EB Investments, L.L.C. v. Pavilion Development, L.L.C.
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EB Investments, LLC and Pavilion Development, LLC filed separate appeals to challenge an a court order that held Pavilion was entitled to redeem certain property in Madison County in which EB Investments, and multiple other parties, held legal interests. In 1997, Pavilion sought to redeem nineteen acres of land purchased by JBJ Partnership at a foreclosure sale. The land was purchased from a development project that went bankrupt. In 1995, the bankruptcy trustee supervised a settlement agreement through which the developer would make payments on the development to its creditors. When the developer defaulted on the settlement agreement, the property was foreclosed and sold. Over the following months and years, a host of counterclaims, cross-claims, and separate lawsuits were filed by various parties who had interests in the property. At issue in this particular case was which party is entitled to redeem the disputed property. The trial court determined that Pavilion was entitled to redeem the property. In its order, the court specified how Pavilion should perfect its redemption. If Pavilion failed to pay all sums required by the court's order, it would waive its right to redeem the property. The court denied the remaining post-judgment motions and certified its judgment as final. EB Investments and Pavilion both appealed that judgment. Though they took opposing sides on most issues in the case, both EB Investments and Pavilions challenged whether the trial court's order was indeed final. They argued that the judgment did not address all other pending issues before the court. JBJ and other parties responded and essentially asked the Court to end this long-running dispute. Upon careful review of the sixteen-year history of the case, the Supreme Court concluded that the trial court's attempt to end it was ultimately insufficient. The Court found that the trial court exceeded its discretion by certifying its judgment as final. Accordingly, the Court reversed the trial court's order, and remanded the case for further proceedings.
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REL: 6-17-2011
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2010-2011
1091666
EB I n v e s t m e n t s ,
L.L.C.
v.
P a v i l i o n Development, L.L.C., e t a l .
1091667
P a v i l i o n Development, L.L.C.
v.
JBJ
Appeals
Partnership et a l .
from M a d i s o n C i r c u i t
(CV-97-563.80)
Court
1091666;
1091667
STUART, J u s t i c e .
EB
Investments,
L.L.C.
Development, L.L.C.
challenging
Circuit
holding
certain property
multiple
the
other
appeals
dismiss
of
an
that
order
entered
P a v i l i o n was
and P a v i l i o n
separate
appeals
by
Madison
the
entitled
to
redeem
i n M a d i s o n C o u n t y i n w h i c h EB I n v e s t m e n t s a n d
parties held
f o r the purpose
both
Investments"),
( " P a v i l i o n " ) , have f i l e d
elements
Court
("EB
legal
interests.
We
consolidated
o f w r i t i n g one o p i n i o n .
We
now
appeals.
I.
This
Pavilion,
action
then
was
initiated
operating
as J o h n
a c t i o n t o r e d e e m 19 a c r e s
on
March
Lary,
21,
L.L.C.,
this
issues
stemming from
property.
24
Court
So.
2 d 502
So.
2d
initiated
has i s s u e d
three
opinions
P a v i l i o n ' s attempted
1022
EB I n v s . ,
(Ala. 2005);
(Ala.
an
In the years
deciding
various
redemption
of that
See P a v i l i o n Dev., L . L . C . v . J B J P ' s h i p ,
(Ala. 2007);
when
of land purchased by J B J Partnership
("JBJ") a t a f o r e c l o s u r e s a l e on M a r c h 2 2 , 1 9 9 6 .
since,
1997,
L.L.C. v. A t l a n t i s
and Ex p a r t e
2004).
2
D e v . , I n c . , 930
Atlantis
Additional
facts
979 S o . 2 d
D e v . C o . , 897
d e s c r i b i n g the
1091666;
1091667
background
however,
of
this
dispute
the b a s i c
facts
can
be
a r e as
found
i n those
opinions;
follows.
