Rule 54(B), Ala. R. CIV. P., Finality/Dismissal of Appeal - Kirby v. Jack's Family Restaurants, LP


Kirby v. Jack's Family Restaurants, LP, [Ms. 2160220, June 16, 2017] __ So. 3d __ (Ala. Civ. App. 2017). The Court of Civil Appeals, in a plurality opinion (Donaldson, J., Thompson, P.J., and Moore, J., concur; Thomas, J., and Pittman, J., concur in the result), holds the Lauderdale Circuit Court erred in certifying the dismissal of an injured employee's tort-of-outrage claim as final within the meaning of Rule 54(b), Ala. R. Civ. P., because it was inextricably intertwined with remaining claims seeking benefits under the Alabama Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975, and with claims for damages stemming from an alleged retaliatory discharge. Reviewing the finality of the judgment ex mero motu "because the issue whether a judgment or order is sufficiently final to support an appeal is a jurisdictional one" (Ms. * 3), the court finds the dismissal of the outrage claim insufficiently final under the test set forth in Lund v. Owens, 170 So. 3d 691, 695 (Ala. Civ. App. 2014):

" '[n]ot every order has the requisite element of finality that can trigger the operation of Rule 54(b).' Goldome Credit Corp. v. Player, 869 So. 2d 1146, 1148 (Ala. Civ. App. 2003) (citing Moss v. Williams, 747 So. 2d 905 (Ala. Civ. App. 1999)). ' " 'Certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.' " ' Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004) (quoting State v. Lawhorn, 830 So. 2d 720, 725 (Ala. 2002), quoting in turn Baker v. Bennett, 644 So. 2d 901, 903 (Ala. 1994)).

" ' " ' "Appellate review in a piecemeal fashion is not favored." ' " ' Id. (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)).

" ' "It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties.

" ' "An appellate court also should not hear appeals that will require it to determine questions that remain before the trial court with regard to other claims." '

"Centennial Assocs., Ltd. v. Guthrie, 20 So. 3d 1277, 1281 (Ala. 2009) (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998))."

Ms. * 4-5 (quoting Lund v. Owens, 170 So. 3d 691, 695 (Ala. Civ. App. 2014)). Ultimately, the court holds that Rule 54(b) certification is not proper when the remaining unadjudicated claims "are so closely intertwined [with those adjudicated in a judgment that has been certified as final so] that separate adjudication would pose an unreasonable risk of inconsistent results." Ms. * 6 (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987)).

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