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Williams v. Fann

Alabama Court of Civil Appeals

January 11, 2019

Russell WILLIAMS
v.
Heather Rene FANN and Progressive Direct Insurance Company Heather Rene Fann
v.
Russell Williams

Page 408

          Appeals from Jefferson Circuit Court (CV-17-902114), Elisabeth A. French, Trial Judge.

         Maridi Huggins, Pelham, for appellant/cross-appellee Russell Williams.

         William F. Smith II of Vernis & Bowling of Birmingham, LLC, Birmingham, for appellee/cross-appellant Heather Rene Fann.

         Paul A. Miller and Garret C. Miller of Miller, Christie & Kinney, P.C., Vestavia Hills, for appellee Progressive Direct Insurance Company.

          OPINION

         DONALDSON, Judge.

         Our supreme court has consistently stated that certifications of judgments as final under Rule 54(b), Ala. R. Civ. P., are disfavored and should rarely be entered by trial courts. See Schlarb v. Lee, 955 So.2d 418, 419 (Ala. 2006)("This Court looks with some disfavor upon certifications under Rule 54(b)."); and Baker v. Bennett, 644 So.2d 901, 903 (Ala. 1994)(citing Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala. 1987) )("Certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered

Page 409

routinely."). Furthermore, our supreme court has explained that a Rule 54(b) certification is not proper when certified claims present issues that are "intertwined" with claims that remain pending in the trial court or when "[r]epeated appellate review of the same underlying facts" is probable. Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So.3d 556, 562 (Ala. 2009).

         Russell Williams appeals from an order of the Jefferson Circuit Court ("the trial court") that, among other things, entered a partial summary judgment as to Williams’s claim of wantonness against Heather Rene Fann. Fann cross-appeals that same order insofar as it denied her motion seeking to strike certain evidence submitted by Williams and granted Williams’s motion seeking to strike certain evidence submitted by Fann and Progressive Direct Insurance Company ("Progressive"). The trial court’s order was certified as final under Rule 54(b). Because the order was interlocutory and not subject to certification as final under Rule 54(b), we dismiss these appeals as having been taken from a nonfinal judgment. See Moore v. Strickland, 54 So.3d 906, 908 (Ala.Civ.App. 2010)(quoting Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App. 2010) )(" ‘Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal.’ ").

          In May 2017, Williams filed a complaint in the trial court asserting claims of negligence and wantonness against Fann stemming from an automobile and bicycle collision. Additionally, Williams asserted a claim of negligence per se against Fann and a claim seeking underinsured-motorist benefits against Progressive.

          On March 27, 2018, Fann and Progressive filed a joint motion for a partial summary judgment with supporting documentation regarding Williams’s claim of wantonness. On April 30, 2018, Williams filed a response in opposition to the motion for a partial summary judgment with supporting documentation. On May 3, 2018, Williams, on one side, and Fann and Progressive, on the other side, filed motions seeking to strike certain evidence the other side had submitted in support of, or in opposition to, the partial-summary-judgment motion.

          On May 7, 2018, the trial court entered the following order:

"[Williams’s] Motion to Strike Investigating Officer Evidence in Support of [Fann and Progressive’s] Motion for Partial ...

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