Bacadam Outdoor Advertising, Inc. v. Kennard
Decision Date | 28 August 1998 |
Citation | 721 So.2d 226 |
Parties | BACADAM OUTDOOR ADVERTISING, INC. v. James KENNARD. |
Court | Alabama Court of Civil Appeals |
Salem Resha, Jr., Birmingham, for appellant.
John Martin Galese and Jeffrey L. Ingram of John Martin Galese, P.A., Birmingham, for appellee.
Bacadam Outdoor Advertising, Inc., appeals from a partial summary judgment in favor of James Kennard that determined Bacadam's liability on Kennard's claim of detinue, but that failed to assess Kennard's damages. We dismiss the appeal because it was not taken from a "final judgment," as that term is used in § 12-22-2, Ala.Code 1975.
Kennard filed a three-count complaint in the Jefferson County Circuit Court seeking, among other things, an award of compensatory damages and punitive damages based upon Bacadam's alleged trespass upon Kennard's property, its alleged detaining of a billboard that had formerly been on the property, and its alleged conversion of Kennard's personal property to its own use. After Bacadam had answered the complaint, Kennard moved for entry of a partial summary judgment as to Bacadam's liability for trespass, detinue, and conversion, "reserving for future determination the issue of the appropriate amount of compensatory and punitive damages to be awarded as well as interest and attorney's fees." Bacadam filed a response to this motion, as well as a motion for a summary judgment in its favor.
On November 19, 1997, the trial court entered an order granting Bacadam's motion for a summary judgment as to Kennard's conversion, trespass, and detinue claims, and purported to enter a final judgment as to these claims pursuant to Rule 54(b), Ala. R.Civ.P. However, the trial court failed to declare the amount of compensatory and punitive damages to which Kennard is entitled. The trial court denied, without comment, Bacadam's subsequent motion to alter, amend, or vacate that order as to the detinue claim.
In our preliminary examination of the record in this case, we determined that the trial court's partial summary judgment did not comply with Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ.App.1996), and we remanded the cause for compliance with Brown. In Brown, we held that when a trial court directs the entry of a final judgment on fewer than all claims or as to fewer than all parties, it "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." 681 So.2d at 229. On remand, the trial court entered an order that provided as follows:
Although neither party has raised any issue concerning this court's jurisdiction in this case, we must first consider whether this court has jurisdiction over this appeal, because "`jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.'" Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). In pertinent part, Ala.Code 1975, § 12-22-2, provides that an appeal will lie to the appropriate appellate court, within the time and in the manner prescribed by the Alabama Rules of Appellate Procedure, "[f]rom any final judgment of the circuit court" (emphasis added).
In Young v. Sandlin, 703 So.2d 1005 (Ala.Civ.App.1997), this court recently considered whether a summary judgment entered in favor of a plaintiff on a single claim for damages could be made "final" and appealable by a trial court's Rule 54(b), Ala. R.Civ.P., certification, when the summary judgment does not fix the compensatory and punitive damages to which the plaintiff is entitled. In Young, the personal representatives of a decedent's estate brought an action against a landowner (Young) who had purchased a tract of land from the decedent during his lifetime, subject to an existing mortgage, and who had received credit life insurance proceeds allegedly owed to the estate. The trial court in that case entered an order granting the estate's motion for a summary judgment, and directed the entry of a final judgment pursuant to Rule 54(b). This court dismissed the landowner's appeal, reasoning as follows:
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