Rel: 10/24/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2008 -2009
_________________________
2070351
_________________________
Don Martin
v.
Guy Phillips
Appeal from Etowah Circuit Court
(CV-99-139)
THOMPSON, Presiding Judge.
Don
Martin
appeals
from
a
partial
summary
judgment
entered by the Etowah Circuit Court in favor of Guy Phillips.
Because the notice of appeal was untimely filed, we dismiss
the appeal for lack of appellate jurisdiction.
Facts and Procedural Background
2070351
In 1958, Alabama Power Company acquired fee-simple title
to certain real property located in Cherokee County for the
purpose of creating the Weiss Lake reservoir.
As it relates
to the present case, the property obtained by Alabama Power
Company included all the land lying below the contour line
marking 565 feet above sea level.
property
located
next
to
the
After 1958, certain real
Weiss
Lake
reservoir
was
subdivided and became known as Griffin Subdivision Number 4
("the subdivision").
Phillips and Martin own adjacent parcels of real property
located in the subdivision.
owns lot four.
lot four.
Martin owns lot three; Phillips
Though he owns it, Phillips does not reside on
The lots are located adjacent to or near a slough
on the Weiss Lake reservoir.
A dispute arose between Phillips and Martin, and, on
February 4, 1999, Phillips sued Martin. Phillips alleged that
in
October
1996,
at
Martin's
request,
he
gave
Martin
permission to clear a path across the corner of his property
so that Martin could walk back and forth to the property of a
friend who lived on the other side of the slough.
In doing
so, Phillips alleged, he specifically told Martin not to
2
2070351
remove any dirt from Phillips's property. Not only did Martin
disregard this limitation and remove dirt from Phillips's
property, he cleared a road, instead of a path, through
Phillips's property.
Martin's
exceeding
Phillips alleged that, in response to
the
scope
of
permission
granted
him,
Phillips erected fence posts and several "no trespassing"
signs on his property.
Martin, Phillips alleged, pulled up
those fence posts and continued to cross Phillips's property.
Phillips alleged that, in December 1996, he returned to his
property in the subdivision and found that Martin had caused
heavy machinery to cross it and that Martin had built a
seawall bordering the slough 30 feet from the corner of
Phillips's property.
Based on the foregoing allegations, Phillips alleged that
Martin had committed a trespass on his property that was
continuing and that, as a result of the trespass, the value of
his property had been diminished; he further alleged that he
had suffered emotional distress and mental anguish.
Phillips
sought an award of $100,000.
On February 20, 2003, Phillips filed an amendment to his
complaint, adding three claims: (1) private nuisance; (2)
3
2070351
taking of littoral or riparian rights;1 and (3) easement by
prescription.
The second of these additional counts, taking
of littoral or riparian rights, is the count at issue in the
present appeal.
In that count, Phillips alleged:
"2. [Martin's] installation of the seawall as
aforesaid, and filling in behind so as to
create land where there had been water, cut
off all access to the water as [Phillips]
had prior to such action on the part of
[Martin].
"3. [Martin's]
said
installation
and
maintenance
constitutes
a
taking
of
[Phillips's] littoral or riparian rights,
as a consequence of which [Phillips] and
his property have been damaged.
"4. [Phillips] is entitled by Section 6-233(1), Ala. Code (1975), as amended,[2] to
1
"The term 'riparian rights' refers to the
rights of owners of land abutting a stream,
while the term 'littoral rights' refers to
the rights of owners of land abutting the
surface waters of a lake or the sea. ...
Courts now commonly use the word 'riparian'
when describing water rights in either
context."
Wehby v. Turpin, 710 So. 2d 1243, 1246 n.2 (Ala. 1998).
2
Though Phillips cited § 6-2-33(1), Ala. Code 1975, we
assume he was referring to § 6-2-33(2), which provides a 10year statute of limitations "for the recovery of lands,
tenements or hereditaments, or the possession thereof ...."
