1

UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

Donna Dorsey Davis, ) 

as an individual and derivatively upon behalf ) 

of I-65 Properties, Inc. ) 

 ) 

 Plaintiff, ) 

 ) 

vs. ) CIVIL ACTION NO: 2:06cv766 

 ) 

Richard M. Dorsey, as an individual, ) 

and CD& O, LLC, as a necessary party, ) 

 ) 

 Defendant. ) 

 ) 

and ) 

 ) 

Richard M. Dorsey, ) 

Dorsey Motor Sales, Inc., ) 

and TD & O, Inc., ) 

 ) 

 Counter Plaintiffs, ) 

 ) 

vs. ) 

 ) 

Donna Dorsey Davis, ) 

 ) 

 Counter Defendant. ) 

Plaintiff/Counter-Defendant’s Response in Opposition to Defendants/CounterPlaintiffs’ Motion for Summary Judgment and in the Alternative, Brief in Support 

of Plaintiff/Counter-Defendant’s Cross Memorandum Brief in Support of Motion 

for Summary Judgment 

Comes now Plaintiff/Counter-Defendant, Donna Dorsey Davis, individually and 

derivatively, in the above-styled cause, and submit the following Response to 

Defendants/Counter-Plaintiffs’ Motion for Summary Judgment and furthermore submits 

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a Cross Memorandum Brief in Support of Plaintiff/Counter-Defendant’s Motion for 

Summary Judgment and states as follows: 

I. SUMMARY OF THE CASE AND UNDISPUTED FACTS 

This case involves a brother-sister sibling relationship between Donna Dorsey Davis 

(“Davis”) the Plaintiff, and her brother, Richard M. Dorsey (“Dorsey”) the Defendant. 

Dorsey is the sole owner of Dorsey Motor Sales, Inc. (“DMS”). (Dorsey Depo. p. 40 line 

13 and 14). 

The sole asset of I-65 Properties, Inc. (“I-65”) is approximately 9.606 acres of land 

located at the intersection of Exit 179 on Highway 65 and Cobbs Ford Road in Prattville, 

Alabama. (Dorsey Depo. p. 74 at line 15-17). The evidence shows the property was 

“sold” by DMS as a defensive maneuver at a time when a lawsuit had been filed against 

DMS. (Dorsey Depo. p. 30 at line 8 to p. 31 at line 5.). Davis testified from 1990 to 

2007 she was only informed of one actual meeting of I-65 Properties, Inc. (Davis Depo. 

p. 155 at lines 5 to 9). 

The Defendant, Dorsey, as the sole owner of DMS, was perfectly happy to let an 

“interest meter” run against Davis, the minority shareholder at an interest rate of 12% 

from 1990 until the filing of this action and continuing to accrue today. (Dorsey Depo. p. 

42 at line 22 to 23, and p. 43 at line 1). 

 Other than trivial matters pertaining to cleaning of the property there has been no 

activity in this corporation other than holding title to the subject property in the respective 

ownership, Dorsey (70%) and Davis (30%). 

 The Defendant admits that over a period of years he allowed his eight year old 

son, Taylor, operating under a corporate entity TD&O to lease a billboard sign from I-65 

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Properties, Inc. for Six Hundred ($600.00) dollars per year. (Dorsey Depo. p. 133 at lines 

1 to 8). Dorsey allowed TD&O to negotiate a lease with Lamar advertising earning his 

sons corporation Five Thousand Six Hundred ($5,600.00) dollars per year. (Dorsey Depo. 

p. 134 at lines 2 to 20). 

Dorsey does not deny that during the seventeen year life of I-65 Properties, he failed 

to offer I-65 Properties a reasonable opportunity to purchase contiguous properties to the 

east and south of the subject, thus virtually surrounding the corporate asset with his own 

land holdings. (Dorsey Depo. p. 108 at lines 15 to 19). Dorsey’s sole excuse for his 

egregious failure to represent his sister, the minority shareholder, is the corporation has 

no money. Dorsey admits he never gave his sister or the corporation the opportunity to 

buy the contiguous properties again stating that I-65 Properties was without funds. 

