Ala. R. Civ. P. 54(b) Certification, Dismissal of Appeal

Gleason v. Halsey, [Ms. 1200678, Dec. 3, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Mendheim, J.; Bolin, Shaw, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur; Parker, C.J., concurs in the result) dismisses an appeal from an order granting summary judgment in favor of the seller of a used home which was certified as a final order within the meaning of Ala. R. Civ. P. 54(b) by the Baldwin Circuit Court.

Interestingly, neither party challenged the appropriateness of the Circuit Court’s Rule 54(b) certification, but the Supreme Court determined to consider that issue ex mero motu “because the issue whether a judgment or order is sufficiently final to support an appeal is a jurisdictional one.” Ms. *9, quoting Barrett v. Roman, 143 So. 3d 144, 148 (Ala. 2013).

Quoting Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1263-64 (Ala. 2010), the Court reiterates the standard for reviewing Rule 54(b) certifications.

" ' "If a trial court certifies a judgment as final pursuant to Rule 54(b), an appeal will generally lie from that judgment." Baugus v. City of Florence, 968 So. 2d 529, 531 (Ala. 2007).

" 'Although the order made the basis of the Rule 54(b) certification disposes of the entire claim against [the defendant in this case], thus satisfying the requirements of Rule 54(b) dealing with eligibility for consideration as a final judgment, there remains the additional requirement that there be no just reason for delay. A trial court's conclusion to that effect is subject to review by this Court to determine whether the trial court exceeded its discretion in so concluding.'

"Centennial Assocs. v. Guthrie, 20 So. 3d 1277, 1279 (Ala. 2009). Reviewing the trial court's finding in Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006), that there was no just reason for delay, this Court explained that certifications under Rule 54(b) are disfavored:

" 'This Court looks with some disfavor upon certifications under Rule 54(b).

" ' "It bears repeating, here, that ' "[c]ertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely." ' State v. Lawhorn, 830 So. 2d 720, 725 (Ala. 2002) (quoting Baker v. Bennett, 644 So. 2d 901, 903 (Ala. 1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373 (Ala. 1987)). ' " 'Appellate review in a piecemeal fashion is not favored.' " ' Goldome Credit Corp. [v. Player, 869 So. 2d 1146, 1148 (Ala. Civ. App. 2003) ] (quoting 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)) ..."

" 'Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004).'

"In considering whether a trial court has exceeded its discretion in determining that there is no just reason for delay in entering a judgment, this Court has considered whether 'the issues in the claim being certified and a claim that will remain pending in the trial court " 'are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.' " ' Schlarb, 955 So. 2d at 419-20 (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So. 2d 88, 95 (Ala. 2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987), and concluding that conversion and fraud claims were too intertwined with a pending breach-of-contract claim for Rule 54(b) certification when the propositions on which the appellant relied to support the claims were identical). See also Centennial Assocs., 20 So. 3d at 1281 (concluding that claims against an attorney certified as final under Rule 54(b) were too closely intertwined with pending claims against other defendants when the pending claims required 'resolution of the same issue' as issue pending on appeal); and Howard v. Allstate Ins. Co., 9 So. 3d 1213, 1215 (Ala. 2008) (concluding that the judgments on the claims against certain of the defendants had been improperly certified as final under Rule 54(b) because the pending claims against the remaining defendants depended upon the resolution of common issues)."

(Emphasis omitted.)

Ms. **10-12. The Court concludes (Ms. **12-16) that plaintiff’s claims against both the seller of the used house and a pre-sale inspector for negligent inspection “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Ms. *16, quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987). As a result, the Court concludes the Baldwin Circuit Court exceeded its discretion in certifying the order granting summary judgment for the seller of the home as a final order within the meaning of Rule 54(b). Accordingly, the appeal was dismissed.

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