4
2070351
recovery of hereditaments such
littoral or riparian rights.
as
said
"5. [Phillips] is entitled to issuance of an
injunction by this court.
"WHEREFORE, [Phillips] demands judgment against
[Martin] as follows:
"A. Enjoining [Martin's] continuing taking of
[Phillips's] littoral or riparian rights.
"B. For damages in the amount of ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($100,000.00),
plus costs of court."
On June 13, 2007, the case went to trial.
However, the
trial ended in a mistrial because the jury was unable to reach
a unanimous verdict.
On July 12, 2007, Phillips filed a motion for a partial
summary judgment on a part of the count claiming that Martin
had taken his riparian or littoral rights.
Specifically, he
stated:
"The Count which is the basis of this Motion ...
is Count Three, 'Taking of littoral or riparian
rights.'
By that Count, Phillips alleges that
Martin's installation of a seawall, and backfilling
behind same so as to create a 30 foot width of land
at the end of the slough where there had been water,
cut off all access to the water as Phillips had
prior to such action by Martin. The Count alleges
that such action constituted a taking of Phillips'
littoral or riparian rights, as a consequence of
which Phillips and his property have been damaged,
and for which an injunction and damages are sought.
5
2070351
"This Motion is being filed to seek a
determination by the Court that Phillips, and all
subsequent owners of Lot 4 of Griffin Subdivision
No. 4, have riparian rights to access the water at
Weiss Lake for recreational use across the width of
land and seawall constructed by Martin. This Motion
further seeks a permanent injunction restraining
Martin, his agents, those persons in active concert
or participation with him who receive actual notice
of such injunction by personal service or otherwise,
and any other or subsequent owner of Lot 3 in
Griffin Subdivision No. 4, from interfering with
exercise by Phillips, and all subsequent owners of
Lot 4 of Griffin Subdivision No. 4, of such riparian
rights.
Summary judgment is not being sought,
however, as to damages for any interference by
Martin with Phillips' exercise of such rights, which
already may have taken place. Assessment of such
damages would be sought, instead, in the form of a
jury verdict at trial."
Martin filed a response to Phillips's partial-summary-judgment
motion, and he filed his own motion for a summary judgment as
to all Phillips's claims.
On September 4, 2007, the trial court entered an order
granting Phillips's motion for a partial summary judgment and
denying Martin's motion for a summary judgment.
In pertinent
part, the trial court's order provided:
"1. [Phillips]'s Motion for Partial Summary
Judgment was filed only as to Count Three
of his Complaint, 'Taking of littoral or
riparian rights,' seeking a determination
as to the existence of such rights in this
case, and further seeking an injunction
6
2070351
against interference
thereof.
with
the
exercise
"2. ... [I]t is undisputed between the parties
that [Phillips] is entitled to exercise
riparian rights if his real property in
question abuts, adjoins or bounds a
navigable body of water. [Martin], by his
response, does not dispute that Weiss Lake
Reservoir, which is the body of water in
question, is a navigable body of water. ...
Accordingly, [Phillips] is entitled to
judgment as a matter of law on the issue as
to which partial summary judgment is sought
if there is no genuine issue of material
fact as to whether [Phillips]'s real
property in question 'abuts, adjoins or
bounds' Weiss Lake Reservoir.
"3. Based
upon
materials
attached
to
[Phillips]'s Motion for Partial Summary
Judgment, ... there is no genuine issue of
material fact as to whether Lot 4 of
Griffin Subdivision No. 4 ..., which is
[Phillips]'s property in question, is
adjacent to Weiss Lake.
Said Lot 4 is
adjacent to Weiss Lake.
"4. ... [T]he only question before the Court is
whether either [Phillips] or [Martin] is
entitled to judgment as a matter of law [on
Count 3]. The Court has determined that in
the absence of a genuine issue of material
fact with respect to Count 3, and given
applicable Alabama law, [Phillips] is,
indeed, entitled to judgment as a matter of
law.
