Rel: October 16, 2026
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 published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2026-2027
CL-2026-0261
Henri N. Beaulieu, Jr.
v.
Jay Whitworth and Sean Kevin Lando
Appeal from Shelby Circuit Court
(CV-25-900227)
EDWARDS, Judge.
On March 13, 2025, Henri N. Beaulieu, Jr., filed in the Shelby
Circuit Court ("the trial court") a complaint ("the 2025 complaint")
against Jay Whitworth and Sean Kevin Lando in which Beaulieu alleged
that, on August 20, 2023, Whitworth and Lando had engaged in loud,
CL-2026-0261
disruptive, and disrespectful behavior at a pool located in the
Nottingham subdivision, which is adjacent to property on which Beaulieu
and his father, Henri N. Beaulieu, Sr. ("the elder Beaulieu"), reside.1
Beaulieu alleged that, despite having knowledge that the elder Beaulieu
was being treated for brain cancer, Whitworth and Lando "engaged in
loud, disruptive behavior at the pool -- yelling across the area and
creating a significant disturbance that interfered with [the elder
Beaulieu's] ability to rest inside his home." Beaulieu further alleged that,
despite his request to Whitworth and Lando that they cease making such
a disturbance, "[i]nstead of showing any compassion or basic human
decency, [Whitworth and Lando] intentionally escalated their disruptive
behavior -- responding with loud, mocking laughter, further amplifying
the noise and deliberately adding to the cruelty of the situation." In
addition, Beaulieu alleged that, in October 2023, in a comment on a
social-media post Beaulieu made about a different subject, "Whitworth
… admitted to making the deliberate noise despite knowing [that the
1The property was owned by the elder Beaulieu and his wife, Johnie
C. Beaulieu, and had two residences located upon it. The elder Beaulieu
died at some point after August 2023, but the record does not disclose
exactly when.
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elder Beaulieu] had brain cancer, stating, 'no rules or laws broken.' "
Those actions, Beaulieu alleged, were "malicious, demonstrating a
deliberate and callous disregard for [Beaulieu's] distress and emotional
suffering," and had "caused severe emotional distress to [Beaulieu],
exacerbating the emotional toll of [the elder Beaulieu's] terminal illness
[on Beaulieu] and creating lasting psychological harm." Beaulieu
asserted claims of intentional infliction of emotional distress,
wantonness, and civil conspiracy and requested awards of both
compensatory and punitive damages.
On April 22, 2025, Whitworth and Lando filed what they titled a
motion to dismiss the 2025 complaint ("the 2025 dispositive motion"). In
the 2025 dispositive motion, they asserted that the 2025 complaint
asserted nearly identical claims to those that Beaulieu had asserted in a
2024 action against them and also that the claims relating to conduct at
the pool had been adjudicated in a 2020 action. Specifically, Whitworth
and Lando averred that the claims asserted in the 2024 action were
identical to the claims asserted in the 2025 complaint, which the trial
court had dismissed on March 4, 2025. Whitworth and Lando had moved
to dismiss the 2024 action on the ground that it should be abated
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pursuant to Ala. Code 1975, § 6-5-440, which prohibits a plaintiff from
simultaneously prosecuting two actions based on the same claims against
the same party. 2 The trial court's order dismissing the 2024 action ("the
2024 dismissal order") concluded that "each of the claims in this action
were raised or could have been raised in the [the 2020 action]," that
Beaulieu had "agreed to be bound by the outcome of [the 2020 action],"
and that the "claims in [the 2024 action] are abated by the prior pending
action," i.e., the 2020 action. Beaulieu did not appeal the 2024 dismissal
order.
The 2020 action was brought against, among others, the
Nottingham Homeowners' Association, Inc.; McKay Management
Company d/b/a Associa McKay Management; Associations, Inc., d/b/a
Associa; Susan Slaney; and Regina Barr (collectively referred to as "the
homeowners' association") by Beaulieu's wife, Donna Beaulieu; the elder
Beaulieu; and the elder Beaulieu's wife (collectively referred to as "the
2Specifically, Ala. Code 1975, § 6-5-440, provides: "No plaintiff is
entitled to prosecute two actions in the courts of this state at the same
time for the same cause and against the same party. In such a case, the
defendant may require the plaintiff to elect which he will prosecute, if
commenced simultaneously, and the pendency of the former is a good
defense to the latter if commenced at different times."
