Foster v. Greer and Sons, Inc.

• Decision Date: 27 January 1984
• Citation: 446 So.2d 605
• Parties: Sadie FOSTER v. GREER AND SONS, INC. Sadie FOSTER v. LINCOLN ELECTRIC COMPANY, INC. Sadie FOSTER v. INTERNATIONAL PAINT COMPANY, INC. Sadie FOSTER v. ALABAMA POWER COMPANY, INC. Sadie FOSTER v. PETTIBONE CRANE CO., INC. Sadie FOSTER v. MARINE AND INDUSTRIAL SUPPLY CO., INC. 82-403 to 82-408.
• Court: Alabama Supreme Court

Page 605

446 So.2d 605

Sadie FOSTER v. GREER AND SONS, INC.

Sadie FOSTER v. LINCOLN ELECTRIC COMPANY, INC.

Sadie FOSTER v. INTERNATIONAL PAINT COMPANY, INC.

Sadie FOSTER v. ALABAMA POWER COMPANY, INC.

Sadie FOSTER v. PETTIBONE CRANE CO., INC.

Sadie FOSTER v. MARINE AND INDUSTRIAL SUPPLY CO., INC.

82-403 to 82-408.

Supreme Court of Alabama.

Jan. 27, 1984.

Michele Gaudin and Patrick D. McArdle of DeSalvo & McArdle, New Orleans, La., and Timothy Grogan of Montiel, White & Grogan, Mobile, for appellant.

T. Dwight Sloan of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee Alabama Power Co.

Charles J. Fleming and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Pettibone Crane Co. Inc.

Lawrence M. Wettermark of Collins, Galloway & Smith, Mobile, for appellee Marine and Industrial Supply Co., Inc.

A. Neil Hudgens and Michael S. McGlothren, of Brown, Hudgens, Richardson, Whitfield, & Gillion, Mobile, for appellee Lincoln Elec. Co.

Joseph J. Boswell, Mobile, for appellee Greer & Sons, Inc.

TORBERT, Chief Justice.

This is a personal injury case arising from the alleged wrongdoing of nine fictitious and named defendants. Two of the original defendants were dismissed early on, and this appeal does not concern them. One defendant, sued under the name "Buris Erie Crane Company, Inc.," was never served. The original and amended complaint was signed and filed by out-of-state attorneys who had not obtained pro hac vice admission or obtained licenses in Alabama. Defendant Greer and Sons, Inc. made a motion to dismiss the complaint on the ground that the improperly signed complaints failed to invoke the jurisdiction of the court. The trial court dismissed the complaint as against Greer and Sons on October 23, 1981, stating as its ground the fact that plaintiff's counsel were not licensed to practice law in Alabama. Defendant Lincoln Electric's similar motion to dismiss was granted on October 28, 1981. Defendants Pettibone Crane and Marine and Industrial Supply were dismissed on November 20, 1981, after making similar motions.

On December 4, 1981, plaintiff, Sadie Foster, filed a notice of appeal as to the dismissal of Greer and Sons and Lincoln Electric. Subsequently, the trial court dismissed the remaining served defendants, Alabama Power Co., Inc. and International Paint Co., Inc. Plaintiff appealed from the dismissal of Pettibone Crane and Marine and Industrial Supply on January 4, 1982 and appealed from the dismissal of Alabama Power and International Paint on March 19, 1982. The trial court entered Rule 54(b), A.R.Civ.P., orders as to Lincoln Electric, Greer and Sons, Pettibone Crane, and Marine and Industrial Supply after appeals were taken from the dismissal orders.

All those appeals were dismissed by this Court on the ground that there was no final judgment or proper order under Rule 54(b), A.R.Civ.P., except that the order dismissing the appeal as to Alabama Power was granted because it was not taken within the time required under the rules. The orders by the trial court dismissing the complaint were essentially identical, and only the appeal regarding Alabama Power was in fact filed after the 42 days allowed for appeal had apparently run. After this Court dismissed the last of those appeals on December 13, 1982, the trial court, on motion of the plaintiff, dismissed "Buris Erie Crane Company" on January 31, 1983, and plaintiff filed these present appeals on that same day.

Once again we fail to reach the merits of these appeals. ¹ An understanding of the reasons for our dismissal of the earlier appeals is useful in understanding our decision in dismissing these present appeals.

The plaintiff first appealed from the dismissals by the trial court of Greer and Sons and Lincoln Electric on December 4, 1981. At that time Alabama Power, International Paint, and "Buris Erie Crane" were still defendants in the trial court. An order in an action involving multiple parties or claims that fails to adjudicate the rights or liabilities of all the parties is ordinarily not a final order and therefore will not support an appeal. ² A.R.Civ.P., Rule 54(b); Tubbs v. Brandon, 366 So.2d 1119 (Ala.1979). The orders dismissing Greer and Sons and Lincoln Electric were interlocutory, since they did not adjudicate the rights or liabilities of all the parties, and, therefore, they were not appealable.