"5. [Phillips], and all subsequent owners of
Lot 4 of Griffin Subdivision No. 4 have
littoral or riparian rights (hereinafter
referred to collectively as 'riparian
7
2070351
rights') to access the water at Weiss Lake
for recreational purposes across the width
of land and seawall constructed by [Martin]
(which remains the property of Alabama
Power Company) ....
"6. The Court hereby issues a permanent
injunction
restraining
[Martin],
his
agents, those persons in active concert or
participation with him who receive actual
notice of this Order by personal service or
otherwise, and any other or subsequent
owners of Lot 3 in Griffin Subdivision No.
4 ... from interfering with exercise by
[Phillips], and all subsequent owners of
Lot 4 of Griffin Subdivision No. 4, of such
riparian rights.
"7. Summary
judgment
was
not
sought
by
[Phillips], and is not granted by the Court
upon [Phillips]'s claim for damages for any
claimed interference by [Martin] with
[Phillips]'s exercise of riparian rights.
[Phillips] may seek assessment of any such
damages at the trial of the remaining
claims in [Phillips]'s complaint.
"8. As noted above, [Martin] also has filed his
Motion for Summary Judgment as to Count 1
(Claim of Trespass), Count 2 (Claim of
Nuisance), and Count 4 (Claim of Easement
by Prescription) of [Phillips]'s Complaint;
however, the Court finds that genuine
issues of material fact exist with respect
to such Counts.
Accordingly, [Martin]'s
Motion for Summary Judgment is due to be,
and hereby is denied.
"9. It having been determined by the Court
pursuant to Rule 54(a), Alabama Rules of
Civil Procedure, that there is no just
reason for delay with respect thereto, this
8
2070351
Order constitutes a final judgment as to
the relief granted hereby.[3]"
On September 14, 2007, Martin filed a motion seeking to
have the trial court reconsider its grant of Phillips's
partial-summary-judgment motion and its denial of his summaryjudgment motion.
On October 5, 2007, the trial court entered
an order denying Martin's motion to reconsider.
On November 5, 2007, Martin filed a notice of appeal to
the supreme court.
That court transferred the appeal to this
court pursuant to § 12-2-7(6), Ala. Code 1975.
Analysis
Martin contends
that
the
trial
court
erred
when it
entered a partial summary judgment in favor of Phillips on
Phillips's claim that Martin had taken his riparian rights.
3
Although the trial court cited Rule 54(a), Ala. R. Civ.
P., in its order, we assume the trial court was referring to
Rule 54(b), the first sentence of which reads:
"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."
9
2070351
We do not reach the merits of this contention, however,
because we determine that appellate jurisdiction is lacking in
this case.
Rule 4(a)(1), Ala. R. App. P., sets forth the time by
which a notice of appeal must be filed.
It provides in
pertinent part:
"Except as otherwise provided herein, in all cases
in which an appeal is permitted by law as of right
to the supreme court or to a court of appeals, the
notice of appeal required by Rule 3[, Ala. R. App.
P.,] shall be filed with the clerk of the trial
court within 42 days (6 weeks) of the date of the
entry of the judgment or order appealed from, or
within the time allowed by an extension pursuant to
Rule 77(d), Alabama Rules of Civil Procedure. In
appeals from the following orders or judgments, the
notice of appeal shall be filed within 14 days (2
weeks) of the date of the entry of the order or
judgment appealed from: (A) any interlocutory order
granting, continuing, modifying, refusing, or
dissolving an injunction, or refusing to dissolve or
to modify an injunction ...."
"'The timely filing of a notice of appeal is a jurisdictional
act.'
Rudd v. Rudd, 467 So. 2d 964 (Ala. Civ. App. 1985).
The failure to appeal within the prescribed time is fatal and
requires
the
dismissal
of
the
appeal.
Id."
Allen
v.
Independent Fire Ins. Co., 743 So. 2d 490, 492 (Ala. Civ. App.
