CIVIL PROCEDURE - MARKS V. RESTON CONSTR., INC.
In Marks v. Reston Constr., Inc., [Ms. 2091204, Jan. 21, 2011] __ So. 3d __(Ala. Civ. App. 2011), the Court of Civil Appeals dismissed an appeal upon concluding that the circuit court erroneously certified the judgment as "final" within the meaning of Ala.R.Civ.P. 54(b). Following Gregory v. Ferguson, 10 So. 2d 596, 597 (Ala. Civ. App. 2008), the Court noted it could review ex mero motu whether a judgment or order is sufficiently final to support an appeal because that determination is jurisdictional, and that in some instances a Rule 54(b) certification may not be appropriate when pending claims " 'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.' " In the present case, the circuit court relied upon terms of the party's release and entered a summary judgment in favor of a homebuilder as to the homeowner's claims against the builder based upon the terms of that release. However, a counterclaim for indemnity based upon the same release remained pending after entry of the summary judgment. Because the homeowner's claims and the builder's counterclaim were "closely intertwined," the Court determined that certification of the summary judgment order as final and appealable was improper. Accordingly, the Court dismissed the appeal.