the other 9

defendants with a copy of the summons and his complaint, he failed to

serve Dr. Burton. 1

1The other defendants were (1) Southern Medical Health Systems,

Inc.; (2) Specialtycare, Inc.; (3) Specialtycare IOM Services, LLC; (4)
Remote Neuromonitoring Physicians, PC; (5) Cynthia Naylor, CNIM; (6)
Saraswati Muttal, M.D.; (7) Physnergy, LLC; (8) Physnergy Medical
Services LLC; and (9) Ashik Jivan, M.D.

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On January 14, 2025, Hixon filed an amended complaint in which

he formally identified Dr. Burton in the "Parties" section. It is undisputed

that he then served Dr. Burton with a copy of the summons and the

amended complaint.

II. Dr. Burton's Motion to Dismiss Hixon's Claims Against Him

After being served with Hixon's amended complaint, Dr. Burton

moved to dismiss the claims against him pursuant to Rule 12(b)(6), Ala.

R. Civ. P., on January 29, 2025. In his motion, Dr. Burton asserted that

Hixon's claims were barred by the AMLA's two-year statute of

limitations, see § 6-5-482, Ala. Code 1975.2 The trial court set Dr.

2That Code section provides, in relevant part:

"(a) All actions against physicians, surgeons, dentists,
medical institutions, or other health care providers for
liability, error, mistake, or failure to cure, whether based on
contract or tort, must be commenced within two years next
after the act, or omission, or failure giving rise to the claim,
and not afterwards; provided, that if the cause of action is not
discovered and could not reasonably have been discovered
within such period, then the action may be commenced within
six months from the date of such discovery or the date of
discovery of facts which would reasonably lead to such
discovery, whichever is earlier; provided further, that in no
event may the action be commenced more than four years
after such act; except, that an error, mistake, act, omission, or
failure to cure giving rise to a claim which occurred before
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Burton's motion for a hearing on February 28, 2025.

At some point, Hixon's counsel called Dr. Burton's counsel and

stated that he agreed to let Dr. Burton out of the lawsuit. Hixon's counsel

then asked Dr. Burton's counsel to contact the trial court and ask it to

take Dr. Burton's motion to dismiss off the docket. Dr. Burton's counsel

declined that request, stating that he was not comfortable with

contacting the trial court on Hixon's behalf and that it would be "cleaner"

if Hixon's counsel filed a response to the pending motion. The parties

disagree as to whether anything else was said or agreed to during that

telephone call.

On February 7, 2025, Hixon filed his response to Dr. Burton's

motion to dismiss in which he stated that he did "not oppose Dr. Burton's

Motion to Dismiss" and asked the trial court to "dismiss Dr. Burton from

this action." He also asked the trial court to cancel the hearing on Dr.

Burton's motion "due to mootness." Hixon's filing did not include any

mention of a meeting or agreement with Dr. Burton's counsel on the

matter.

September 23, 1975, shall not in any event be barred until the
expiration of one year from such date."
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On February 12, 2025, the trial court entered an order granting Dr.

Burton's motion and dismissed the claims against him "with prejudice."

In support of its order, the trial court explained that Dr. Burton's

dismissal was warranted because Hixon's claims against him were time-

barred under § 6-5-482 of the AMLA and because Hixon did not oppose

Dr. Burton's dismissal. The trial court also made clear, however, that the

"[c]ase remains ACTIVE as to all other defendants." (Capitalization in

original.)

III. Premier's Summary-Judgment Motion

After the trial court dismissed the claims against Dr. Burton,

Premier filed a motion for a summary judgment in which it asserted that

Hixon's only allegation against it was that Premier "is vicariously liable

for the actions and inactions of its employee[] or agent[]," Dr. Burton,

"under the doctrine of respondeat superior." Because the claims against

its agent, Dr. Burton, had been dismissed with prejudice, Premier argued

that, as a matter of law, it could not be found vicariously liable and that

the vicarious-liability claim therefore had to be dismissed.

That same day, Hixon filed his response in opposition to Premier's

summary-judgment motion in which he argued that his decision to allow

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Dr. Burton to be dismissed from his action "unambiguously" showed that

he did not intend for Premier to be dismissed from his action. Further,

Hixon argued that the trial court "understood" his position, which, he

said, was evidenced by the trial court's language in the dismissal order

stating that the case was "ACTIVE as to all other defendants." Thus,

Hixon argued that the intent of the parties, coupled with the trial court's

understanding, showed that "the dismissal of [Dr.] Burton was a pro

tanto release of an agent with the rights against the principal[, Premier,]

reserved."

IV. Hixon's Rule 60, Ala. R. Civ. P., Motion

While Premier's summary-judgment motion was pending, Hixon

filed a Rule 60, Ala. R. Civ. P., motion for relief in which he asked the

trial court to correct what he described as a "clerical mistake" in its order

dismissing the claims against Dr. Burton with prejudice. Specifically,

Hixon asked the trial court to "clarify that the dismissal of Dr. Burton

was made without prejudice under an interlocutory order, not as a final

appealable judgment under Rule 54(b)[, Ala. R. Civ. P.,] that would

operate adversely to [his] claims against Defendant Premier Medical

Group, Inc." (Emphasis added.) He further argued that a failure to make

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that clarification "would operate adversely to the Court's express

determination that the case remains 'ACTIVE' as to all other defendants,

including Dr. Burton's principal, Defendant Premier Medical Group,

Inc."

On February 26, 2025, Premier filed its response in opposition to

Hixon's Rule 60 motion in which it argued that the trial court's dismissal

of the claims against Dr. Burton with prejudice was proper because a

dismissal under the statute of limitations operates as a judgment on the

merits. According to Premier, once a judgment on the merits has been

entered in favor of the agent, the principal can no longer be liable for the

agent's actions under a vicarious-liability theory. Finally, Premier

argued that the order's language that the "[c]ase remains ACTIVE as to

all other defendants" merely acknowledged the procedural status at that

point of the litigation and did not constitute a guarantee that Premier

would remain a defendant until trial even if there was no cognizable

claim against it.