I n A u g u s t 1 9 9 1 , J a m e s E. P a c e , J a m e s P. P a c e , a n d
B. P a c e
("the P a c e f a m i l y " ) , d o i n g b u s i n e s s as P a c e
("Pace"),
in
sold
Madison
approximately
County
development
company
t r a n s a c t i o n was
Gallop
gave
property
then
with
note
Inc.
Richard
additional
gave
financing
a second mortgage
Gallop
of the p r o j e c t
obtained
had
from
on
sales
of
lots
in
Walker, Inc.
the
after
the
Under
of f o r e c l o s u r e ,
pursuant
filed
began
subdivision,
the second phase of the s u b d i v i s i o n
bankruptcy
property
approximately
not p r o c e e d w i t h
Gallop
and i n
completing
e x h a u s t e d the funds advanced by Walker
the threat
and
could
project.
a petition for
t o C h a p t e r 11 o f t h e B a n k r u p t c y C o d e .
3
the
Gallop
thereafter
and p a y i n g Pace
land
on
on t h e p r o p e r t y ,
however,
phase
H.
a
The
of $1,735,000.
developing the planned s u b d i v i s i o n ;
$295,990
("Gallop"),
a mortgage
Gallop
first
property
Tracey.
f r o m Ben
a subdivision
Walker
value
sum
by
of $149,999.
the
a principal
secured
i n the p r i n c i p a l
to develop
Gallop
of unimproved
Enterprises,
by
Properties
f i n a n c e d by Pace and i n exchange f o r t h e
t o Pace
("Walker"),
acres
operated
a promissory
obtained
return
to Gallop
22
William
1091666;
1091667
In
court,
Gallop
to
April
the
1995,
parties
under
the
reached
supervision
a
settlement
Pace
also
agreed
to
a d d i t i o n a l $ 2 0 0 , 0 0 0 so t h a t G a l l o p
of
the property
and
could
Pace w i t h p r o c e e d s o b t a i n e d
subdivision.
Gallop
$149,999
loan
Gallop
up
with
mortgages
i t s debts to Walker
the
on
to
the
an
complete development
from s e l l i n g developed l o t s
In c o n j u n c t i o n
e x e c u t e d 3 new
wherein
t o Pace and
could
then pay
the bankruptcy
agreement
s t i p u l a t e d t h a t i t owed $ 1 , 4 3 9 , 0 1 0
Walker.
of
settlement
19
acres
and
i n the
agreement,
left
i n the
development t r a c t , w h i c h mortgages had the f o l l o w i n g p r i o r i t y :
1) a m o r t g a g e
development
i n favor
mortgage");
s e c u r i n g t h e $149,999
securing
o f Pace s e c u r i n g
the
$1,439,010
By
Judge's
December
obligations,
March
22 ,
partnership
a
mortgage
loan.
The
made
favor
of
("the
Walker
i n f a v o r of Pace
settlement
agreement
and
a l l then recorded i n the Madison County
Office.
1995,
Gallop
was
and Pace i n s t i t u t e d
1 996,
in
n o t e ; a n d 3) a m o r t g a g e
t h e new m o r t g a g e s w e r e
Probate
2)
a $200,000 l o a n
the
up
a u c t i o n f o r $100,000.
property
of
the
Pace
again
in default
on i t s
foreclosure proceedings.
was
sold
family
--
to
at
JBJ
a
--
a
On
new
foreclosure
The P a c e f a m i l y t h e r e a f t e r p a i d o f f t h e
4
1091666;
Walker
1091667
note
conveying
a n d c o n t i n u e d d e v e l o p i n g t h e p r o p e r t y on i t s own,
parcels
and i n t e r e s t s
i n t h e p r o p e r t y as
follows:
1)
On
June
6,
1 996,
J B J conveyed
a
permanent
d r a i n a g e easement over a p o r t i o n of t h e p r o p e r t y t o
the C i t y of H u n t s v i l l e .
2) On J u n e 1 0 , 1 9 9 6 , J B J c o n v e y e d
D. P o u r h a s s a n i .
one l o t t o A s g h a r
3) On S e p t e m b e r 2 0 , 1 9 9 6 , J B J c o n v e y e d t w o l o t s t o
Atlantis
Development
Company,
Inc. ("Atlantis").
