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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)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2008-2009

2071241


Steven Barnes and Helene Barnes

v.

HMB, LLC, d/b/a Stow-A-Way Storage, and Gene L. Hughes


Appeal from Dale Circuit Court
(CV-06-52)

PER CURIAM.

Steven Barnes and Helene Barnes appeal from the judgments

of the Dale Circuit Court entered in favor of HMB, LLC, d/b/a

Stow-A-Way Storage ("HMB"), and Gene L. Hughes.  For the

reasons stated herein, we dismiss the appeal.

In March 2006, the Barneses sued HMB and Hughes.  They
alleged that in 2002 Steven had entered into a rental
agreement with HMB pursuant to which Steven had rented a
storage unit from HMB in which to store his and Helene's
personal property.  They alleged that in 2004, despite the
fact that Steven was current in making rental payments under
the agreement, HMB and Hughes, without notice to the Barneses,
sold the Barneses' personal property that had been stored in
the storage unit.  The Barneses' complaint asserted claims of
conversion, intentional infliction of emotional distress,
breach of contract, and breach of implied warranty.

In September 2007, HMB and Hughes filed a motion for a
summary judgment as to Helene and a motion to dismiss Hughes
as a defendant.  As to the summary-judgment motion, HMB and
Hughes argued that, in three previous criminal cases that had
been pending against her, Helene had filed affidavits of
substantial hardship in which she had sworn that she did not
own any property other than a 1994 model Ford Thunderbird
automobile.  They argued that, because of her representations
in the affidavits of substantial hardship, she was precluded,
under the doctrine of judicial estoppel, from asserting her

ownership of the personal property that had been contained in
the storage unit. As to the motion to dismiss, Hughes argued
that HMB was a limited-liability company and that Hughes, as
a member of HMB, could be liable only for his own actions or
conduct and not for the actions or conduct of HMB.  He argued
that there could be no valid basis on which to hold him liable
in his individual capacity.  The trial court entered a summary
judgment in favor of both defendants as to Helene's claims and
granted Hughes's motion to dismiss him as a defendant from the
case, leaving only Steven's claims against HMB to be
adjudicated.

In July 2008, HMB filed a motion for a summary judgment
as to Steven's claims against HMB.  HMB argued that, like
Helene, Steven had submitted, in a criminal case pending
against him, an affidavit of substantial hardship in which he
had sworn that he owned no personal property other than a
pickup truck and a boat.  Thus, HMB argued, Steven was
judicially estopped from asserting his ownership of the
personal property that was contained in the storage unit.  On
August 18, 2008, the trial court expressly granted HMB's

motion and entered a summary judgment in HMB's favor.  The
trial court's judgment read:
"Defendant's motion for summary judgment is
granted as to defendant [sic], Steven Barnes.  See,
ORDER of November 14, 2007, granting defendant's
motion for summary judgment [as] to co-plaintiff,
Helene Barnes.

"Court costs are taxed as paid."
(Emphasis added.)  On the following day, the trial court,
apparently recognizing that it had mistakenly identified
Steven as a "defendant" in the litigation, corrected the
judgment to read:

"Defendant's motion for summary judgment is
granted as to Plaintiff, Steven Barnes.  See, ORDER
of November 14, 2007, granting defendant's motion
for summary judgment as to co-plaintiff, Helene
Barnes.

"Court costs are taxed as paid."
(Emphasis added.)

On September 30, 2008, 43 days after the entry of the
August 18, 2008, final judgment, and 42 days after the entry
of the August 19, 2008, correction, the Barneses filed a
notice of appeal.  The Alabama Supreme Court transferred the
appeal to this court pursuant to

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