After Hixon filed his reply, the trial court held a hearing on Hixon's

Rule 60 motion on February 28, 2025. During that hearing, the trial court

specifically clarified that it had added the phrase the "[c]ase remains

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ACTIVE as to all other defendants" to its order to make clear that it was

not dismissing all the defendants from the action at that specific point in

the litigation:

"THE COURT: Okay. Dr. Burton was dismissed. The
parties agreed he should be dismissed. I got a proposed order
from the defense and the only change that I made -- and I do
this with every order -- I learned the hard way that if I don't
put the last paragraph that says the case remains active as to
all other defendants, my clerks don't read the whole order,
and they dismiss the whole case. It happened to me a couple
of times. So now I'm always sure, if there's some sort of pro
tanto dismissal … that I put that in the end. So I probably
added that paragraph.

"[Premier's counsel]: You did, Your Honor, and that's
standard when somebody is dismissed. I've seen that in every
court where they do that for administrative reasons."

(Emphasis added.)

Despite that clarification, Hixon's counsel asked the trial court to

modify its order to state that the order dismissing the claims against Dr.

Burton formally reserved his claims against all the remaining

defendants, including Premier, so that that order could serve as a basis

for denying Premier's summary-judgment motion:

"[Hixon's counsel]: … So the Court inserted that
language on its own, and it understood that, you know, there
was an agreement that Dr. Burton would be dismissed …. I
think the Court understood that, you know, I will put this
language in there so it's clear to everybody that the case is
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going to remain active and proceed against all the remaining
Defendants. And so that language, I believe, severs the claims
against all other Defendants for separate disposition.

"….

"… [T]he Plaintiff is asking the Court … to just clarify
in a revisionary order that the disposition of Dr. Burton does
indeed formally sever and reserve the claims against all of the
Defendants, including Premier.

"So if the Court were to grant this relief, then the record
would unambiguously speak the truth of the Court's
disposition. …

"….

"… [I]f [Premier's] motion for summary judgment is
heard without this relief, the intent of the Court's order will
likely be confused, and with a clarification, I think Premier
should understand it does not have a basis for summary
judgment ….

"….

"… The proposed order submitted with the Plaintiff's
reply brief would serve to remove any justification for
Premier's motion for summary judgment, and it would
eliminate any potential argument for appellate review …."

(Emphasis added.) The trial court declined Hixon's request to further

modify its order and made clear that Premier and the other remaining

defendants in the action were free to file whatever motions they deemed

necessary at that point in the litigation:

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"THE COURT: … I think we all agree but agree
differently that … when I entered this order that we're here
about, if you would have asked me when I hit enter, I would
have said everybody else is still in.

"….

"And I don't know how it could be understood any other
way. Now, after that, you know, procedurally whatever
motions are made legally, you know, of course [the remaining
Defendants] have a right to make, but I'm making no opinion
[on that] whatsoever …. I don't think that this order that I
entered has any impact on, as of that date, your claims
against Premier. …

"….

"… I haven't read the summary judgment, but let me say
this: … when I entered this order, whoever the other
Defendants are, Premier and whoever else, they're still in the
case to be dealt with.

"….

"By a separate disposition.

"….

"… So I don't see any need to revisit the order in any
way. I don't think the 'with' or 'without prejudice' … [is] not
going to change any position that we're in now. I think that it
is true that the statute [of limitations] had run [as to Dr.
Burton] and y'all agreed with that, that it is with prejudice,
you cannot bring the claim again. …

"….

"So the motion to clarify or whatever under whichever
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rule is denied ….

"[Premier's counsel]: Just one point of clarification.
Obviously, with the meaning of your statement within the
order … all Defendants could seek dismissal by other
resolution or argument would also include what we've raised
and set to be heard in our motion for summary judgment.

"….

"… Only meaning that we can still argue the Premier
motion [for summary judgment] later.

"THE COURT: Of course, I mean, as to that party. In
the law, every claim against every party is different."

(Emphasis added.)

After denying Hixon's Rule 60 motion, the trial court then

scheduled a hearing on Premier's summary-judgment motion for April

11, 2025.

V. Supplemental Filings and the Hearing on Premier's Summary-
Judgment Motion

Hixon thereafter filed a supplement to his response in opposition to

Premier's summary-judgment motion in which he noted that, as of the

entry of the trial court's dismissal order, all the remaining defendants

besides Dr. Burton remained in the case for "separate disposition."

According to Hixon, that language indicated that the claims against all

other defendants in the action, including Premier, were "formally of

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record reserved and severed for separate disposition" and, by itself, was

a reason to deny Premier's motion.

Hixon later filed a second supplement to his response in opposition

to Premier's summary-judgment motion in which he argued that the trial

court's statement during the hearing on his Rule 60 motion clarifying

that the case remained active against the remaining defendants in the

lawsuit, including Premier, constituted the "law of the case." According

to Hixon, by making such a clarification, the trial court "unequivocally

affirmed that, by virtue of its pro tanto dismissal of Dr. Burton, … the

claims against all other parties, including Defendant Premier, were

severed or reserved for separate disposition." Per the "law-of-the-case"

doctrine, Hixon argued, the trial court was bound to follow the same rule

for subsequent stages of the litigation, meaning that it had an obligation

to deny Premier's summary-judgment motion and keep it in the

litigation.

In its reply to Hixon's supplemental filing, Premier argued that the

"law-of-the-case" doctrine did not apply because the trial court's order,

and subsequent clarification, that the case "remain[ed] active" as to all

other defendants did not change the fact that it could not be vicariously

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liable for Dr. Burton's acts or omissions under the doctrine of respondeat

superior. Premier further argued that Hixon had failed to otherwise

reserve the vicarious-liability claim for separate disposition because he

had not expressly done so as part of the pro tanto release of Dr. Burton

from the action.

The trial court held a hearing on Premier's motion on April 11,

2025. During that hearing, Premier argued that, once the claims against

an agent are dismissed with prejudice based on the statute of limitations,

a decision on the merits has been made as to those claims against the

agent and, thus, the principal cannot be separately liable for any actions

committed by the dismissed agent. Further, Premier noted there was

never any express agreement between the parties to reserve Hixon's

vicarious-liability claim against Premier as the principal as part of the

pro tanto release of Dr. Burton from the lawsuit.

