Order Following Second of Thirteen Trials in Single Action Was Not Final for Appeal
New Acton Coal Mining Company, Inc. v. Woods et al., No. 1081092 (Ala. April 9, 2010), illuminates the procedural distinction, for purposes of appeal, between claims separated for trial under ARCP 42(b) and claims severed for separate trials under ARCP 21. Pursuant to Rule 42(b), the trial court in Woods ordered thirteen trials of the 26 plaintiffs' claims against the defendant. Six plaintiffs moved for a new trial at the conclusion of the second of thirteen trials, arguing that the damages awards in their favor were inadequate. The Alabama Supreme Court lacked jurisdiction over the plaintiffs' appeal from the order denying their new trial motion because the plaintiffs did not appeal from a final judgment.
Importantly, the trial court ordered separate trials under Rule 42(b); it did not sever the plaintiffs' claims under Rule 21, Ala. R. Civ. P] A significant distinction exists between an order separating trials under Rule 42(b) and one severing claims under Rule 21 because "severed claims become independent actions with judgments entered independently, while separate trials lead to one judgment."
Universal Underwriters Ins. Co. v. East Cent. Alabama Ford-Mercury, Inc., 574 So. 2d 716, 725 (Ala. 1990). The Committee Comments adopted February 13, 2004, to Rule 21 explain:
Confusion has sometimes arisen between a true severance and an order providing for separate trials pursuant to Rule 42 (b) . The distinction has at least the significance that a judgment on the first of two separate trials is not final, absent an order pursuant to Rule 54(b), Ala. R. Civ. P., while after a true severance a judgment on the first action to come to trial is final and appealable without reference to the proceedings in the severed action. Key v. Robert M. Duke Ins. Agency, 340 So. 2d 781, 783 (Ala. 1976) . ...
In Key v. Robert M. Duke Insurance Agency, 340 So. 2d 781, 783 (Ala. 1976), this Court advised that 'separate trials of different claims in a single action under Rule 42(b) usually result in a single judgment. Consequently, when the court wishes to enter judgment as to fewer than all the claims or parties, in a single action, Rule 54(b) [, Ala. R. Civ. P.,] must be followed.' See also 10 Charles Alan Wright et al., Federal Practice and Procedure, Civil § 2656 (3d ed. 1998) (noting that 'the fact that separate trials have been ordered under Rule 42(b) does not affect the finality of the judgment entered following each separate trial for purposes of Rule 54 (b)').
Here, before the appellees moved for a new trial under Rule 59, the trial court did not direct the entry of a final judgment on the appellees' claims under Rule 54(b), Ala. R. Civ. P. Consequently, the appellees' motion for a new trial under Rule 59 and New Acton's appeal of the trial court's order granting that motion relate to a nonfinal judgment and, therefore, are improper. See Ex parte Troutman Sanders, LLP, 866 So. 2d 547, 550 (Ala. 2003) ('A Rule 59 motion may be made only in reference to a final judgment or order.' (quoting Malone v. Gainey, 726 So. 2d 725, 725 n.2 (Ala. Civ. App. 1999))); Galloway, 374 So.2d at 1351 (holding that an appeal under § 12-22-10, Ala. Code 1975, is proper only in relation to a final judgment). Accordingly, we vacate the trial court's order granting a new trial, and we dismiss the appeal." Id. (footnotes omitted).
