John Meeks and Oretha Meeks v. Roderick Morrow and Merchants & Farmers Bank
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REL:03/14/2013
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2013-2014
____________________
1120688
____________________
John Meeks and Oretha Meeks
v.
Roderick Morrow and Merchants & Farmers Bank
Appeal from Greene Circuit Court
(CV-09-900006)
On Application for Rehearing
MOORE, Chief Justice.
The opinion of December 20, 2013, is withdrawn, and the
following is substituted therefor.
1120688
John Meeks and Oretha Meeks appealed from a partial
summary judgment in favor of Roderick Morrow and Merchants &
Farmers Bank ("the Bank"). Because it appeared that the
judgment from which the Meekses purported to appeal was not a
final judgment, this Court’s clerk’s office remanded the cause
to the trial court, which then certified its
order as final
pursuant to Rule 54(b), Ala. R. Civ. P. Having examined the
case,
this
Court
now
concludes
that
the
trial
court’s
certification was not proper and that the judgment was not
made final. Therefore, we dismiss the appeal.
I. Facts and Procedural History
In 1993, the Freedlander Bankruptcy Trust ("Freedlander")
deeded certain property in Greene County ("the property") to
Henry Lewis, who did not record his deed until January 2006.
In 1995, Lewis deeded the property to his grandmother, Bessie
Lard, whose deed also was not recorded until January 2006.
In 1998, Mrs. Meeks noticed a house on the property that
appeared to be empty. The house was "only a shell" at the time
and was "far from being in 'move in' condition." Meekses'
brief, at 15. At that time, the Meekses were unable to obtain
the financing they needed to buy the house and renovate it.
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Consequently, the Meekses and Lard "worked out" an agreement
by which the Meekses would take possession of the house and
spend the money necessary to complete it, although they had
not purchased it. The agreement provided that when the house
was complete and the Meekses could obtain financing, they
would pay the purchase price of $58,000 and obtain a deed to
the property.
In 1999, the Meekses and Lard signed a document styled as
a "work-out agreement," in which the parties agreed to sell
the house and the property to Mrs. Meeks on the condition that
"this Work-Out Agreement must be ended by January 31, 2006."
The work-out agreement also provided that in the event Lard
died before the end of the agreement, Lewis had the right to
sign
or
print
her
name,
apparently
for
the
purpose
of
finalizing the sale. Lard told Mrs. Meeks to make the payments
for the purchase price to Lewis.
Immediately after signing the work-out agreement, the
Meekses
began
working
on
the
property.
They
bought
the
supplies they needed to fix the house and did the work
themselves. The work necessary to renovate the house included
"plumbing, electrical, extension of gas lines, installation of
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flooring, roof repair, installation of sinks, toilets, and
cabinets." Meekses' brief, at 17. The Meekses planted grass,
trees, and flowers around the house, paved the driveway, and
sloped the yard using a bulldozer. Lewis helped with the
renovation and was paid by the Meekses in cash. The Meekses
contend that, following their work on the house, the property
was appraised at $240,000 and later at $250,000.1 The house
was complete enough by October 2004 that the Meekses could
officially move in. The Meekses contend that "[s]ince early
fall of 2004, anyone passing by our home would have been able
to see that we lived there." Meekses' brief, at 18.
In 2004, the Bank recorded a judgment against Lewis. One
of the Bank's directors, Ralph Liverman, performed a title
search. He advised the Bank that Freedlander held record title
to the property.
In 2006, the Meekses felt that the house was complete
and obtained a mortgage to finance their purchase of the
house. Lard had died in 2003, so Lewis signed her name to the
1
The value of the property is contested by the parties.
The Meekses argue that the Bank conceded that the renovated
property has a "replacement cost of over $600,000," Meekses'
brief, at 25, whereas the Bank argues that the Meekses' total
investment was "around $78,000 -- or more, but less than
$158,000.00." Bank's brief, at 21-22.
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1120688
deed purporting to convey the property from Lard to the
Meekses. In 2006, Lewis recorded the deed conveying the
property
from
conveying
the
Freedlander
property
to
from
him,
him
as
to
well
Lard.
as
The
the
deed
Meekses
thereafter recorded their deed. Thus, all the deeds were
recorded by the end of 2006. The Meekses also obtained a
title-insurance policy insuring their title as free of any
liens.