The record before us indicates that, in response, Hixon reiterated

his assertion that the trial court "understood" that the pro tanto release

concerning Dr. Burton also operated to reserve his vicarious-liability

claim against Premier, which, he said, was evidenced by the trial court's

statement in its dismissal order that the "[c]ase remains ACTIVE as to

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all other defendants." He also reiterated his assertion that the "law-of-

the-case" doctrine required Premier to stay in the case.

After hearing the arguments from both parties, the trial court

determined that it was not "presented" with anything showing that "the

parties had agreed in some manner, whether by letter or filing, or an

agreement on the record or off the record," to reserve Hixon's vicarious-

liability claim against Premier. As a result, because "the law is that … a

principal cannot be held liable under respondeat superior or vicarious

liability when an agent has been dismissed with prejudice," the trial

court granted Premier's summary-judgment motion. The trial court

thereafter certified that judgment as final under Rule 54(b), Ala. R. Civ.

P., and this appeal followed.

Standard of Review

In reviewing a summary judgment, we apply the following standard

of review:

" 'This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
of material fact exists and that the movant is entitled to a
judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue
Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,
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952-53 (Ala. 2004). In making such a determination, we must
review the evidence in the light most favorable to the
nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Once the movant makes a prima facie showing that there is
no genuine issue of material fact, the burden then shifts to the
nonmovant to produce "substantial evidence" as to the
existence of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); Ala. Code 1975, § 12-21-12. "[S]ubstantial
evidence is 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 proved."
West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871
(Ala. 1989).' "

Hundley v. J.F. Spann Timber, Inc., 962 So. 2d 187, 191 (Ala. 2007)

(quoting Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39

(Ala. 2004)).

Discussion

On appeal, Hixon argues, among other things, that the trial court

improperly granted a summary judgment in favor of Premier because, he

says, the pro tanto release of Dr. Burton from his lawsuit reserved his

vicarious-liability claim against Premier. According to Hixon, this is

evident from the trial court's order dismissing the claims against Dr.

Burton which stated that the "[t]he case remains ACTIVE as to all other

defendants." By including that language in its dismissal order, Hixon

contends, the trial court affirmed his intention to have the vicarious-
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liability claim against Premier remain pending, meaning that Premier

was required to remain in the litigation. Based on the foregoing, Hixon

contends that the summary judgment in favor of Premier is due to be

reversed.

The decisive issue in this appeal is whether Hixon's vicarious-

liability claim against Premier was reserved following the dismissal of

the claims against Dr. Burton. Our Court has previously explained that,

generally, a dismissal with prejudice of claims against an agent

"constitute[s] an adjudication on the merits to the effect that [the agent]

was not guilty of committing [the alleged torts]," such that "[the

principal] could not be vicariously liable for those torts under the doctrine

of respondeat superior." Alfa Life Ins. Corp. v. Jackson, 906 So. 2d 143,

154 (Ala. 2005).

Thus, in general, the principal cannot be vicariously liable after a

dismissal with prejudice of the claims against the agent in the same suit

"unless in conjunction with the dismissal with prejudice the parties

entered into a settlement [or pro tanto] agreement that expressly

reserved the claimant's right to pursue claims against the principal."

Hundley v. J.F. Spann Timber, Inc., 962 So. 2d 187, 193 (Ala. 2007). Such

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pro tanto releases can sometimes be part of a paid settlement of claims

between the plaintiff and one defendant. See Ex parte Goldsen, 783 So.

2d 53, 55-57 (Ala. 2000) (recognizing that one defendant's paid settlement

agreement with the plaintiff sufficiently qualified as a pro tanto release

that must be credited against any judgment against another defendant,

even if the settling defendant is later found not liable); see also Campbell

v. Williams, 638 So. 2d 804, 812 (Ala. 1994) (acknowledging that a joint

tortfeasor's paid settlement with the plaintiff sufficiently qualified as a

pro tanto release that entitled the remaining tortfeasor to a setoff against

the verdict).

A pro tanto release agreement made by counsel must be in writing

or on the record in court. Compare § 12-21-109, Ala. Code 1975 ("All

receipts, releases and discharges in writing, whether of a debt of record,

a contract under seal or otherwise, and all judgments entered pursuant

to pro tanto settlements, must have effect according to their terms and

the intentions of the parties thereto.") with § 34-3-21, Ala. Code 1975 ("An

attorney has authority to bind his or her client, in any action or

proceeding, by any agreement in relation to such case, made in writing,

or by an entry to be made on the minutes of the court." (emphasis added));

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Rule 47, Ala. R. App. P. (requiring agreements between parties or counsel

to be in writing and signed by the party to be bound or made in open

court); Cincinnati Ins. Cos. v. Barber Insulation, Inc., 946 So. 2d 441, 449

(Ala. 2006) (holding that § 34-3-21 governs trial-level settlement

agreements, that Rule 47 governs appellate-level settlement agreements,

and that an attorney's trial-level settlement agreement during mediation

was unenforceable because there was no writing or entry on the trial

court's minutes); and Harris v. Preskitt, 911 So. 2d 8, 11-14 (Ala. Civ.

App. 2005) (holding that written correspondence between counsel,

including a pro tanto release, satisfied § 34-3-21 and created a binding

settlement agreement).

Here, the record indicates that Dr. Burton moved to dismiss Hixon's

claims against him pursuant to § 6-5-482 of the AMLA and Rule 12(b)(6).

After the trial court set that motion for a hearing, Hixon's counsel

allegedly notified Dr. Burton's counsel that Hixon agreed to let Dr.

Burton out of the lawsuit. There is nothing in the record indicating that

the parties discussed or agreed to what would happen to Hixon's

vicarious-liability claim against Premier once Dr. Burton was dismissed

from the lawsuit.

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Additionally, when Hixon filed his response "not oppos[ing]" Dr.

Burton's motion to dismiss, he did not expressly indicate that he wanted

to reserve his vicarious-liability claim against Premier. Instead, he

simply "request[ed] that the [trial] [c]ourt dismiss Dr. Burton from this

action." There is nothing in the record indicating that there was a written

agreement between counsel for Hixon and counsel for Dr. Burton with an

"express reservation" of the vicarious-liability claim against Premier.