(Dorsey Depo. p. 116 at lines 2 to 23 and p. 117 at lines 1 to 21). Furthermore, I-65 had 

an option to purchase some of the contiguous lands and instead of notifying the minority 

stockholder of such option, Dorsey used the option to his benefit, formed another 

corporation (“CD&O”), and transferred I-65’s option on the four tracts of surrounding 

land. (Dorsey Depo. p. 184 at lines 2 to 16). 

After a 2005 meeting, Dorsey informed Davis she owed about Five Hundred 

Thousand Dollars for and old time barred promissory note executed by I-65 Properties to 

his corporation Dorsey Motor Sales, Inc. (Davis Depo. p. 69 at lines 5 to 11). This 

assertion left Davis in a state of shock, scared, and petrified. (Davis Depo. p. 69 at lines 

6 and 7). At this point, Davis, who is a retired school teacher, became afraid she might 

lose her home and other assets (Davis Depo. p. 69 at lines 8 to 11). 

II. REPLY TO DEFENDANT’S ARGUMENTS AND CONCLUSIONS OF LAW 

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A. Jurisdiction is proper with this Court under 28 U.S.C. A. § 1332 (1975). 

Although the causes of action in the Plaintiff’s Complaint are state law claims, 

 this Court’s jurisdiction is based on diversity according to 28 U.S.C.A. § 1332 (1975). 

The United States Code explicitly allows for this court to maintain jurisdiction by stating 

the “district courts shall have original jurisdiction of all civil actions where the matter in 

controversy exceeds the sum or value of $75,000.00, exclusive of interest and costs, and 

is between citizens of different states... and a corporation shall be deemed to be a citizen 

of any State by which it has been incorporated and of the State where it has its principal 

place of business.” Id at 1332(a)(1) and (c)(1). 

 Davis is a resident citizen of the State of South Carolina. Dorsey is a resident 

citizen of the State of Alabama. The only asset both on the books and affecting the value 

of the stock of I-65 Properties, Inc. is a tract of land, the value of which greatly exceeds 

the $75,000.00 that is required by 28 U.S.C.A. § 1332 (1975). The purchase price of said 

property in 1991 being $250,000.00 and the debt that Dorsey states is owed by Davis 

well exceeds the requirement of the $75,000.00 limitation by being at half a million 

dollars. (Davis Depo. p. 65 at lines 5 and 6). 

 Furthermore, “a civil action wherein jurisdiction is founded only on diversity of 

citizenship may, except as provided by law, be brought only in a judicial district where 

any defendant resides, if all defendants reside in the same State.” 28 U.S.C.A. 1391 

(1975). Because Defendant is a resident citizen of Elmore or Autauga County, Alabama, 

and CD&O, LLC has its office of the registered agent in Elmore or Autauga County, 

Alabama venue is proper in the Middle District of Alabama, United States District Court. 

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 With the two prongs having been met for diversity jurisdiction, this Court has the 

supplemental jurisdiction to decide the underlining state law claims as made by the 

Plaintiff in the Complaint. Jurisdiction is proper with this Court. 

B. Statute of Limitations did not begin to run until December 19, 2005 when 

Plaintiff was made aware of Defendant’s wrong doings and therefore, is 

not barred from recovery. 

Since the inception of the Corporation in 1990, Dorsey has allowed Davis 

little to no participation in the management or allowed her to have any knowledge of the 

on-going business affairs of I-65. In Article VI, Section 1 of the By-Laws of the 

Corporation it states: “the regular meeting of the stockholders of this corporation shall be 

held at the general office of the corporation...on the first Monday in September of every 

year.” (See Defendants’ Exhibit “5”: By-Laws of I-65 Properties, Inc.) According to 

Dorsey’s recollection, he can not recall during the period of 1990 to 2000 any formal 

meetings ever being held, and if there were meetings, it would have been at a family 

gathering, not according to the terms of the by-laws. (Dorsey Depo. p. 172 at lines 1 to 

23, and p. 173 at lines 1 to 7). 