A t l a n t i s t h e r e a f t e r e x e c u t e d m u l t i p l e m o r t g a g e s on
t h a t p r o p e r t y i n f a v o r o f J a c o b s Bank and J B J .
4) On J a n u a r y 1 6 , 1 9 9 7 , J B J c o n v e y e d a n o t h e r l o t t o
A t l a n t i s , which l o t A t l a n t i s r e s o l d t o F r i t z and
L o u i s e N e l s o n on t h a t same d a y .
On M a r c h
letter
to JBJ stating
statutory
Code
1, 1 9 9 7 , G a l l o p ,
right
1975,
foreclosure.
that
Gallop
of redemption,
and
to
redeem
intended
see §
the
19
through
Tracey,
to exercise i t s
6-5-247
acres
sent a
et seq.,
i t had
lost
Ala.
in
G a l l o p a c c o r d i n g l y requested that J B J providei t
w i t h an i t e m i z e d s t a t e m e n t
to pay t o complete
of the l a w f u l charges
the redemption
that
J B J loan Gallop those
sent
similar
notices
Tracey
that
i t would
need
and s i m u l t a n e o u s l y r e q u e s t e d
funds.
On M a r c h
requesting statements
to P o u r h a s s a n i and A t l a n t i s .
advised
acting
9,
1997, G a l l o p
of lawful
charges
On M a r c h 1 3 , 1 9 9 7 , a f t e r
J B J had
i t d i d not recognize h i s a u t h o r i t y
5
to
1091666;
1091667
exercise
Gallop's
Gallop's
right
right
of
of
redemption,
redemption
Tracey
to
a company
operated
then
known
as
litigation
by
Pavilion,
by h i s f o r m e r b r o t h e r - i n - l a w J o h n L a r y and
John
Lary,
On
filing
L.L.C.,
March 21,
in return for
1997,
Pavilion
and
requests
after
filing
f o r statements
interests
in
the
statements.
1
Over
counterclaims,
$1,000.
initiated
suit,
various
and
some
considered
cross-claims,
and
beginning
with
Ex
a petition
separate
claiming
secured
of
had
interests
the
parte
issues
Atlantis
for a writ
action initiated
that
by
Atlantis
mortgages
Both
to
on
and
the
make
years,
requested
a host
separate
i n the
property
This Court
related
had
defaulted
the
property
claims
in
which
we
Atlantis
in
JBJ
and
promissory
i t had
6
Pace
notes
purchased
T h e r e h a s b e e n much d i s p u t e among t h e p a r t i e s
w h e t h e r b o t h t h e r e q u e s t s and r e s p o n s e s were t i m e l y .
1
who
already
by
2003 by
on
or
has
Development,
i n February
filed
those
to
o f mandamus f i l e d
of
lawsuits
t o r t c l a i m s were
drawn i n t o the d i s p u t e .
some
Court.
continued
produced
f o l l o w i n g months
p a r t i e s who
were o t h e r w i s e
a
this
of charges from a s s o r t e d p a r t i e s w i t h
property,
the
Pavilion
e n c o m p a s s i n g a l l manner o f c o n t r a c t and
denied
still
a redemption a c t i o n i n the Madison C i r c u i t
before
by
transferred
from
as
to
1091666;
JBJ.
1091667
In
2
issued
EB
Investments,
in
yet
another
J a n u a r y 2004 b y EB
Atlantis
seeking
from
had
decided
Investments
originally
i n September
an a p p e a l
Gallop's
right
(which
1996.
by t h e t r i a l
holding
of
that
redemption
See
remanded
hold
to
the cause to the t r i a l
Pavilion
of
Jacobs
i n August
court
the t r i a l
Pavilion
the r i g h t
Bank)
2007,
we
reversed
i n favor
court
Development,
court
and
t o redeem
979
of JBJ
had
So.
holding
erred
that
t h e 19 a c r e s
at
2d
We
for further
1 t h r o u g h M a r c h 5, 2 0 1 0 ,
the t r i a l
at
37.
proceedings,
court
held
l i m i t e d to deciding P a v i l i o n ' s redemption claim.