Alfa Life Ins. Corp., 906 So. 2d at 155. Nor was there a similar verbal

agreement in "the minutes of the court." § 34-3-21 (emphasis added).

Thus, there was no pro tanto release between the parties expressly

reserving Hixon's vicarious-liability claim against Premier.

Based on Hixon's lack of opposition to Dr. Burton's dismissal and

the fact that Hixon's claims against Dr. Burton were time-barred under

the AMLA's statute of limitations, see § 6-5-482, the trial court decided

to dismiss the claims against Dr. Burton with prejudice. That

determination constituted an adjudication on the merits that exonerated

Dr. Burton from liability. See McGilvray v. Perkins, 407 So. 3d 283, 289

(Ala. 2024) (citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228

(1995)) (explaining that a judgment of dismissal based on the statute of

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limitations is treated the same as a judgment determining that there is

a failure to prove substantive liability, which is a judgment on the

merits). As the legal principles discussed above make clear, generally,

this would preclude the principal -- here, Premier -- from being held

vicariously liable for its agent's conduct unless an agreement existed

between the parties that expressly reserved Hixon's right to pursue his

vicarious-liability claim against Premier. See Hundley, 962 So. 2d at 193.

Nevertheless, Hixon contends that he expressly reserved his right

to pursue his vicarious-liability claim against Premier and that his

intention was confirmed by the trial court in a couple of different ways.

First, he notes that the trial court expressly stated in its dismissal order

that the "[c]ase remains ACTIVE as to all other defendants." Second, he

notes that the trial court's statement during the hearing on his Rule 60

motion that "Premier and whoever else, they're still in the case to be dealt

with" by "a separate disposition" also confirmed the trial court's

understanding that Hixon intended to reserve his right to pursue his

vicarious-liability claim against Premier. We disagree.

Putting aside the absence of any agreement by Dr. Burton to a pro

tanto release, the trial court's dismissal order also does not evidence that

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there was an "express reservation" of Hixon's vicarious-liability claim

against Premier.3 Although the trial court's dismissal order stated that

the "[c]ase remains ACTIVE as to all other defendants," the trial court

made clear during its hearing on Hixon's Rule 60 motion that its purpose

in adding the phrase "[the c]ase remains ACTIVE as to all other

defendants" to its order dismissing the claims against Dr. Burton with

prejudice was to reflect the status of the case at that point in the litigation

and nothing else. The trial court did not state that that portion of its

order should be understood as stating its understanding that Hixon had

expressly reserved his right to pursue his claims against the other

defendants, including his vicarious-liability claim against Premier.

3To be clear, to continue pursuing claims against nonsettling joint

tortfeasors, the plaintiff must reach an agreement with the settling joint
tortfeasors that expressly reserves the right for the plaintiff to pursue
claims against the nonsettling tortfeasors. See, e.g.,
§ 12-21-109, Ala. Code 1975; § 34-3-21, Ala. Code 1975; 2 Ally Windsor
Howell, Trial Handbook for Alabama Lawyers § 44:12 (3d ed. 2007) ("[A]n
injured person has the right to accept a pro tanto or partial satisfaction
from one joint tort feasor, release that tort feasor, and proceed against
any other joint tort feasors. … A pro tanto release must clearly reserve
the right to proceed against the other joint tort feasors, or all can be
deemed to have been released."); Elisabeth A. French, Julia T. Cochrun
& LaBella S. McCallum, Circuit Civil Trial and Evidence Practice
Pointers, 82 Ala. Law. 31, 34 (Jan. 2021) ("Plaintiffs' counsel should be
sure to reserve the right to proceed against remaining joint tortfeasors
when executing a pro tanto release to avoid any unintentional releases.").
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Additionally, although the trial court also said that Premier and

the other defendants were "still in the case to be dealt with" by "separate

disposition," that statement does not show that Hixon had expressly

reserved his right to pursue his vicarious-liability claim against Premier.

Our caselaw has recognized a reservation of claims against a principal in

a release only when there is clear evidence that the pro tanto release

expressly reserved the claims against that joint tortfeasor. See

Daugherty v. M-Earth of Alabama, Inc., 519 So. 2d 467, 468-69 (Ala.

1987) (holding that a pro tanto release must expressly reserve rights

against other tortfeasors in order to be effective and is to be given effect

according to its terms); see also Salter v. A. Fraser Pattillo, Jr., Inc., 519

So. 2d 930, 931-32 (Ala. 1988) (holding that a pro tanto release of an agent

does not bar claims against the principal when the release expressly

reserves claims against the principal). In fact, during the hearing on

Premier's summary-judgment motion, the trial court expressly noted

that it had not been "presented" with any evidence indicating that "the

parties had agreed in some manner, whether by letter or filing, or an

agreement on the record or off the record," that Hixon had expressly

reserved his vicarious-liability claim against Premier.

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Based on the foregoing, there is nothing in the record indicating

that a genuine issue of material fact existed as to whether there was an

express reservation of the vicarious-liability claim against Premier by

Hixon when the claims against Dr. Burton were dismissed with

prejudice. See Hundley, 962 So. 2d at 193 (citing Alfa Life Ins. Corp., 906

So. 2d at 154-55). With no such reservation, the legal principles discussed

above make clear that Premier cannot be separately liable for Dr.

Burton's conduct under the doctrine of respondeat superior.

Conclusion

For the reasons stated above, the trial court correctly entered a

summary judgment in favor of Premier. We therefore affirm that

judgment.4

AFFIRMED.

Stewart, C.J., and Wise, McCool, and Parker, JJ., concur.

Cook, J., concurs specially, with opinion.

Shaw, J., concurs in the result, with opinion.

4In light of our holding, the parties' other arguments on appeal need

not be addressed. See Jackson Hosp. & Clinic, Inc. v. Murphy, 343 So. 3d
490, 498 n.3 (Ala. 2021) (stating that the Court would pretermit
discussion of remaining issues considering the dispositive nature of
another issue).
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Bryan, Sellers, and Mendheim, JJ., concur in the result.

