Lead Opinion
Dr. Stephen L. Wallace, the plaintiff/counterclaim-defendant below, appeals from a summary judgment of the Jefferson Circuit Court in favor of Belleview Properties Corporation, IPF/Belleview Limited Partnership (“IPF”), HR/Belleview, L.P., and Infinity Property Management Corporation (hereinafter referred to collectively as “the defendants”). We dismiss the appeal.
Facts and Procedural History
In August 1991, Wallace leased office space in the Belleview Shopping Center in Fairfield, Alabama, to use for his dental practice. Around 1996, the defendants purchased the shopping center and renewed Wallace’s lease. The lease was renewed a second time in 2003 for a term of five years.
On December 22, 2005, Wallace sued the defendants,
The defendants filed answers to the complaint and asserted affirmative defenses. Also, IPF filed a counterclaim alleging breach of contract, essentially seeking unpaid rent. Wallace answered the counterclaim, alleging that he was constructively evicted from the premises because of the mold infestation and asserting defenses to IPF’s counterclaim.
On August 28, 2009, the defendants filed a motion for a summary judgment as to Wallace’s claims against them. On September 11, 2009, IPF filed a motion for a summary judgment on its counterclaim against Wallace. On January 20, 2010, the trial court conducted a hearing on the motions for a summary judgment.
On January 27, 2010, the trial court entered an order granting the defendants’ motion for a summary judgment as to Wallace’s claims against them. The trial court certified the judgment as to all claims filed by Wallace as final pursuant to Rule 54(b), Ala. R. Civ. P.
On February 11, 2010, Wallace filed a motion asking the trial court to reconsider or vacate its January 27, 2010, order and to set the matter for a hearing. The defendants filed a motion in opposition to
During a hearing on March 21, 2011, counsel for IPF specifically asked that the counterclaim be dismissed. As a result, on March 21, 2011, the trial court entered a final order of dismissal in the ease. Wallace filed a notice of appeal to this Court on May 2, 2011.
Discussion
In his notice of appeal and in the statement of jurisdiction in his brief to this Court, Wallace purports to appeal from the trial court’s March 21, 2011, final order of dismissal. However, he categorizes his arguments as follows in his brief to this Court:
1. “The trial court’s order granting partial summary judgment was in error because genuine issues of material fact exist.”
2. “The trial court’s December 27, 2010, order denying relief under Rule 60 was an abuse of discretion.”
3. “The Trial Court’s Rule 54(b) certification was ineffective or, in the alternative, the rule adopted in Allen v. Briggs,60 So.3d 899 (Ala.Civ.App.2010), should be overturned or modified based on the facts of this case.”
Also, in the summary of the argument portion of his brief to this Court, Wallace states: “This appeal is filed to challenge an erroneous grant of summary judgment, denial of a Rule 60 motion, and an improper and ineffective Rule 54(b) certification.” Therefore, it is clear that Wallace is challenging the summary judgment the trial court entered in favor of the defendants on January 27, 2010, and the denial of his motion for reconsideration, rather than the trial court’s March 21, 2011, final order of dismissal.
The defendants argue that this Court should dismiss this appeal as untimely. Specifically, they contend that the notice of appeal was filed more than 42 days after the trial court certified the summary judgment on Wallace’s claims against them as final pursuant to Rule 54(b). The defendants also assert that, if Wallace’s motion to reconsider was filed pursuant to Rule 59, it was denied by operation of law after 90 days, and the notice of appeal was not filed within 42 days after that denial. Finally, they allege that, if Wallace’s motion to reconsider was filed pursuant to Rule 60(b), it was denied on December 27, 2010, and the notice of appeal was not filed within 42 days after that date. We agree with the defendants that Wallace’s appeal is untimely.
With regard to when an appeal should be taken, Rule 4(a)(1), Ala. R.App. P., provides:
“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3[, Ala. R.App. P.,] shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ”
“The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ([Ala. R. Civ.P.]) shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion. If such post-judgment motion is deemed denied under the provisions of Rule 59.1 of the Alabama Rules of Civil Procedure, then the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1.”
With regard to postjudgment motions in civil cases, Rule 59, Ala. R. Civ. P., provides, in relevant part:
“(e) Motion to Alter, Amend, or Vacate a Judgment. A motion to alter, amend, or vacate the judgment shall be filed not later than thirty (30) days after entry of the judgment.”
