Alabama Case Law

BAUGUS v. CITY OF FLORENCE, 1051593 (Ala. 1-12-2007) Andrew Baugus et al. v. City of Florence. No. 1051593. Supreme Court of Alabama. Decided January 12, 2007.

Appeal from Lauderdale Circuit Court (CV-03-30).

LYONS, Justice.

Andrew Baugus and other landowners appeal from a summary
judgment entered in favor of the City of Florence (“the
City”) in the Lauderdale Circuit Court. We remand the case
to the trial court for further proceedings because the
judgment appealed from is not a final judgment.

I. Facts and Procedural Background

The City operated and maintained a sanitary landfill in
Florence. The landfill abuts and/or includes portions of
Baugus’s property, as well as the property of 12 other
named plaintiffs in the case (collectively referred to as
“the residents”). The Alabama Department of Public Health
initially issued a permit for the operation of the landfill,
but the City later operated the landfill pursuant to a
permit issued by the Alabama Department of Environmental
Management. The City claims that the landfill was closed in
1988 and that it has not disposed of garbage there since
that time. The residents contend that the City was still
dumping waste at the landfill as late as 2005.

The City continues to maintain the landfill in what it
calls a “post-closure care monitoring period.” The City
concedes that when depressions in the soil appear, it dumps
“clean fill,” or unregulated inorganic solid waste, in
those depressions. The City also has been monitoring the
perimeter of the landfill site for the presence of methane
gas since 1991. This monitoring entails the installation of
monitoring wells, which are two-inch diameter PVC pipe
buried six feet into the ground, in the property at the
perimeter of the landfill. The residents claim that the
methane gas generated by the landfill migrates onto their
properties and creates the possibility of explosion when
present in high quantities. The residents have produced
evidence indicating that methane gas has been detected on
their properties as late as 2005, sometimes at explosive

The residents sued the City, stating a nuisance claim and
an “unlawful-taking” claim. The City filed a motion to
dismiss or for a more definite statement, and the residents
filed a first amended complaint, restating the
“unlawful-taking” claim as an inverse-condemnation claim.
The City filed an answer to the first amended complaint,
setting forth its affirmative defenses. The City then filed
a motion for a summary judgment on the grounds that the
claims listed in the first amended complaint were barred by
the statute of limitations and, in the alternative, even if
the claims were not barred by the statute of limitations
that the residents failed to present sufficient evidence to
support those claims. After the City filed its
summary-judgment motion, the residents filed a second
amended complaint, which added claims alleging trespass,
continuing trespass, strict liability, and negligence. The
City filed a motion to strike the second amended complaint
on the ground that it was filed three days after the date
the court had set as the deadline for dispositive motions.
The City never filed an answer to the second amended
complaint, nor did it amend its summary-judgment motion to
include the four additional claims asserted in the second
amended complaint. The court never ruled on the City’s
motion to strike, but, after a hearing at which an
untranscribed oral argument took place, the court entered a
summary judgment in favor of the City.

II. Nonfinal Judgment

An appeal will not lie from a nonfinal judgment. Robinson
v. Computer Servicenters, Inc., 360 So. 2d 299, 302 (Ala.
1978). “A ruling that disposes of fewer than all claims or
relates to fewer than all parties in an action is generally
not final as to any of the parties or any of the claims.
See Rule 54(b), Ala. R. Civ. P.” Wilson v. Wilson, 736 So.
2d 633, 634 (Ala.Civ.App. 1999). The absence of a final
judgment is a jurisdictional defect that cannot be waived
by the parties. McGowin Inv. Co. v. Johnstone, 291 Ala.
714, 715, 287 So. 2d 835, 836 (1973). When an action
involves multiple claims or parties, Rule 54(b), Ala. R.
Civ. P., gives the trial court the discretion to “direct
the entry of a final judgment as to one or more but fewer
than all of the claims or parties.” If a trial court
certifies a judgment as final pursuant to Rule 54(b), an
appeal will generally lie from that judgment. Neither the
City nor the residents moved for certification under Rule
54(b). However, “if it is clear and obvious from the
language used by the trial court in its order that the
court intended to enter a final order pursuant to Rule
54(b), then we will treat the order as a final judgment. . .
.” Schneider Nat’l Carriers, Inc. v. Tinney, 776 So. 2d
753, 755 (Ala. 2000) (summarizing the holding in Sho-Me
Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So. 2d
83, 87 (Ala. 1985)). In Sho-Me Motor Lodges, the trial
court’s order clearly indicated that the court intended to
enter an order pursuant to Rule 54(b) because the order,
clearly quoting Rule 54(b), stated: “‘The Court further
finds there is no just reason for delay in the entry of
said final judgment.'” 466 So. 2d at 87. And in Schneider
National Carriers, Inc., we recognized the existence of a
Rule 54(b) certification based on the fact that the trial
court specifically cited Rule 54(b).

