DONALDSON, Judge.
Stephen M. Lund and Michael White appeal from a summary judgment entered by the Lauderdale Circuit Court ("the trial court") in favor of William M. Owens d/b/a Tom Jones Insurance Agency ("Owens"). The judgment disposed of White's claims "in their entirety" on the basis that he is not a real party in interest, entered a summary judgment on the fraudulent-misrepresentation and fraudulent-suppression claims asserted by Lund and White, but did not dispose of all the claims asserted against all the parties in the case. The trial court certified the summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Because the claims disposed of in the judgment, and, thus, at issue in this appeal have essential issues in common with the claims still pending in the trial court, we dismiss the appeal as having been taken from a nonfinal judgment.
Because this appeal arises from a summary judgment in favor of Owens, the following summary of the facts is recited "in the light most favorable to the nonmovant[s,]" Lund and White. Dow v. Alabama Democratic Party, 897 So.2d 1035, 1038 (Ala.2004).
Lund is the owner of a building in Florence ("the building"). Lund purchased the building for the purpose of permitting White to operate an antiques and consignment shop in the building. At the time Lund purchased the building, the roof of the building leaked. Lund and White received proposals to install a new roof, including a proposal from Michael Powell. Lund decided to hire Powell to install a new roof on the building. Although the document purportedly signifying the agreement between Lund and Powell was dated June 1, 2011, Lund claimed that his obligation to Powell was conditioned upon Powell's providing proof that he had insurance coverage for the work to be performed. Powell told White and Lund to contact Owens for confirmation of Powell's insurance coverage. White claimed that on or about July 1, 2011, he had a telephone conversation with Angie Kennemur, an employee of Owens. In that conversation, Kennemur purportedly responded to questions asked by White about Powell's insurance coverage. Kennemur subsequently sent White a certificate of liability insurance dated July 11, 2011. The certificate indicated that Powell had general-commercial-liability insurance, subject to exclusions and conditions contained in the insurance policy.
Powell began work on the roof on or about July 8, 2011. Once installed, the new roof had leaks that purportedly caused damage to the roof and to the interior of the building, as well as to property located within the building. Powell never filed a claim with any insurance company seeking coverage. White filed a claim with the insurance company that provided coverage for Powell's insurance policy ("the insurer"). The insurer denied coverage on several grounds, including that Powell's policy covered only work on residential roofs and did not cover work on commercial buildings and that it did not cover defective workmanship or roofing work requiring the application of heat by, for example, using hot tar or torches (the type of roof allegedly installed by Powell).
On December 29, 2011, Lund and White filed a complaint in the trial court, asserting claims against, and seeking damages from Powell, the manufacturer of the roofing product installed by Powell ("the manufacturer"), and Owens. Lund and White alleged claims of negligence and breach of contract against Powell. Against the manufacturer, they asserted claims of a breach of express or implied warranties and claims under the Alabama Extended Manufacturer's
On December 14, 2012, Owens moved for a summary judgment, submitting in support of the motion excerpts from the depositions of White, Lund, and Kennemur; Kennemur's notes; the certificate of liability insurance for Powell; and the denial-of-coverage letter from the insurer. Owens argued that Kennemur had made no false representations and that, as an insurance agency, Owens owed a duty to Powell as the insured or to the insurer but not to Lund and White as third parties. Owens argued that Lund and White could not have reasonably relied on any representations or omissions by Kennemur because Lund and White failed to inquire as to any exclusions or conditions contained in the policy issued to Powell despite having received a certificate of liability insurance indicating that Powell's coverage was subject to such exclusions or conditions. Owens also argued that the document purportedly signifying the agreement between Lund and Powell was dated June 1, 2011, before Lund or White had contacted Owens, and that, therefore, Lund and White could not establish that any misrepresentations were a cause of any damage. Finally, Owens argued that White was not a real party in interest because he did not own any part of the building and that, therefore, summary judgment was appropriate as to the claims asserted by White. See Rule 17(a), Ala. R. Civ. P.