Finally, Rule 59.1, Ala. R. Civ. P., provides:
“No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”
As the defendants note, Wallace clearly filed his notice of appeal more than 42 days after the trial court certified the summary judgment in their favor as final pursuant to Rule 54(b) on January 27, 2010. However, on February 11, 2010, Wallace filed a motion asking the trial court to reconsider or vacate its January 27, 2010, order. If that motion is considered a post-judgment motion to alter, amend, or vacate filed pursuant to Rule 59, it was denied by operation of law 90 days after it was filed, because the trial court did not rule on it within 90 days and the time for ruling on it was not extended. Wallace did not file his notice of appeal within 42 days after the date the motion was denied by operation of law. Therefore, if the motion to reconsider was a postjudgment motion filed pursuant to Rule 59, Wallace’s appeal is not timely.
Wallace argues that his post-judgment motion to reconsider was filed pursuant to Rule 60(b), rather than Rule 59, because, he says, he sought relief as the result of mistake, inadvertence, surprise, or excusable neglect. If the motion was filed pursuant to Rule 60(b) and not Rule 59.1, “it was not denied by operation of law pursuant to Rule 59.1 after 90 days had expired from the time it was filed.” Conway v. Housing Auth. of Birmingham Dist.,
In what is apparently an attempt to avoid a determination that his appeal is untimely, Wallace argues that, because the issues presented in his claims were intertwined with the issues in IPF’s counterclaim, the trial court’s Rule 54(b) certification in this case was improper; therefore, Wallace argues, the time for filing an appeal did not start to run until all the claims in the case were disposed of by the trial court’s March 21, 2011, order dismissing IPF’s counterclaim. In Allen v. Briggs,
“Allen first attempts to challenge the summary judgment in favor of EBMC. However, the summary judgment in favor of EBMC was expressly made a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., by the inclusion of some of the language contained in that rule in the summary-judgment order. See Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co.,466 So.2d 83 , 87 (Ala.1985) (concluding that the statement ‘[t]he Court further finds there is no just reason for delay in the entry of said final judgment’ was sufficient to make a judgment final pursuant to Rule 54(b)); see also Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000) (noting that ‘if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment’ even though the order may not contain all the language indicating that it is, in fact, an order directing the entry of a final judgment). Although Allen argues on appeal that a Rule 54(b) certification was not proper in this case, we have held that he is precluded from raising that issue now, because, insofar as his appeal is from the summary-judgment order, his appeal comes too late, having been filed more than 42 days after the entry of the summary-judgment order on July 31, 2009. See Lary v. Gardener,908 So.2d 955 , 957 n. 1 (Ala.Civ.App.2005) (citing Bagley v. Mazda Motor Corp.,864 So.2d 301 , 316-17 (Ala.2003)); see also Ex parte King,776 So.2d 31 , 38 (Ala.2000) (Lyons, J., concurring specially) (indicating that, in Justice Lyons’s opinion, the remedy for a party who believes that a Rule 54(b) certification is defective is to ‘timely fil[e] a petition for a writ of mandamus directing the trial judge to set aside the Rule 54(b) certification, possibly as an alternative remedy sought at the same time as an appeal is taken from the order purportedly made final by the Rule 54(b) certification’).
“Despite our holding in Lary, the dissent argues that a party should be permitted to raise a challenge to a Rule 54(b) certification on appeal from a sub*490 sequently entered judgment.60 So.3d at 908 . The dissent attempts to distinguish Lary on the basis that the plaintiff in Lary did not have a valid challenge to the Rule 54(b) certification.60 So.3d at 908 . However, in Lary we did not discuss the merits of the certification issue; instead, we clearly indicated that the challenge to the Rule 54(b) certification would not be considered because the plaintiffs ‘challenges are untimely because he did not file a notice of appeal with respect to [the Rule 54(b) certification of the summary] judgment within 42 days of its entry.’ Lary,908 So.2d at 957 n. 1.
“However, the dissent’s approach is not without support. An appellate court may raise the impropriety of a Rule 54(b) certification ex mero motu when that judgment is presented in a timely appeal. Gregory v. Ferguson,10 So.3d 596 , 597 (Ala.Civ.App.2008). The right of an appellate court to consider ex mero motu the propriety of a Rule 54(b) certification stems from its power to determine its own jurisdiction, which jurisdiction flows, in part, from the timely appeal from a final, appealable judgment. See Dzwonkowski v. Sonitrol of Mobile, Inc.,892 So.2d 354 , 361 (Ala.2004) (stating, in an opinion dismissing an appeal based on an improper use of a Rule 54(b) certification, that ‘all parties have overlooked a fundamental flaw in these appellate proceedings — the absence of an appealable judgment ’); Gregory,10 So.3d at 597 (‘However, this court may consider [the] issue [of the appropriateness of the Rule 54(b) certification] ex mero motu because the issue whether a judgment or order is sufficiently final to support an appeal is jurisdictional.’). Thus, if a Rule 54(b) certification is determined to have been improperly entered, the judgment so certified is considered to be nonfinal and therefore unable to support an appeal. Dzwonkowski,892 So.2d at 361 . If that is the case, and an improperly certified judgment is not a final judgment because of an improper certification, why should an appellate court be precluded from considering, on appeal from the judgment resolving the remaining claim or claims, the propriety of the certification and, if the certification was improper, the propriety of the underlying interlocutory judgment?
