Alabama Case Law

SUMMERLIN v. SUMMERLIN, 1051470 (Ala. 1-12-2007) Terry
Summerlin v. Sharon Summerlin. No. 1051470. Supreme Court
of Alabama. Decided January 12, 2007.

Appeal from Mobile Circuit Court (CV-05-3893).

SMITH, Justice.

Terry Summerlin appeals from a partial summary judgment
entered in favor of Sharon Summerlin by the Mobile Circuit
Court. We set aside the trial court’s certification of the
summary judgment as final under Rule 54(b), Ala. R. Civ.
P., and remand.

Facts and Procedural History

On July 23, 2005, Thomas R. Summerlin, 38, and his
7-year-old stepson, Noah C. Butler, were on the beach in
Gulf Shores when they were struck by lightning and killed.
Thomas was buried in a plot owned by his father, Terry
Summerlin, at Serenity Memorial Gardens Cemetery; Noah was
buried in a plot owned by Sharon Summerlin, Noah’s mother
and Thomas’s widow, at Mobile Memorial Gardens.

On September 28, 2005, Sharon informed a representative of
Serenity Memorial that she wanted to have Thomas’s remains
disinterred and reinterred at Mobile Memorial Gardens. The
representative stated that Serenity Memorial would not
permit the disinterment without a court order requiring
Serenity Memorial to comply with Sharon’s request.

Sharon then filed in the Mobile Circuit Court a “petition
for injunctive relief,” naming as defendants SLG Group,
Inc., 2d/b/a Serenity Memorial Gardens,[fn1] and Terry
Summerlin.[fn2] Sharon alleged that Terry had “unduly
pressured” her into agreeing to bury Thomas at Serenity
Memorial rather than at Mobile Memorial. Sharon’s petition
requested the court to

“issue all such orders necessary to require [Serenity
Memorial] to allow the disinterment of the remains of
Thomas R. Summerlin from Serenity Memorial Gardens; [to]
issue all necessary orders allowing the remains of Thomas
R. Summerlin to be reinterred at Mobile Memorial Gardens;
and . . . [to order] such other, further, and different
relief [that the plaintiffs] may be entitled to receive.”

Terry filed an answer to the petition. Among other things,
Terry denied having “unduly pressured” Sharon into agreeing
to Thomas’s burial at Serenity Memorial, and Terry
requested that the court deny Sharon’s petition to disinter
Thomas’s remains.

On March 13, 2006, Sharon moved for a summary judgment.
Sharon contended that she had initially planned to bury
Thomas at Mobile Memorial Gardens but that “she was then
persuaded by [Terry] to have [Thomas] buried at Serenity
[Memorial].” Sharon asserted that Terry “used economic
duress by demanding [that Thomas] be buried in Serenity
Memorial Gardens at [Terry’s] expense,” and that she
“reluctantly . . . acquiesced to [Terry’s] demand.”

On April 5, 2006, Terry filed a breach-of-contract
counterclaim against Sharon. Terry contended that after
Thomas’s death Sharon told him “she did not know how she
was going to pay for [Thomas’s] funeral and burial
expenses.” Terry alleged that he and Sharon then “entered
into a verbal contract in which [Terry] agreed to pay for
[Thomas’s] burial” in exchange for Sharon’s agreement to
have Thomas “interred at Serenity Memorial Gardens.”
Terry’s counterclaim asserts, and Sharon does not dispute,
that Sharon and Terry signed a card entitled “Interment
Record,” which authorized Thomas’s burial in Serenity
Memorial Gardens.

Terry’s counterclaim also alleges that a few days after
Thomas’s funeral, when Sharon mentioned to Terry that she
wanted to move Thomas’s remains from Serenity Memorial to
Mobile Memorial, Terry and Sharon entered into a second
contract. The terms of that contract, Terry contends, “were
that, in consideration for allowing [Sharon] to retain a
truck and furniture [for] which [Thomas] owed [Terry] at
least $5,700, [Sharon agreed] to leave [Thomas’s] remains
undisturbed.” Terry claimed Sharon had breached that
agreement by filing the present action seeking to disinter
Thomas’s remains. Sharon later filed an answer to Terry’s
breach-of-contract counterclaim.

On the same date he filed his counterclaim, Terry also
filed materials in opposition to Sharon’s summary-judgment
motion. Among other things, Terry included an affidavit
from James Baldwin, the manager of the funeral home at
Serenity Memorial. In his affidavit, Baldwin asserts that
he witnessed Sharon’s agreement to bury Thomas at Serenity
Memorial; that he witnessed her signing of an “interment
card” authorizing Thomas’s burial at Serenity Memorial; and
that he witnessed her agreement that Terry would pay
Thomas’s funeral expenses. Baldwin also stated in his
affidavit that “[a]t no time did [he] witness [Sharon’s]
being pressured or coerced into agreeing to permit [Thomas]
to be buried at Serenity Memorial.”

On June 26, 2006, the trial court entered the following
written order:

“On the 28th day of April, 2006, [the attorneys for
Sharon and Terry] in open court submitted oral argument
and written caselaw concerning the issues of relief prayed
for by [Sharon]. After careful consideration it is hereby
ORDERED, ADJUDGED and DECREED that a final judgment in
favor of [Sharon] for the relief requested in [her] motion
for a summary judgment is hereby granted. Said order is
hereby made final under [Rule 54(b), Ala. R. Civ. P.]. It
is further ORDERED, ADJUDGED and DECREED that [Sharon]
may disinter the remains of [Thomas] from Serenity
Memorial Gardens and reinter the remains in Mobile
Memorial Gardens.