Rule 54(b), however, allows the trial court, in its discretion, to enter a final judgment "as to one or more but fewer than all of the claims or parties ... upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." A.R.Civ.P., Rule 54(b). In this case there was no such 54(b) order entered at the time the appeal was taken. The 54(b) orders entered after the appeal was taken were nullities, since the trial court was without power at that time to enter them. Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979). The appeal regarding Greer and Sons and Lincoln Electric was, therefore, properly dismissed.

The appeal as to Pettibone Crane and Marine and Industrial Supply was also dismissed for lack of a final judgment, there being, again, no proper 54(b) order. At the time the appeal was filed as to these defendants, the trial court had not yet dealt with International Paint or "Buris Erie Crane"; therefore, the orders of dismissal were not final judgments. Tubbs, supra. Again the trial court's attempt to create finality with a 54(b) order was ineffectual since the trial court was without power to enter it after the appeal had been taken. Thames, supra.

Plaintiff next appealed from the trial court's dismissal of Alabama Power and International Paint. The appeal, insofar as it regarded Alabama Power, was dismissed by this Court because it was not filed within 42 days of the dismissal order. The appeal, insofar as it regarded International Paint, was dismissed for lack of a final judgment. Although the appeal was properly dismissed as to both defendants, our reason for dismissing it as to Alabama Power was not correct.

There was no valid trial court order dismissing Alabama Power and International Paint on the ground that the complaint failed to invoke the court's jurisdiction. This is true because the trial court was without jurisdiction to enter such an order. The trial court first acted on the Greer and Sons motion to dismiss, which only alleged that the complaint signed by unlicensed attorneys failed to invoke the jurisdiction of the court. After hearing oral argument only on that motion, the trial court dismissed the complaint as to Greer and Sons on the ground that plaintiff's counsel were not licensed to practice law in Alabama. The trial court next granted Lincoln Electric's motion to dismiss, which raised only the same ground. All other served defendants were dismissed after making similar motions, or after amending existing motions to include the ground alleged by Greer and Sons. None of the trial court dismissal orders entered after the order dismissing Greer and Sons stated the grounds for dismissal, but we conclude--given the sequence of events in the trial court--that the subsequent orders were granted on the same ground. ³

Plaintiff's appeal from the dismissal of Greer and Sons and Lincoln Electric came after the trial court had also dismissed Pettibone Crane and Marine and Industrial Supply, but before any action was taken as to Alabama Power or International Paint. The issue on that first appeal, as stated by the appellant in her brief on that first appeal, was "whether the complaint filed and signed in the trial court on behalf of the Alabama plaintiff-appellant constituted a valid appearance so as to invoke the jurisdiction of the trial court." The rule has been stated many times that when an appeal is taken the trial court may proceed only in matters entirely collateral to that part of the case which has been taken up by the appeal, but can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court. Reeves v. State, 419 So.2d 217 (Ala.1982); Osborn v. Riley, 331 So.2d 268 (Ala.1976); Barran v. Roden, 263 Ala. 305, 82 So.2d 398 (1955). This is an application of the general rule that jurisdiction of a case can be in only one court at a time. Walker v. Alabama Public Service Comm'n, 292 Ala. 548, 297 So.2d 370 (1974).

The issue on the first of plaintiff's prior appeals was whether the improperly signed complaint invoked the trial court's jurisdiction. Even though we later dismissed that appeal for lack of a final judgment and therefore for lack of jurisdiction in this Court, until that determination was made, this court and the trial court were bound by the presumption that this Court did have jurisdiction. Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979). The action taken by the trial court after the first appeal did involve different defendants, but the issue was the same, and for purposes of the present problem, the identity of the defendants was immaterial. The dismissal order was entered strictly as a result of the allegedly improper conduct by the plaintiff's attorneys. If the complaint failed to invoke the jurisdiction of the trial court as to any defendant, then it failed to invoke the jurisdiction of the trial court as to all defendants. That jurisdiction question was before this Court when the trial court attempted to act by dismissing the last two served defendants on that ground. We conclude that the trial court was without jurisdiction to enter any orders dismissing the remaining defendants on the ground that because the plaintiff's counsel was not authorized to practice law in Alabama the complaint failed to invoke the jurisdiction of the trial court. Therefore, the trial court orders dismissing Alabama Power and International Paint on that ground were nullities. Cf. Thames, supra; ...