“Our research has revealed that only two federal appellate courts have considered this precise issue and that those two courts reached opposite conclusions. See In re Lindsay,59 F.3d 942 , 951 (9th Cir.1995) (holding that ‘[a] Rule 54(b) certification, right or wrong, starts the time for appeal running1), and Page v. Preisser,585 F.2d 336 , 338 (8th Cir.1978) (holding that ‘when a district court erroneously certifies a claim as appropriate for immediate appeal under Rule 54(b), a party may raise that claim in a timely appeal from an adverse decision on the remaining claims in the lawsuit’). Although we comprehend the reasoning behind the rule announced in Page, which hinges on the idea that an erroneously certified judgment is, in fact, not a final judgment at all, Page,585 F.2d at 338 , we believe that the better course is to require that a party seeking to challenge the propriety of a Rule 54(b) certification do so in a timely appeal from the certified judgment. As explained in In re Lindsay, ‘[t]his avoids uncertainty for counsel about when to appeal.’ In re Lindsay,59 F.3d at 951 .
“Alabama law is well settled — ‘[a] judgment certified by a trial court pursuant to Rule 54(b) is a final appealable judgment^ and] the certification triggers the running of the 42-day appeal period.’ Lewis v. State,463 So.2d 154 ,*491 155 (Ala.1985).3 To allow a later appeal of a judgment certified as final pursuant to Rule 54(b) in those circumstances in which a party desires to argue that the certification was improper injects uncertainty regarding the time to appeal and the finality of judgments. If a judgment certified as final may be appealed at a later date, the prevailing party is left in limbo, uncertain whether the judgment in its favor is, in fact, final or whether it might, at the time the remaining claim or claims in the action are resolved, be rendered ineffective because the appellate court determines that the Rule 54(b) certification was improper. In addition, if a party waits to appeal the certified judgment because it believes that the certification was improperly granted, that party risks an appellate determination that the certification was, in fact, properly made, with the resulting foreclosure of the right to appeal regarding the certified judgment. See 15A Charles A. Wright et al. Federal Practice & Procedure § 3914.7 (2d ed.1992) (explaining that, typically, if a party fails to appeal from a judgment certified as final pursuant to Rule 54(b), Fed.R.Civ. P., the right to review is lost and stating that ‘a party who believes that a judgment was improperly entered would be better advised to take a protective appeal and urge that the appeal be dismissed’). We therefore reject the rule announced in Page and, consistent with Lary, embrace the holding in In re Lindsay. Thus, insofar as Allen’s appeal relates to the summary judgment entered in favor of EBMC, the appeal is dismissed.
(Footnote omitted.)
Wallace argues that he should not be bound by Allen because that case was decided several months after the Rule 54(b) certification was entered in this case. However, his argument is not well taken because this Court and the Court of Civil Appeals had applied the same reasoning in previous cases. In Lewis v. State,
In Bagley v. Mazda Motor Corp.,
“The Bagleys’ final argument is that the trial court erred in entering a summary judgment for Creekside regarding the fraud claim. Creekside argues that the Bagleys’ appeal on this claim was untimely. We note that the trial court initially entered a summary judgment for Creekside on May 11, 1998, and specifically stated that it was certifying that judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. The court amended its summary-judgment order on May 21, 1998, to clarify that the May 11 judgment covered only the fraud claim. On July 14, 1998, the trial court entered an ‘Amended Order Nunc Pro Tunc,’ again entering a partial summary judgment for Creekside on the fraud claim, and again certifying the judgment as final. Rule 54(b) states, in pertinent part:
*492 “ ‘When more than one claim for relief is presented in an action, ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’
“Rule 4, Ala. R.App. P., provides, in relevant part, that, ‘in all cases in which an appeal is permitted by law ... the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from.... ’
“In opposing Creekside’s timeliness challenge, the Bagleys cite Brown v. Whitaker Contracting Corp.,681 So.2d 226 (Ala.Civ.App.1996). In Brown, the trial court entered a summary judgment for the defendant and certified it as final pursuant to Rule 54(b), Ala. R. Civ. P. The Court of Civil Appeals held that genuine issues of material fact existed as to the plaintiffs claim. The Court of Civil Appeals went on to state:
“ ‘The trial court, in its order, should list the factors which it considered in reaching its decision regarding whether to certify the judgment, pursuant to Rule 54(b), in order that the appellate court is better equipped to review the trial court’s action....
