Jakeman v. Lawrence Group Mgmt. Co., 1100290.

• Decision Date: 07 October 2011
• Docket Number: 1100290.
• Citation: 82 So.3d 655
• Parties: Kenneth JAKEMAN v. LAWRENCE GROUP MANAGEMENT COMPANY, LLC, et al.
• Court: Alabama Supreme Court

82 So.3d 655

Kenneth JAKEMAN

v.LAWRENCE GROUP MANAGEMENT COMPANY, LLC, et al.

1100290.

Supreme Court of Alabama.

Oct. 7, 2011.

Abbey Herrin, Birmingham, for appellant.

Michael H. Johnson of Johnston Barton Proctor & Rose LLP, Birmingham, for appellees Lawrence Group Management Company, LLC, and Montgomery Memorial Cemetery.

SHAW, Justice.

Kenneth Jakeman, the plaintiff below, appeals from the trial court's judgment dismissing his claims against the defendants, Alderwoods, Inc. (“Alderwoods”), Lawrence Group Management Company, LLC (“Lawrence”), Montgomery Memorial Cemetery, Inc. (“MMC”), and Judy A. Jones. We dismiss the appeal as being from a nonfinal judgment.

Facts and Procedural History

Because of our disposition of this appeal, only a brief recitation of the facts is necessary.

Lawrence owns and operates Montgomery Memorial Cemetery, a cemetery in Montgomery (“the cemetery”). Lawrence purchased the cemetery from Alderwoods in or around 2002.¹ In 1967, Kenneth's father, Ben Jakeman, purchased from MMC a “family plot” in the cemetery containing 10 separate burial spaces. The plot Ben selected was specifically chosen because of its location adjacent to plots owned by Ben's mother, Frances O'Neal. Pursuant to the terms of the purchase agreement for the family plot, burial within Ben's plot was limited to members of either the Jakeman family or the O'Neal family.

In August 2002, MMC allegedly mistakenly conveyed two spaces in Ben's family plot to James A. Jones and his wife, Judy A. Jones. Following James's death, on August 28, 2002, James was interred in one of those two spaces.

In 2006, Kenneth learned that James had been buried in Ben's family plot, at which time, Kenneth says, he immediately notified MMC and Ben. In response to demands by Kenneth and Ben, MMC disinterred James and moved both his body and his marker; however, James was reinterred in another space on Ben's family plot. Ben died in 2008. At the time of Ben's death, James's body remained buried in one of the spaces in Ben's plot.

Despite the offer of an exchange of burial spaces, and based upon their purported refusal to again exhume and move James's body and marker, in May 2010 Kenneth filed suit against Alderwoods, Lawrence, MMC, and Judy A. Jones, alleging breach of contract; trespass; negligence, willfulness, and/or wantonness; the tort of outrage; and conversion. In her answer to Kenneth's complaint, Judy asserted her own cross-claim against Alderwoods, Lawrence, and MMC, based on their alleged error in conveying to her spaces already owned by Ben and the initial erroneous burial of James, his disinterment, and his subsequent erroneous reburial in another of Ben's spaces.

Alderwoods subsequently filed a motion to dismiss Kenneth's complaint based on its contentions that Kenneth lacked the requisite “standing” to pursue the stated claims, that the asserted tort claims did not survive Ben's death, and that some of the claims were barred by the expiration of the applicable limitations periods. Lawrence and MMC later joined Alderwoods's dismissal motion.

The trial court conducted a hearing on the motion to dismiss on July 28, 2010, at the conclusion of which the trial court announced on the record its intention to dismiss the action but to provide Kenneth 30 days to refile any viable claims. Also at the conclusion of the hearing, the trial court requested a proposed order reflecting its stated decision, which counsel for Alderwoods volunteered to provide. The record reflects that, on August 1, 2010, the trial court signed the order prepared by Alderwoods granting the joint dismissal motion,² dismissing “all claims brought by the plaintiff against all defendants.” The order further provided that “all cross claims [were] also dismissed.”

On August 2, 2010, Judy, who was presumably aware of the contents of the trial court's dismissal order at the time it was signed, filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., seeking to alter, amend, or vacate the order on the ground that it dismissed her cross-claim, which, she contended, was not addressed by the dismissal motion and was, therefore, not properly before the trial court on the motion to dismiss. The clerk of the trial court subsequently entered the trial court's previously signed dismissal order on September 17, 2010.