On December 13, 2006, the Bank initiated proceedings to
conduct a sheriff's sale on the property. The Meekses learned
of the sale on Friday, January 9, 2009. The sheriff held the
sale on Monday, January 12, 2009, after which the sheriff
deeded the property to Roderick Morrow as the highest bidder.
Morrow's bid was $48,000.
On January 29, 2009, the Meekses sued Morrow, seeking to
redeem
the
property
and
a
temporary
restraining
order
preserving their possession of the house. On June 2, 2009,
Morrow answered and filed a counterclaim, asking the trial
court to order the Meekses to vacate the premises, to declare
the deed conveying the property from Lard to the Meekses to be
a nullity, to declare that the Meekses had no right of
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1120688
redemption, and to award Morrow damages for the Meekses'
refusal to vacate the property and for any damage resulting
from the Meekses' failure to vacate.
On July 10, 2009, the Meekses amended their complaint,
adding as defendants the Bank and Lewis,2 alleging claims of
slander of title against the Bank and Morrow and wrongful
execution, negligence, "gross negligence," and wantonness
against
the
Bank.
The
Meekses
also
requested,
in
the
alternative, that an equitable lien be placed on the property.
Morrow
filed
a
cross-claim
against
the
Bank,
alleging
misrepresentation and suppression and requesting compensatory
damages,
punitive
damages,
prejudgment
and
postjudgment
interest, attorney fees, and costs in the event that the trial
court found the Meekses' title to be superior to Morrow’s.
Morrow moved for a summary judgment in 2009. The Meekses
opposed the motion and filed a cross-motion for a summary
judgment. The trial court held a hearing on the motions on
September 30, 2009, and gave Morrow more time to respond to
the Meekses' cross-motion for a summary judgment. The trial
court never ruled on either summary-judgment motion.
2
Apparently
litigation.
Lewis
died
at
6
some
point
during
this
1120688
The Meekses filed their second amended complaint on May
4, 2010, adding a count of breach of fiduciary duty against
the Bank. The Meekses filed a third amended complaint on
August 19, 2011, requesting a judgment declaring that the
Meekses were bona fide purchasers of the property and seeking
damages for mental anguish against the Bank and Morrow and
requesting, in the alternative, that the sheriff's sale be set
aside or that they be granted damages for breach of warranty
of
title
by
Lewis.
The
Meekses
filed
a
fourth
amended
complaint on August 28, 2012, requesting, in the alternative,
that the trial court declare the amount needed to redeem the
property and also, in the alternative, if the deed conveying
the property to the Meekses was invalid, requesting specific
performance from Lewis to convey the property to the Meekses.
Morrow and the Bank moved to strike the third and fourth
amended complaints. The parties have not briefed this Court on
whether the trial court ruled on those motions to strike, but
it appears from the trial court's order of February 26, 2013
(see infra), that it has not ruled on those motions.
The Meekses moved for a summary judgment again on July 6,
2012, before they filed their fourth amended complaint. On
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1120688
December 6, 2012, the Bank moved for a summary judgment as to
the Meekses' claims against the Bank. Likewise, Morrow moved
for a summary judgment as to the Meekses' claims against him.
The trial court held a hearing on those motions on January 28,
2013.
On February 26, 2013, the trial court denied the Meekses'
summary-judgment motion and granted Morrow's and the Banks'
summary-judgment motions. The trial court found that the
unrecorded deed conveying the property from Lewis to Lard was
void as to the judgment the Bank recorded against Lewis. The
trial court also found that the deed conveying the property
from Lard to the Meekses was void on its face and that the
work-out agreement had not been properly executed. The trial
court concluded:
"Because of these reasons, the Meekses are without
title and cannot redeem the property, attack the
Sheriff’s sale or make their claims in this case
against either the Bank or Mr. Morrow. It is FURTHER
ORDERED that the Motion for Summary Judgment filed
on behalf of Merchants & Farmers Bank is GRANTED.
"The Court further finds that at the request of the
Meekses, the Court had entered a temporary
restraining order and the same is due to be
dissolved.