 In Article VIII of the By-Laws, it specifically states that the books shall be 

audited once a year by a disinterested auditor and a balance sheet of gains and losses are 

to be presented at the directors meeting each year. (See Defendant’s Exhibit “5”: ByLaws of I-65 Properties, Inc., Article VIII). At present time, the only document 

purporting to be a balance sheet that was presented to Davis was in December of 2005. 

(See Defendants’ Exhibit “15”: Expense / balance sheet of December 19, 20051

). 

 

1

 The Document Davis received was not a balance sheet and was not a profit and loss statement. It was a 

rough compilation of unknown origin of various expenses and does not rise to the stature of any of the 

requirements of the By-Laws. Further, Dorsey does not explain why no records were furnished between 

1990 and 2005. 

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 It wasn’t until 2005 when Dorsey intentionally mislead Davis individually and as 

a minority stockholder to believe for his own purposes that she owed a debt to her 

brother’s corporation DMS of a sum greater than $500,000.00. It is Dorsey’s belief that 

he can hold his sister, personally liable for her 30% share of a debt payable from I-65 to 

DMS: 

Q. Okay. Is she, in your opinion, personally liable for you to be able to sue her 

personally? 

A. Yes. 

Q. She is? 

A. Yes 

Q. Do you think because she is a 30% stockholder of the corporation, that that 

makes her personally liable on the note? 

A. Yes. 

Q. She owes money – or at least her 30%, owes that money? 

A. We both owe the money. 

(Dorsey Depo. p. 203 at lines 10 to 16 and 22 to23; p. 204 at lines 1 to 3; p. 236 at 

lines 11 to 14). 

Not only was all these statements intentional fraud in an effort to squeeze out 

Davis from her rightful property, but the Promissory Note was clearly barred from 

recovery by Ala. Code § 7-3-118. (1975). (See Defendants’ Exhibit “3”: Promissory Note 

of October 1, 1990). Dorsey has clearly stated that neither interest nor the principal has 

been paid by I-65 to DMS. Furthermore, Dorsey by his own admission to the Court 

states the minority shareholder personally “owes her portion of the debt that’s been 

accrued over the 17 years that I-65 has existed,” and DMS has never made a demand for 

payment on the debt. (Dorsey Depo. p. 206 at lines 10 to 12, p. 209 at lines 15 to 18; 

Dorsey Brief at page 23 at footnote 7, and page 27). 

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It wasn’t until 2005 that Davis was concerned or had knowledge of any 

wrongdoing regarding the Promissory note until the stockholders’ meeting in 2005. 

(Davis Depo. p. 26 at lines 16 to 20, p. 69 at lines 5 to 11). No matter if the Statute of 

Limitations is two years or six, Davis’ stockholder derivative suit was properly filed on 

the 25th of August, 2006. 

C. Davis’ Individual Claims are those of a Stock Holder Derivative Suit and 

are adequately pled as such under Fed. R. Civ. P. 23.1 and more 

accurately Ala. R. Civ. P. 23.1. 

The Alabama Rules of Civil Procedure 23.1 states a derivative action is “brought 

 by one or more shareholders or members to enforce a right of a corporation or of an 

unincorporated association, the corporation or association having failed to enforce a right 

which may properly be asserted by it.” The Federal Rules of Civil Procedure further 

defines rule 23.1 of a stock holder derivative action as “one or more shareholders or 

members [right] to enforce [that] which may properly be asserted by it.” 

In the case of James v. James, the Court held that Jerry James, who was a 

minority stockholder in a closely held corporation, was allowed to bring a stockholder 

derivative suit against his sibling for such claims as “oppression/squeeze out.” 768 So. 

