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Kirby v. Jack's Family Restaurants, LP

Alabama Court of Civil Appeals

June 16, 2017

Hope Kirby
v.
Jack's Family Restaurants, LP

         Appeal from Lauderdale Circuit Court (CV-16-900180)

          DONALDSON, Judge.

         Hope Kirby appeals from an order of the Lauderdale Circuit Court ("the trial court") dismissing her tort-of-outrage claim against Jack's Family Restaurants, LP ("Jack's"). The order did not dismiss all of Kirby's claims against all the defendants, but it was certified as final and appealable pursuant to Rule 54(b), Ala. R. Civ. P.[1] Because we find that the order was not appropriately certified as final, we dismiss the appeal.

         The procedural history relevant to this appeal can be summarized as follows. Kirby, who had been an employee of Jack's, filed a complaint in the trial court seeking benefits under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975 ("the Act"), and seeking damages for the tort of outrage and retaliatory discharge. Kirby named as defendants Jack's, the Alabama Self-Insured Worker's Compensation Fund, Employer's Claim Management, Inc., and Directions Management Services, Inc. (hereinafter referred to collectively as "the defendants"). Jack's filed a motion pursuant to Rule 12(b)(6), Ala. R. Civ. P., seeking to dismiss Kirby's claim asserting the tort of outrage. Thereafter, the other defendants also filed similar motions to dismiss. Kirby, with leave of the trial court, filed two amended complaints attempting to support her claim asserting the tort of outrage. On October 5, 2016, after a hearing, the trial court granted the defendants' motions to dismiss. On October 12, 2016, in response to a motion filed by Jack's seeking to clarify the October 5, 2016, dismissal order, the trial court entered an order dismissing Kirby's tort-of-outrage claim asserted against Jack's and clarified that the dismissal was directed to the tort-of-outrage claim asserted in Kirby's second amended complaint. The trial court certified that order as final pursuant to Rule 54(b). On November 22, 2016, Kirby timely filed a notice of appeal to the supreme court. Thereafter, the supreme court deflected the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.

         "Although neither party has raised the issue of the appropriateness of the [trial] court's Rule 54(b), Ala. R. Civ. P., certification of its ... order [dismissing Kirby's tort-of-outrage claim], this Court may consider that issue ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is a jurisdictional one." Firestone v. Weaver, [Ms. 1151211, May 12, 2017] So.3d ___, ___ (Ala. 2017). "This court has appellate jurisdiction over appeals from judgments that are final." Perry v. Perry, 92 So.3d 799, 800 (Ala. Civ. App. 2012).

"An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. See Stone v. Haley, 812 So.2d 1245 (Ala. Civ. App. 2001). In such an instance, an appeal may be had 'only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.' See Rule 54(b), Ala. R. Civ. P.; Baker v. Johnson, 448 So.2d 355, 358 (Ala. 1984)."

Eubanks v. McCollum, 828 So.2d 935, 937 (Ala. Civ. App. 2002). Despite a trial court's certification of an order as final,

"'[n]ot every order has the requisite element of finality that can trigger the operation of Rule 54(b).' Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003) (citing Moss v. Williams, 747 So.2d 905 (Ala. Civ. App. 1999)). '"'Certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.'"' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004) (quoting State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002), quoting in turn Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994)).
"'"'"Appellate review in a piecemeal fashion is not favored."'"' Id. (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003), quoting in turn Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala. Civ. App. 1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala. Civ. App. 1996)).
"'"It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.
"'"An appellate court also should not hear appeals that will require it to determine questions that remain before the trial court with regard to other claims."'
"Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala. 2009) (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998))."

Lund v. Owens, 170 So.3d 691, 695 (Ala. Civ. App. 2014).

         The trial court's October 12, 2016, order dismissing Kirby's tort-of-outrage claim asserted against Jack's found, in part, that Kirby's "allegations fail to rise to the level of a cognizable claim of outrage under Alabama law and, therefore, [Kirby] has failed to state a claim for Outrage." That order did not dispose of Kirby's claim seeking workers' compensation benefits or Kirby's claim alleging retaliatory discharge. We note that those claims were not severed pursuant to Rule 21, Ala. R. Civ. P., but remain pending in the same case.

          Rule 54(b) certification is not proper when the unadjudicated claims "are so closely intertwined [with those adjudicated in a judgment that has been certified as final so] that separate adjudication would pose an unreasonable risk of inconsistent results." Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala. 1987). Furthermore, Rule 54(b) certification is improper "when at least some of the issues presented in the claims still pending in the trial court [are] the same as the issues presented in the claims addressed in the judgment on appeal and '"[r]epeated appellate review of the same underlying facts would be a probability in [the] case."'" Lund, 170 So.3d at 696 (quoting Patterson v. Jai Maatadee, Inc., 131 So.3d 607, 611 (Ala. 2013), quoting in turn Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala. 2009)).

         We must, therefore, determine whether Kirby's tort-of-outrage claim is "closely intertwined" with the remaining claims alleging retaliatory discharge and seeking workers' compensation benefits. "In order to recover [damages for the tort of outrage], a plaintiff must demonstrate that the defendant's conduct '(1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it.'" Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000) (quoting Green Tree ...


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