Robert S. Grant Construction, Inc. v. Frontier Bank
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Robert S. Grant Construction, Inc. (the corporation), Robert S. Grant (RSG), and Pam E. Grant (PEG) (collectively referred to as "the Grants") appealed an order striking their jury demands in an action commenced by Frontier Bank (the bank) against the Grants and others alleging breach of contract, fraud, and the fraudulent conveyance of real estate. This case arose out of a loan from the bank to the corporation. The loan ultimately involved a number of related agreements, including a construction-loan agreement between the corporation and the bank and a series of "continuing guaranties," whereby RSG personally guaranteed repayment of the loan. The Supreme Court was unable to reach the merits of the Grants' contentions, and dismissed the appeal because, despite the invocation of Rule 54(b), the trial court's order was not final and appealable.
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REL: 9/16/11 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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA SPECIAL TERM, 2011 _________________________ 1100565 _________________________ Robert S. Grant Construction, Inc., et al. v. Frontier Bank Appeal from Shelby Circuit Court (CV-10-900457) WOODALL, Justice. Robert S. Grant Construction, Inc. ("the corporation"), Robert S. Grant corporation, RSG, ("RSG"), and and PEG Pam are E. Grant hereinafter ("PEG") (the collectively referred to as "the Grants") appeal from an order striking their jury demands in an action commenced by Frontier Bank 1100565 ("the bank") against the Grants and others alleging breach of contract, fraud, and the fraudulent conveyance of real estate. We dismiss the appeal. This case arises out of a loan from the bank to the corporation. agreements, The loan ultimately involved a number of related including a construction-loan agreement ("the agreement") between the corporation and the bank and a series of "continuing guaranties" ("the guaranties"), whereby RSG personally guaranteed repayment of the loan. Each of the guaranties contained the following provision: "24. JURY TRIAL WAIVER. LENDER AND GUARANTOR HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS GUARANTY." (Capitalization in original.) The agreement contained a similar provision: "24. JURY TRIAL WAIVER. BORROWER AND LENDER HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS AGREEMENT." (Capitalization in original.) On May 19, 2010, Frontier sued the Grants. amended, its complaint contract obligations essentially and default on alleged the (1) loan As last breach against of the corporation; (2) breach of the guaranties against RSG; (3) 2 1100565 liability Ala. Code under the Alabama Uniform Fraudulent Transfer Act, 1975, § 8-9A-1 et seq. ("the Act"); (4) misrepresentation and suppression against RSG; and (5) fraud and conspiracy against RSG and PEG. The Grants filed an answer "demand[ing] a trial by [a] struck jury as to all issues in this case." Frontier moved, largely on the basis of the waiver provisions in the guaranties and the agreement, to strike the jury demands of the corporation and RSG as to all Frontier's claims against them. It also moved to strike the jury demand of PEG as it related to the claim against her under the Act. On January 13, 2011, the trial court granted Frontier's motion and purported to certify the order granting the motion as a final judgment pursuant to Ala. R. Civ. P. 54(b). From that order, the Grants appealed. On appeal, the Grants concede that the waiver provisions in the guaranties and the agreement preclude a jury trial on the breach-of-contract claims. They contend, however, that the tort claims neither "arise out of" nor are "based on" the guaranties or the agreement. They also insist that the claims asserting liability under the Act are triable 3 to a jury. 1100565 However, we are unable to reach the merits of the Grants' contentions, and we dismiss the appeal because, despite the invocation of Rule 54(b), the trial court's order is not final and appealable. It is well settled that, "[i]f an order does not completely dispose of or fully adjudicate at least one claim, a court's Rule effective." 54(b) certification order is not It is clear to this Court that a jury demand is not a "claim." So. 3d 243 (Ala. 2010). F.2d the Grantham v. Vanderzyl, 802 So. 2d 1077, 1080 (Ala. 2001) (emphasis added). 807 of 1560, 1566 See Sledge v. IC Corp., 47 See also Howard v. Parisian, Inc., (11th Cir. 1987) ("Because an order denying a jury demand does not dispose entirely of a claim but leaves the claim pending for a bench trial, it is an interlocutory order. ... Therefore, the order was not subject to certification under Rule 54(b)[, Fed R.Civ.P.]."). Because a jury-trial demand is not a claim contemplated to be made final by Rule 54(b), the purported certification order was ineffective to confer appellate jurisdiction over this case. 1 1 See James v. Rane, 8 So. 3d 286, 288 (Ala. 2008) (absence of a final judgment deprives the appellate court of jurisdiction); Ex parte Pinnoak Res., LLC, 26 So. 3d 1190, 1198 (Ala. 2009) (appellate courts notice the absence of 4 1100565 It is only in the context of an otherwise final and appealable judgment that an interlocutory order denying a jury demand merges with the final judgment and becomes reviewable by way of appeal. of the denial judgment.'" In other words, "[a] 'party may have review of a jury on an appeal from the final Bowdry v. United Airlines, Inc., 58 F.3d 1483, 1489 (10th Cir. 1995) (quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil 2d § 2322, at 175 (1995)) ("[T]he summary judgment in this case disposed of these appellants' only remaining claim, completely terminating their action. Once certified under Rule 54(b), that judgment was final. All prior interlocutory judgments affecting these appellants merged into the appealable at that time."). final judgment and became See also Nationwide Mut. Fire Ins. Co. v. Pabon, 903 So. 2d 759, 765 (Ala. 2004) ("This Court has addressed the denial of a jury demand on appeal. See Poff v. Hayes, 763 So. 2d 234 (Ala. 2000) (on appeal from a judgment entered after a bench trial, this Court held that the trial court erred in striking the plaintiff's demand for a jury trial); Baggett v. Sims, 387 So. 2d 792 (Ala. 1980) (on jurisdiction ex mero motu). 5 1100565 appeal from a judgment entered after bench trial, this Court held that the trial court erred in overruling the plaintiff's demand for a jury trial). Under the procedural posture of this case [appeal from a judgment entered on a jury verdict], the trial court was within its right to revise the earlier order setting the coverage issue for a nonjury trial."). This case is clearly distinguishable from Pabon, Poff, and Sims in that this appeal does not come to us in the context of an otherwise final judgment. Because the Rule 54(b) confer certification was ineffective to appellate jurisdiction on this Court, the appeal is dismissed. APPEAL DISMISSED. Malone, C.J., and Bolin, Murdock, and Main, JJ., concur. 6
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