SHAW, Justice.
Charles H. Stephens and Stephens Properties, Inc., the defendants/counterclaim plaintiffs below, appeal from a judgment entered on a jury verdict in favor of Fines Recycling, Inc. ("Fines"); Harry Donaldson, Jr.; Gerry Hamby; Hal Isbell; and Donald G. Wilson (collectively "the Fines shareholders"), the plaintiffs/counterclaim defendants below, on claims stemming from a dispute over a commercial lease. We dismiss the appeal as being from a nonfinal judgment.
Stephens Properties, Inc., is an Alabama corporation that leased commercial rental property in Talladega; Charles H. Stephens is the president of Stephens Properties. At all times pertinent to this dispute, Fines, also an Alabama corporation, was involved in the business of salvaging scrap metal from the automobile-shredding process. In May 1996, Stephens Properties and Fines, Inc., Fines's predecessor in interest, entered into a lease agreement pursuant to which Fines, Inc., leased approximately six acres of real property in Talladega for use in its metal-reclamation business.
With regard to that lease agreement and the resulting business relations of the parties, and as reflected in the record, "the following facts [were] established by admission
Following completion of the environmental cleanup, however, Stephens Properties and/or Stephens allegedly failed to return the stock certificates pledged as security by the Fines shareholders.
Fines and the Fines shareholders subsequently filed the underlying action against Stephens Properties and Stephens, which, following several amendments, ultimately sought compensatory and punitive damages related to claims of breach of contract, fraudulent misrepresentation, conversion of the pledged stock certificates, and conversion of a 1990 Case brand loading tractor ("the Case loader"). Stephens Properties and Stephens answered, and Stephens Properties filed several counterclaims. Following several amendments, Stephens Properties' counterclaims ultimately sought the following relief: a declaratory judgment as to the rights, liabilities, and obligations of the parties with respect to the lease of the property, the cleanup process necessitated by environmental violations on the property as identified by the Alabama Department of Environmental Management ("ADEM"), and the pledged stock certificates; judicial foreclosure of the pledged stock certificates; and money damages associated with Fines's purported breach of the lease agreement by allegedly failing to pay rent after February 2000 and for damage to the rental premises. Stephens Properties also alleged misrepresentation and sought to pierce the corporate veil and to impose personal liability on the Fines shareholders for any judgment entered against Fines.
The case proceeded to a jury trial on the following six claims: Fines and the Fines shareholders' claim that Stephens Properties and/or Stephens converted the Case loader; the Fines shareholders' claim that Stephens Properties and/or Stephens converted the stock certificates of Donaldson, Hamby, and Wilson; the Fines shareholders' breach-of-contract action based on Stephens Properties' and/or Stephens's alleged failure to return the pledged stock certificates as agreed by the parties; Stephens Properties' counterclaim seeking past-due rent; Stephens Properties' counterclaim seeking damages for the cost of repairs for damage under the lease; and Stephens Properties' counterclaim seeking damages for additional costs and damage to the leased premises.
The jury found as follows:
Thus, the jury awarded Fines $57,000 in damages against Stephens Properties and Stephens and awarded Stephens Properties $439,410 in damages against Fines. Stephens was found liable for a total of $438,855 to be paid to Hamby, Wilson, and Donaldson.
On November 30, 2009, the trial court entered a judgment on the foregoing verdict. In its judgment, the trial court noted:
In accordance with its expressed intention, the trial court purported to certify its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., on grounds that there was no just reason for delay.
Subsequently, the trial court amended its judgment and purported "to further provide for additional Rule 54(b) language as set out herein for the purpose of supplementing prior grounds for the entry of a final judgment." Specifically, it noted:
Stephens Properties and Stephens (collectively "the appellants") timely appealed; Fines and the Fines shareholders, however, did not appeal the breach-of-contract judgment or the denial of their Rule 60(b) motion.
