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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

          Appeals from Jefferson Circuit Court (CV-17-902114)

          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 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 Summary Judgment is GRANTED.
"[Fann and Progressive's] Motion to Strike Evidence Submitted by [Williams] in Opposition to [their] Motion for Partial Summary Judgment is Denied.
"The Joint Motion for Partial Summary Judgment filed by the Defendants, Heather Fann and Progressive [Direct] Insurance Company, is GRANTED. [Williams's] wantonness claim is dismissed as a matter of law as there are no genuine issues of material fact in dispute.
"Pursuant to Rule 54(b), [Ala. R. Civ. P., ] this Order is hereby made final as there is no just reason for delay."

         Williams filed a notice of appeal to the supreme court on May 31, 2018. Fann filed a cross-appeal on June 18, 2018. On August 2, 2018, the supreme court transferred the appeals to this court pursuant to § 12-2-7(6), Ala. Code 1975. The appeals were submitted to this court on October 26, 2018.

         The May 7, 2018, order did not dispose of all pending claims and, therefore, would support the appeals only if it was appropriately certified as final under Rule 54(b). See Carlisle v. Carlisle, 768 So.2d 976, 977 (Ala. Civ. App. 2000)(citing Rule 54(b), Ala. R. Civ. P.; and Ex parte Harris, 506 So.2d 1003, 1004 (Ala. Civ. App. 1987))("An order is generally not final unless it disposes of all claims or the rights and liabilities of all parties."). After reviewing the record, this court questioned the appropriateness of the Rule 54(b) certification. Whether a judgment was properly certified as final pursuant to Rule 54(b) and whether that judgment is sufficiently final to support an appeal are jurisdictional questions that this court may notice ex mero motu. Firestone v. Weaver, 245 So.3d 590, 595-96 (Ala. 2017). This court asked the parties to submit letter briefs addressing whether the May 7, 2018, order was appropriately certified as final under Rule 54(b).

         Rule 54(b) permits a trial court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." As our supreme court has explained, however, Rule 54(b) certification is disfavored and should be rarely entered. "'Rule 54(b) certifications should be granted only in exceptional cases and "should not be entered routinely or as a courtesy or accommodation to counsel."'" Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d at 1374 (quoting Foster v. Greer & Sons, Inc., 446 So.2d 605, 610 (Ala. 1984), quoting in turn Page v. Preisser, 585 F.2d 336, 339 (8th Cir. 1978)). "'"'Appellate review in a piecemeal fashion is not favored.'"'" Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala. 2004)(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)(overruled on other grounds by Schneider Nat'l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala. 2000))). See also Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ. App. 2003)(quoting Brown v.Whitaker Contracting Corp., ...


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