8
1120688
"IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by
the Court that the temporary restraining order is
hereby dissolved.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the
Court that the Motion for Summary Judgment filed on
behalf of Roderick Morrow is hereby granted and,
finally,
"IT IS FURTHER ORDERED that Roderick Morrow is
entitled to immediate possession of the property."
Meekses' brief, Appendix B (capitalization in original).
The Meekses appealed. On July 22, 2013, this Court's
clerk's office sent an order to the trial court stating, in
relevant part:
"It appearing to the Court that the order appealed
from is not a final, appealable order in that there
remain unadjudicated claims,
"This cause is remanded to you to determine, within
fourteen (14) days from the date of this order,
whether to 1) make the order of February 26, 2013,
a final judgment pursuant to the provisions of Rule
54(b), Alabama Rules of Civil Procedure; or 2)
adjudicate the remaining claims and issue a final
judgment as to all claims; or 3) do nothing, in
which case this appeal will be dismissed as from a
non-final order."
The trial court replied, in relevant part, as follows:
"The Order granting partial summary judgment in
this case disposed of all the claims of the
plaintiffs against the defendant, Roderick Morrow,
and against the defendant, Merchants & Farmers Bank,
and has left pending the Counterclaim of Roderick
Morrow against the plaintiffs and the Crossclaims of
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1120688
Roderick Morrow against Merchants & Farmers Bank and
the mortgage company.[3] Furthermore, there may be
remaining a claim by the plaintiffs against the
estate of Henry Lewis and/or the Estate of Bessie
Lard based upon the allegations in some of the
Amended Complaints (the Court does not, at this
point, decide whether the plaintiffs can amend to
add those estates or not).
"The Court finds that there is no prejudice or
risk of inconsistent results in granting a partial
final judgment on the Order granting partial summary
judgment and this is true especially considering the
posture of the case and the fact that the plaintiffs
have requested appellate review of the summary
judgment order. In fact, the Court believes that
making the partial summary judgment order a final
judgment will expedite the remaining issues in this
case.
"Accordingly, the Court directs the entry of
final judgment on all claims of the plaintiffs
against the defendant, Roderick Morrow, and against
the defendant, Merchants & Farmers Bank, as set
forth in the Order granting summary judgment. The
Court further finds that there is no just reason for
delay and makes this express direction for the entry
of said partial final judgment."
3
The mortgage company to which the order refers appears
to be Option One Mortgage Corporation ("Option One"). The
Meekses contend that "Morrow filed a motion to add Option One
... as [a] necessary party defendan[t]" but that "such motion
was not ruled on." Meekses' brief, at vii. The Meekses also
claim that "Morrow later filed a pleading indicating he no
longer intended to add Option One as a party defendant."
Meekses' brief, at vii-viii. These motions do not appear in
the record. Meekses' brief, at vii-viii. However, the Meekses
state that "Option One is not a proper party to this appeal
and is omitted as an appellant." Meekses' brief, at viii.
10
1120688
The parties subsequently filed motions stating that they
believed the trial court properly certified its February 26,
2013, order as a final judgment under Rule 54(b), Ala. R. Civ.
P.
II. Analysis
Although the parties do not dispute the validity of the
trial court's Rule 54(b) certification, this Court takes note
of jurisdictional matters ex mero motu. Nunn v. Baker, 518 So.
2d 711, 712 (Ala. 1987). An appeal will be dismissed ex mero
motu
if
the
order
appealed
is
not
a
final
judgment.
Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 362
(Ala. 2004).
Rule 54(b), Ala. R. Civ. P., provides:
"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."
In Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006), this
Court stated the following concerning certifications under
Rule 54(b):
11
1120688
"This Court looks with some
certifications under Rule 54(b).
disfavor
upon
"'It bears repeating, here, that
"'certifications under Rule 54(b) should be
entered only in exceptional cases and
should not be entered routinely.'" State v.
Lawhorn, 830 So. 2d 720, 725 (Ala. 2002)
(quoting Baker v. Bennett, 644 So. 2d 901,
903 (Ala. 1994), citing in turn Branch v.