In addition to challenging the trial court's denial of their motions seeking a judgment as a matter of law as to the conversion of the Case loader and the pledged stock certificates and its decision to submit the issue of punitive damages to the jury, the appellants argue that the trial court's Rule 54(b) certification was erroneous in light of the relationship between the adjudicated claims and the still pending claims. Specifically, they contend that this Court lacks jurisdiction to entertain the present appeal because, they say, the equitable counterclaims asserted by Stephens Properties, which remain pending in the trial court, are "intertwined" with the legal claims decided by the jury. See Allen v. Briggs, 60 So.3d 899, 904 (Ala.Civ.App. 2010) ("[I]f a Rule 54(b) certification is determined to have been improperly entered, the judgment so certified is considered to be nonfinal and therefore unable to support an appeal." (citing Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 361 (Ala.2004))). In a related argument, the appellants assert that, in purporting to "sever" the equitable claims from the legal claims, the trial court also exceeded its discretion. As to both arguments, we agree.
Initially, the appellants maintain that, although the trial court's order refers to the equitable issues presented by Stephens Properties' counterclaim as having been "severed" from the legal claims of the parties (terminology that Fines and the Fines shareholders repeat in their brief to this Court), in actuality, there was no formal severance of those claims pursuant to Rule 21, Ala. R. Civ. P. Instead, they argue, the equitable claims were merely separated from the legal, jury claims, as
As has been frequently observed, the distinction between the terms "severed" and "separated for trial" is an important one and one that often gives rise to confusion for both courts and litigants. Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190 (Ala.Civ.App.1999). See also New Acton Coal Mining Co. v. Woods, 49 So.3d 181, 185 (Ala.2010) ("`Confusion has sometimes arisen between a true severance and an order providing for separate trials pursuant to Rule 42(b).'" (quoting Committee Comments Adopted February 13, 2004, to Rule 21, Ala. R. Civ. P.)), and Opinion of the Clerk No. 54, 982 So.2d 1059, 1061 (Ala.2007) (observing that "`[l]awyers and judges tend to use the terms ["severance" and "separate" trials] interchangeably, speaking of "severance" when all that is intended is a separate trial.'" (quoting Opinion of the Clerk No. 45, 526 So.2d 584, 586 (Ala.1988))).
Morgungenko v. Dwayne's Body Shop, 23 So.3d 671, 673-74 (Ala.Civ.App.2009). See also Woods, 49 So.3d at 184-85 ("A significant distinction exists between an order separating trials under Rule 42(b) and one severing claims under Rule 21 because `severed claims become independent actions with judgments entered independently, while separate trials lead to one judgment.'" (quoting Universal Underwriters Ins. Co. v. East Cent. Alabama Ford-Mercury, Inc., 574 So.2d 716, 725 (Ala. 1990))).
Here, the trial court's pretrial order indicated that the equitable, nonjury
Based on the actions of the trial court as reflected in the record, we conclude, as the appellants urge, that the trial court merely meant to order separate trials of the legal issues and the equitable issues. Thus, notwithstanding the trial court's conclusion in the November 30, 2009, judgment that it had "severed" the equitable counterclaims, the substance of the trial court's action was to order separate trials pursuant to Rule 42 in order to accommodate the presence of both jury and nonjury issues. Accordingly, we conclude that the trial court did not order a severance of the equitable counterclaims pursuant to Rule 21 but, rather, simply ordered separate trials of those claims pursuant to Rule 42(b). See Certain Underwriters at Lloyd's, London v. Southern Natural Gas Co., 939 So.2d 21, 27 (Ala.2006).
Because, as determined above, the trial court directed separate trials of the legal and equitable claims, the trial court's judgment, entered in response to the jury verdict determining the legal claims, was not a final judgment unless the trial court's Rule 54(b) certification is valid. See, e.g., Woods, 49 So.3d at 185; Harper Sales, 742 So.2d at 192; and Bryant v. Flagstar Enters., Inc., 717 So.2d 400, 402 (Ala.Civ.App.1998). "The purpose of Rule 54(b) ... is to make final `an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality.'" Ex parte James, 836 So.2d 813, 852 (Ala.2002) (Moore, C.J., concurring in the result in part and dissenting in part) (quoting Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala.1984), overruled on other grounds, Ex parte Andrews, 520 So.2d 507 (Ala. 1987)). However, "`[n]ot every order has the requisite element of finality that can trigger the operation of Rule 54(b).'" Dzwonkowski, 892 So.2d at 361 (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1147 (Ala.Civ.App.2003) (emphasis omitted)).