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Beaulieu family"). 3 The 2020 action involved the Beaulieu family's
attempt to enjoin the operation and use of the pool. The complaint in the
2020 action requested that the trial court declare that the pool was a
private nuisance and order that the various defendants be enjoined from
continuing the operation and use of the pool; the complaint in the 2020
action also requested a preliminary and a permanent injunction. 4 The
2020 action was concluded with the entry of a judgment in favor of the
homeowners' association on March 26, 2025. 5 Thus, the 2025 dispositive
3As originally filed, the complaint in the 2020 action asserted claims
against the above-named corporate defendants; Slaney and Barr, who
were members of the board of directors of the Nottingham Homeowners'
Association, in both their individual capacities and in their capacities as
board members; and against Samuel Powell, Blake Thompson, Melody
Thompson, Daniel Richards, and Amanda Richards. The Beaulieu family
dismissed the claims against Powell, the Thompsons, and the Richardses
between December 2020 and May 2021. In July 2021, the Beaulieu
family also dismissed all claims against Slaney and Barr in their
individual capacities.
4The complaint in the 2020 action originally sought an award of
damages based on claims of negligence, wantonness, and intentional
infliction of emotional distress; however, in July 2021, the Beaulieu
family voluntarily dismissed those tort claims and any claim for an award
of damages and proceeded solely on their claims for equitable relief based
on the theory that the pool was a private nuisance that should be abated.
5The Beaulieu family appealed the 2020 judgment to this court,
which assigned the appeal brought by the Beaulieu family as appeal
number CL-2025-0593. On May 29, 2026, this court affirmed the 2020
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motion rested on the argument that the doctrines of res judicata and/or
collateral estoppel barred the claims asserted in the 2025 complaint.
Beaulieu responded to the 2025 dispositive motion, arguing that
neither the doctrine of res judicata nor the doctrine of collateral estoppel
applied to bar the claims asserted in the 2025 complaint. The trial court,
after holding a hearing on the 2025 dispositive motion, entered a
judgment on October 27, 2025, determining that the claims in the 2025
complaint had been resolved through the judgments entered in the
litigation in the 2024 action and the 2020 action. Beaulieu filed a timely
notice of appeal.
As noted above, Whitworth and Lando titled the 2025 dispositive
motion as a motion to dismiss. In that motion, they requested that the
trial court take judicial notice of the entirety of the proceedings
associated with the 2024 action and the 2020 action and, in reply to
Beaulieu's response to the 2025 dispositive motion, tendered evidentiary
submissions, including a letter and e-mails from Beaulieu's counsel.
judgment in an unpublished memorandum. See Beaulieu v. Nottingham
Homeowners' Ass'n, Inc. (No. CL-2025-0593, May 29, 2026), ___ So. 3d
___ (Ala. Civ. App. 2026) (table). Our supreme court denied the Beaulieu
family's petition for the writ of certiorari on July 10, 2026.
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Therefore, as Beaulieu correctly observes in his brief on appeal, the 2025
dispositive motion was, in effect, a motion for a summary judgment based
on the affirmative defenses of res judicata and collateral estoppel. See
Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d 784, 792 (Ala.
2007) (explaining that, "[a]lthough HealthSouth's motion addressing its
defenses of res judicata and collateral estoppel was actually framed as a
'motion to dismiss,' the motion should have been treated as one seeking
a summary judgment because the face of the complaint did not reference
the prior litigation" and because the trial court was required to consider
matters outside the pleadings in deciding the motion); see also American
Tr. Corp. v. Champion, 793 So. 2d 811, 813 (Ala. Civ. App. 2001). Thus,
we apply to Beaulieu's appeal the standard of review applicable to an
appeal from a summary judgment based on the applicability of an
affirmative defense.
"The doctrine of res judicata is an affirmative defense;
the party asserting that defense has the burden of proving it
at trial. Wilger v. State Dep't of Pensions & Security, 390 So.
