HARPER SALES v. Brown, Stagner, Richardson, Inc.

• Decision Date: 27 August 1999
• Citation: 742 So.2d 190
• Parties: HARPER SALES COMPANY v. BROWN, STAGNER, RICHARDSON, INC.
• Court: Alabama Court of Civil Appeals

742 So.2d 190

HARPER SALES COMPANY v. BROWN, STAGNER, RICHARDSON, INC.

2980451.

Court of Civil Appeals of Alabama.

August 27, 1999.

Kenneth O. Simon of Simon Borden, L.L.P., Birmingham, for appellant.

Dennis G. Pantazis and Brian M. Clark of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, for appellee.

THOMPSON, Judge.

Brown, Stagner, Richardson, Inc., a food-brokerage business, sued Harper Sales Company, alleging breach of contract, intentional interference with a business relationship, and fraud and suppression. In its complaint, Brown, Stagner, Richardson alleged that it had entered into a contract with Harper Sales and that Harper Sales had agreed to service certain food-product lines on behalf of Brown, Stagner, Richardson in exchange for a percentage of the commissions from the sales of those food-product lines. Harper Sales Company answered and counterclaimed, seeking an accounting.

The trial court conducted a trial on Brown, Stagner, Richardson's claims against Harper Sales. The jury returned a verdict in favor of Brown, Stagner, Richardson and awarded damages of $113,115.34. The trial court entered a judgment on that verdict.

On September 9, 1998, the trial court entered an order in which it noted that Harper Sales' counterclaim for an accounting was still pending. The trial court purported to certify its original judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. Harper Sales appealed. The Supreme Court of Alabama transferred the appeal to this court, pursuant to § 12-2-7, Ala. Code 1975.

We note that the trial court, in its September 9, 1998, judgment, stated that it had earlier "severed" Harper Sales' counterclaim from the claim made by Brown, Stagner, Richardson. In their submissions to this court, the parties use the terms "severed" and "separated for trial" interchangeably. The distinction between those terms is important.

"`The distinction is recognized in Rule 14(a), [Ala. R. Civ. P.], which provides [that] "Any party may move to strike the third-party claim, or for its severance or separate trial." [Quoting Key v. Robert M. Duke Insurance Agency, 340 So.2d 781, 783 (Ala.1976)]. The distinction is also recognized by leading treatises on civil procedure. Wright and Miller state:

"`"Rule 42(b) allows the court to order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims or issues. The court may do so in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy. The procedure authorized by Rule 42(b) should be distinguished from severance under Rule 21. Separate trials will usually result in one judgment, but severed claims become entirely independent actions to be tried, and judgment entered thereon, independently.

Unfortunately this distinction, clear enough in theory, is often obscured in practice since at times the courts talk of `separate trial' and `severance' interchangeably." (Footnotes omitted.)

"`Federal Practice and Procedure: Civil § 2387 (1971).'"

Ex parte Palughi, 494 So.2d 404, 406 (Ala. 1986).

We conclude that the trial court's purported "severance" of the counterclaim was actually an order for separate trials of the issues raised by the parties. See Ex parte Palughi, supra. When the trial court orders separate trials of the issues in an action, a single judgment results; therefore, if the trial court wishes to enter a judgment on fewer than all of the claims involved in the action, it must make its order final pursuant to Rule 54(b), Ala. R. Civ. P. Interstate Truck Leasing, Inc. v. Bender, 608 So.2d 716 (Ala.1992). In our preliminary examination of the record on appeal, this court determined that the trial court's September 9, 1998, order did not comply with the requirements of Rule 54(b) or with the requirements of Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ.App.1996). This court remanded the cause for the trial court to enter an order in compliance with Brown v. Whitaker Contracting Corp. After reviewing the trial court's response to that order, we must hold that the judgment on the jury verdict is not appropriate for certification as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The counterclaim that remains pending seeks to have the trial court require Brown, Stagner, Richardson provide an accounting...