A t l a n t i s has
and i t s i n d i v i d u a l
had f r a u d u l e n t l y
outstanding right
2
in
that Tracey lacked the a u t h o r i t y to t r a n s f e r
issue.
a bench t r i a l
filed
owned t h e m o r t g a g e s
favor
Finally,
3
did i n fact
from March
in
one
judgment
from the l o t s A t l a n t i s had p u r c h a s e d
Pavilion
and,
now
this
a
i n t h e i n s t a n t a c t i o n i n w h i c h we
Pavilion,
when i t c o n c l u d e d
i n part
action,
executed
a summary j u d g m e n t e n t e r e d
and a g a i n s t
reversed
separate
to e j e c t A t l a n t i s
JBJ
we
previously f i l e d a cross-claim against JBJ
partners i n t h i s a c t i o n a l l e g i n g that they
failed
to d i s c l o s e the existence
o f an
of redemption.
E B I n v e s t m e n t s ' s o l e member i s t h e w i f e o f an a t t o r n e y
who h a d f o r m e r l y r e p r e s e n t e d
P a c e a n d A t l a n t i s a n d who
was
h i m s e l f named a s a d e f e n d a n t i n t h i s a c t i o n i n a c r o s s - c l a i m
f i l e d b y A t l a n t i s a l l e g i n g t h a t he h a d f a i l e d t o i n f o r m i t o f
the o u t s t a n d i n g r i g h t of redemption.
3
7
1091666;
On
May
1091667
27,
judgment,
2010,
the
trial
which summarized
court
entered
i t s amended
t h e c o u r t ' s c o n c l u s i o n s as f o l l o w s :
"In summary, t h e c o u r t f i n d s t h a t [ P a v i l i o n ] i s
e n t i t l e d t o redeem the p r o p e r t y d e s c r i b e d i n i t s
original
complaint.
In
order
to
perfect
and
c o m p l e t e i t s r e d e m p t i o n , P a v i l i o n must d e p o s i t i n t o
the o f f i c e of the C l e r k of the C i r c u i t Court of
M a d i s o n C o u n t y , A l a b a m a t h e sum o f $ 3 , 7 7 0 , 3 4 8 . 9 0 ,
p l u s a l l a c c r u i n g i n t e r e s t and d e l i n q u e n t f e e s f r o m
M a r c h 1 0 , 2 0 1 0 , t o t h e d a t e o f p a y m e n t , w i t h i n 30
days
from the date of t h i s
judgment.
[Pavilion]
s h a l l be e n t i t l e d t o a c r e d i t a g a i n s t t h i s sum f o r
a l l m o n i e s i t p l a c e d on d e p o s i t w i t h t h e C l e r k o f
Circuit
Court
of
Madison
County
following
[ P a v i l i o n ' s ] f i l i n g of t h i s s u i t , i n c l u d i n g accrued
interest.
Upon p a y m e n t i n t o
court
o f a l l sums
r e q u i r e d , each of the c u r r e n t t i t l e h o l d e r s of the
p r o p e r t y t o be r e d e e m e d s h a l l d e l i v e r t o t h e C l e r k
of the C i r c u i t C o u r t a deed c o n v e y i n g a l l of the
t r a n s f e r o r s ' r i g h t , t i t l e and i n t e r e s t i n each l o t
or p a r c e l o f p r o p e r t y t o [ P a v i l i o n ] and s h a l l
be
p a i d b y t h e C l e r k a l l sums due i n a c c o r d a n c e w i t h
t h i s judgment.
S p e c i f i c a l l y , u p o n r e d e m p t i o n as s e t
forth
in this
order,
the C l e r k
i s d i r e c t e d to
d i s t r i b u t e t h e f u n d s as f o l l o w s :
"a.