2d 656 (Ala. Civ. App. 1980).
" ' "If the movant [for a summary judgment]
has the burden of proof at trial, the movant must
support his motion with credible evidence, using
any of the materials specified in Rule 56(c), [Ala.]
R. Civ. P. ('pleadings, depositions, answers to
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CL-2026-0261
interrogatories, and admissions on file, together
with the affidavits'). The movant's proof must be
such that he would be entitled to a directed verdict
if this evidence was not controverted at trial." ' "
American Tr. Corp., 793 So. 2d at 813 (quoting Ex parte General Motors
Corp., 769 So. 2d 903, 908 (Ala. 1999), quoting in turn Berner v. Caldwell,
543 So. 2d 686, 691 (Ala. 1989) (Houston, J., concurring specially)). Thus,
Whitworth and Lando were "required to make a prima facie showing that
the res judicata [and/or collateral estoppel] defense[s] entitled them to a
judgment as a matter of law, i.e., that there was no genuine issue of
material fact as to whether [one or both of those] defense[s] applied."
American Tr. Corp., 793 So. 2d at 813.
Generally speaking, "[t]he doctrine of res judicata applies when a
party attempts to relitigate the same cause of action that was previously
litigated against the same defendant, " In re Estate of Hudson, 887 So.2d
923, 928 (Ala. Civ. App. 2004), and "[c]ollateral estoppel is an equitable
defense interposed against a party attempting to relitigate an issue that
has been resolved in an earlier case involving the same parties." Ex parte
Flexible Prods. Co., 915 So. 2d 34, 45 (Ala. 2005).
"The elements of res judicata are: '(1) a prior judgment
on the merits, (2) rendered by a court of competent
jurisdiction, (3) with substantial identity of parties, and (4)
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CL-2026-0261
with the same cause of action presented in both actions.'
Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634, 636 (Ala.
1998). 'If those four elements are present, then any claim that
was, or that could have been, adjudicated in the prior action
is barred from further litigation.' 723 So. 2d at 636. 'Res
judicata, therefore, bars a party from asserting in a
subsequent action a claim that it has already had an
opportunity to litigate in a previous action.' Lee L. Saad
Constr. Co. v. DPF Architects, P.C., 851 So. 2d 507, 517 (Ala.
2002).
"….
"Collateral estoppel applies when (1) the issue in a prior case
was identical to the issue being litigated in the present action,
(2) the issue was actually litigated in the prior action by a
court of competent jurisdiction, (3) resolution of that issue was
necessary to the prior judgment, and (4) the same parties are
involved in the two actions. Smith v. Union Bank & Trust, 653
So. 2d 933 (Ala. 1995); Reed v. Brookwood Med. Ctr., 641 So.
2d 1245 (Ala. 1994)."
Lloyd Noland Found., 979 So. 2d at 793-96.
In his brief on appeal, Beaulieu argues that the trial court's
judgment finding the claims in the 2025 complaint to be barred by the
doctrines of res judicata or collateral estoppel should be reversed. He
first argues that, because the dismissal of the 2024 action was based on
the application of § 6-5-440, the 2024 dismissal order was not a judgment
on the merits for the purposes of the doctrines of res judicata or collateral
estoppel. Beaulieu is correct that dismissals entered under § 6-5-440 are
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CL-2026-0261
typically without prejudice. See Ex parte Brooks Ins. Agency, 125 So. 3d
706 (Ala. 2013) (ordering a circuit court, pursuant to § 6-5-440, to enter
an order dismissing an action without prejudice); Ex parte J.E. Estes
Wood Co., 42 So. 3d 104 (Ala. 2010) (same). The 2024 dismissal order
does not indicate whether it was entered with or without prejudice, but
the case-action-summary sheet reflecting the entry of the 2024 dismissal
order recorded the order as a dismissal without prejudice.
