Appellate Law

Improper Rule 54(b) Certification Results in Dismissal of Appeal

In Schlarb v. Lee, the Alabama Court of Civil Appeals held that improper Rule 54(b) certification warranted dismissal of this appeal. 

Scharb embodies the litigants' second attempt at appealing the orders of the trial court.  This time around, the trial court entered an order on March 28, 2008 certifiying its February 21, 2008 order as final pursuant to Rule 54(b).  One of the underlying orders was a summary judgment in favor of the defendant Yancy as to "all issues."  On the same date, in a separate order, the trial court entered a partial summary judgment in favor of the defendant Lee, determing that any damages the plaintiff might seek on her breach of contract claim against Lee must be limited "as set out in said motion for a summary judgment."  On March 28, 2008, the trial court, on its own motion, certified its two February 21, 2008 summary judgment orders as final pursuant to Rule 54(b).  The plaintiff appealled.   

After pointing out that not every order is sufficiently final to render certification pursuant to Rule 54(b) appropriate, the court quoted this passage from the Alabama Supreme Court:

This Court looks with some disfavor upon certifications under Rule 54(b).  It bears repeating here that certifications under Rule 54?(b) should be entered only in exceptional cases and should not be entered routinely.  Appellate review in a piecemal fashion is not favoroed.  Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court are so closely intertwined that separate adjudciation would pose an unreasonable risk of inconsistent results.

(internal citations omitted). 

The court then explained that the plaintiff's contract claim against Lee remained pending; the February 21, 2008 order merely stated that any damages recovered as to that claim were due to be limited.  As the Alabama Supreme Court previously determined in Schlarb I that that breach of contract claim should not be adjudicated separately from the other claims, the doctrine of law of the case required that the court conclude that the trial court erred in certifying its partial summary judgment in favor of the plaintiff as final pursuant to Rule 54(b). 

Accordingly, the court dismissed the appeal as from a nonfinal judgment. 

Full post as published by Alabama Appellate Watch on February 14, 2009 (boomark / email).