$2,804,472
family];
jointly
"b.
$930,001
[Atlantis];
"c.
$35,875.99, p l u s a l l a c c r u i n g i n t e r e s t
and d e l i n q u e n t
fees
from March
10,
2010, t o t h e d a t e o f payment t o t h e
Tax
Collector
of
Madison
County,
Alabama.
to
final
to
[the
Pace
" I f [ P a v i l i o n ] f a i l s t o p a y a l l sums r e q u i r e d b y
this
order
within
30
days
from
this
judgment,
[ P a v i l i o n ] w i l l be h e l d t o h a v e f o r e v e r w a i v e d i t s
8
1091666;
1091667
r i g h t t o redeem t h e s u b j e c t p r o p e r t y .
S h o u l d any
p o s t t r i a l m o t i o n o r n o t i c e o f a p p e a l be f i l e d i n
this
case, a l l times s t i p u l a t e d h e r e i n s h a l l
be
s t a y e d pending r e s o l u t i o n of such p o s t t r i a l motions
or a p p e a l s u b j e c t , however, t o t h e c o n t i n u a t i o n o f
i n t e r e s t on a l l sums d u e a t t h e same r a t e s a s s e t
forth
herein,
plus
a l l accruing
interest
and
d e l i n q u e n t f e e s f r o m M a r c h 10, 2010 t o t h e d a t e o f
payment.
A l l other
claims
for relief
not
s p e c i f i c a l l y addressed herein are denied. Costs are
t a x e d as p a i d . "
On J u l y
30, 2010, t h e t r i a l
judgment motions
to
Rule
each
court denied
and c e r t i f i e d
5 4 ( b ) , A l a . R.
now a p p e a l
that
the remaining
i t s judgment as f i n a l
C i v . P.
EB
Investments
post-
pursuant
and
Pavilion
sides
on m o s t
judgment.
II.
EB
of
Investments
the legal
that
and P a v i l i o n
issues
the t r i a l
i n this
the pending
have
trial
court's order
trial
filed
a response
case.
to both
i s sufficient
long-running dispute.
dismiss
however,
a l lthe pending
claims i n this
which
this
case;
opposing
they
both
c o u r t ' s j u d g m e n t i s n o t an a p p e a l a b l e
because i t does n o t a d d r e s s
all
take
these appeals
i s s u e s and r e s o l v e
appeals,
the following
court to help expedite a resolution
9
argue
this
For the reasons
and o f f e r
judgment
J B J and t h e Pace
and urge
argue
family,
that the
Court
that
follow,
guidance
i n this
t o end
we
to the
case.
1091666;
1091667
On
January
severing
1999,
Pavilion's
claims,
i n the
trial
court
action.
Ala.
court's
order
subject
to
trial
and
court
claim
JBJ
and
the
the
wide
P.,
from
i n doing
R.
should
immediate
Civ.
entered
the
t h i r d - p a r t y claims
within
acted
42(b),
the
redemption
counterclaims,
filed
Rule
23,
Pace
a c c o r d i n g l y be
appeal,
an
other
that
family
cross-
had
argue
and
that
been
that
d i s c r e t i o n granted
so
order
i t
the
v i e w e d as a f i n a l
the
by
trial
judgment
explaining:
"By
entering
this
order,
the
trial
court
i n t e n d e d t o a d d r e s s t h e c l a i m s and i s s u e s r a i s e d by
the P a v i l i o n complaint seeking to e x e r c i s e the r i g h t
of redemption f i r s t before
t u r n i n g to the
other
claims
filed
later.
L o g i c a l l y , t h i s was
a wise
d e c i s i o n i n t h a t the other
c l a i m s were dependent
upon w h e t h e r or not P a v i l i o n i n d e e d had the r i g h t t o
redeem and, i f i t d i d , w h e t h e r or not P a v i l i o n w o u l d
a c t u a l l y c h o o s e t o e x e r c i s e t h a t r i g h t by m a k i n g a l l
p a y m e n t s f o u n d b y t h e t r i a l c o u r t t o be
due."
