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Machen v. SCI Funeral Services, LLC

Alabama Court of Civil Appeals

June 14, 2019

Joseph Machen, individually and d/b/a Complete Roofing Exterior
v.
SCI Funeral Services, LLC, d/b/a Collier-Butler Funeral Home

          Appeal from Etowah Circuit Court (CV-16-900063)

          MOORE, JUDGE.

         Joseph Machen, individually and doing business as Complete Roofing Exterior ("Machen"), appeals from a judgment of the Etowah Circuit Court ("the trial court") in favor of SCI Funeral Services, LLC, doing business as Collier-Butler Funeral Home ("SCI"). We dismiss the appeal as being from a nonfinal judgment.

         Procedural History

         On January 29, 2016, Machen filed a complaint against SCI, asserting, among other things, that SCI had contracted with Machen to install a metal roof "and [for] other carpentry services"; that, pursuant to the written contract between the parties, Machen was to be paid $63,900; that Machen had performed the work and services at SCI's business until May 2010, at which time Machen discontinued his work and services because of a payment dispute; and that Machen had not been paid for the work that he had performed. Machen asserted claims against SCI of "open account," "stated account," "work and services provided," breach of contract, unjust enrichment, and fraudulent misrepresentation. SCI filed an answer to the complaint on December 19, 2016.

         On April 19, 2018, SCI filed a motion for a summary judgment, asserting that it was entitled to a summary judgment on all of Machen's claims because Machen was not a licensed contractor at the time he entered into the contract to perform work for SCI. Machen filed an opposition to SCI's motion for a summary judgment on July 13, 2018. Machen asserted in his opposition, among other things, that SCI had represented to Machen that Machen would be paid in three installments, with the first payment of $21,000 being due "at the beginning"; that Machen had relied on that promise and began ordering materials and supplies needed for him to perform the job for SCI; that SCI had given to Machen a check in the amount of $21,000 that was later returned for insufficient funds; that the initial payment was never reissued by SCI to Machen; that Machen had discontinued working on the project based on the failure of SCI to make the initial payment as agreed upon; that SCI had issued a check to Machen on November 2, 2009, in the amount of $21,666.66 and another check to Machen on July 3, 2010, in the amount of $7,020.30; that SCI had indicated that those funds had been paid to the Alabama State Treasurer as unclaimed funds; that, upon inquiry, Machen was informed that those funds had not been paid to the Alabama State Treasurer; and that SCI had informed Machen that the funds were being held for the benefit of Machen in an escheatment account. Machen argued that SCI was estopped from relying on the fact that Machen was unlicensed because, he said, SCI had been aware of that fact from the outset of their contract. Machen also argued that, even if he is prevented from recovering pursuant to the contract, he is entitled to the funds being held in SCI's escheatment account and that his fraudulent-misrepresentation claim with regard to SCI's initial payment to Machen is not reliant on the contract. SCI filed a reply to Machen's opposition on July 16, 2018.

         On July 19, 2018, the trial court entered a judgment that states, in pertinent part:

"There being no genuine issue as to any material fact put before the Court, [SCI] is hereby entitled to, and IS GRANTED, a partial judgment as a matter of law on part of [Machen's] claims.
"Therefore, summary judgment is granted as to all claims made by [Machen] that are in addition to the amount he claims may be escheated, paid to a third entity, or paid by [SCI] but refused due to insufficient funds. Only those claims, totaling $28,000, remain.
"This is an adjudication as to fewer than all claims; therefore, this is an express determination that there is no just reason for delay and an express direction for entry of judgment pursuant to [Rule] 54(b), Ala. R. Civ. P."

         Machen filed a motion to alter, amend, or vacate the judgment on August 17, 2018. On September 25, 2018, SCI filed a response in opposition to Machen's postjudgment motion and a supplement to its motion for a summary judgment. Machen filed an objection to that portion of SCI's motion supplementing its motion for a summary judgment, asserting that the submission of additional evidence by SCI was untimely; the trial court granted Machen's objection. Following a hearing on Machen's postjudgment motion, the trial court entered an order on September 27, 2018, denying that motion.

         On October 16, 2018, SCI filed a renewed motion for a summary judgment on Machen's remaining claims. On November 8, 2018, Machen filed his notice of appeal to the Alabama Supreme Court; that court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

         Analysis

         Machen first argues on appeal that the trial court erred in certifying its judgment as final, pursuant to Rule 54(b), Ala. R. ...


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