“It is further ORDERED, ADJUDGED and DECREED that the
defendant, SLG Group, Inc., shall comply with the request
of [Sharon] to disinter the remains of [Thomas] from
Serenity Memorial Gardens and reinter the remains in
Mobile Memorial Gardens.”

Terry filed a timely notice of appeal to this Court.


Terry contends that the summary judgment in favor of Sharon
was inappropriate. He argues that there is a genuine issue
of material fact because, he says, there is substantial
evidence indicating that Sharon consented, without coercion
or duress, to Thomas’s interment at Serenity Memorial.
Conversely, Sharon argues that her consent to Thomas’s
burial at Serenity Memorial was the result of coercion by
Terry or duress. Moreover, she asserts that her consent to
Thomas’s interment at Serenity Memorial is irrelevant
because, she says, as the surviving spouse she has the
exclusive right to decide whether Thomas’s remains should
be disinterred from Serenity Memorial and reinterred at
Mobile Memorial Gardens.

However, there is a fundamental issue in this appeal not
addressed by the parties — namely, the
appropriateness of the trial court’s certification, under
Rule 54(b), Ala. R. Civ. P., of its June 26, 2006, order
entering a summary judgment in favor of Sharon.

Rule 54(b) states, in pertinent part:

“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.”

This Court, in Branch v. SouthTrust Bank of Dothan, N.A.,
514 So. 2d 1373 (Ala. 1987), noted:

“Rule 54(b), A.R. Civ. P., provides a means of making
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.’ Foster v. Greer & Sons, Inc., 446
So. 2d 605, 609 (Ala. 1984). `Rule 54(b) certifications
should be granted only in exceptional cases and “should
not be entered routinely or as a courtesy or
accommodation to counsel.” Page v. Preisser, 585 F.2d 336,
339 (8th Cir. 1978).’ Foster, 446 So. 2d at 610.

“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. Cates v. Bush, 293 Ala. 535, 307 So. 2d 6
(1975). Under `appropriate facts,’ a partial summary
judgment on an original claim may be finally adjudicated
pursuant to Rule 54(b), leaving a counterclaim undecided
so that the parties can further litigate the issues
presented by the counterclaim.”

514 So. 2d at 1374.

In Branch, the trial court certified as a final judgment,
under Rule 54(b), its summary judgment in favor of
SouthTrust Bank on its claim that Branch had defaulted on a
promissory note. 514 So. 2d at 1373. However, at the time
of the Rule 54(b) certification, the trial court had not
ruled on Branch’s counterclaim, which was “based upon an
alleged fraudulent representation by an agent of SouthTrust
upon which Branch claim[ed] he relied in executing the
promissory note.” 514 So. 2d at 1374. This Court set aside
the Rule 54(b) certification and remanded the case to the
trial court, noting that because the issues in SouthTrust’s
claim and Branch’s counterclaim were “so closely intertwined
that separate adjudication would pose an unreasonable risk
of inconsistent results,” it would not be “in the interest
of justice” to adjudicate the claims separately. 514 So. 2d
at 1374.

In this case, the trial court purported to enter a summary
judgment as to Sharon’s entire claim — namely, her
petition for injunctive relief. In form, Sharon’s “claim”
appears to be separate and distinct from Terry’s
breach-of-contract counterclaim. If one looks beyond form,
however, Terry’s breach-of-contract counterclaim is, in
substance, a defense to Sharon’s petition for injunctive

For Sharon to be entitled to an injunction requiring
Serenity Memorial to permit her to have Thomas’s remains
disinterred, she must show that she has a clear, specific,
legal right to disinter Thomas’s remains. See Gulf House
Ass’n, Inc. v. Town of Gulf Shores, 484 So. 2d 1061, 1064
(Ala. 1985) (“A permanent injunction will be granted when
there exists a clear, specific, legal right requiring
protection and the injunction is necessary to prevent
irreparable injury and there is no adequate remedy at
law.”). The essence of Terry’s breach-of-contract
counterclaim — as well as his arguments and
materials in opposition to Sharon’s summary-judgment motion
— is that Sharon does not have “a clear, specific,
legal right” to the injunctive relief she is seeking.
Although the trial court’s June 26 order purports to rule
only on the claim presented in Sharon’s petition and not on
Terry’s counterclaim, the trial court’s summary judgment
granting Sharon the relief she requested in her petition
amounts to a denial of the relief Terry seeks to obtain by
pursuing his counterclaim.

In short, the issues presented in Terry’s counterclaim and
those in Sharon’s petition for injunctive relief “are so
closely intertwined that separate adjudication would pose
an unreasonable risk of inconsistent results.” Branch, 514
So. 2d at 1374. “We must conclude, therefore, that in the
interest of justice, the claims should not be adjudicated
separately.” 514 So. 2d at 1374. Consequently, the trial
court erred in certifying its summary judgment in favor of
Sharon as final under Rule 54(b), Ala. R. Civ. P. Branch,
514 So. 2d at 1374. Cf. Automatic Liquid Packaging, Inc. v.
Dominik, 852 F.2d 1036, 1038 (7th Cir. 1988) (describing a
claim presented in the plaintiff’s complaint and one
presented in the defendant’s counterclaim as “the same
claim, expressing the parties’ opposed interpretations of
[the agreement at issue], though configured as a
plaintiff’s claim in the complaint and as a defense
masquerading as a positive claim for relief in the


The trial court’s certification of finality under Rule
54(b), Ala. R. Civ. P., is set aside, and the case is
remanded to the trial court.


Nabers, C.J., and Lyons, Woodall, and Parker, JJ., concur.

[fn1] Neither SLG Group nor Serenity Memorial is a party to
this appeal.

[fn2] Thomas and Sharon’s daughter was also named as a
plaintiff to the action. As a minor, the daughter sued by
and through her mother, Sharon.