“ ‘... Hereafter, if a trial court should fail to list the factors considered, then the case will be returned so that the trial court can list those factors.’
“681 So.2d at 229 . In Schneider National Carriers, Inc. v. Tinney,776 So.2d 753 , 755 (Ala.2000), this Court expressly overruled Brown, pointing out:
“ “We held in Sho-Me [Motor Lodges, Inc. v. Jehle-Slauson Construction Co.,466 So.2d 83 (Ala.1985),] that if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment. ...’
“In Schneider, we further stated that ‘[njothing in Rule 54(b) requires findings to buttress the conclusion “that there is no just reason for delay.” All that is required is an “express determination.” ’776 So.2d at 755-56 .
“The Bagleys argue that relying on Brown they ‘took no action to appeal said Order as under the law at that time it could not be considered a final order since the Judgment merely stated that it was “a final Summary Judgment” and that there was no just reason for delay.’ However, Brown provided that if the trial court failed to list the factors considered in certifying a judgment as final pursuant to Rule 54(b), the case would be remanded for the trial court to list the factors. The approach advocated in Brown was not reasonably subject to the construction that the court’s order was not a final, appealable order because it lacked certain phraseology; in order for the case properly to be remanded, rather than the appeal’s just being dismissed, the judgment would have to be one that would support an appeal. In Ex parte Pritchett,812 So.2d 1157 (Ala.2000), this Court discussed the effect of Brown and noted that after the decision in Brown, ‘the Court of Civil Appeals routinely remanded cases that did not meet the level of specificity required by Brown.’812 So.2d at 1158 .
“In the present case, the 42-day period prescribed by Rule 4, Ala. R.App. P., for filing an appeal began to run on July 14, 1998, at the latest, the day the trial court entered its order nunc pro tunc,*493 which, for the second time, expressly certified the partial summary judgment in favor of Creekside as to the fraud claim as final pursuant to Rule 54(b). Even if Creekside had not pointed out the untimeliness of the appeal of that ruling, ‘[i]t is the duty of this Court to take notice of the filing date of an appeal and, if finding the appeal to be untimely, to dismiss it ex mero motu. Stewart v. Younger,375 So.2d 428 (Ala.1979).’ Lewis v. State,463 So.2d 154 , 155 (Ala.1985). The Bagleys’ notice of appeal, filed on April 29, 2002, almost four years after the partial summary judgment was last certified as final, is untimely as to that partial summary judgment and the Bagleys’ appeal from that partial judgment is dismissed.”
Bagley,
Also, in Lary v. Gardener,
On appeal, Lary attempted to challenge the judgment in favor of Farm Bureau and the Rule 54(b) certification with regard to those claims. The Court of Civil Appeals rejected those claims as untimely, holding:
“Although Lary has asserted in his briefs to this court that that judgment, and the direction of the entry of a final judgment pursuant to Rule 54(b), were erroneous, his challenges are untimely because he did not file a notice of appeal with respect to that judgment within 42 days of its entry. See Bagley v. Mazda Motor Corp.,864 So.2d 301 , 315-17 (Ala.2003) (holding that an appeal taken after the entry of a judgment disposing of all remaining claims and parties was ineffective to secure appellate review of a judgment entered pursuant to Rule 54(b) several years beforehand, despite the contention that the Rule 54(b) certification had been improper).”
Lary,
Both Bagley and Lary involved arguments that Rule 54(b) certifications were improper and invalid. Also, in both cases, the courts found that the Rule 54(b) certification could not be challenged at the conclusion of other proceedings in the case because the appeals were untimely filed. Although the decision in Allen was the first time the Court of Civil Appeals referenced In re Lindsay,
In the alternative, Wallace argues that the rule adopted in Allen should be overturned or modified based on the facts of this case. Wallace also argues that the Allen opinion makes it clear that there is support for his argument that an appellate court should be able to review the propriety of a Rule 54(b) certification on an appeal from a judgment resolving the remaining claims in the case, and he urges us to follow Page v. Preisser, 585
“The filing of a timely notice of appeal is a jurisdictional act. Lewis v. State,463 So.2d 154 , 155 (Ala.1985). ‘A judgment certified by a trial court pursuant to Rule 54(b) is a final appealable judgment; the certification triggers the running of the 42-day appeal period.’463 So.2d at 155 .”
Painter v. McWane Cast Iron Pipe Co.,
“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”
Rule 2(a)(1), Ala. R.App. P. When the trial court enters a Rule 54(b) certification, there is a facially valid order from which the time for filing a notice of appeal starts to run.
Conclusion
For the reasons set forth herein, Wallace did not timely file his notice of appeal. Accordingly, we dismiss this appeal for lack of jurisdiction. See Rule 2(a), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).
