from Lauderdale Circuit Court (CV-16-900180)
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. Because we find that the order was not
appropriately certified as final, we dismiss the appeal.
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.
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
"'"'"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
"'"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
"Centennial Assocs., Ltd. v. Guthrie, 20 So.3d
1277, 1281 (Ala. 2009) (quoting 10 Charles Alan Wright et
al., Federal Practice and Procedure § 2659
Lund v. Owens, 170 So.3d 691, 695 (Ala. Civ. App.
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.
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
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
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