July 24, 2015
Imperial Aluminum-Scottsboro, LLC
Tyler D. Taylor
for Publication April 28, 2016.
from Jackson Circuit Court. (CV-11-900074). John H Graham,
Appellant: Anthony N Fox of Scott, Sullivan, Streetman & Fox,
P C , Birmingham
Appellee: L Thompson McMurtrie, Huntsville
Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ.,
Aluminum-Scottsboro, LLC (" Imperial" ), appeals
from a judgment of the Jackson Circuit Court entered on a
jury's verdict in favor of Tyler D. Taylor on his claim
alleging that Imperial discharged him in retaliation for his
having asserted a workers' compensation claim so as to
have violated § 25-5-11.1, Ala. Code 1975. We dismiss
Imperial's appeal as having been taken from a nonfinal
2011, Taylor sued Imperial, asserting a claim under the
Alabama Workers' Compensation Act, § 25-5-1 et seq.,
Ala. Code 1975. Taylor also asserted causes of action based
on theories of retaliatory discharge and the tort of outrage
(" the tort claims" ). Imperial answered
Taylor's complaint and, subsequently, filed a motion to
sever the workers' compensation claim from the tort
claims. Although Imperial appears to have sought a true
severance pursuant to Rule 21, Ala. R. Civ. P., in that
Imperial's motion requested that a new case number be
assigned to the tort claims, the trial court entered an order
under Rule 42(b), Ala. R. Civ. P., " bifurcating"
the issues and calling for separate trials. No new case
number was assigned to the tort claims or to the workers'
tort claims were tried before a jury in September 2014. At
the close of all the evidence, Imperial moved for a judgment
as a matter of law on both the retaliatory-discharge claim
and the tort-of-outrage claim. The trial court granted
Imperial's motion as to Taylor's tort-of-outrage
claim but denied the motion as to Taylor's
retaliatory-discharge claim, which was submitted to the jury.
The jury returned a verdict in favor of Taylor and awarded
him compensatory and punitive damages. The trial court
entered a judgment on that verdict, and Imperial appealed.
The record, however, does not indicate that Taylor's
workers' compensation claim has been disposed by the
Without a final judgment, an appellate court does not have
jurisdiction to consider an appeal. Ex parte Wharfhouse Rest.
& Oyster Bar, Inc., 796 So.2d 316, 320 (Ala. 2001). " A
final judgment that will support an appeal is one that puts
an end to the proceedings between the parties to a case and
leaves nothing for further adjudication." Id.
" A significant distinction exists between an order
separating trials under Rule 42(b)[, Ala. R. Civ. P.,] and
one severing claims under Rule 21[, Ala. R. Civ. P.,] 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.
New Acton Coal Mining Co. v. Woods, 49 So.3d 181,
184-85 (Ala. 2010) (footnote omitted).
Office Max, Inc. v. Academy, Ltd., 93 So.3d 955, 957
(Ala.Civ.App. 2012), this court stated:
" As was noted in Ex parte Vance, 900 So.2d 394
(Ala. 2004), workers' compensation actions '"
shall proceed in accordance with and shall be governed by the
same rules and statutes as govern civil actions." '
900 So.2d at 398 n.7 (quoting Ala. Code 1975, §
25-5-88). The court in Ex parte Vance also reasoned that
because the Alabama Rules of Civil Procedure are applicable
in workers' compensation actions, Rule 54(b), Ala. R.
Civ. P., applies in such actions. Id. That rule
provides, in pertinent part, that '[w]hen more than one
claim for relief is presented in an action, whether as a
claim ... or third-party claim, or when multiple parties are
involved,' a trial court must make an express
determination that there is no just reason for delay and must
make an express direction that a final judgment be entered in
order for a ruling that 'adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the
parties' to be a final, appealable judgment."
Taylor's tort claims were not severed from his
workers' compensation claim, because the record indicates
that Taylor's workers' compensation claim has not
been disposed, and because the trial court did not certify
its judgment as final pursuant to Rule 54(b), Ala. R. Civ.
P., there has been no final judgment in this case that would
support this court's jurisdiction. Accordingly, we
dismiss Imperial's appeal for lack of a final, appealable
P.J., and Thomas, Moore, and Donaldson, JJ., concur.
" As was also noted in Ex parte
Vance, '" [c]ertifications under Rule 54(b)[,
Ala. R. Civ. P.,] should be entered only in exceptional cases
and should not be entered routinely." ' 900 So.2d
 at 398 [(Ala. 2004)] (quoting State v.
Lawhorn, 830 So.2d 720, 725 (Ala. 2002))."
Office Max, Inc., 93 So.3d at 957 n.1.