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COOK, Justice (concurring specially).

Although I am the author of the main opinion, I write specially to

note an issue not addressed by the parties either at the trial-court level

or on appeal -- that is, whether the dismissal with prejudice of the claims

against an agent based upon a nonmerits defense, like the statute of

limitations, also requires the dismissal of any claims against the

principal based on the doctrine of respondeat superior. I agree with

Justice Shaw that this issue is worth careful review, and, as I explain

below, there are different approaches that have been taken by states

across our country concerning this issue.

Before diving into those approaches, I first observe that, in

Alabama, our caselaw generally recognizes that, when a principal is

alleged to be vicariously liable for the actions of its agent under the

doctrine of respondeat superior, a verdict for the agent entitles the

principal to have any verdict against it set aside. See Larry Terry

Contractors, Inc. v. Bogle, 404 So. 2d 613, 614 (Ala. 1981) (" '[W]hen [a]

principal and his agent are sued in [a] joint action in tort for misfeasance

or malfeasance of the servant, and his liability for the conduct of said

servant is under the rule of respondeat superior, a verdict in favor of the

27
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servant entitles the master to have the verdict against him set aside.' "

(quoting Louisville & Nashville R.R. v. Maddox, 236 Ala. 594, 600, 183

So. 849, 853 (1938)) (emphasis added)). 5

Additionally, as explained in the main opinion, our caselaw

recognizes that, when the claims against an agent are dismissed with

prejudice during the pendency of an action, that dismissal "operates as

[an adjudication] on the merits" of the claims against the agent, ____ So.

3d at ____, which in turn "exonerate[s] the principal … from vicarious

liability for those alleged" claims. Alfa Life Ins. Corp. v. Jackson, 906 So.

2d 143, 154-55 (Ala. 2005).

Recently, in Rogers v. Cedar Bluff Volunteer Fire Department, [Ms.

SC-2025-0055, Aug. 29, 2025] ____ So. 3d ____ (Ala. 2025), our Court

reaffirmed that, under certain circumstances, if the principal proves that

an agent would not be liable because he is, for example, immune from

liability, the principal likewise cannot be liable under the doctrine of

5Of course, if there are allegations of actions or omissions of the

principal that are entirely independent of the agent's conduct, "a
principal may be liable where the agent is exonerated." Larry Terry
Contractors, Inc., 404 So. 2d at 614 (citing Otts v. Gray, 287 Ala. 685, 255
So. 2d 26 (1971)).

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respondeat superior. See Rogers, ____ So. 3d at ____ (recognizing that the

town, as the principal, "cannot be liable for the acts or omissions of its

volunteer firefighters who are immune from liability under the

[Volunteer Service Act]" (citing Gore v. City of Hoover, 559 So. 2d 163,

165 (Ala. 1990) (holding that a city could not be held vicariously liable for

the act of a magistrate who was immune from liability), overruled on

other grounds, Franklin v. City of Huntsville, 670 So. 2d 848 (Ala.

1995))). This recent reaffirmance in Rogers is particularly noteworthy

because, although the agent in that case stipulated to a consent judgment

against himself, we affirmed a summary judgment in favor of the

principal because the principal demonstrated that the agent could have

been immune from liability under the Volunteer Service Act.

Alabama's approach makes logical sense for the ordinary case. If

the agent did not commit the tort -- or if the agent did not act negligently

-- why should there be respondeat superior liability for the principal?

And, why would the courts ever allow inconsistent factual conclusions as

to claims against the agent and claims against the principal -- that is,

allow one jury to decide that the agent did not commit the tort but allow

a second jury to find the principal liable based solely upon an agent's

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alleged tortious conduct?

But the logic is less obvious if the result for the agent would be

because of a nonmerits defense. What if the plaintiff simply never files

suit against the agent and thus the statute of limitations expires? What

if the plaintiff does file suit against the agent, but does so too late?

In his special writing, Justice Shaw questions whether a dismissal

with prejudice of the claims against an agent based on a nonmerits

defense, like the statute of limitations, constitutes an adjudication on the

"merits" of those claims thus mandating the dismissal of the claims

against the principal based on respondeat superior. According to him, a

dismissal of a claim based on a nonmerits defense, like the statute of

limitations, is not a decision "on the merits" as to whether the agent is

liable and, thus, cannot form a basis for barring a claim against the

principal based on respondeat superior.

Justice Shaw has made an insightful point; however, I am not

certain that Alabama law has yet recognized the distinctions that he is

drawing. Given the resolution of this appeal, I have not yet reached a

conclusion on whether Alabama should adopt the rule noted by Justice

Shaw (and whether this rule would address only statute-of-limitations

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defenses) or any of the approaches taken by other states that are

discussed below. However, it is certainly an issue that I encourage future

litigants to raise and fully brief and which I also encourage the

Legislature to consider.

I. States in Favor of Allowing Litigation to Proceed Against the
Principal Even When Claims Against its Agent Are Dismissed with
Prejudice Based on the Statute of Limitations

I will begin with a discussion of the states that favor allowing

litigation to proceed against the principal when claims against its agent

are dismissed with prejudice based on the statute of limitations.

The Supreme Court of Mississippi recently considered this issue in

a case with facts similar to those in the present appeal. In Methodist

Healthcare-Olive Branch Hospital v. McNutt, 323 So. 3d 1051 (Miss.

2021), a plaintiff sued a doctor, alleging medical negligence. The plaintiff

also sued the hospital that employed him, asserting that it was

vicariously liable for the doctor's negligence. After the claims against the

doctor were dismissed with prejudice based on the statute of limitations,

the hospital moved for a partial summary judgment in its favor on the

plaintiff's vicarious-liability claims. The trial court denied that motion.

On appeal, the Supreme Court of Mississippi held that the

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dismissal of the claims against doctor based on the statute of limitations

did not bar the vicarious-liability claims against the hospital. Id. at 1059.

In support of its conclusion, the court explained that a "dismissal on

statute of limitations grounds … '… is not in fact an adjudication upon

the merits' because … [it] is 'not based on the merits of the case.' " Id. at

1059 (quoting Lee v. Swain Bldg. Materials of New Orleans, Inc., 529 So.

