Non-Final Judgment Rule - Separate Trial on Counterclaims


Donald v. Kimberley, [Ms. 2170991, Jan. 11, 2019] __ So. 3d __ (Ala. Civ. App. 2019). This unanimous per curiam decision dismisses an appeal filed by plaintiff Donald from a judgment of the DeKalb County Circuit Court determining a boundary line between adjoining landowners. In the course of the litigation, the defendant filed counterclaims for trespass. Although the trial court entered an order “severing” the counterclaims, it did not separate Donald’s claim and the Kimberleys’ counterclaims into separate civil actions. Ms. *5.

The court dismissed Donald’s appeal as from a non-final judgment because the counterclaims remained pending in the circuit court. The court concluded that “despite the trial court’s use of the term ‘sever’ to refer to its action bifurcating the trials envisioned on the claims pleaded in Donald’s complaint and the claims pleaded in the Kimberleys’ counterclaim, the trial court did not separate those sets of claims into separate actions under Rule 21, Ala. R. Civ. P., so as to enable the June 21, 2018, order to constitute an adjudication of all claims as to all parties sufficient to constitute a final judgment.” Ms. *13.

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