Roberson v. Drummond Co. Inc., [Ms. SC-2022-0863, Feb. 9, 2024] __ So. 3d (Ala. 2024). The Court (Parker, C.J.; Mendheim, Stewart, JJ., and Baschab and Welch, Special Justices, concur; Lyons, Special Justice, concurs in part and dissents in part, with opinion, joined by Main, Special Justice; Shaw, Wise, Bryan, Sellers, Mitchell, and Cook, recuse) affirms appeal from Jefferson Circuit Court’s dismissal, certified as final under Rule 54(b), Ala. R. Civ. P., of their claim for indemnification from Drummond Company, Inc. (“Drummond”), for damages stemming from David Roberson’s federal conviction for bribery. In affirming, the Court concludes the damages the Robersons seek are not available through indemnification.
The Court first concludes that the certification of finality was proper because “the issues in the indemnification claim and the promissory-fraud claim [pending in the trail court] are not so closely intertwined that separate adjudication will pose an unreasonable risk of inconsistent results.” Ms. *11.
On the merits, the Court holds that “to the extent that the Robersons seek indemnification for the criminal penalties David incurred, they fail to demonstrate that the common-law duty to indemnify includes the type of indemnification that they seek.” Ms. *20. The Court also rejects the Robersons’ contention that they pleaded a claim for contractual indemnity. The Court explains “to state a claim for recovery of David’s lost salary and benefits, they should have pleaded a simple breach-of-contract claim…. But the Robersons did not assert a breach-of-contract claim. ‘It is not the duty of the courts to create a claim which the plaintiff has not spelled out in the pleadings.’ McCullough v. Alabama By-Prods. Corp., 343 So. 2d 508, 510 (Ala. 1977).” Ms. *22.
The Court also rejects the contention that the Drummond Board minutes establish a contract of indemnity. The Court explains “David’s loss of his salary and benefits was not a liability or expense that he incurred to a third party … Thus, regardless of whether the Robersons cast Drummond’s decision to fire David as a breach of a corporate bylaw, a breach of a corporate resolution, or a breach of an implied contract, they cannot make it the basis of an indemnification claim.” Ms. **25-26. Finally, the Court declines to consider whether the facts alleged by the Robersons support court-ordered indemnification under the Alabama Business and Nonprofit Entity Code (“the ABANEC”), § 10A-1-1.01 et seq., Ala. Code 1975, because the Robersons failed to preserve their ABANEC argument for appellate review because they did not raise it in the trial court. The Court explains
[T]he Robersons conflate the requirements for sufficiently pleading a claim with the requirements for preserving for appeal a basis for reversing an order dismissing a claim. To preserve a basis for reversing an order dismissing a claim, a plaintiff must bring that basis to the trial court’s attention either in response to the motion to dismiss or in a postjudgment motion. Allowing a plaintiff to assert a basis for reversal for the first time on appeal so long as it satisfied the requirements for sufficient pleading would violate basic principles of appellate procedure.
Ms. *28.
Justice Lyons’s special writing, joined by Special Justice Main, concurred in rejection of the ABANEC claim, but dissented as to the issue of common law indemnity, asserting “the trial court’s order should be reversed and the case remanded for full development below of the issue regarding the categories of recoverable damages under common-law indemnity and any other issues stemming from service by Drummond of an answer asserting applicable affirmative defenses.” Ms. *36.