SouthTrust Bank of Dothan, N.A., 514 So. 2d
1373 (Ala. 1987)). "'"Appellate review in
a piecemeal fashion is not favored."'"
Goldome Credit Corp. v. Player, 869 So. 2d
1146, 1148 (Ala. Civ. App. 2003) (quoting
Harper Sales Co. v. Brown, Stagner,
Richardson, Inc., 742 So. 2d 190, 192 (Ala.
Civ. App. 1999), quoting in turn Brown v.
Whitaker Contracting Corp., 681 So. 2d 226,
229 (Ala. Civ. App. 1996)) (emphasis
added).'
"Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d
354,
363
(Ala.
2004).
Also,
a
Rule
54(b)
certification should not be entered if the issues in
the claim being certified and a claim that will
remain pending in the trial court '"are so closely
intertwined that separate adjudication would pose an
unreasonable
risk
of
inconsistent
results."'
Clarke-Mobile Counties Gas Dist. v. Prior Energy
Corp., 834 So. 2d 88, 95 (Ala. 2002) (quoting Branch
v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373,
1374 (Ala. 1987))."
In determining whether the trial court exceeded its
discretion in determining in a Rule 54(b) certification that
there
was
no
just
reason
for
12
delay,
the
following
five
1120688
factors, or those of them that are applicable, should be
considered:
"'"(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that the
need for review might or might not be mooted by
future developments in the [trial] court; (3) the
possibility that the reviewing court might be
obliged to consider the same issue a second time;
(4) the presence or absence of a claim or
counterclaim which could result in a set-off against
the judgment sought to be made final; (5)
miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of
trial, frivolity of competing claims, expense, and
the like."'"
Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1264 (Ala.
2010) (quoting MCI Constructors, LLC v. City of Greensboro,
610 F.3d 849, 855 (4th Cir. 2010)) (emphasis and footnote
omitted).
The most critical factor in this case is the relationship
between the adjudicated claims and the unadjudicated claims.
The
trial
court's
February
26,
2013,
order
decided
the
Meekses' claims against Morrow and the Bank, but left several
claims pending: Morrow's counterclaim against the Meekses, and
Morrow's cross-claims against the Bank and Option One Mortgage
Corporation (see supra note 3). All of those claims, with the
possible exception of the claim against Option One, are
13
1120688
completely dependent upon our affirmance or reversal of the
trial court's February 26, 2013, order. Morrow's request for
damages is dependent upon this Court's affirmance of the
February
26,
2013,
order.
Likewise,
Morrow's
cross-claim
against the Bank seeking damages for fraud and suppression is
dependent upon this Court's reversing the trial court's order.
In
this
case,
therefore,
"'the
parties'
...
claims
are
dependent on each other and a resolution of one claim would
impact the determination of the other.'" Gregory v. Ferguson,
10 So. 3d 596, 598 (Ala. Civ. App. 2008) (quoting BB & S Gen.
Contractors, Inc. v. Thornton & Assocs., Inc., 979 So. 2d 121,
125 (Ala. Civ. App. 2007)). Thus, the claims remaining before
the trial court and the claims before us on appeal are so
intertwined
that
they
cannot
be
adjudicated
without
the
"unreasonable risk of inconsistent results." Schlarb, 955 So.
2d at 419-20.
III. Conclusion
We hold that the trial court exceeded its discretion in
certifying its order of February 26, 2013, as a final judgment
pursuant to Rule 54(b). "'"When it is determined that an order
appealed from is not a final judgment, it is the duty of the
Court to dismiss the appeal ex mero motu."'" Dzwonkowski, 892
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So. 2d at 362 (quoting Tatum v. Freeman, 858 So. 2d 979, 980
(Ala. Civ. App. 2003), quoting in turn Powell v. Republic
Nat'l Life Ins. Co., 293 Ala. 101, 102, 300 So. 2d 359, 360
(1974)). Consequently, the appeal is dismissed as being from
a nonfinal judgment.
APPLICATION OVERRULED; OPINION OF DECEMBER 20, 2013,
WITHDRAWN; OPINION SUBSTITUTED; APPEAL DISMISSED.
Bolin, Murdock, Main, and Bryan, JJ., concur.
15
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