2d 188, 190-91 (Miss. 1988)) (emphasis added). Rather, the court

explained, " '[t]he mere fact that the judgment recited "with prejudice"

does not control' " because " '[a] final judgment on the merits is "a

judgment based on the evidence rather than on the technical or

procedural grounds." ' " Id. (citations omitted); (emphasis added).

Other states have adopted similar reasoning in concluding that

litigation should proceed against the principal even when claims against

the agent are dismissed with prejudice because of a nonmerits defense

like the statute of limitations. See, e.g., Hughes v. Doe, 273 Va. 45, 48-

49, 639 S.E.2d 302, 303-04 (2007) (allowing suit to proceed against the

principal after concluding that a dismissal with prejudice of the claims

against an agent on a ground such as the statute of limitations is not a

decision on the merits and thus cannot act as an exoneration of the

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principal); Cohen v. Alliant Enters., Inc., 60 S.W.3d 536, 537-38 (Ky.

2001) (holding that an employee's ability to avoid liability on statute-of-

limitations grounds does not insulate the employer from vicarious

liability and that the employee's negligence may still be established at

trial against the employer even if the employee is not a party); Laurence

v. Salt River Project Agric. Improvement & Power Dist., 255 Ariz. 95,

106, 528 P.3d 139, 150 (2023) (overruling prior precedent and holding

that dismissal of tort claims against an employee "not actually

adjudicated" does not automatically require dismissal of the claim based

on respondeat superior against the employer); Cameron v. Osler, 930

N.W.2d 661, 666 (S.D. 2019) (holding that the "purely procedural"

dismissal of a claim against the agent based on the statute of limitations

does not preclude the claim against the employer under the respondeat

superior doctrine because the dismissal of the claim against the agent

based on the statute of limitations does not "determine [the agent's]

culpability").

Likewise, the Supreme Court of Delaware has held that, in a

negligence action against a principal based on the principles of

respondeat superior, the dismissal on a procedural ground of claims

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against the agent does not automatically exonerate the principal of

vicarious liability. In Verrastro v. Bayhospitalists, LLC, 208 A.3d 720,

728-29 (Del. 2019), a case similar to the one now before us, a patient's

daughter, as the personal representative of the patient's estate, brought

a medical-negligence action against the doctors and the hospital

responsible for her mother's care. In concluding that the dismissal of the

claims against the doctors based on procedural grounds did not exonerate

the hospital from liability, the Supreme Court of Delaware explained that

the traditional respondeat superior principles regarding the judgment

"on the merits" language "was not intended to encompass procedural

dismissals that do not adjudicate the wrongfulness of the agent's

conduct." Id. at 728 (emphasis added).

Notably, the court observed that, in its view, a contrary rule would

be illogical. Specifically, the court observed that allowing the

"unnecessary choice to belatedly sue the [agents]" to "eviscerate" the

"otherwise-viable claim" against the principal would be to "condone an

absurd -- and, we suggest, unintended -- result." Id. at 729. 6

6In reaching its conclusion in Verrastro, the Supreme Court of
Delaware overruled its prior decision in Greco v. University of Delaware,
619 A.2d 900 (Del. 1993), which held that, if a plaintiff has failed to sue
34
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an employee within the applicable statute-of-limitations period, the
plaintiff is likewise barred from suing the employer under the principles
of respondeat superior. Verrastro, 208 A.3d at 728. According to the
Verrastro court, in reaching that conclusion in Greco, the court relied on
§ 217B(2) of the Restatement (Second) of Agency (Am. L. Inst. 1958),
which provides that " '[i]f the action is based solely upon the tortious
conduct of the agent, judgments on the merits for the agent and against
the principal, or judgments of varying amounts for compensatory
damages are erroneous.' " Id. at 727 (quoting Restatement (Second) of
Agency § 217B(2)).

The Verrastro court explained, however, that that section of the
Restatement (Second) of Agency "was meant to prevent substantively
inconsistent outcomes" but it was "not meant to reach the issue of
whether procedural defenses run from an agent to a principal." Id. at 728.
In support of its position, the Verrastro court, in a footnote, pointed to a
comment to § 217B(2), which cites the Restatement (First) of Judgments
§ 99 (Am. L. Inst. 1942), which states that

"[a] valid judgment on the merits and not based on a personal
defense, in favor of a person charged with the commission of
a tort … bars a subsequent action by the plaintiff against
another responsible for the conduct of such person if the
action is based solely upon the existence of a tort … by such
person, whether or not the other person has a right of
indemnity."

(Emphasis added.) See Verrastro, 208 A.3d at 728 n.37. In further
support of its position, the Verrastro court also pointed to § 217 of the
Restatement (Second) of Agency which states that "[i]n an action against
a principal based on the conduct of a servant in the course of employment
… [t]he principal has no defense because of the fact that … the agent had
an immunity from civil liability as to the act." See Verrastro, 208 A.3d at
728. Based on the foregoing, the Verrastro court reasoned that just as an
35
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II. States in Favor of Barring Further Litigation Against the
Principal When Claims Against the Agent Are Dismissed with
Prejudice Based on the Statute of Limitations or Other Similar
Grounds

As stated previously, there are other states that favor barring

further litigation against the principal once claims against the agent

have been dismissed with prejudice. In some states, this is true

regardless of the reason for the dismissal.

For example, in Arkansas, "[i]t is well-settled that when an

employee has been released or dismissed, and the employer has been

sued solely on a theory of vicarious liability, any liability of the employer

is likewise eliminated." Stephens v. Petrino, 350 Ark. 268, 279, 86 S.W.3d

836, 843 (2002) (citing Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984

S.W.2d 812 (1999)).

Michigan also bars pursuing a suit against an employer on a

vicarious-liability claim when the claims against the employee are

dismissed with prejudice in certain contexts. For example, in Al-

Shimmari v. Detroit Medical Center, 477 Mich. 280, 731 N.W.2d 29

agent's immunity does not automatically shield the principal, neither
should a time-bar defense necessarily extend from the agent to the
principal. Id. at 728.

