Posted on November 14, 2008 by Ivan B. Cooper

Appeal Dismissed Because Rule 54(b) Certification Was Improper

In Hammock v. Wal-Mart Store, Inc., [Ms. 1070939] (Ala. Nov. 7, 2008),  the Alabama Supreme Court dismissed the appeal because it determined that a Rule 54(b) certification was improper.

In Hammock, the plaintiff filed a wrongful death suit against Wal-Mart and one of its employees after the plaintiff's decedent was killed by the Wal-Mart employee when the employee struck the decedent with his car while returning from lunch.  The plaintiff asserted claims against Wal-Mart based on respondeat superior and also alleged that Wal-Mart was negligent in maintaining the parking lot and training its employees.  The trial court granted summary judgment to Wal-Mart on the respondeat superior claims on  the basis that the accident did not occur in the course and scope of his duties for Wal-Mart.  The other claims against Wal-Mart remained pending, as did the claims against the employee.  The trial court certified the order granting summary judgment to Wal-Mart on the respondeat superior claims as final pursuant to Rule 54(b).

On appeal the Supreme Court, on its own, examined whether it had jurisdiction over the appeal.  Quoting extensively from North Alabama Elec. Coop. v. New Hop Tel, Coop., [Ms. 1051800] (Ala. Oct. 17, 2008), the Court stated the rule that Rule 54(b) certifications are not favored, and are inappropriate where the claims are intertwined.

The Court found that the respondeat superior claim and the remaining claim for negligenet training and supervion were intertwined because they share common elements.  "Like a claim of respondeat superior, liability under a theory of negligent supervision is based in the employment relationship.  The trial court ruled on Hammock's respondeat superior claim, determining that [employee] was not acting within the line and scope of her employment when she struck and killed [decedent].  As a result, a separate adjudication by the trial court on negligent supervision and training leaves open the possibility of 'inconsistent results.'"

Because the claims were intertwined, the Rule 54(b) certification was improper, and the appeal was dismissed.

 
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Posted on May 28, 2008 by Ivan B. Cooper

Rule 54(b) certification improper, so appeal is dismissed

The Court of Civil Appeals found that a Rule 54(b) certification was improper and thus dismissed the appeal in Owen v. Hopper, Ms. 2070016 (Ala. Civ. App, May 23, 2008) .  In a property line dispute, the Court of Civil Appeals found that the judgment on the counterclaim which was certified as final was really a defense to the underlying tort claim.  The court found that the claim and counterclaim were too intertwined to support a 54(b) certification, and, therefore, the appeal had to be dismissed.
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Posted on March 25, 2008 by Ivan B. Cooper

Failure to dispose of counterclaims defeats finality of judgment

In Posey v. Mollohan, [Ms. 2060500] (Ala. Civ. App. March 21, 2008), the Court of Civil Appeals dismissed an appeal of a judgment for lack of jurisdiction due to the presence of pending counterclaims and defenses which sought affirmative relief. 

The parties to this case had a bench trial regarding the possession of two Tennessee Walking Horses.  One of the defenses raised to the suit was that the defendant was justified in retaining the horses pursuant to a statutory lien.  Further, the defendant raised other counterclaims.

After a bench trial, the trial court found in favor of the plaintiff.  However, the judgment did not address the counterclaims.  Therefore, the judgment was not final, and the appeal had to be dismissed.

Interestingly, not all the pending counterclaims impacted the finality of judgment.  The defendant filed a counterclaim asserting defamation.  However, at trial, the defendant put forth no evidence at trial in support of the claim.  The court cited precedent holding that the presence of claims for which no argument or evidence is presented does not prevent the finality of judgment on the disposed claims.

The court found that the remaining counterclaims were intertwined with the judgment at issue.  Therefore, the court could not simply remand the order for Rule 54(b) certification and, instead, was required to dismiss the appeal.
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Posted on August 8, 2007 by Madeline H. Haikala

Appeal Dismissed Because of Improper Rule 54(b) Certification

In Flores v. Flores, No. 2060408 (Ala. Civ. App. August 3, 2007), the Court of Civil Appeals dismissed an appeal from an order modifying a periodic alimony obligation because the trial court improperly certified the order as a final judgment pursuant to ARCP 54(b). “’[A] Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’” (quoting Schlarb v. Lee, 955 So. 2d 418 (Ala. 2006)). Mrs. Flores initiated the action, asking the trial court to increase the periodic alimony payments that she received from Mr. Flores. Mr. Flores counterclaimed and petitioned the court for primary physical custody of the couple’s daughter. The trial court ordered separate trials of the alimony and custody issues. Mr. Flores then requested pendente lite custody of his daughter. The trial court granted the request and suspended Mr. Flores child support payments. The trial court also entered a judgment in which it increased the amount of Mr. Flores periodic alimony payments to Mrs. Flores and revised other terms of the divorce settlement. The judgment did not address final custody of the couple’s daughter or child support payments. The trial court certified the judgment as final, pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure.

Mr. Flores filed a timely appeal from the trial court judgment. Neither he nor Mrs. Flores addressed the Rule 54(b) certification in the appellate briefs. The Court of Civil Appeals flagged the issue and expounded upon its importance. “’Rule 54(b) certifications should be granted only in exceptional cases and should not be entered routinely or as a courtesy to accommodate counsel.”” (quoting Summerlin v. Summerlin, No. 1051470 (Ala. Jan. 12, 2007). The Court explained that piecemeal appellate review is not favored, so courts should provide a Rule 54(b) certification only if failure to do so might have a “harsh effect.”

The Court noted that in reaching a decision on Mrs. Flores’ request for a modification of her periodic alimony payments, the trial court should have considered, among other items, evidence of the payor’s financial expenses, including his child support obligations. The trial court could not weigh these factors without first making a final decision on the child custody issue and determining whether Mr. Flores would have future child support obligations. Because the alimony and custody issues were so intertwined, the trial court erred in issuing the Rule 54(b) certification, and the Court of Appeals dismissed the appeal.
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