2d 356 (2000). The Court found the majority shareholder had “illegally usurped 

corporate opportunities, and had unjustly enriched himself at the expense of the 

corporation” and not only did the “majority shareholder in a close corporation owe a duty 

to act fairly toward a minority shareholder,” but because of the closeness of the 

relationship between the shareholders any demand would be futile. Id. at 358-360. 

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 In the present case, in an effort to squeeze out Davis from I-65 Properties, Inc. 

Dorsey attempted to negate Davis’ stock by telling her she personally owed a debt of half 

a million dollars. (Davis Depo. p. 69 at lines 5 to 11). Not only did Dorsey mislead his 

sister, but as majority stock holder of I-65, and owner of most of the surrounding land he 

tried to collect the promissory note from a minority stockholder who was not allowed to 

engage in any meetings for the first ten years of the corporation’s existence. His sister 

was never given the opportunity to inspect corporate books or yearly audits as required; 

further, the promissory note is barred from collection after the ten year statute. Ala Code 

§ 7-3-118 (1975). 

 Furthermore, Davis made a request of her brother regarding all financial 

statements over the past seventeen years, but because of faulty “accounting records” of 

the past, no further attempts were made pre-suit. (See Defendants’ Exhibit “15”: 

Accounting / balance sheet of 2005). Dorsey is the majority and controlling shareholder, 

president, and chairman of the Board of Directors, further attempts would have been 

futile or unavailing at the time. Davis as the Vice-President of I-65 has no duties 

enumerated to her under the By-laws, except she is allowed to take the role of the 

President in case the President is absent or disabled. (See Defendants’ Exhibit “5”: I-65 

Properties, Inc. By-Laws, Article II). 

 Wherefore, Davis is the proper person as the only minority shareholder to bring a 

stockholder derivative suit under A.R.C.P 23.1 and F.R.C.P. 23.1, and as determined by 

the Court in James v. James, 768 So. 2d 356 (2000). 

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III. PLAINTIFF/COUNTER-DEFENDANT’S CROSS CLAIM FOR 

SUMMARY JUDGMENT ON DEFENDANT/COUNTER-PLAINTIFF’S 

COUNTERCLAIM. 

Comes now, Davis and submits the following Brief in Support of her Motion for 

Summary Judgment. 

A. Undisputed Facts 

On October 1, 1990, Dorsey as President of I-65 Properties executed a 

$250,000.00 promissory note to his company DMS for the purchase of property owned 

by I-65. (See Defendants’ Exhibit “3”: Promissory Note). The transfer from one of 

Dorsey’s Corporations to I-65 was made as a defensive manover (sic: maneuver) during a 

time when DMS was engaged in litigation in an effort to protect such property. (Dorsey 

Depo. p. 30 at line 8 to p. 31 at line 5.) Upon questioning the reason for such transfer in a 

letter, I-65’s accountant Alan Taunton reiterated such intent of DMS to Davis in 2000 

and 2006. (See Defendant’s Exhibit “9”: February 17, 2000 Letter from Taunton to 

Davis; Defendant’s Exhibit “17”: February 3, 2006 Letter from Taunton to Lindsay B. 

Erwin). Davis had no reason to believe otherwise until Dorsey told her in December of 

2005 she owed 30% of the promissory note personally. (Davis Depo. p. 26 at lines 16 to 

20, p. 69 at lines 5 to 11). 

During the applicable statutory period as provided by Ala. Code § 7-3-118 there 

has never been a request made for payment on the promissory note and the interest on the 

note has continued to accrue to present time. (Dorsey Depo. p. 206 at lines 10 to 12, p. 

209 at lines 15 to 18). Dorsey admits, by and through his attorney, in his Brief in Support 

of Summary Judgment that no demand was ever made nor no monies have been paid 

towards the principal or interest on said note since its inception in 1990. (See Dorsey 

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Brief at page 23 at footnote 7, and page 27). Therefore, by the testimony of Dorsey set 

out above, and the admission of Dorsey’s Attorney the exact burden of the statute has 

been illustrated by the Defendant. 