(JBJ
and
the
40.)
See
(Ala.
1992)
Pace f a m i l y ' s b r i e f
a l s o Ex p a r t e
("The
separate
trials
decision
in
that
trial
and
that
discretion.
494
So.
2d
the
trial
54
Ex
Humana Med.
court
will
parte
(Ala. 1986).
court
will
has
in severing
regard
be
i n c a s e no.
C o r p . , 597
be
10
and
reversed
Ethridge
'[A]bsent
allowed
So.
2d
670,
wide d i s c r e t i o n i n
claims,
R.B.
1091667, pp.
to
an
the
only
39¬
671
ordering
trial
i f i t
& Associates,
court's
abused
Inc.,
abuse of d i s c r e t i o n ,
"shape the
order
of
trial"
1091666;
1091667
through
the
provisions
parte
Marcrum,
372
Black
v. Boyd,
251
claims
P.,
have been
the
order
trial
F.
42,
[ A l a . R.
2d
So.
Rule
313,
315
( A l a . 1979).
2d
843
severed pursuant
judge
has
even
We
agree
trial
the
had
the
court
d i d not
by
including
"until
dispute
time
as
claim.
to
resolve
between
EB
P a v i l i o n has
when
[Ala.]
Civ.
the
the
Pace
family
order
an
initial
EB
the
trial
Investments
pending
Investments
and
has
claims,
Atlantis,
or
waived
should
r i g h t t o redeem
fully
resolve
concerning
can
make
complete
right.
three
that
lawful
an
respects.
the
City
property]."
and
resolve
a l l outstanding
charges
and
revived
liens
informed
trial
perfected
claim
redemption
The
address
[the
either
R.
'shape
Accordingly,
a l l the
also,
H o w e v e r , a j u d g m e n t on P a v i l i o n ' s r e d e m p t i o n c l a i m
its
such
and
i t s d i s c r e t i o n , as
declining
the
JBJ
Ex
Likewise,
21,
d i s c r e t i o n to
court
See,
d i s c r e t i o n to
with
on P a v i l i o n ' s r e d e m p t i o n
argued,
to Rule
more
trial
exceed
Civ. P.].'
(6th C i r . 1958).
t r i a l . '") .
of
that
of
decision
of
court's
First,
of
the
as
to
property
whether
or
judgment f a i l s
the
trial
Huntsville's
11
so
that
Pavilion
i t wishes
forever
t o do
issues
to
waive
that
so i n a t
least
court's
judgment
interest
i n the
fails
to
property.
1091666;
1091667
Huntsville
over
a
obtained
portion
accordingly
Pavilion
from
of
the
entitled
redeems
JBJ
permanent
property
to
the
a
on
June
compensation
property.
drainage
6,
for
1996,
that
P a v i l i o n may
redemption of H u n t s v i l l e ' s i n t e r e s t w h i l e
rest
of
piecemeal
Costa
&
property
redemption,
Head
because
absent
(Birmingham
Commerce o f
Birmingham,
there
evidence
i s no
"[t]he
an
Ltd.
So.
2d
360,
i n d i c a t i n g that
upon c o n t a i n e d
a provision allowing
It
i s unclear
i f Huntsville
the
property
w o u l d be
may
due
also
owned)
also.
sum
the
In
as
i t did with
s u b m i t t e d no
that
included
accordance
the
sum
with
amount r e q u i r e d
that
case,
awarded JBJ
the
could
property
as
to
allow
for
it,"
Bank
of
and
foreclosed
redemption.
for
the
h e l d by
due
the
improvements
improvements to
being
JBJ
which
trial
to
i t
court
Pourhassani
the
lot
he
necessarily
redeem H u n t s v i l l e ' s i n t e r e s t
specific
be
for piecemeal
any
to
(Ala. 1990),
mortgage
i f i t d i d not,
the
out
not
National
i t s interest
e v i d e n c e of
set
the
i f
redeeming
does
363
constructed
c o m p e n s a t i o n , and,
well find,
(who
the
in
v.
is
elect
agreement p r o v i d i n g
One),
569
law
and
interest
not
forgo
the
easement
a m o u n t due
Huntsville
from
determined a f t e r P a v i l i o n e l e c t s
to complete redemption of the p r o p e r t y ,
12
i f i t i n f a c t does
so.
