Moss v. Williams

• Decision Date: 08 October 1999
• Citation: 747 So.2d 905
• Parties: George T. MOSS and Susan D. Moss v. Teddy E. WILLIAMS. George T. Moss and Susan D. Moss v. Jerry Glenn Coaker and Audrey Ellen Coaker.
• Court: Alabama Court of Civil Appeals

747 So.2d 905

George T. MOSS and Susan D. Moss v. Teddy E. WILLIAMS.

George T. Moss and Susan D. Moss v. Jerry Glenn Coaker and Audrey Ellen Coaker.

2938.

Court of Civil Appeals of Alabama.

October 8, 1999.

Norton W. Brooker, Jr., and William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile; and S.J. Laurie, Chatom, for appellants.

Edward P. Turner, Jr., and E. Tatum Turner of Turner, Onderdonk, Kimbrough & Howell, P.A., Chatom, for appellee Teddy E. Williams.

THOMPSON, Judge.

These appeals arise out of a property dispute. Jerry Glenn Coaker and Audrey Ellen Coaker filed a complaint against adjoining landowners George T. Moss and Susan D. Moss, alleging trespass to property, damage to property, and negligent or wanton removal of dirt and timber from the Coakers' property. The Coakers later amended their complaint to allege that the Mosses were in unlawful possession of the disputed property and to seek a judgment declaring them to be the rightful owners of the property.

Teddy Williams, another landowner whose property adjoins the Mosses' property, filed a complaint and an amended complaint against the Mosses that was substantially identical to that filed by the Coakers.

The disputed property is a strip of property that lies at the eastern edge of the Mosses' property and at the western edge of both the Coakers' property and Williams's property.

The Coakers and Williams both filed a motion for a partial summary judgment on their claims alleging unlawful possession of the disputed portions of property and on their claims seeking a declaratory judgment. The trial court granted both motions for partial summary judgment, holding that the Coakers and Williams were the true owners of the disputed portions of property and that the Mosses had unlawfully possessed both portions of property. The trial court purported to certify its partial summary judgments as final pursuant to Rule 54(b), Ala. R. Civ. P. The Mosses filed a post-judgment motion, pursuant to Rule 59, Ala. R. Civ. P., in each of the actions. After those motions were purportedly denied by operation of law, see Rule 59.1, Ala. R. Civ. P., the Mosses appealed in each case.¹

The Supreme Court of Alabama transferred the appeals to this court, pursuant to § 12-2-7, Ala.Code 1975. This court remanded the actions for the trial court to determine whether a Rule 54(b) certification of its partial summary judgments was appropriate and, if so, to enter an order in compliance with the requirements of Brown v. Whitaker Contracting Corp., 681 So.2d 226 (Ala.Civ.App.1996). On remand, the trial court entered additional orders in the two actions. In each order, the court noted that the claims alleging trespass, damage to property, and negligent and wanton removal of timber and dirt from the properties were still pending, and that if this court were to reverse its judgments, a trial would not be necessary.

Not every order has the requisite element of finality that can trigger the operation of Rule 54(b), Ala. R. Civ. P. James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997). "Rule 54(b) certifications should be made only in exceptional cases and should not be entered routinely." Parrish v. Blazer Financial Services, Inc., 682 So.2d 1383 (Ala.Civ.App. 1996)....