On February 25, 2013, Lund and White filed a response to Owens's motion for a summary judgment, submitting in support of their response their own affidavits in opposition to the motion for a summary judgment, excerpts from Kennemur's deposition, and other documents. In his affidavit, Lund testified that the document dated June 1, 2011, was only a proposal and that Powell's hiring was contingent on Lund's receiving proof of Powell's insurance coverage. In his affidavit, White testified that, during a telephone call on or around July 1, 2011, Kennemur had responded to specific questions he had asked about Powell's insurance coverage, and, further, White testified as to Lund's and his reliance on Kennemur's responses in choosing to hire Powell:
Lund and White asserted that, when she allegedly chose to respond to White's specific questions, Kennemur had a duty to speak truthfully without suppressing material facts. They argued that Kennemur breached that duty in the telephone conversation with White, and they asserted that Powell's hiring on or about July 8, 2011, occurred in reliance on Kennemur's alleged statements made before they received the certificate of liability insurance dated July 11, 2011. Lund and White also claimed that the certificate of liability insurance did not place them on notice that Kennemur's alleged representations were false. Lund and White sought to recover the amount of payment made to Powell under their agreement for the roofing work, the cost of materials purchased for the roofing work, and the amount resulting from the damages to the building and property from the leaking roof. Regarding White's status as a real party in interest, Lund and White referred to testimonial evidence indicating that White claimed to own personal property in the building that was allegedly damaged as a result of leaks in the roof.
On September 6, 2013, the trial court entered a summary judgment in favor of Owens without specifying the grounds. On November 4, 2013, the trial court entered an order certifying the summary judgment as a final judgment pursuant to Rule 54(b). Negligence and breach-of-contract claims against Powell remain pending in the trial court. Lund and White filed a timely notice of appeal to the supreme court, and the supreme court transferred
On appeal, Lund and White contend that they produced substantial evidence creating a genuine issue of material fact as to each element of their fraudulent-misrepresentation and fraudulent-suppression claims against Owens.
Before addressing the merits of the parties' arguments, we must first determine whether this court has jurisdiction to hear the appeal. "`"[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu."'" Harley v. Anderson, 167 So.3d 355, 361 (Ala.Civ.App. 2014) (quoting Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). "`[A] final judgment is necessary to give jurisdiction to this court on an appeal.'" Powell v. Republic Nat'l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974) (quoting McGowin Inv. Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)). This court has the duty to dismiss an appeal that is not from a final judgment. Id.
Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001).
"Not every order has the requisite element of finality that can trigger the operation of Rule 54(b)." Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala. Civ.App.2003) (citing Moss v. Williams, 747 So.2d 905 (Ala.Civ.App.1999)). "`"Certifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely."'" Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004) (quoting State v. Lawhorn, 830 So.2d 720, 725 (Ala. 2002), quoting in turn Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994)).
"`"`Appellate review in a piecemeal fashion is not favored.'"'" Id. (quoting Goldome Credit Corp. v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003), quoting in turn 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)).
Centennial Assocs., Ltd. v. Guthrie, 20 So.3d 1277, 1281 (Ala.2009) (quoting 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 (1998)).
In Patterson v. Jai Maatadee, Inc., 131 So.3d 607 (Ala.2013), a trial court certified as final under Rule 54(b) a summary judgment in favor of some of the defendants in an action stemming from the plaintiff's fall through a grate. Our supreme court held that the trial court had exceeded its discretion
We note the lack of a dispositive issue presented in this appeal that is separate from the issues in the pending claims. Neither the trial court nor the parties have directed us to a basis for certifying the summary judgment as final pursuant to Rule 54(b), and the parties' briefs lack any analysis regarding the propriety of certifying the summary judgment as a final judgment. Owens argues on appeal that it did not owe a duty to White and Lund because Owens was the insurance agent for Powell and that Kennemur was not required to respond to White's inquiries. In contrast, however, White and Lund allege that Kennemur made misrepresentations and suppressed material information in response to direct inquiries by White in a telephone conversation that occurred before Powell was hired.
Some of the issues presented on appeal are the same as the issues that are pertinent to the pending claims against Powell. Lund and White argue that, because of Kennemur's alleged misrepresentations and omissions regarding Powell's insurance coverage, they hired Powell, which, they assert, led to the damage to the building and to the property within the building. Based on the parties' arguments, the fraudulent-misrepresentation and fraudulent-suppression claims against Owens involve the issues whether the roof was defective, whether Powell was responsible for any defect, and whether any defect was caused by Powell's poor workmanship or the type of roof installed — all issues that have not been determined and that did not form a basis for the summary-judgment
Because the claims disposed of in the summary judgment and at issue on appeal involve issues common to, and are therefore are "intertwined" with, the claims still pending in the trial court, we conclude that the trial court exceeded its discretion in certifying the summary judgment in favor of Owens as final pursuant to Rule 54(b). Accordingly, we dismiss the appeal as having been taken from a nonfinal judgment.
APPEAL DISMISSED.
THOMPSON, P.J., and PITTMAN, and MOORE, JJ., concur.
THOMAS, J. concurs in the result, without writing.