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(2007), the Supreme Court of Michigan held that "the dismissal of the

claims against [the agent] operates as an adjudication on the merits of

the claims against [the agent]" and that, as a result, the plaintiff

"consequently is unable to show that the [principal is] vicariously liable

for the acts of [the agent]." 477 Mich. at 295-96, 731 N.W. 2d at 37. In

support of its holding, the court reasoned that when the claim against

the agent is dismissed with prejudice, such as under the statute of

limitations, that "prevents [the] plaintiff from arguing the merits of the

… claim against [the agent]." 477 Mich. at 296, 731 N.W. 2d at 37. As a

result, the Supreme Court of Michigan emphasized that, because the

agent cannot be held liable, the principal likewise cannot be held

vicariously liable for its agent's conduct. See id.

Similarly, "except perhaps in certain unusual circumstances," New

York does not allow a vicarious-liability claim to proceed against a

principal when the claims against the agent have been dismissed.

Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 546, 416 N.E.2d 557, 564,

435 N.Y.S. 2d 556, 563 (1980). For example, in Karaduman, New York's

Court of Appeals held that, when a principal is sued under the principles

of respondeat superior and the claims against its agent are subsequently

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dismissed under the statute of limitations, "any vicarious liability that

[the principal] might have had in consequence of its [agents'] alleged

misconduct must similarly be deemed extinguished." In reaching that

conclusion, the Court of Appeals reasoned that, in such a situation, "the

suit against [the principal] cannot be maintained solely on the theory

that it is vicariously liable, since there is no primary liability upon which

such a claim of vicarious liability might rest." Id.

Finally, Ohio has a special rule regarding vicarious liability in

professional-malpractice suits pertaining to lawyers, physicians, and

their employers. For instance, similar to the present case, in Clawson v.

Heights Chiropractic Physicians, L.L.C., 170 Ohio St. 3d 451, 214 N.E.3d

540 (2022), the plaintiff sued a doctor, alleging medical negligence. The

plaintiff also sued the doctor's employer, asserting that it was vicariously

liable. However, because the plaintiff failed to properly serve the doctor,

the doctor moved to dismiss the plaintiff's claims against him based on

the statute of limitations. After the trial court granted that motion, the

employer then moved for a summary judgment in its favor on the

plaintiff's claim against the employer premised on vicarious liability.

That motion was also granted.

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On appeal, the Supreme Court of Ohio held that a vicarious-liability

claim against a physician's employer is barred "when a direct claim

against the physician is time-barred." 170 Ohio St. 3d at 460, 214 N.E.

3d at 548. In reaching that holding, the court explained that it was

extending the principles that it had previously applied to legal-

malpractice cases to medical-malpractice cases. 170 Ohio St. 3d at 459-

60, 214 N.E. 3d at 547-48. Those principles provided that a law firm could

not be held vicariously liable for the acts or omissions of its associates

unless at least one of its associates was liable for malpractice. See id. Its

reason for doing so, the court explained, was because of the "widely

acknowledged similarities between legal malpractice and medical

malpractice." 170 Ohio St. 3d at 460, 214 N.E. 3d at 548. But see Marshall

v. Mercy Health-Anderson Hosp., L.L.C., 265 N.E.3d 273 (Ohio Ct. App.

2025) (refusing to apply this rule to nurses).

III. Options Available to the Legislature

Finally, it is worth noting that the Legislature has the authority to

create a default rule -- or special rules for particular claims -- that can

clarify when a plaintiff's claim premised on vicarious liability can proceed

against a principal even when the agent is no longer in the action. It

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certainly would not be the first time the Legislature has done so.

For example, the Legislature adjusted the traditional doctrine of

respondeat superior in the context of volunteer services when it enacted

the Volunteer Service Act ("the VSA"), § 6-5-336, Ala. Code 1975. The

Legislature's stated purpose for enacting the VSA was to "encourage

volunteers to contribute their services for the good of their communities

and at the same time provide a reasonable basis for redress of claims

which may arise relating to those services." § 6-5-336(b)(3).

Under the VSA, a volunteer is granted civil immunity for acts or

omissions that cause damage, so long as the volunteer acted in good faith

within the scope of his official duties and did not engage in willful or

wanton misconduct. See § 6-5-336(d). While the VSA shields volunteers

from personal liability, it does not categorically exempt their principals

from vicarious liability. For example, it provides that " nonprofit

organizations, nonprofit corporations, and hospitals" can "still be held

liable for the 'negligent act or omission of a volunteer' under the doctrine

of respondeat superior 'notwithstanding the immunity granted to the

volunteer with respect to any act or omission included under subsection

(d).' " Rogers, ____ So. 3d at ____ (quoting § 6-5-336(e)) (emphasis added).

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This is a clear public-policy choice made by the Legislature to create an

exception to the general Alabama rule for specific types of defendants

regarding respondeat superior liability.

A similar measure could be taken by the Legislature to deal with

situations like those in the present case. For instance, the Legislature

could adopt the approach taken by some of the states discussed above by

making clear that a principal can still be liable for the conduct of its agent

even if claims against that agent are dismissed with prejudice based on

a statute-of-limitations defense. Or, the Legislature could expressly

codify the existing Alabama rule for all tort law. Or, it could codify the

existing rule, but only for particular types of cases, such as specific

professional-malpractice cases. In other words, the Legislature could

make clear what the rule should be or it could make different rules for

different contexts.

III. Conclusion

I make no judgment about which of the above approaches is better

reasoned or whether Alabama should create an exception to its current

approach in favor of those adopted by other states. Rather, as I stated at

the beginning of this special writing, my purpose here is to highlight for

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the bench, the Bar, and the Legislature the divergent approaches that

have been taken by other states concerning the liability of a principal in

circumstances similar to those now before us. My hope is that this will

encourage parties to expressly raise and thoroughly brief this issue for

our Court in a future appeal. See Rule 28(a)(10), Ala. R. App. P.

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SHAW, Justice (concurring in the result).