Lighting Fair, Inc. v. Rosenberg, 63 So.3d 1256, 1263-64 (Ala.2010) (footnotes and emphasis omitted). Of those five factors relevant to a Rule 54(b) inquiry, the appellants argue that three of the factors mandate a vacation of the certification in the present case: the relationship between the adjudicated and unadjudicated issues, the existence of a potential setoff, and the effect of an immediate appeal on the parties.
Initially, the appellants contend that Rule 54(b) certification was inappropriate because, they say, the remaining equitable "claims" are not, in fact, separate claims, but "are actually remedies for the adjudicated legal claims." As support for this contention, the appellants rely on this Court's decision in Ex parte Thorn, 788 So.2d 140 (Ala.2000), in which we held that "the piercing-the-corporate-veil doctrine is an equitable doctrine" but that "that doctrine is not a claim" and, instead, "`merely furnishes a means for a complainant to reach a second corporation or individual upon a cause of action that otherwise would have existed only against the first corporation.'" 788 So.2d at 145 (quoting 1 William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 41.10 (perm. ed. rev.vol.1999)). Here, the appellants maintain, the count in the counterclaim seeking to pierce the corporate veil is "an integral part of the [already adjudicated] breach of contract claim," and the trial court has thus not disposed of that claim in its entirety. Cf. Banyan Corp. v. Leithead, 41 So.3d 51, 54 (Ala. 2009) (trial court's resolution of alter ego claim did not also determine liability for related breach-of-contract claim; therefore, because breach-of-contract claim was not fully adjudicated, Rule 54(b) certification of partial summary judgment entered on that claim was error). The appellants also contend that the facts giving rise to the legal and equitable claims are so similar and intertwined that separate resolution of those claims creates a likelihood of "piecemeal" appeals, which this Court clearly disfavors. See, e.g., First Southern Bank v. O'Brien, 931 So.2d 50, 53 (Ala.Civ.App.2005) (noting that "`"[a]ppellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect"'" (quoting other cases) (emphasis omitted)), and Day v. Davis, 989 So.2d 1118, 1121 (Ala.Civ.App.
As to this argument, Fines and the Fines shareholders attempt to demonstrate that Thorn stands only for the undisputed proposition that a count seeking to pierce the corporate veil is appropriately disposed of in a nonjury setting after the related legal claim has been decided by a jury. Fines and the Fines shareholders also contend that piercing the corporate veil "is not a power that is exercised lightly" and proceed to analyze the merits of Stephens Properties' piercing-the-corporate-veil count. Finally, Fines and the Fines shareholders dispute the appellants' argument that the facts underlying the legal and equitable claims are so similar that this Court might be faced with a repetitive appeal following the trial court's resolution of the remaining equitable counts.
It has been noted that a "Rule 54(b) certification does not authorize the entry of a final judgment on part of a single claim...." Fullilove v. Home Fin. Co., 678 So.2d 151, 154 (Ala.Civ.App.1996) (citing Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380 (Ala.1987)). We have also observed that "Rule 54(b) is properly applied in a situation where the claim and the counterclaim present more than one claim for relief, either of which could have been separately enforced." Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987) (citing Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975) (emphasis added)). See also Pate v. Merchants Nat'l Bank of Mobile, 409 So.2d 797, 800 (Ala.1982) (holding Rule 54(b) certification appropriate under the facts because "[e]ither of these claims could have been separately enforced").
As the appellants correctly argue, Thorn holds that an attempt to pierce the corporate veil does not present a separate claim for relief. Instead, Stephens Properties' assertion of that equitable doctrine merely furnished the means by which it sought to collect any breach-of-contract award against Fines from another source, namely the Fines shareholders. Thus, the judgment on the jury verdict as to the liability aspect of the breach-of-contract claim disposed of only a single aspect of that particular claim. Cf. Waiters v. Autry Greer & Sons, Inc., 784 So.2d 1068, 1070 (Ala.Civ. App.2000) (noting that partial summary judgment addressing only proximate causation "dispose[d] of one aspect of Waiters's damages claim rather than completely disposing of a particular claim"). At this juncture, the breach-of-contract claim is not fully resolved because it has not yet been decided who will pay the judgment on the breach-of-contract claim—Fines or the Fines shareholders individually. Because this remaining determination is directly related to, and, in fact, is part and parcel of, the jury's breach-of-contract award in Stephens Properties' favor, the appellants have demonstrated that that claim is intertwined with the piercing-the-corporate-veil count in the counterclaim.