APPEAL DISMISSED.
Notes
. Wallace also named Kenneth Rosen, an officer or manager of one or more of the defendants, as a defendant. The trial court ultimately entered a summary judgment in favor of Rosen, and Wallace does not challenge that judgment in this appeal.
. Rule 54(b), Ala. R. Civ. P., provides, in relevant part:
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”
. We recognize that Wallace filed a request for clarification of the December 27, 2010, order on February 14, 2011. However,
"[a]fter a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to 'reconsider' or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal."
Ex parte Keith,
“ 30f course, the time for appeal would be suspended by a timely filed post-judgment motion directed to the certified judgment, see Rule 4(a)(8), Ala. R.App. P. (‘The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure filing a notice of appeal.’), and, therefore, in those circumstances, the time for appeal would expire upon the grant or denial of the postjudgment motion.”
. We note, as did the Court of Civil Appeals in Allen,
“Of course, the time for appeal would be suspended by a timely filed postjudgment motion directed to the certified judgment, see Rule 4(a)(3), Ala. R.App. P. (‘The filing of a post-judgment motion pursuant to Rules 50, 52, 55 or 59 of the Alabama Rules of Civil Procedure ... shall suspend the running of the time for filing a notice of appeal.’), and, therefore, in those circumstances, the time for appeal would expire upon the grant or denial of the post-judgment motion."
Concurrence Opinion
(concurring specially).
I agree with the main opinion. I write separately first to offer in Part A below a rationale for the main opinion and for the authorities upon which it relies. Part B of this writing consists of additional authority and reasons in support of our holding today. Finally, in Part C, I comment upon the necessarily synonymous nature of finality for purposes of execution and finality for purposes of appeal.
A.
A court’s authority to make a decision and the correctness of that decision are two different things. The authority to make a decision is not dependent upon the making of a correct decision. A court with
Under our Rules of Appellate Procedure, the trial court is specifically given the authority to make an “express[ ] determination” as to whether there is any “just reason for delay” in making final an order that adjudicates at least one of, but less than all, the claims in an action. Rule 54(b), Ala. R. Civ. P. The trial court may make a “correct” decision or an “erroneous” decision but, unless determined to be erroneous and reversed in accordance with established appellate procedures, the decision it makes will stand. This is the nature of the authority to decide.
In most cases, the grant of authority to a trial court to decide if there is “no just reason for delay” translates to a grant of authority to decide whether the claim being adjudicated is “so closely intertwined” with a claim that will remain pending “ ‘that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” See, e.g., Highlands of Lay, LLC v. Murphree,
If, then, a determination as to whether there is or is not a “just reason for delay” is one that is within the authority of the trial court, a decision by that court as to that issue is not “invalid and void” in the same way a decision is void when it is made in a circumstance in which the trial court has no authority to make it. The dissent is incorrect, therefore, to suggest that a trial court’s determination as to whether there is any “just reason for delay” is “invalid” or “void.” It may be incorrect and subject to reversal, but it is a decision that is within the power of the trial court to make, at least under the predicate circumstances described in Rule 54(b), i.e., where more than one claim is presented and the trial court has adjudicated the entirety of at least one of, but less than all, those claims.
Professor Moore explains that it is a judgment “entered under the authority of
“A Rule 54(b) judgment begins the running of the time to appeal regardless of the propriety of the entry of that judgment. In other words, whether or not the court abused its discretion in entering judgment is irrelevant to the parties’ obligation to timely appeal.”
Id. (emphasis added).
It is true that this Court and the Court of Civil Appeals repeatedly have acted ex mero motu when we or they have perceived error by the trial court in its decision that there was no “just reason for delay.” See, e.g., Hammock v. Wal-Mart Stores, Inc.,
Our opinions to date and those of the Court of Civil Appeals, discussed in Part B below, therefore reflect the quintessentially and uniquely final nature of a Rule 54(b) decision, a decision that not only is intended as the final word of the trial court as to the claim it addresses but is in fact the act that imparts finality to an otherwise nonfi-nal adjudication of that claim. Ultimately, these opinions are entirely consistent with the fact that this is a determination within the authority of the trial court, and moreover is one that contemplates no further action on the part of the trial court and that, therefore, is properly treated as a final judgment in and of itself.
B.
The well respected treatise, Federal Practice and Procedure, explains as follows:
“The various purposes that may prompt entry of judgment under Rule 54-(b) all suggest that the right to review should be lost if appeal is not taken within the ordinary appeal time rules as measured from the entry of judgment. Only this rule can achieve repose for a defendant, support prompt execution, and effectuate a purpose to conduct further proceedings with the knowledge that some matters are finally resolved or instead must be dealt with anew in light of the views of the court of appeals. And so it has been held that the right to review is lost.”