I do not agree with the premise that a dismissal with prejudice of

claims against an agent automatically disposes of a vicarious-liability

claim against the principal in every case. Here, it is undisputed that the

agent was dismissed because the claims against him were barred by the

statute of limitations. The vicarious-liability claim against the principal,

however, appears timely filed.

Here, the dismissal of the claims against the agent was not the kind

of dismissal discussed in Alfa Life Insurance Corp. v. Jackson, 906 So. 2d

143 (Ala. 2005), which was described as follows:

"The dismissal with prejudice of the claims alleged against
[the agent] -- the torts of fraud and negligent or wanton failure
to procure insurance -- constituted an adjudication on the
merits to the effect that [the agent] was not guilty of
committing either of those torts. Therefore, [the principal]
could hardly be guilty of committing those same torts by and
through the agency of [the agent] and thus could not be
vicariously liable for those torts under the doctrine of
respondeat superior."

906 So. 2d at 154 (emphasis added). In Jackson, the plaintiff apparently

decided to abandon his claims against the agent in exchange for an

43
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agreement that the agent not testify for the principal.7 In Barlow v.

Liberty National Life Insurance Co., 708 So. 2d 168 (Ala. Civ. App. 1997),

upon which the Court in Jackson relied, we are not told why the claims

against the agent were dismissed; at best, the plaintiff in that case

abandoned his claims against the agent. Further, the court in Barlow

cited Larry Terry Contractors, Inc. v. Bogle, 404 So. 2d 613 (Ala. 1981), a

wholly distinguishable case in which a jury found in favor of the agents

but found the principal liable under a theory of vicarious liability. The

Court in Larry Terry Contractors, quoting Louisville & Nashville R.R. v.

Maddox, 236 Ala. 594, 600, 183 So. 849, 853 (1938), stated:

" 'The rule that prevails is that, when the principal and
his agent are sued in joint action in tort for misfeasance or
malfeasance of the servant, and his liability for the conduct of
said servant is under the rule of respondeat superior, a verdict
in favor of the servant entitles the master to have the verdict
against him set aside.' "

404 So. 2d at 614.

Clearly, when an agent receives a verdict in his favor, meaning that

the jury found that he did no wrong, there can be no vicarious liability on

7In Jackson, the plaintiff claimed, after the dismissal, that the
claims against the agent had been dismissed because he apparently had
agreed that he " 'would not help' " the principal. Jackson, 906 So. 2d at
148.
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the part of the principal for that same conduct. The court in Barlow

appeared to stretch a dismissal with prejudice -- apparently when a

plaintiff abandons a claim -- to equate with a verdict in favor of that

party. Jackson embraced that proposition. Thus, those cases purport to

stand for the proposition that, when a plaintiff elects to forgo his claims

against an agent, and thus has the claims against the agent dismissed

with prejudice, a dismissal that, in the terms of Jackson, constitutes "an

adjudication on the merits to the effect" that the agent "was not guilty of

committing" the tort underlying a vicarious-liability claim, the principal

is similarly "not guilty" or vicariously liable. Jackson, 906 So. 2d at 154.

However, neither Jackson nor Barlow specifically holds, nor requires the

conclusion, that a dismissal of the claims against an agent premised on a

non-merits-based defense requires the dismissal of a vicarious-liability

claim against the principal. They are silent in that regard. What we do

know is that the premise on which each case was decided stems from

Larry Terry Contractors, which correctly holds that a verdict in favor of

an agent -- a merits-based defense -- entitles the principal to a verdict in

its favor.

Additionally, a pro tanto release of an agent who is the active

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tortfeasor, and the resulting dismissal with prejudice of the claims

against the agent, can also be deemed to act to "exonerate" a principal.

Jackson, 906 So. 2d at 155. But that is because the release itself may

extinguish the claim against the principal, not simply because the claims

against the agent are dismissed. Daugherty v. M-Earth of Alabama, Inc.,

519 So. 2d 467, 468 (Ala. 1987) (noting that a release might be construed

as providing full satisfaction of a plaintiff's claim unless it reserves rights

against other tortfeasors). See also Salter v. A. Fraser Pattillo, Jr., Inc.,

519 So. 2d 930, 931 (Ala. 1988) ("[T]he language of the release … clearly

shows that the [plaintiffs] did not intend to release [the principal], but

expressly reserved all rights, claims and causes of action against it. The

clear meaning of the terms of the settlement was to release only [the

agent], and not [the principal]."). Thus, it is incumbent upon the plaintiff

to ensure that the language of a release reserves claims against other

defendants. Id.

In the present case, it appears undisputed that the claims against

the agent were dismissed because the statute of limitations barred those

claims. While a dismissal "with prejudice" may be referred to as an

adjudication "on the merits," care should be taken to ensure that this

46
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phrase is not overread. 8 The "merits" of the plaintiff's factual claim in

this case -- that the agent engaged in tortious conduct -- was not

determined. No jury has found, as a matter of fact, that the agent's

conduct was not tortious. Larry Terry Contractors, supra. Nor has the

plaintiff elected to abandon his claim "to the effect that [the agent] was

not guilty of committing" the tort. Jackson, 906 So. 2d at 154. And no

release has been executed in this case, the terms of which might have,

with no reservation of rights, satisfied the plaintiff's claim against the

principal. Jackson, supra. Instead, a determination whether the agent

is liable for his conduct is barred and cannot be decided "on the merits"

in the first place. But whether that conduct occurred has not been

decided "on the merits."

8While the decision in McGilvray v. Perkins, 407 So. 3d 283, 289

(Ala. 2024), states that a "judgment based on the statute of limitations is
a judgment on the merits," that proposition appears limited to
determining the res judicata effect of the judgment. McGilvray cites
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995), which explains
that "[t]he rules of finality ... treat a dismissal on statute-of-limitations
grounds the same way they treat a dismissal for failure to state a claim,
for failure to prove substantive liability, or for failure to prosecute: as a
judgment on the merits." (Emphasis added.) The present case involves
no issues of res judicata or finality.

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This Court may affirm for any reason, and it is the burden of the

appellant to demonstrate reversible error. Because these issues are not

addressed by the appellant, they cannot form the basis of a reversal.

Therefore, I concur in the result to affirm the trial court's summary

judgment.

48