IMPROPER RULE 54(B) CERTIFICATION OF SUMMARY JUDGMENT ORDER - COUNTERCLAIMS INTERTWINED WITH ORIGINAL CLAIMS - BEBEE PROPERTIES, LLC V. MARGARET A. ARD
Bebee Properties, LLC v. Margaret A. Ard, [Ms. 2150963, June 2, 2017] __ So. 3d __ (Ala. Civ. App. 2017). In this unanimous opinion by Judge Donaldson (Thompson, P.J. and Pittman, Thomas, and Moore, JJ., concur) the court ex mero motu dismisses the appeal and cross-appeal as from a non-final judgment. The court concludes that the trial court exceeded its discretion in certifying as final pursuant to Rule 54(b), Ala. R. Civ. P., a summary judgment order dismissing all claims against the defendant and some of defendant’s counterclaims, but leaving two counterclaims pending in the trial court.
The counterclaims which remained pending after entry of the 54(b) order were for slander of title and attorney’s fees under the Alabama Litigation Accountability Act (“ALAA”).
The court noted that “‘[the Alabama Supreme Court] looks with some disfavor upon certifications under Rule 54(b).’” Ms. *18, quoting Schlarb v. Lee, 955 So. 2d 418, 419 (Ala. 2006). While noting that under appropriate facts, summary judgment on an original claim may be finally adjudicated under Rule 54(b), while leaving a counterclaim pending for further litigation on the issues presented by the counterclaim, the court concluded that the 54(b) certification before it was improper because
the unadjudicated claims “are so closely intertwined [with the claims adjudicated in the judgment certified as final] that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch, [v. SouthTrust Bank of Dothan, N.A.,] 514 So. 2d   1374 [(Ala. 1987)]. Furthermore, Rule 54(b) certification is improper “when at least some of the issues presented in the claims still pending in the trial court [are] the same as the issues presented in the claims addressed in the judgment on appeal and ‘“[r]epeated appellate review of the same underlying facts would be a probability in [the] case.’”
Ms. *17-18, quoting Lund [v. Owens], 170 So. 3d  [691,] 696 [Ala. Civ. App. 2014] (quoting Patterson v. Jai Maatadee, Inc., 131 So. 3d 607, 611 (Ala. 2013), quoting in turn Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So. 3d 556, 562 (Ala. 2009)).
Applying these principles, the court found that the 54(b) certification was improper because the defendant’s remaining counterclaim for slander of title had as an essential element ownership of the subject property and that ownership of the property had been adjudicated in the partial summary judgment order dismissing the original claims against the defendant. Ms. *19.
The court also concluded the counterclaim under the ALAA was intertwined with the dismissed claims:
In order to determine whether [defendant] is entitled to an award under the ALAA, the trial court might be required to consider, in part, facts and circumstances related to whether [plaintiff] properly filed a notice of lis pendens and whether [plaintiff] slandered [defendant’s] title. Therefore, at least some of the issues presented in the claims still pending in the trial court [are] the same as the issues presented in the claims addressed in the judgment on appeal and [are] repeated appellate review of the same underlying facts [is] a probability in [the] case. Accordingly, [defendant’s] ALAA claim is also so closely intertwined [with at least some of the claims adjudicated in the partial-summary-judgment order] that separate adjudication would pose an unreasonable risk of consistent results.
Ms. * 20-21 (internal quote marks omitted).