15A Charles Alan Wright et al., Federal Practice and Procedure § 3914.7 (2d ed.1992) (emphasis added; footnote omitted). The same treatise further states:
“[Rule 54] does not require that a judgment be entered when the court disposes of one or more claims or terminates the action as to one or more parties. Rather, it gives the court discretion to enter a final judgment in these circumstances and it provides much-needed certainty in determining when a final and appealable judgment has been entered....
“The requirement in Rule 54(b) that the court make an express determination that there is no just reason for delaying the review of a judgment on fewer than all of the claims or involving fewer than all of the parties in an action eliminates any doubt whether an immediate appeal may be sought. Conversely, it makes clear when an appeal must be sought or the right to appeal will be lost, since the time for appeal begins to*498 run from the entry of an order that meets the requirements of the rule.”
10 Charles Alan Wright et al., Federal Practice and Procedure § 2654 (3d ed.1998) (emphasis added).
In Jacquot v. Rozum,
The South Dakota Supreme Court, after discussing both Page and Lindsay, concluded that the better course is to require a party seeking to challenge a Rule 54(b) order to do so by a timely appeal after the entry of that partial judgment. In so doing it specifically relied upon Lindsay and one other case, the decision of our own Court of Civil Appeals in Allen v. Briggs,
The dissenting opinion suggests that our “caselaw” is at odds with today’s decision. It suggests that we should adhere to “long-standing practice found in our case-law” and not “abandon our current practice.”
To the contrary, four Alabama precedents discussed in the main opinion indicate a “current” practice that is exactly what is articulated in the main opinion. Two of these decisions were rendered by this Court and articulate a clear rule fully in accord with the holding in the main opinion. See the discussion in the main opinion of Lewis v. State,
Moreover, two other Alabama appellate court opinions have expressly addressed challenges to the propriety of the Rule 54(b) certification itself and have held that the appellate court can address that issue only in the context of an appeal brought within 42 days of the certification. See Allen v. Briggs,
The dissent also states:
“[UJncertainty as to the finality of a certified judgment still exists despite the rule expressed in the main opinion. Although a party must now immediately challenge an improper Rule 54(b) certification by appeal, nothing prevents the trial court from later recognizing that the claims disposed in the prior judgment are intertwined with remaining claims in the case and vacating that improvident certification.”
Likewise, therefore, I disagree with the conclusion stated at the outset of the above-quoted passage, i.e., that uncertainty as to the finality of a certified judgment “still exists.” The straightforward requirement that a party take an immediate appeal from a judgment certified as final under the circumstances presented in this case creates certainty, not uncertainty.
In an attempt to support its position as quoted above, the dissent further asserts in a footnote that “[t]he main opinion addresses the issue in this case in terms of a waiver” and that, “[i]f the main opinion purports to hold that an improperly certified judgment, left unchallenged, is actually final, then the trial court would lose jurisdiction over the judgment after 30 days.”
Again, I believe the dissent misreads the main opinion. The main opinion does indeed hold that a judgment as to the entirety of one of several claims in an action that is certified as “final” under Rule 54(b) is “actually final.” That in fact is the very point of the main opinion, just as it is the point of the authorities upon which the main opinion relies. Of course, this also can be expressed as a “waiver.” When someone forgoes their right to appeal any final judgment, they can be said to have “waived” their right to appeal. Again, the straightforward requirement that a party must take an immediate appeal from a
C.
Finally, it is important to acknowledge the synonymous nature of the finality of a Rule 54(b) judgment for purposes of execution and for purposes of appeal. The purposes and effects of a Rule 54(b) certification necessarily mean that an order certified as final under Rule 54(b) is final for all the same purposes as any other judgment and, accordingly, must be viewed as being “as final” as any other final judgment. 10 Charles Alan Wright et al., Federal Practice and Procedure § 2654 (3d ed.1998), for example, states that “Rule 5Mb) also is important because of the collateral effects of a determination under the rule.” (Emphasis added.) The referenced “collateral effects” of a Rule 54(b) judgment are the same as those of any other judgment. As further explained in Federal Practice and Procedure :
“Because Rule 54(b) provides a means of rendering a final judgment on part of a multiple-claim or multiple-party action, it has an effect on various other rules or procedures connected with the rendition of judgment. For example, as was stated earlier, once there has been a Rule 54(b) certification and a final judgment has been entered, the time for appeal begins to run. Similarly, preclusion principles are based on a final judgment so that since a Rule 5Mb) order is viewed as final, it has binding effect. On the other hand, if no certificate issues, the court’s decision or order remains interlocutory and the above effects will not take place.