B. Standard of Review 

A party in a lawsuit may move a court to enter summary judgment before trial. 

FED. R. CIV. P. 56(a) and (b). Summary judgment is appropriate when the moving party 

establishes that there is no genuine issue of material fact and the moving party is entitled 

to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 

317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gonzalez v. Lee County Housing 

Authority, 161 F.3d 1290, 1294 (11th Cir.1998). "[T]he substantive law will identify 

which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 

2505, 2510, 91 L.Ed.2d 202 (1986). Only disputes about those facts will preclude the 

granting of summary judgment. Id. A material fact is one "that might affect the outcome 

of the suit under governing law," and a dispute about a material fact is "genuine" "if the 

evidence is such that a reasonable jury could return a verdict for the nonmoving party." 

Id.; see also Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1277 (11th Cir.2005) (quoting 

Hudgens v. Bell Helicopters/Textron, 328 F.3d 1329, 1344-45 (11th Cir.2003)) ("In 

determining whether an issue of fact is 'genuine' for the purpose of defeating summary 

judgment, we ask whether the evidence is 'such that a reasonable jury could return a 

verdict for the nonmoving party.' "). Thus, the initial burden of proof rests on the movant. 

Celotex, 477 U.S. at 325; Gonzalez, 161 F.3d at 1294. This burden is satisfied when the 

movant shows that if the evidentiary record were reduced to admissible evidence at trial, 

it would be insufficient to permit the non-movant from carrying its burden of proof. 

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Celotex, 477 U.S. at 322-23. The admissibility of evidence is subject to the same 

standards and rules that govern admissibility of evidence at trial. Clemons v. Dougherty 

County, Georgia, 684 F.2d 1365, 1369 n. 5 (11th Cir.1982) (citing Pan-Islamic Trade 

Corp. v. Exxon Corp., 632 F.2d 539, 556 (5th Cir.1980)). Once the movant meets its 

burden under Rule 56, the non-movant must designate specific facts showing there is a 

genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 

574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Conclusory assertions, unsupported 

by specific facts, presented in affidavits opposing the motion for summary judgment are 

likewise insufficient to defeat a proper motion for summary judgment. Lejaun v. Nat'l 

Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). The 

party opposing summary judgment must respond by setting forth specific evidence in the 

record and articulating the precise manner in which that evidence supports his or her 

claim, and my not rest upon the mere allegations or denials of the pleadings. FED. R. 

CIV. P. 56(e); Johnson v. Board of Regents of University of Georgia, 263 F.3d 1234, 

1264 (11th Cir.2001). 

 In determining whether a genuine issue for trial exists, the court must view all the 

evidence in the light most favorable to the non-movant. Johnson, 263 F.3d at 1242-43; 

Smith v. F.D.I. C., 61 F.3d 1552, 1562 n. 18 (11th Cir.1995) (on summary judgment, the 

court resolves all reasonable doubts about the facts in favor of the nonmovant). If the 

non-moving party fails to make a showing sufficient to establish the existence of an 

element essential to its case on which it will bear the burden of proof at trial, summary 

judgment must be granted. Celotex, 477 U.S. at 322-23. 

 

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C. Plaintiff/Counter-Defendant should be granted Summary Judgment 

on Defendant/Counter-Plaintiff’s Cross-Claim because even if said 

promissory note was valid upon its inception, said note is barred from 

collection under Ala Code § 7-3-118. (1975). 

 Alabama Code § 7-3-118(b) states: 

Note payable on demand. Except as provided in subsection (d) or (e), if 

demand for payment is made to the maker of a note payable on demand, 

an action to enforce the obligation of a party to pay the note must be 

commenced within six years after the demand. If no demand for payment 

is made to the maker, an action to enforce the note is barred if neither 

principal nor interest on the note has been paid for a continuous period of 

10 years. 