The incomplete nature of the breach-of-contract claim and the ultimate resolution of the attempt to pierce the corporate veil, discussed above, would also impact a possible setoff in this case. Specifically, in the event Stephens Properties obtains a judgment against the Fines shareholders, individually, for the $439,410 past-due rent, that judgment could be set off by the $57,000 conversion judgment against Stephens Properties, thus eliminating that
A potential for a setoff, the appellants note, "weighs against the certification of the [underlying] [j]udgment as ... final." The Supreme Court has stated that the "mere presence of [a nonfrivolous counterclaim] does not render a Rule 54(b) certification inappropriate." Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). See also Scrushy v. Tucker, 955 So.2d 988, 999 (Ala.2006) (same). Similarly, "the possibility of a setoff [is not] necessarily dispositive of questions regarding the appropriateness of a Rule 54(b) certification." H.P.H. Props., Inc. v. Cahaba Lumber & Millwork, Inc., 811 So.2d 554, 556 (Ala.Civ. App.2001) (Murdock, J., concurring in the result) (citing Curtiss-Wright, supra, for the proposition that the "court of appeals erred in dismissing appeal from a Rule 54(b) judgment on one of main claims merely because counterclaim remained pending that might offset judgment entered"). Nonetheless, as reflected in the five-factor analysis set out in Rosenberg, supra, although not dispositive in and of itself, the existence of a nonfrivolous counterclaim or other issue that could result in a possible setoff, such as we have here, "[is] surely not an insignificant factor" in evaluating the appropriateness of a Rule 54(b) certification. Curtiss-Wright, 446 U.S. at 12, 100 S.Ct. 1460. See also Harper Sales Co., 742 So.2d at 192 (determining that trial court's Rule 54(b) certification was inappropriate because the "later resolution of [the remaining] counterclaim could affect the amount of damages awarded"). The potential for a setoff affecting the breach-of-contract judgment in this case weighs against the Rule 54(b) certification.
Finally, the appellants contend that, although in certifying its judgment as final and allowing the matter to proceed to appeal the trial court found no just reason for delay, there were no harsh effects avoided or advantage gained by an immediate appeal as opposed to allowing the case to take its ordinary course. To the contrary, they point to "miscellaneous factors" that, they say, demonstrate that "a harsh effect results to [them] ... as a result of the Rule 54(b) certification," including the freedom of Fines and the Fines shareholders to pursue execution of their judgments.
Initially, we note the absence of any cross-appeal by Fines and the Fines shareholders related to the trial court's denial of their Rule 60(b) motion or to the judgment against Fines in favor of Stephens Properties on the breach-of-contract claim. We further note that, although there appears to be no danger here of inconsistent results or repetitive appeals as to the same issue should we proceed with examination of the claims certified by the trial court as final, the likelihood of future appeals in this matter by the Fines shareholders exists in the event Stephens Properties is successful on its remaining claims for equitable
The possibility of a future appeal and this Court's general disfavor of Rule 54(b) certifications, coupled with the interrelated nature of the still pending counterclaims and the potential for setoff, which potential Fines and the Fines shareholders do not dispute, convinces us that the posture of this case is not yet appropriate for Rule 54(b) certification, that accepting the trial court's certification will simply result in appellate review in piecemeal fashion, and that there is, in fact, just reason for delay. See O'Brien, 931 So.2d at 53 (noting that "`"[a]ppellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect"'" (quoting other cases) (emphasis omitted)). Because "[t]he judgment on the jury verdict was not a final judgment, and, because of the nature of the pending [issues], could not be transformed into a final judgment by a Rule 54(b) certification," the trial court's Rule 54(b) certification was erroneous and is due to be set aside. Harper Sales Co., 742 So.2d at 192. In the absence of a final judgment, this appeal is due to be dismissed.
APPEAL DISMISSED.
MALONE, C.J., and STUART, PARKER, and WISE, JJ., concur.