“Other matters that should be noted in relation to the entry of a judgment under Rule 54(b) are that it enables a lien to be imposed on the judgment debtor’s property and a writ of execution to be issued to begin the process of collecting any damage[s] award. Section 1962 of Title 28 provides that every district-court judgment shall be a lien on the property in the state in which the court is sitting, in accordance with the law of that state; state law commonly requires a judgment to be final in order to create a lien.
“Another effect of a Rule 5Mb) order is on the accrual of interest on a judgment, since interest begins to accumulate only on a judgment that has become final.”
10 Federal Practice and Procedure § 2661. Professor Moore likewise explains that a judgment certified as final under Rule 54(b) is a final judgment “for all purposes,” specifically emphasizing its finality for purposes of the “running of time to appeal,” as well as for purposes of “res judicata,” the accrual of interest and “execution.” See Moore’s Federal Practice § 54.26[1]-[4]. See also Redding & Co. v. Russwine Constr. Corp.,
The latter authorities, including the opinion of the United States Court of Appeals for the District of Columbia in Red-ding, point to the absolute unworkability— “chaos” would be the right word in many cases — of a scenario where a judgment as to a claim is certified as final and execution ensues (so that a money judgment is collected or a judgment deed to land is delivered), only to have the losing party decide years later that he or she should not so readily have acquiesced in the certified judgment and therefore choose to appeal an already executed judgment along with
A ruling by this Court that a defendant (or a plaintiff) can be told years after the entry of a judgment, certified as final by an authorized trial court order that was not appealed at the time by the opposing party, that that judgment was in fact not final and that a defendant who thought he could move on with his life may be forced back into the litigation (or that a plaintiff and the plaintiffs lawyer may be required years later to disgorge themselves of a monetary recovery, contingency fees, and expense reimbursements from a collected judgment, or to surrender land upon which construction may have since occurred) no doubt would be a source of real consternation among the bench and the bar. Insofar as Rule 54(b) is concerned, such a ruling would take the “final” out of the word “final.”
. The predicate circumstances described in Rule 54(b) were not present in Page v. Preisser,
"In her complaint in the District Court, Page sought to have certain Iowa regulations invalidated. She asserted alternative constitutional theories in support of her argument. Her complaint, however, arose out of a single transaction and asserted only a single claim. See Edney v. Fidelity & Guaranty Life Insurance Company, supra, 348 F.2d [136] at 138 [(8th Cir.1968)]. As the Supreme Court has recently stated:
" 'Rule 54(b) ‘does not apply to a single claim action.' ”
. See generally Gollotte v. Peterbilt of Mobile, Inc.,
. "A final judgment has been defined by the courts as one that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ " Moore’s Federal Practice § 202.02 (3d ed.2012) (quoting Catlin
" '[T]he doctrine that, after a decree which disposes of a principal subject of litigation and settles the rights of the parties in regard to that matter, there may subsequently arise important matters requiring the judicial action of the court in relation to the same property, and some of the same rights litigated in the main suit, making necessary substantive and important orders and decrees in which the most material rights of the parties may be passed upon by the court, and which, when they partake of the nature of final decisions of those rights, may be appealed from, is well established by the decisions of this court.' ”
(The treatise also notes "the simple point that once the original trial proceedings have been completed, final judgment appeal should be available upon conclusion of most post-judgment proceedings” and that "[t]he finality requirement is met by orders entered after final judgment, too late or too collateral to be reviewed effectively on appeal from the final judgment, upon complete disposition of the post-judgment proceeding.") Compare State v. Chandler,
. Consistent with my own research, there is no mention in any of these four cases, including Allen, decided in 2010, of any precedents of this Court or of the Court of Civil Appeals ever approving of a "practice” of appellate-court review of the propriety of a Rule 54(b) certification as part of an appeal (a) that challenges subsequently entered judgments and (b) that is filed more than 42 days after the certification order. Furthermore, the only issue as to the overruling of prior precedent that exists in the present case is presented by Dr. Stephen L. Wallace, the plaintiff below, who finds it necessary to ask us to overrule Allen.
. This problem could not ensue from the certification of an order of the nature certified in Page. Where a court has merely expressed its view as to one of several elements of a claim or, as in Page, one of several alternative arguments made in support of a claim, there is no “order” or "judgment” in place capable of being relied upon or executed.
Dissenting Opinion
(dissenting).