1999). Although neither party questions the timeliness of the
filing of the notice of appeal in this case, because it is a
10
2070351
matter of this court's jurisdiction, we take notice of the
issue ex mero motu.
See Brown v. Brown, 808 So. 2d 40, 42
(Ala. Civ. App. 2001).
In this case, the trial court entered the order appealed
from on September 4, 2007; Martin filed a postjudgment motion
that the trial court denied on October 5, 2007; Martin then
filed his notice of appeal from the trial court's order on
November 5, 2007.
If the trial court's order constituted a
final judgment because of the language in the order purporting
to certify it as final under Rule 54(b), Ala. R. Civ. P.,
Martin's notice of appeal was timely because he filed it
within 42 days from the date on which the trial court denied
his postjudgment motion.
See Rule 4(a)(3), Ala. R. App. P.
(The filing of a postjudgment motion suspends the time by
which to file a notice of appeal.).
The notice of appeal was
not timely filed, however, if the trial court's purported
certification of finality was not effective to render the
order a final judgment; in such case, the order remained
interlocutory and Martin did not file his notice of appeal
within 14 days as required by Rule 4(a)(1) for filing a notice
of appeal from an interlocutory order granting an injunction.
11
2070351
The question before us, then, is whether the language in the
trial court's partial-summary-judgment order purporting to
make it a final judgment under Rule 54(b), Ala. R. Civ. P., is
effective.
In Grantham v. Vanderzyl, 802 So. 2d 1077 (Ala. 2001),
our supreme court stated:
"Ordinarily, an appeal can be brought only from
a final judgment. Ala. Code 1975, § 12-22-2. If a
case involves multiple claims or multiple parties,
an order is generally not final unless it disposes
of all claims as to all parties. Rule 54(b), Ala. R.
Civ. P. However, when an action contains more than
one claim for relief, Rule 54(b) allows the court to
direct the entry of a final judgment as to one or
more of the claims, if it makes the express
determination that there is no just reason for
delay. When the trial court enters an order that
disposes of one of several claims, and 1) makes the
'express determination that there is no just reason
for delay' in making that order final and 2)
expressly directs 'the entry of judgment,' the order
is final, Rule 54(b), and thus appealable, Committee
Comments on 1973 Adoption of Rule 54(b).
"If an order does not completely dispose of or
fully adjudicate at least one claim, a court's Rule
54(b) certification of the order is not effective.
See Haynes v. Alfa Fin. Corp., 730 So. 2d 178 (Ala.
1999). Damages are only one portion of a claim to
vindicate a legal right, even though the damages
claimed may consist of several elements. See id. at
181. An order is not final if it permits a party to
return to court and prove more damages or if it
leaves open the question of additional recovery.
See Precision American Corp. v. Leasing Serv. Corp.,
505 So. 2d 380, 382 (Ala. 1987)."
12
2070351
802 So. 2d at 1079-80.
In State v. Brantley Land, L.L.C., 976 So. 2d 996 (Ala.
2007), our supreme court reviewed an order, purportedly made
final pursuant to Rule 54(b), in which the trial court granted
the State of Alabama a fee-simple interest in certain real
property it had sought to condemn but reserved the question of
compensation owed the owners of the property for a trial.
On
appeal by the State, the supreme court addressed the propriety
of the certification of finality under Rule 54(b). It stated:
"In James v. Alabama Coalition for Equity, Inc.,
713 So. 2d 937 (Ala. 1997), this Court stated:
"'Not every order has the element of
finality
necessary
to
trigger
the
application of Rule 54(b).
Tanner v.
Alabama Power Co., 617 So. 2d 656, 656
(Ala. 1993) (Rule 54(b) "confers appellate
jurisdiction over an order of judgment only
where the trial court 'has completely
disposed of one of a number of claims, or
one of multiple parties'" (emphasis in
Tanner)).'
"713 So. 2d at 941.
As the James Court further
stated, '"[o]nly a fully adjudicated whole claim
against a party may be certified under Rule 54(b)."'
