Consolidation - Finality - Prior Pending Action - Effect of Denial of Mandamus Relief


Nettles v. Rumberger, Kirk & Caldwell, P.C., et al., [Ms. 1170162, Aug. 31, 2018] __ So. 3d __ (Ala. 2018). This 4-3 decision by Justice Main affirms the Jefferson Circuit Court’s summary judgment in favor of the Rumberger law firm and individual defendants, former members of the Haskell Slaughter law firm, on claims for breach of fiduciary duty, fraud, conspiracy and tortious interference with contract brought by Bert Nettles, a former member of the Haskell Slaughter firm.

Before reaching the merits, the Supreme Court considered whether the appeal was from a non-final judgment because the summary judgment had been entered in an action filed by Nettles which was consolidated with an action brought by Bluebird, a creditor of the Haskell Slaughter firm, against Nettles and other former members of that firm as guarantors of firm debt. The Court concluded the summary judgment was final notwithstanding the pendency of the Bluebird action in the trial court. Overruling Hanner v. Metro Bank and Prot. Life Ins. Co., 952 So. 2d 1056, 1060 (Ala. 2006), the Court adopted the rationale of the United States Supreme Court’s recent decision in Hall v. Hall, 584 U.S. ____, 138 S.Ct. 1118 (2018). The Court held that “[o]nce a final judgment has been entered in a case, it is immediately appealable regardless of whether it is consolidated with another still pending case.” Ms. *14.

As to the merits of the Defendants’ motion for summary judgment involving the prior pending action statute, § 6-5-440, Ala. Code 1975, the Court held that the subject action filed by Nettles “qualifies as a ‘second action’ for the purposes of § 6-5-440.” Ms. *18. The second action asserts the same causes of action, against the same parties, arising from the same set of operative facts as does Nettles’ third-party complaint in the Bluebird action. Ms. *18-19.

The Court also concluded that the entry of summary judgment as to the third-party complaint filed by Nettles in the Bluebird action did not cure the multiplicity of actions presented by the second action filed by Nettles. The Court reasoned that “[t]he summary judgment entered against Nettles in the Bluebird action has not been certified as final. It remains interlocutory; it is not subject to a direct appeal; it may be revised by the trial court at any time before the entry of final judgment.” Ms. *21.

The Court also noted that the Rumberger firm initially petitioned for a writ of mandamus to review the trial court’s denial of its motion pursuant to Rule 6-5-440, which petition was denied without an opinion. Ms. *16, n. 2. The Court noted, however, that the denial of a petition for writ of mandamus does not operate as a binding decision on the merits. Ibid., quoting E B Invs., LLC v. Atlantis Dev., Inc., 930 So. 2d 502, 510 (Ala. 2005) (internal quote marks omitted).

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