Gilbreath v. Harbour, 2070142.
Decision Date | 15 August 2008 |
Docket Number | 2070142. |
Citation | 3 So.3d 875 |
Parties | Raymond W. GILBREATH and Sherry L. Gilbreath v. Richard Earl HARBOUR and Charlotte Harbour. |
Court | Alabama Court of Civil Appeals |
John H. Ufford II, Crossville, for appellants.
J. David Dodd and J. Eric Brisendine of Scruggs, Dodd & Dodd, Attorneys, P.A., Fort Payne, for appellees.
On February 23, 2004, Raymond W. Gilbreath and Sherry L. Gilbreath ("the Gilbreaths") sued Richard Earl Harbour and Charlotte Harbour ("the Harbours"), and Timothy Harbour, the Harbours' son. The Gilbreaths and the Harbours own adjoining tracts of land. In their complaint, the Gilbreaths alleged a boundary-line dispute and claimed ownership of certain property ("the disputed property") by adverse possession. The Gilbreaths also sought an injunction, seeking to enjoin the parties from altering the disputed property, destroying the boundary markers between the parties' properties, and harassing one another.
On March 11, 2004, the Harbours answered the Gilbreaths' complaint, denying the allegations contained therein. Timothy Harbour also answered the Gilbreaths' complaint, denying their allegations.
On December 6, 2005, the Gilbreaths moved for leave to amend their complaint, seeking to add a claim of intentional infliction of emotional distress against the Harbours and Timothy Harbour and seeking to add claims alleging assault and the tort of outrage against Timothy Harbour. On January 13, 2006, the trial court entered an order that, among other things, permitted the Gilbreaths to amend their complaint. On January 23, 2006, the Gilbreaths sought and received leave of the trial court to amend their complaint again to request special damages stemming from Timothy Harbour's alleged assault upon Raymond Gilbreath.
The case was set for trial on August 8, 2007. At the trial, the parties stipulated that the tort claims against the Harbours and Timothy Harbour would be tried separately from the boundary-line dispute. There is no order severing the claims, and nothing in the record shows that a new case number was assigned to the tort claims.
On September 13, 2007, the trial court entered a judgment ("the boundary-line judgment") in favor of the Harbours, finding that the Gilbreaths had not adversely possessed the disputed property. However, the trial court did find that the Gilbreaths' use of a driveway on the disputed property had "been under a claim of right." The trial court therefore found that the Gilbreaths had a prescriptive easement in the driveway on the disputed property.
On October 22, 2007, the trial court rendered an order that purported to certify its September 13, 2007, boundary-line judgment as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The Gilbreaths appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.
This court has stated:
Naylor v. Naylor, 981 So.2d 440, 441 (Ala. Civ.App.2007).
The trial court's October 22, 2007, order purporting to certify the boundary-line judgment as final pursuant to Rule 54(b) was never input into the State Judicial Information System ("SJIS"). Rule 58(c), Ala. R. Civ. P., provides:
(Emphasis added.) The Committee Comments to Amendment to Rule 58 Effective September 19, 2006, state, in part:
(Emphasis added.)
In Day v. Davis, 989 So.2d 1118 (Ala. Civ.App.2008), this court recently dismissed an appeal from a nonfinal judgment because the judgment adjudicated the parties' boundary-line dispute, but not the tort claims asserted in the same action. In Day, 989 So.2d at 1120-21, we stated:
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Gilbreath v. Harbour
...Information System ("SJIS") and had therefore never been entered as required by Rule 58(b), Ala. R. Civ. P. See Gilbreath v. Harbour, 3 So.3d 875, 878 (Ala.Civ.App.2008). After our dismissal of the first appeal, the trial court directed the entry of its order certifying the boundary-line ju......
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Bolden v. Wise Alloys, LLC
...judgment and will not support an appeal. Spradlin v. Lovvorn, 891 So.2d 351, 353 (Ala.Civ.App.2004); see also Gilbreath v. Harbour, 3 So.3d 875, 878 (Ala.Civ.App. 2008) (dismissing an appeal as one taken from a nonfinal judgment when that judgment had been rendered but never input into the ......