713 So. 2d at 942 (quoting Sidag Aktiengesellschaft
v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th
Cir. 1987) (emphasis in Sidag)).
Similarly, in
Precision American Corp. v. Leasing Service Corp.,
505 So. 2d 380, 381 (Ala. 1987), this Court held
that the partial summary judgment at issue in that
case did not 'completely dispose[] of a claim so as
13
2070351
to make that judgment final. Rule 54(b) does not
authorize the entry of final judgment on part of a
single claim.'"
976 So. 2d at 999 (footnote omitted).
The supreme court
concluded that the trial court's order vesting the State with
title to the real property but failing to award compensation
to the landowners from whom the property was taken "[did] not
present [it] with a 'fully adjudicated whole claim,' ... and
that, therefore, the trial court erred in directing the entry
of a final judgment as to that order."
Id. at 1001.
In Certain Underwriters at Lloyd's, London v. Southern
Natural Gas Co., 939 So. 2d 21 (Ala. 2006), the plaintiff,
which operated approximately
14,000 miles of natural-gas
pipeline, sued several insurance companies, alleging that it
was entitled to liability-insurance coverage for, among other
things, damages that it had been required to pay, or would be
required to pay, because of environmental contamination at
hundreds of sites located along its pipelines, including
several compressor stations located in Alabama.
Because of
the complexity of the case and the number of sites involved,
the trial court determined to try the case in multiple phases.
The
first
trial
phase
involved
14
the
parties'
claims
and
2070351
defenses related to two of the compressor stations in Alabama.
Following that initial trial, the trial court entered a
judgment for the plaintiff, including an award of
money
damages, which it purported to make final pursuant to Rule
54(b). The insurance companies appealed to our supreme court.
Quoting several cases, the supreme court wrote:
"'[F]or a Rule 54(b) certification of finality
to be effective, it must fully adjudicate at least
one claim or fully dispose of the claims as they
relate to at least one party.' Haynes v. Alfa Fin.
Corp., 730 So. 2d 178, 181 (Ala. 1999).
"'If an order does not completely
dispose of or fully adjudicate at least one
claim, a court's Rule 54(b) certification
of the order is not effective. See Haynes
v. Alfa Fin. Corp., 730 So. 2d 178 (Ala.
1999). Damages are only one portion of a
claim to vindicate a legal right, even
though the damages claimed may consist of
several elements.
See id. at 181.
An
order is not final if it permits a party to
return to court and prove more damages or
if it leaves open the question of
additional
recovery.
See
Precision
American Corp. v. Leasing Serv. Corp., 505
So. 2d 380, 382 (Ala. 1987).'
"Grantham v. Vanderzyl, 802 So. 2d 1077, 1080 (Ala.
2001).
"'To be sure, the trial court recited
the formula for certification of a judgment
pursuant to Rule 54(b), Ala. R. Civ. P.
However, "[n]ot every order has the
requisite element of finality that can
15
2070351
trigger the operation of Rule 54(b)."
Goldome Credit Corp. v. Player, 869 So. 2d
1146, 1147 (Ala. Civ. App. 2003) (emphasis
added). A claim is not eligible for Rule
54(b) certification unless it has been
completely resolved by the judgment.
In
that regard, it must be remembered that
"[d]amages are [an element] of a claim to
vindicate a legal right."
Grantham v.
Vanderzyl, 802 So. 2d 1077, 1080 (Ala.
2001).
"'"Where the amount of damages is an
issue, ... the recognized rule of law in
Alabama is that no appeal will lie from a
judgment which does not adjudicate that
issue by ascertainment of the amount of
those damages."
Moody v. State ex rel.
Payne, 351 So. 2d 547, 551 (Ala. 1977).
