Summerlin v. Summerlin
| Decision Date | 12 January 2007 |
| Docket Number | No. 1051470.,1051470. |
| Citation | 962 So.2d 170 |
| Parties | Terry SUMMERLIN v. Sharon SUMMERLIN. |
| Court | Alabama Supreme Court |
W. Gregory Hughes, Mobile, for appellee.
Terry Summerlin appeals from a partial summary judgment entered in favor of Sharon Summerlin by the Mobile Circuit Court. We set aside the trial court's certification of the summary judgment as final under Rule 54(b), Ala. R. Civ. P., and remand.
On July 23, 2005, Thomas R. Summerlin, 38, and his 7-year-old stepson, Noah C. Butler, were on the beach in Gulf Shores when they were struck by lightning and killed. Thomas was buried in a plot owned by his father, Terry Summerlin, at Serenity Memorial Gardens Cemetery; Noah was buried in a plot owned by Sharon Summerlin, Noah's mother and Thomas's widow, at Mobile Memorial Gardens.
On September 28, 2005, Sharon informed a representative of Serenity Memorial that she wanted to have Thomas's remains disinterred and reinterred at Mobile Memorial Gardens. The representative stated that Serenity Memorial would not permit the disinterment without a court order requiring Serenity Memorial to comply with Sharon's request.
Terry filed an answer to the petition. Among other things, Terry denied having "unduly pressured" Sharon into agreeing to Thomas's burial at Serenity Memorial, and Terry requested that the court deny Sharon's petition to disinter Thomas's remains.
On March 13, 2006, Sharon moved for a summary judgment. Sharon contended that she had initially planned to bury Thomas at Mobile Memorial Gardens but that "she was then persuaded by [Terry] to have [Thomas] buried at Serenity [Memorial]." Sharon asserted that Terry "used economic duress by demanding [that Thomas] be buried in Serenity Memorial Gardens at [Terry's] expense," and that she "reluctantly . . . acquiesced to [Terry's] demand."
On April 5, 2006, Terry filed a breach-of-contract counterclaim against Sharon. Terry contended that after Thomas's death Sharon told him "she did not know how she was going to pay for [Thomas's] funeral and burial expenses." Terry alleged that he and Sharon then "entered into a verbal contract in which [Terry] agreed to pay for [Thomas's] burial" in exchange for Sharon's agreement to have Thomas "interred at Serenity Memorial Gardens." Terry's counterclaim asserts, and Sharon does not dispute, that Sharon and Terry signed a card entitled "Interment Record," which authorized Thomas's burial in Serenity Memorial Gardens.
Terry's counterclaim also alleges that a few days after Thomas's funeral, when Sharon mentioned to Terry that she wanted to move Thomas's remains from Serenity Memorial to Mobile Memorial, Terry and Sharon entered into a second contract. The terms of that contract, Terry contends, "were that, in consideration for allowing [Sharon] to retain a truck and furniture [for] which [Thomas] owed [Terry] at least $5,700, [Sharon agreed] to leave [Thomas's] remains undisturbed." Terry claimed Sharon had breached that agreement by filing the present action seeking to disinter Thomas's remains. Sharon later filed an answer to Terry's breach-of-contract counterclaim.
On the same date he filed his counterclaim, Terry also filed materials in opposition to Sharon's summary-judgment motion. Among other things, Terry included an affidavit from James Baldwin, the manager of the funeral home at Serenity Memorial. In his affidavit, Baldwin asserts that he witnessed Sharon's agreement to bury Thomas at Serenity Memorial; that he witnessed her signing of an "interment card" authorizing Thomas's burial at Serenity Memorial; and that he witnessed her agreement that Terry would pay Thomas's funeral expenses. Baldwin also stated in his affidavit that "[a]t no time did [he] witness [Sharon's] being pressured or coerced into agreeing to permit [Thomas] to be buried at Serenity Memorial."
On June 26, 2006, the trial court entered the following written order:
Terry filed a timely notice of appeal to this Court.
Terry contends that the summary judgment in favor of Sharon was inappropriate. He argues that there is a genuine issue of material fact because, he says, there is substantial evidence indicating that Sharon consented, without coercion or duress, to Thomas's interment at Serenity Memorial. Conversely, Sharon argues that her consent to Thomas's burial at Serenity Memorial was the result of coercion by Terry or duress. Moreover, she asserts that her consent to Thomas's interment at Serenity Memorial is irrelevant because, she says, as the surviving spouse she has the exclusive right to decide whether Thomas's remains should be disinterred from Serenity Memorial and reinterred at Mobile Memorial Gardens.
However, there is a fundamental issue in this appeal not addressed by the parties — namely, the appropriateness of the trial court's certification, under Rule 54(b), Ala. R. Civ. P., of its June 26, 2006, order entering a summary judgment in favor of Sharon.
Rule 54(b) states, in pertinent part:
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."
This Court, in Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373 (Ala.1987), noted:
To continue reading
Request your trial
-
M.C. v. Tallassee Rehab., P.C. (Ex parte Vanderwall.)
...issue of this Court's jurisdiction to entertain the appeal; it is therefore an issue we consider ex mero motu. Summerlin v. Summerlin, 962 So.2d 170, 172 (Ala.2007) (determining ex mero motu that a Rule 54(b) certification was not appropriate under the facts of the case). It is well establi......
-
Sci Alabama Funeral Services v. Hester
...just reason for delay in the attachment of finality." Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala.1984).'" Summerlin v. Summerlin, 962 So.2d 170, 173 (Ala.2007)(quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). However, "[n]ot every order has the......
- Fernando v. City of Chickasaw
-
Posey v. Mollohan, 2060500.
...than grounds for defeating the plaintiffs' claim, the Court will deem them solely as counterclaims and setoffs"); and Summerlin v. Summerlin, 962 So.2d 170, 173 (Ala.2007), in which our supreme court "In form, [the wife's] `claim' [seeking injunctive relief] appears to be separate and disti......