I respectfully dissent. Except as otherwise provided by law, appeals lie only from final judgments. Gilbert v. Nicholson,
Except as otherwise provided by law, this Court does not have jurisdiction over a nonfinal judgment. Crutcher v. Williams,
A proper certification under Rule 54(b), Ala. R. Civ. P., will deem an otherwise nonfinal judgment as “final” for purposes of appellate jurisdiction. Sparks v. City of Florence,
Further, an improper Rule 54(b) certification is set aside not because of a technical default, but because of the risk of an inconsistent result between the judgment certified as final and the subsequent final judgment on the remaining claims. Schlarb v. Lee,
I believe that our caselaw is consistent with the decision in Page v. Preisser,
“It is clear that a district court’s decision to issue a Rule 54(b) certificate is not conclusive. Appellate courts have broad reviewing power in determining whether a district court has properly applied the rule and correctly certified an appeal. See Schwartz v. Compagnie General Transatlantique,405 F.2d 270 , 274 (2d Cir.1968); RePass v. Vreeland,357 F.2d 801 , 804-805 (3d Cir.1966); 10 C. Wright & A. Miller, Federal Practice and Procedure § 2655 at 35 (1973). In most cases, however, unlike the present action, the party challenging the certification takes a timely appeal from the court’s order. Our research has failed to disclose any cases specifically deciding whether a party who neglects to take a timely appeal from a district*503 court’s Rule 54(b) certification may challenge the propriety of that certification after the period of time for taking an appeal has expired; and if the certification is held to have been erroneous, whether the party may, in his appeal from the court’s final judgment of the remaining claims, seek review of the district court’s adverse decision on the substantive claim underlying the Rule 54(b) certification.
“We hold that such challenges may be made; and when a district court erroneously certifies a claim as appropriate for immediate appeal under Rule 54(b), a party may raise that claim in a timely appeal from an adverse decision on the remaining claims in the lawsuit. While, technically, the period for taking an appeal begins to run from the time the district court enters final judgment pursuant to the Rule 54(b) certification, if the certification is erroneous, there is, in fact, no proper final judgment from which a party must appeal. Thus, if an action involving a single claim is incorrectly categorized by the district court as one involving multiple claims, a party ought not be precluded from raising the propriety of the court’s certification in a timely appeal from an adverse judgment on the other claims in the lawsuit.”
(Emphasis added.) An erroneous Rule 54(b) certification does not confer appellate jurisdiction on this Court; appellate jurisdiction exists only when a judgment is final, and an erroneous Rule 54(b) certification does not create a final judgment.
The main opinion reverses this longstanding practice found in our caselaw. Here, the Court holds that the aggrieved party’s failure to appeal immediately from a faulty Rule 54(b) certification and the resulting unappealable, nonfinal judgment waives any future challenge to the improper certification. Thus, what was an erroneous, mistaken, invalid certification that would not confer appellate jurisdiction over the underlying judgment has become unassailable by the parties.
I see no need to abandon our current practice. The main opinion notes that the jurisdictional nature of a defective Rule 54(b) certification can raise problematic issues of certainty when an immediate appeal is not taken.
Allen also notes another purported uncertainty arising out of our current practice, namely the uncertainty as to the finality of the certified judgment. In other words, although the certified judgment would appear final by virtue of the certification itself, such certification can be challenged and vacated when a final judgment disposing of all the claims in the action is entered, thus exposing the previously certified judgment to appellate review. But it cannot be said that the parties are un
In any event, the uncertainty as to the finality of a certified judgment still exists despite the rule expressed in the main opinion. Although a party must now immediately challenge an improper Rule 54(b) certification by appeal, nothing prevents the trial court from later recognizing that the claims disposed in the prior judgment are intertwined with remaining claims in the case and vacating that improvident certification.
Although the main opinion undertakes to cure the uncertainties identified in Allen, none of those uncertainties actually affect the instant case. But the problematic issue that does exist is the danger of an inconsistent result, which clearly occurred in this case. The main opinion, in an attempt to address uncertainties not at play, has enshrined the inconsistent judgments.
Both the uncertainties identified in the main opinion and the risk of inconsistent results can be alleviated if our often stated invitation to caution is heeded:
“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.’ ” State v. Lawhorn,830 So.2d 720 , 725 (Ala.2002) (quoting Baker v. Bennett,644 So.2d 901 , 903 (Ala.1994) ....). ‘““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)) (emphasis added).’ ”
Schlarb,
I believe that the main opinion trades the easily recognized “uncertainties” created by an erroneous Rule 54(b) certification for an increased “unreasonable risk of inconsistent results.” Schlarb,
BOLIN, J., concurs.
. These uncertainties are hypothetical — they are not at play under the facts of the instant case.
. The main opinion addresses the issue in this case in terms of a waiver by the aggrieved party of any right to challenge the certification; it does not appear to hold that an improperly certified judgment, left unchallenged, is actually final. If the main opinion purports to hold that an improperly certified judgment, left unchallenged, is actually final, then the trial court would lose jurisdiction over the judgment after 30 days. See George v. Sims,