1091666;
1091667
However,
in light
entitled
lawful
to
of the p o s s i b i l i t y
some
compensation
charges, i t s i n t e r e s t
c o u r t b e f o r e we
redemption
the
trial
to
purchased
a
l o t from
purchased
from
compensation
into
the
JBJ.
Pavilion
not to pursue
s h o u l d be a d d r e s s e d b y t h e
trial
court's
Nelsons,
who,
Atlantis
The
order
trial
that
on
fails
to
January
Atlantis
court declined
award
16,
the
had
to
any
1997,
earlier
award
by
the
Nelsons
and
Pavilion
the Nelsons'
whereby
any
Pavilion
l o t and t h e N e l s o n s
any c l a i m s a g a i n s t P a v i l i o n .
However,
agreed
as
" [ t ] h e law does not a l l o w p i e c e m e a l r e d e m p t i o n . "
& Head,
for
to the Nelsons because of a s e t t l e m e n t agreement
not t o redeem
supra,
from
be
claim.
compensation
agreed
directly
could
c o n s i d e r an a p p e a l o f a j u d g m e n t d e c i d i n g
Similarly,
entered
that Huntsville
569 S o . 2 d a t 3 6 3 .
S h e a l y v. G o l d e n ,
897
So.
As t h i s
2d 268,
noted
Costa
Court f u r t h e r e x p l a i n e d i n
272-73
( A l a . 2004):
"Once one o r m o r e t r a c t s o f l a n d a r e s o l d a t a
f o r e c l o s u r e s a l e , t h e manner i n w h i c h t h o s e t r a c t s
are
d i v i d e d up d e t e r m i n e s t h e u n i t s i n w h i c h t h o s e
t r a c t s 'may a n d m u s t ' be r e d e e m e d .
R e d e m p t i o n must
be
made
in
such
units;
therefore,
piecemeal
redemption of a p o r t i o n of that u n i t i s p r o h i b i t e d . "
(Footnote
1996,
omitted.)
At
the
the property P a v i l i o n
foreclosure
now
13
seeks
sale
t o redeem
on
March
was
sold
22,
to
1091666;
1091667
JBJ
a
as
single
notwithstanding
the
property,
acre
tract
trial
the
fact
Pavilion
and
timely
charges.
Following
court should
JBJ
for
to
redeem
in
its
provided
the
$ 1 0 0 , 00 0.
later
i s required
indicated
properly
unit
that
i f i t wishes
court
w o u l d owe
19-acre
to
the
began
redeem
parceling
the
property
judgment
Pavilion
d i s m i s s a l of these
19-
all.
The
the
Nelsons
a
statement
appeals,
the
a c c o r d i n g l y c a l c u l a t e the l a w f u l charges
the Nelsons i n order
off
entire
at
that
with
Thus,
of
trial
Pavilion
to complete redemption of
their
lot.
Finally,
the
trial
court's
development mortgage G a l l o p
of
the
April
1995
and
thereafter
property.
