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. ...