In numerous precedent cases, the Court has determined a promissory note made 

payable upon demand shall begin tolling its statute of limitations at the instance of 

execution. In the case of Brown v. First National Bank of Montgomery, the court ruled 

“in regard to a note payable on demand, the period of limitation is to be computed from 

the date of execution and delivery of the note.” 75 So. 2d 141 (Ala. 1954). The Court 

gives the reason for the tolling to begin immediately is a demand could be made the day 

after signing said note for collection. Esslinger v. Spragins Et al 236 Ala. 508, 183 So. 

401 (1938). The Promissory note in the instant case is of October 1, 1990. (See 

Defendants’ Exhibit “3”: Promissory Note). It was at that date the statute on the 

promissory note began running. The note is now clearly barred from collection 

statutorily and under Alabama case law. 

As previously stated, all facts for barring have been previously listed, and it has 

been clear by Dorsey’s Deposition that no demand has ever been made by DMS on the 

October 1, 1990 Promissory Note. (Dorsey Depo. p. 206 at lines 10 to 12, p. 209 at lines 

15 to 18; Dorsey Brief at page 23 at footnote 7, and page 27). If such demand had been 

made, the Statute of Limitations would have began running for six-years from such date. 

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 Secondly, because no demand was made, the promissory note is barred due to no 

principal or interest being paid during the ten year period after the execution of the note. 

(Dorsey Depo. p. 206 at lines 10 to 12, p. 209 at lines 15 to 18; Dorsey Brief at page 23 

at footnote 7, and page 27). The promissory note of October 1, 1990 was barred from 

recovery as of October 1, 2000 since no demand had been made by DMS to I-65 

Properties, Inc. during the ten year period. Further, in support of no principal or interest 

being paid the alleged balance sheet reflects such. (See Defendants’ Exhibit “15”: 

Expense/ balance sheet). 

D. Conclusion 

Defendant, Dorsey has proved through his attorney of record and by his own 

admission that the counter-claim is barred by Ala. Code § 7-3-118. (1975). Furthermore, 

In Ala. Code § 7- 3-118, the official legislative explanation for time barring a demand 

note is given similarly to the situation before this Court: 

Some demand notes are not enforced because the payee has forgiven the debt. 

This is particularly true in family and other noncommercial transactions. A 

demand note found after the death of the payee may be presented for payment 

many years after it was issued. The maker may be a relative and it may be 

difficult to determine whether the note represents a real or a forgiven debt. 

Subsection (b) is designed to bar notes that no longer represent a claim to 

payment and to require reasonably prompt action to enforce notes on which there 

is default. (1996). 

WHEREFORE, premises considered, Plaintiff/Counter-Defendant respectfully 

requests the Court Grant Plaintiff/Counter-Defendant’s Motion for Summary Judgment 

and enter an Order and a finding that the October 1, 1990 Promissory Note from I-65 to 

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made to Dorsey Motor Sales, Inc. is barred from collection by virtue of Ala. Code § 7-3-

118 (1975). 

 

Respectfully Submitted this 9th day of April, 2007. 

//s// Lindsay B. Erwin 

 Lindsay B. Erwin 

 ASB-5299-Y59E 

 Attorney for Plaintiff 

Meacham, Earley & Fowler, P.C. 

5704 Veterans Parkway 

Columbus, Georgia 31904 

(706) 576-4064 

CERTIFICATE OF SERVICE

 I hereby certify that on the _9__ day of April, 2007, I electronically filed the 

foregoing with the Clerk of the Court using electronic filing system which will send 

information of such filing to the following: 

 Clifford W. Cleveland 

 Cleveland & Colley, P.C. 

 P.O. Box 680689 

 Prattville, AL 36068 

 James E. Roberts, Esquire 

 4908 Cahaba River Road, Suite 204 

 Birmingham, AL 35243 

 //s// Lindsay B. Erwin 

 OF COUNSEL 

 

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