You Can Appeal that Order... Right?! Or Finality, 1117 ALBJ, 78 The Alabama Lawyer 429 (2017)
| Author | By J. Bradley Medaris |
| Position | Vol. 78 6 Pg. 429 |
By J. Bradley Medaris
Finality. What a dumb topic for an article, right?
You try your case, you get a verdict and then, if you lose, you appeal. What is there to think about?
Well, finality can be a bit of a minefield if you do not pay attention. Take the wrong steps and your appeal blows up. All of those great arguments you have for the justices of the Supreme Court of Alabama1 disappear before you even put fingers to keyboard (and usually after you have already paid for the record and transcript). This is never a fun conversation to have with a client or a senior partner.2
So here is a bit of help from a friendly insider at the court. This article highlights some of the stickier problems that can snatch an appeal out from underneath you. There are thousands of attorneys in Alabama, and some unlucky lawyer is always finding a new, clever way to ruin his or her appeal from the start, so this article will not cover every sinkhole that could possibly exist; it merely touches on those large enough to swallow a bus.
Before we begin, though, here's a quick disclaimer: Don't rely on this article as the ultimate source on this issue. While it will no doubt strike you as a work of staggering genius and surely will become required reading in law schools throughout the state, you will always want to do your own research. And citing this article in an appellate brief will not get you any bonus points with any of the courts located at 300 Dexter Avenue, so don't count on that trick to work.
Finality Unsimplified
Whether an order is final and appealable is a jurisdictional question, the burden of which falls on the party bringing the appeal.3 That means if you are seeking appellate review, you need to be able to explain why you are entitled to appellate review. Conversely, if you are defending a trial court's decision, you can save everyone a significant amount of time (and money) if you discover a problem with jurisdiction before the briefing begins. As we will see, what is truly a final order is not always as simple as it seems, so spending a few minutes confirming that you have a decision you can appeal is a worthy use of your time, regardless of your position in the appeal. Generally, a final order is one which disposes of all claims against all parties.4 It is just that simple. There's nothing left to argue about because the trial court has resolved everything. This includes counterclaims and cross-claims and claims involving interveners and third-party claims and all sorts of claims and parties. The battles have been fought, the war is over and everyone knows where they stand, but make sure all decisions have been entered on the record. Finality can only be established by a formal adjudication by the trial court. Nothing is more frustrating than finding out your appeal must be dismissed because the trial court forgot to enter a written order disposing of that one party everyone agreed should not be in the case. If you are going to claim a victory, make sure history (i.e., the trial court) records it.
One great thing trial courts can do to help parties avoid this problem is to end all final judgments with a phrase that makes it clear that all claims (including counterclaims and third-party claims and cross-claims) and all parties not addressed by the final order are denied or dismissed or otherwise disposed. This language makes it clear that order is intended to be a final judgment of the court, and to the extent any loose threads may be hanging out which could be snagged and unravel this case, they are snipped off. Attorneys should include this language in their proposed orders for the same reason. It simply puts a nice little bow on top of the case.
A final order must also address damages. The record needs to reflect not only who won, but what they won. An order that leaves the question of damages open won't cut it as an appealable decision.6 However, this does not apply to collateral issues, such as an unadjudicated claim for attorney's fees.7 I'll leave to you the joy of determining what types of issues are collateral to your appeal.
Naturally, every attorney is looking for ways to do less work, not more. Yet one bit of extra work early on could save you dozens of hours of unnecessary work if a question arises of finality. Take the time to go through the history of the case and make a list of every party to see if the trial court's order disposed of each in some fashion, along with any damages or other relief they were awarded. Once you do this, put this list in your file (and stick this information in your brief, as we will discuss below). If an appellate court ever questions whether you have a final order, you've got the notes you need. If you finish this little task and discover a party fell through the cracks, though, you can go to the trial court and ask for an order addressing the missing party before you get your appeal going. And you'll look like a super-genius to your client, opposing counsel and the trial court. Which is all any of us truly want in this profession, right?
So why the fuss over finality? Why won't appellate courts just address the issues the parties want addressed and quit raining on everyone's parade? Well, think about our rules of procedure. Rule 1, Ala. R. App. P.; Rule 1(c), Ala. R. Civ. P.; and Rule 1.2, Ala. R. Crim. P. all direct courts to resolve litigation in an economical and speedy manner. This has been the goal of the Alabama courts since the 1800s.8 Would you want a system that allows for appellate review of every single decision the trial court makes? It would take ages to resolve a simple case. This is why appellate review in a piecemeal fashion is strongly disfavored.9
What if your corporate client insists on appealing an interlocutory order, though, and Alabama case law be damned? Well, remind your client that a party obtains a right to appeal, if at all, "by grace of a statute" and not through some divinely-crafted right.10 Then when your client starts muttering about finding counsel who can get the job done, read the next section of this article.
Strong-Arming Finality-Rule 54(B) Certifications
Rule 54(b), Ala. R. Civ. P., allows a trial court to certify an order for immediate appellate review. Once the trial court issues that certification, an appeal will generally lie from that judgment.11 Fantastic! An out! The t rial court can just certify everything as a final order and then we can skip all of the issues discussed above!
As with all issues under the law, it's not that simple. That's why we need three years of law school and to enter into tens of thousands of dollars of debt to join this profession. Because our courts disfavor piecemeal litigation, Rule 54(b) certifications are also viewed with some disfavor.12 Actually, it's not just our state courts; even federal courts dislike interlocutory appeals. As stated by the legendary treatise Federal Practice and Procedure: "It is uneconomical for an appellate court to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to consider again when another appeal is brought after the [trial] court renders its decision on the remaining claims or as to the remaining parties."13 Trial courts are therefore expected to enter Rule 54(b) certifications only in exceptional situations.14
I know. I can hear your sigh. Why even give trial courts this opportunity if it's just another legal jungle that force attorneys to risk stumbling into some procedural punji trap? In reality, this rule provides a pretty great opportunity to fix a problem for your client in certain situations without waiting for the entire litigation to play out if you can correctly manage the situation.
As per the plain text of the rule, an order can be certified as a final judgment if it disposes of one or more claims (but not all, obviously) or disposes of all claims against one or more parties (again, but not all). To stress this point, the certification will only be appropriate if a claim in full or all claims against a party in full are disposed.15 So the rules of finality discussed above must be satisfied with respect to the issues/parties certified. If, however, a plaintiff wins summary judgment on a claim, but the trial court has yet to assess damages, a Rule 54(b) certification may be premature.
Additionally, the issues certified for appeal cannot be so entangled with the issues remaining with the trial court so as to pose a risk of inconsistent results between the courts.16 Examples of these types of situations include a summary judgment ruling on a claim for failure to pay on a promissory note when the opposing party had an unaddressed counterclaim for fraud in the inducement still pending;17 where summary judgment is granted against one plaintiff in a premises liability action brought by multiple plaintiffs arising out of the same incident, with the question of causation being common among all plaintiffs;18 and when a party loses on summary judgment, but an alternative theory of how it can obtain relief remains pending.19 This is an issue the appellate court can raise and review ex mero muto, so don't get excited if your opposing party fails to raise the issue.20
The trial court order certifying the interlocutory appeal also requires some magic language. Rule 54(b) requires the trial court to make an "express determination that there is no just reason for delay." A wise trial court will use that very language. A wiser attorney will help the trial court out by preparing a proposed order that uses that exact language. That being said, our supreme court generally will...
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