On October 14, 2010, Kenneth filed a Rule 59(e), Ala. R. Civ. P., motion seeking to alter, amend, or vacate the trial court's dismissal order. On October 29, 2010, the trial court entered an order specifically denying only Kenneth's motion to alter, amend, or vacate. On November 29, 2010, the trial court entered an “Amended Order” reiterating its dismissal of all of Kenneth's claims but ordering that “all cross claims filed by Judy ... are NOT DISMISSED and shall remain pending.” Kenneth filed his notice of appeal on that same date.

Discussion

Although no party to the present appeal questions the subject-matter jurisdiction of this Court, as we have previously stated, “we ‘are not confined to the arguments of the parties in our subject-matter-jurisdiction analysis because subject-matter jurisdiction cannot be waived by the failure to argue it as an issue.’ ” Bon Harbor, LLC v. United Bank, 20 So.3d 1263, 1265 (Ala.2009) (quoting Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009)). Despite representations in Kenneth's notice of appeal that the underlying matter has been disposed of in its entirety, we hold that, because Judy's cross-claim remains pending below, this appeal is from a nonfinal judgment, and we do not have subject-matter jurisdiction.

As previously mentioned, on August 2, 2010, the day after the original dismissal order was signed by the trial court but 46 days before the entry of that judgment by the clerk, Judy filed a postjudgment motion seeking to amend the order on the ground that it erroneously dismissed her pending cross-claim. The trial court's mere signing of an order is insufficient to make the order effective:

“The mere signing of a separate written order or judgment, however, is not enough to make that order or judgment effective. Unlike signing a civil docket sheet, one additional act by the trial judge is necessary to demonstrate the judge's intent to finalize and make effective a separate written order or judgment. Specifically, the trial judge must authorize the separate written order or judgment to be filed with the clerk or register, which typically will be accomplished simply by the delivery of the separate written order or judgment to the clerk with the intent that it be entered. It is at that point that the ministerial duty of the clerk under Rule 58 is triggered, and the clerk becomes obligated promptly to enter the order or judgment. Until that point, however, the written order or judgment, itself, much like an undelivered deed to real property, remains within the control of the signer and that signer, the judge, is free to alter it, postpone its entry, or decide not to cause it to be entered at all. As this court noted in Lacks v. Stribling, 406 So.2d 926, 930 (Ala.Civ.App.1981), ‘[a] separate judgment may be signed by the trial judge, but it is not effective until he authorizes that it be filed with the clerk or register, even if the filing date is several days, weeks or even months later than the date reflected on the judgment.’ (Emphasis added.)”

Rollins v. Rollins, 903 So.2d 828, 833 (Ala.Civ.App.2004) (some emphasis added). See also Rule 58(c), Ala. R. Civ. P.³

Therefore, at the time it was initially filed, Judy's motion sought to alter, amend, or vacate a judgment that had not yet been entered. However, the premature filing of her motion did not render the motion a nullity. Instead, as noted by the Court of Civil Appeals in T.T.T. v. R.H., 999 So.2d 544 (Ala.Civ.App.2008), this Court, in similar circumstances, has previously concluded:

“ ‘We hold that if a party moves for a judgment as a matter of law or, in the alternative, for a new trial before the court has entered judgment, the motion shall be treated as having been filed after the entry of the judgment and on the day thereof.’

“ New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004); see also Rule 4(a)(3), Ala. R.App. P.; and Richardson v. Integrity Bible Church, Inc., 897 So.2d 345, 347 (Ala.Civ.App.2004) (‘[A] premature postjudgment motion that, if it had been directed to a final judgment, would toll the time for filing a notice of appeal from a final judgment ( see Ala. R.App. P., Rule 4(a)(3)) “quickens” on the day that the final judgment is entered.’).”

999 So.2d at 547–48.

The judgment in the underlying case was entered on September 17, 2010. In consideration of the foregoing, and as our courts have consistently determined, “[Judy's] postjudgment motion, filed before the entry of the ... final judgment, quickened on the day that judgment was entered.” Miller v. Miller, 10 So.3d 570, 571–72 (Ala.Civ.App.2008).

Pursuant to Rule 59.1, Ala. R. Civ. P., a postjudgment motion filed pursuant...