Alabama law is well settled that "a dismissal 'without prejudice' is
not an adjudication on the merits and does not bar the filing of another
lawsuit asserting the same cause of action." Prestige Design & Build,
LLC v. James, 421 So. 3d 677, 678-79 (Ala. 2025). The doctrines of res
judicata and collateral estoppel both require that an issue be litigated
and decided in a previous judgment on the merits. See Smith v. Union
Bank & Tr. Co., 653 So. 2d 933, 935 (Ala. 1995) (explaining that an order
"dismissing the previous action without prejudice … [did] not
[adjudicate] the merits of the action, and its order of dismissal therefore
could not be given res judicata effect," and that, "because the dismissal
was without prejudice, there was no 'actual litigation' for the purposes of
collateral estoppel"). Moreover, an order dismissing an action without
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prejudice is not only not an adjudication of the merits of the claim, but is
also not capable of supporting an appeal. Ragland v. State Farm Mut.
Auto. Ins. Co., 238 So. 3d 641, 643 (Ala. 2017) ("Generally speaking, an
order dismissing a claim without prejudice will not support an appeal.").
Whitworth and Lando contend that the language of the 2024
dismissal order made "a dispositive ruling on the merits of the preclusion
defense" that Beaulieu failed to challenge in an appeal from that order.
Whitworth's brief, p. 13. 6 The trial court's express determination in the
2024 dismissal order that the claims in the 2024 action either were or
could have been brought in the 2020 action appears to have been based
on the requirement that a trial court faced with the question whether an
action should be dismissed under § 6-5-440 because of the pendency of
another action consider " 'whether a judgment in one suit would be res
judicata of the other.' " Chiepalich v. Coale, 36 So. 3d 1, 3 (Ala. 2009)
(quoting Sessions v. Jack Cole Co., 276 Ala. 10, 12, 158 So. 2d 652, 654-55 (1963)). At the time the 2024 dismissal order was entered, the 2020
action had not yet been resolved by the entry of a final judgment and
6Whitworth filed a responsive brief; Lando's brief adopts the legal
arguments set forth in Whitworth's brief in their entirety.
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could therefore not have supported the application of the doctrines of res
judicata or collateral estoppel, which is surely why the abatement
defense was interposed. Thus, we conclude that Whitworth and Lando
failed to establish that the claims in the 2025 complaint were barred by
either the doctrine of res judicata or the doctrine of collateral estoppel
based upon the 2024 dismissal order.
Regarding the preclusive effect of the judgment entered in the 2020
action, Beaulieu argues that Whitworth and Lando failed to establish the
elements of res judicata or the elements of collateral estoppel. Because
we find the issue dispositive of the application of both the doctrine of res
judicata and the doctrine of collateral estoppel, we first consider whether
Whitworth and Lando presented sufficient proof of the substantial
identity of the parties, as required by both doctrines.
The requirement in both the doctrine of res judicata and the
doctrine of collateral estoppel that
"the parties be the same in both actions[] is known as the
doctrine of mutuality of estoppel. It is a judicially created
doctrine declaring that unless both parties in a second action
are bound by the judgment in a previous case, neither party
in the second action should be bound, i.e., a nonparty as to the
first action may not use the prior judgment as determinative
of the same issue in the second action."
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Jones v. Blanton, 644 So. 2d 882, 886 (Ala. 1994) (plurality opinion).
"That is, a person who can claim the benefit of a judgment as an estoppel
upon his adversary is one who would have been prejudiced by a contrary
decision in the earlier case." Sosebee v. Alabama Farm Bureau Mut. Cas.
Ins. Co., 56 Ala. App. 334, 336, 321 So. 2d 676, 678 (Civ. App. 1975).
However, the requirement that the parties be identical is subject to
exception. Our supreme court has explained:
" 'Our caselaw requires that "there is a substantial
identity of parties in the two actions." Ex parte Ford Motor
Credit Co., 772 So. 2d 437, 440 (Ala. 2000). … " 'An exception
is made to this requirement for parties in privity with a party
to the prior action.' " Stewart[ v. Brinley], 902 So. 2d [1,] 10
[(Ala. 2004)] (quoting McMillian[ v. Johnson], 878 F. Supp.