"That a judgment is not final when the
amount of damages has not been fixed by it
is unquestionable." "Automatic" Sprinkler
Corp. of America v. B.F. Goodrich Co., 351
So. 2d 555, 557 (Ala. 1977) (recitation of
the Rule 54(b) formula was ineffective to
render appealable a judgment that resolved
liability, but reserved the issue of
damages for future resolution).
"[T]he
trial
court
cannot
confer
appellate
jurisdiction upon this [C]ourt through
directing entry of judgment under Rule
54(b) if the judgment is not otherwise
'final.'"
Robinson
v.
Computer
Servicenters, Inc., 360 So. 2d 299, 302
(Ala. 1978). Thus, it is well-established
that a claim for which damages are sought
is insufficiently adjudicated for Rule
54(b) purposes until the element of damages
is resolved; a judgment resolving only
liability in an action seeking damages
cannot be certified as final pursuant to
16
2070351
Rule 54(b). Tanner v. Alabama Power Co.,
617 So. 2d 656 (Ala. 1993).
"'That this case suffers from this
defect is self-evident.
The trial court
purported to certify for appellate review
the default judgment of 35 counterclaims,
29 of which sought damages that are yet to
be determined. Because the trial court's
order was ineffective to confer appellate
jurisdiction over those counterclaims, the
judgment, as it relates to the 29
counterclaims seeking damages, is nonfinal
and nonreviewable at this time.'
"Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d
354, 361-62 (Ala. 2004)."
939 So. 2d at 28-29.
In Southern Natural Gas Co., the supreme
court determined that the plaintiff's "claims for relief
[sought] to vindicate one legal right and allege[d] several
elements of damage with respect to claims for declaratory
relief and damages relating to the PCB contamination at" five
of the compressor stations located in Alabama.
(internal quotation marks omitted).
Id. at 30
It held that, although
the trial court's purported judgment adjudicated that claim as
it
related
to
two
of
the
five
compressor
stations,
it
"necessarily le[ft] open the question of additional damages
with respect to the other three compressor stations," and, as
a result, did not completely dispose of the claim.
17
Id.
2070351
(internal quotation marks omitted).
Thus, the supreme court
dismissed the appeal as having been taken from a nonfinal
judgment.
In the present case, the trial court entered a partial
summary judgment in favor of Phillips on only that portion of
his taking-of-riparian-rights claim seeking an injunction; it
did not adjudicate that portion of the very same claim seeking
money damages.
As noted in Southern Natural Gas Co., supra,
damages are an element of a claim, one which, in the present
case, remains unadjudicated.
Because the trial court did not
adjudicate the entirety of Phillips's taking-of-riparianrights claim, but, instead, left a portion of that claim for
later determination, the trial court's order did not qualify
for certification as a final judgment under Rule 54(b).
such,
the
purported
certification
of
the
order
As
was
ineffective, see Southern Natural Gas Co., supra, and the
order remains interlocutory in character.
As noted above, Rule 4(a)(1), Ala. R. App. P., provides
that an appeal may be taken from an interlocutory order
granting an injunction but that the notice of appeal must be
filed within 14 days of the entry of the order.
18
In the
2070351
present case, Martin did not file his notice of appeal within
14 days of the entry of the order from which he has appealed.
Because
the
filing
of
a
timely
notice
of
appeal
is
a
prerequisite to the exercise of appellate jurisdiction, see
Allen v. Independent Fire Insurance Co., 743 So. 2d 490, 492
(Ala. Civ. App. 1999), this court lacks jurisdiction and must
dismiss the appeal.
Conclusion
The order appealed from, granting an injunction against
Martin, the appellant, was not capable of certification as a
final judgment under Rule 54(b). As a result, the language in
the order purporting to certify it as such was without effect,
and the order remains interlocutory in nature.
Although the
order was appealable because it granted an injunction, Martin
did not file his notice of appeal in a timely manner, thus
depriving
this
court
of
jurisdiction
over
his
Therefore, the appeal is dismissed.
APPEAL DISMISSED.
Pittman, Bryan, Thomas, and Moore, JJ., concur.
19
appeal.