See
§
when " a n y
mortgages,
sale,
the
[party]
and
executed
settlement
redemption
stated
in favor
that
the
o f P a c e as
part
a g r e e m e n t w o u l d be
remain
6-5-248(d),
redeem[s],
recorded
order
liens
Ala.
a
superior
Code
lien
1975,
a l l recorded
revived
upon
(stating
judgments,
in existence
at the
redeeming p a r t y
determine
mortgage.
the
balance
The
April
").
of
the
1995
However, the
loan
secured
settlement
14
trial
by
court
the
agreement
the
that
recorded
time of
a r e r e v i v e d a g a i n s t t h e r e a l e s t a t e redeemed and
upon
the
against
did
not
development
originally
1091666;
1091667
capped
the balance
family
argue
claim
that
that
court's
secured
trial
an a p p e a l
$154,386.
to decide
foreclosure
court
i n this
should
Pavilion
case
involving
and t h a t
r u l e on t h i s
issues,
lessen
liabilities
that the
issues
intertwined
court's
We
issue before
d e c i s i o n whether t o redeem t h e p r o p e r t y
asserts
result
improper.
agree
we
court's
of future
allow
in a
Rule
that
consider
judgment.
litigation
Pavilion
t o make i t s
with f u l l
knowledge of
i t w o u l d be a s s u m i n g b y d o i n g
so.
III.
"This
Court
looks
with
some
c e r t i f i c a t i o n s under Rule 54(b).
disfavor
"'It
bears
repeating,
here,
that
" ' [ c ] e r t i f i c a t i o n s under Rule 54(b) should
be e n t e r e d o n l y i n e x c e p t i o n a l c a s e s a n d
s h o u l d n o t be e n t e r e d r o u t i n e l y . ' "
State
v . L a w h o r n , 830 S o . 2 d 7 2 0 , 725 ( A l a . 2 0 0 2 )
( q u o t i n g B a k e r v . B e n n e t t , 644 S o . 2 d 9 0 1 ,
903
( A l a . 1994), c i t i n g i n t u r n Branch v.
15
they
d u e on t h e l o a n
the t r i a l
the r i s k
but also
argues
Pace
likely
elements of the t r i a l
not only
these
action
and
Pavilion
the balance
was a c c o r d i n g l y
of the other
so w i l l
involving
the
modified,
d u e i s now $ 2 8 2 , 7 7 8 .
i s only
certification
Doing
J B J and t h e
t h e a g r e e m e n t was l a t e r
failure
the issues
54(b)
however,
by t h e development mortgage would
subsequent
with
$2 0 0 , 00 0 ;
the balance
the balance
trial
the
that
at
upon
1091666;
1091667
S o u t h T r u s t B a n k o f D o t h a n , N.A., 514 S o . 2 d
1373 ( A l a . 1 9 8 7 ) ) .
"'"Appellate review i n
a piecemeal
fashion
i s not f a v o r e d . " ' "
G o l d o m e C r e d i t C o r p . [ v . P l a y e r , 869 S o . 2 d
1 1 4 6 , 1148 ( A l a . C i v . A p p . 2 0 0 3 ) ] ( q u o t i n g
Harper
Sales
Co.
v.
Brown,
Stagner,
R i c h a r d s o n , I n c . , 742 S o . 2 d 1 9 0 , 192 ( A l a .
C i v . App. 1999), q u o t i n g i n t u r n Brown v.
W h i t a k e r C o n t r a c t i n g C o r p . , 681 S o . 2 d 2 2 6 ,
229
( A l a . C i v . App.
1996))
(emphasis
added).'
"Dzwonkowski v. S o n i t r o l
3 5 4 , 363 ( A l a . 2 0 0 4 ) . "
o f M o b i l e , I n c . , 892 S o . 2 d
Schlarb
v . L e e , 955 S o . 2 d 4 1 8 , 4 1 9 - 2 0
reasons
s e t f o r t h a b o v e , we h o l d t h a t t h e t r i a l
its
Rule
discretion
54(b)
Accordingly,
( A l a .2006).
court
For the
exceeded
i n c e r t i f y i n g i t s j u d g m e n t as f i n a l p u r s u a n t t o
and
these
thus
proper
appeals
for
an
immediate
appeal.
are dismissed.
1 0 9 1 6 6 6 -- A P P E A L
DISMISSED.
1091667
DISMISSED.
Cobb,
-- A P P E A L
C . J . , a n d P a r k e r , Shaw, a n d W i s e ,
16
J J . , concur.
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