Opinion
1171129
08-23-2019
James PEARSON and Jeffery Pearson v. Clifton S. PRICE II
Michael B. Odom of McGlinchey Stafford, Birmingham, for appellants. Robert M. Rosenberg of Waldrep, Stewart & Kendrick, LLC, Birmingham, for appellee.
Michael B. Odom of McGlinchey Stafford, Birmingham, for appellants.
Robert M. Rosenberg of Waldrep, Stewart & Kendrick, LLC, Birmingham, for appellee.
STEWART, Justice.
AFFIRMED. NO OPINION.
Shaw, Wise, Sellers, and Mendheim, JJ., concur.
Parker, C.J., and Bryan and Mitchell, JJ., dissent.
MITCHELL, Justice (dissenting).
In my view, the probate court improperly certified its summary judgment as final under Rule 54(b), Ala. R. Civ. P. For this reason, I would dismiss the appeal. I therefore respectfully dissent.
"This Court looks with some disfavor upon certifications under Rule 54(b)." Schlarb v. Lee, 955 So. 2d 418, 419 (Ala. 2006). We have consistently held that Rule 54(b) certification is not proper when the claim presented on appeal and a claim pending below "are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results." Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373, 1374 (Ala. 1987). This principle furthers our policy against piecemeal appellate review, see Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004), and necessitates dismissal of an appeal when Rule 54(b) certification creates a probability of "[r]epeated appellate review of the same underlying facts." Smith v. Slack Alost Dev. Servs. of Alabama, LLC, 32 So. 3d 556, 562 (Ala. 2009). The fact that two claims share even a single common element can render the claims sufficiently intertwined to prevent Rule 54(b) certification. See, e.g., Hammock v. Wal-Mart Stores, Inc., 8 So. 3d 939, 942 (Ala. 2008) ("The ... claim certified under Rule 54(b) ... and the ... claim that remains to be adjudicated are ‘intertwined’ because of the common element they share.").
A case this Court decided two years ago, Equity Trust Co. v. Breland, 229 So. 3d 1091 (Ala. 2017), is instructive. In that case, the trial court entered a summary judgment that disposed of several claims relating to the parties' interest in real property and certified that judgment as final under Rule 54(b), despite a pending slander-of-title counterclaim. On appeal, this Court observed that "the essence of the plaintiffs' [certified] claims and the defendants' slander-of-title ... [counterclaim] ... [was] the parties' competing claims to rights in the ... property." 229 So. 3d at 1099. Under those circumstances, this Court concluded that it would "without question" be forced to review the same underlying facts if it later faced an appeal of the pending slander-of-title counterclaim. 229 So. 3d at 1100. Accordingly, it dismissed the appeal. Id.
In this case, the appellants' certified declaratory-judgment claim and a pending slander-of-title counterclaim turn on a common factual question –– who owns the real property at issue. As a result, we will be forced to review the same underlying facts if the judgment on the slander-of-title counterclaim is eventually appealed. Because the probate court's Rule 54(b) certification threatens our policy against piecemeal appellate review and creates a probability of repeated appellate review of the same facts, I would dismiss the appeal.
Bryan, J., concurs.