[1473,] 1520 [(M.D. Ala. 1995)]) (emphasis omitted). A party
is deemed to be in privity with a party to a prior action when
there is " ' "an identity of interest in the subject matter of
litigation." ' " Stewart, 902 So. 2d at 11 (quoting Hughes v.
Martin, 533 So. 2d 188, 191 (Ala. 1988), quoting in turn Issue
Preclusion in Alabama, 32 Ala. L. Rev. 500, 521 (1981)).
" '....
" 'This Court has stated: " ' " 'A person may be bound by a
judgment even though not a party to a suit if one of the parties
to the suit is so closely aligned with his interests as to be his
virtual representative.' " ' " Gonzalez, LLC v. DiVincenti, 844
So. 2d 1196, 1203 (Ala. 2002) (quoting Green v. Wedowee
Hosp., 584 So. 2d 1309, 1315 ([Ala.] 1991), quoting other
cases).' "
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Ex parte Webber, 157 So. 3d 887, 895 (Ala. 2014) (quoting Greene v.
Jefferson Cnty. Comm'n, 13 So. 3d 901, 912 (Ala. 2008)).
We begin by considering whether Whitworth and Lando established
that they are parties in privity with the homeowners' association, the
defendant in the 2020 action. In their 2025 dispositive motion,
Whitworth and Lando stated that "there is no question that the identity
of interests … are the same" between them and the homeowners'
association. They appear to rest that assertion on their stated belief that
the "goal" of the 2020 action and the 2025 complaint are the same -- "to
prevent noise [that the Beaulieu family] claim[s] emanates from the pool
area."
Although Whitworth and Lando are correct that the claims in the
2020 action and in the 2025 complaint both arise from conduct that
created noise at the pool, the 2020 action sought to reduce or eliminate
that noise through an injunction against the homeowners' association,
whose corporate entities owned and operated the pool; however, the 2025
complaint sought damages from two individuals, who happened to be
using the pool, based on conduct and comments that they had directed
toward Beaulieu. Whitworth and Lando were not parties to the 2020
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action, and we find no basis for determining that they were in privity
with the homeowners' association. The mere fact that conduct like that
in which Beaulieu alleged Whitworth and Lando had engaged formed the
basis for the factual allegations that the pool, as it was being operated,
created a private nuisance does not create an identity of interests
between the homeowners' association on the one hand and Whitworth
and Lando on the other. The 2020 action did not adjudicate whether any
person had engaged in any untoward conduct at the pool, much less
adjudicate whether the alleged conduct of Whitworth and Lando, which
formed the basis of the claims in the 2025 complaint, had occurred.
Notably, had the result in the 2020 action been different, Whitworth and
Lando, who would have been strangers to that judgment, would not have
been required to perform any act required by that judgment. See
Sosebee, 56 Ala. App. at 336, 321 So. 2d at 678. Therefore, Whitworth
and Lando have not established that they are in privity with the
homeowners' association, and they therefore have not established that
the doctrines of res judicata or collateral estoppel can serve as a bar to
the claims in the 2025 complaint.
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Whitworth and Lando failed to establish, as they were required to
do, see American Tr. Corp., 793 So. 2d at 813, a prima facie case that the
defenses of res judicata or collateral estoppel applied to bar the claims in
the 2025 complaint. Whitworth and Lando failed to establish that they
are in privity with the homeowners' association, and, therefore, they
cannot rely on the doctrines of res judicata and collateral estoppel to use
the judgment entered in the 2020 action to bar the claims in the 2025
complaint. Likewise, Whitworth and Lando have failed to establish that
the 2024 dismissal order, which is not a judgment on the merits, can
serve as a procedural bar to the claims in the 2025 complaint under either
doctrine. Accordingly, we reverse the 2025 judgment finding the claims
in the 2025 complaint to be barred by the 2024 dismissal order and the
2020 judgment, and we remand the cause for reinstatement of the 2025
complaint and for further proceedings. 7
REVERSED AND REMANDED WITH INSTRUCTIONS.
Moore, P.J., and Hanson, Fridy, and Bowden, JJ., concur.
7In reversing the judgment, we express no opinion on the merits of
Beaulieu's claims against Whitworth and Lando, because the viability of
those claims is not presented in this appeal.
16