In the instant case, however, the trial court’s
summary-judgment order states that “[i]t appears from the
record that there are no disputed issues of material fact
and that the defendant is entitled to a judgment as a
matter of law.” The order neither mentions Rule 54(b) nor
does it quote Rule 54(b). Accordingly, we cannot say that
the trial court clearly intended to certify its order as
final under Rule 54(b), nor can we overlook the absence of
a final judgment, a matter affecting this Court’s

Further, although the trial court’s summary-judgment order
in favor of the City, on its face, appeared to dismiss all
claims in favor of the City, the City’s motion for a
summary judgment moved only for a summary judgment on the
nuisance claim and the inverse-condemnation claim.
Consequently, only those claims were properly before the
trial court on the summary-judgment motion. See Robinson v.
JMIC Life Ins. Co., 697 So. 2d 461, 461 (Ala. 1997) (“At
the outset, we note that the trial court’s judgments
adjudicated all of Robinson’s claims. This was error,
because the defendants had sought summary judgments only as
to the fraudulent suppression claim.”). See also Parr v.
Goodyear Tire & Rubber Co., 641 So. 2d 769, 772 (Ala.
1994); Henson v. Mobile Infirmary Ass’n, 646 So. 2d 559,
562 (Ala. 1994); Sexton v. St. Clair Fed. Sav. Bank, 653
So. 2d 959, 962 (Ala. 1995); and Bibbs v. MedCenter Inns of
Alabama, Inc., 669 So. 2d 143, 144 (Ala. 1995).

The City never completely abandoned its motion to strike
before the trial court or before this Court.[fn1] When the
residents discussed the additional claims from the second
amended complaint in their response to the City’s motion
for a summary judgment, the City stated in a footnote to
its brief in reply that it

“has filed a separate motion to strike the plaintiffs’
Second Amended Complaint, which the plaintiffs filed . . .
two weeks after the City filed its summary judgment
motion. In the event that the Court allow the plaintiffs’
amendment, the City requests an opportunity to present
evidence and argument in support of summary judgment as
the additional claims in the plaintiffs’ belated
pleadings. This memorandum addresses only the claims made
the subject of the City’s Motion for Summary Judgment.”

As indicated by the footnote, the City intended to preserve
its motion to strike as to the negligence, trespass,
continuing trespass, and strict-liability claims. We treat
this footnote as sufficient indication that the City had
not waived at this juncture its motion to strike the second
amended complaint.

After the hearing on the motion for a summary judgment, the
trial court entered an order inviting response to its
concern as to whether evidence of the City’s violation of
certain regulatory or statutory obligations satisfied the
sufficiency-of-the-evidence requirement in light of this
Court’s decisions in Byrd v. City of Citronelle, 937 So. 2d
515 (Ala. 2006), and Burge v. Jefferson County, 409 So. 2d
800 (Ala. 1982). In its supplemental brief submitted after
the hearing, the City discussed those two cases but
addressed for the first time the effect of those cases upon
the negligence claim, a claim asserted only in the second
amended complaint. In their response to the City’s
supplemental brief, the residents also addressed the
negligence claim in light of Byrd and Burge, and concluded
with a cursory discussion of the remaining claims in the
second amended complaint, namely, trespass, continuing
trespass, and strict liability, noting the presence of
factual issues.

Arguably, the City waived its motion to strike the second
amended complaint as to the residents’ negligence claim by
injecting a discussion of negligence into its posthearing
supplemental brief. However, we need not resolve that issue
because it is clear that the City did not inject the other
three claims asserted in the second amended complaint
— trespass, continuing trespass, and strict
liability — in any submission to the trial court
before its ruling on the summary-judgment motion. We do not
find any basis for the City’s waiver of its motion to
strike as to those claims arising from its failure to
object to the residents’ cursory reference to trespass,
continuing trespass, and strict liability in their
posthearing brief because such discussion is entirely
consistent with an acknowledgment by the residents as to
the necessity for further proceedings in the event the
trial court granted the City’s motion as to the first
amended complaint and subsequently denied the motion to
strike the second amended complaint.

Because the City has not waived its motion to strike as to
at least three of the claims asserted in the second amended
complaint and the trial court has not ruled on such motion,
those claims remain pending. A partial summary judgment is
not a final, appealable judgment. See Homes of Legend, Inc.
v. McCollough, 776 So. 2d 741, 748 n. 11 (Ala. 2000)
(citing Precision American Corp. v. Leasing Serv. Corp.,
505 So. 2d 380, 382 (Ala. 1987)).

III. Remand

Neither party has challenged the summary-judgment order as
nonfinal. However, inaction of the parties cannot cure a
jurisdictional defect. Cf. McGowin Inv. Co. v. Johnstone,
supra. We have the option of dismissing the appeal or
remanding the case to the trial court for the opportunity
to cure the defect, as set forth below:

“When it appears from the record that the appeal was
taken from an order which was not final, but which could
have been made final by a Rule 54(b) certification, we
will remand the case to the trial court for a
determination as to whether it chooses to certify the
order as final, pursuant to Rule 54(b), and, if it so
chooses, to enter such an order and to supplement the
record to reflect that certification. The judgment will
be taken as final as of the date the 54(b) certification
is entered. . . .

“. . . [I]f this Court remands the case to the trial
court for the opportunity of making such a certification,
the trial court will have the limited jurisdiction to
enter a 54(b) certification if, in its discretion, it
decides the entry of such a certification is

Foster v. Greer & Sons, Inc., 446 So. 2d 605, 609-10 (Ala.
1984) (overruled on other grounds, Ex parte Andrews, 520 So.
2d 507, 510 (Ala. 1987)).

We remand this case for the trial court either (a) to grant
the City’s motion to strike the second amended complaint
and thereafter enter a final judgment or (b) to certify the
summary-judgment order heretofore entered as to the first
amended complaint as a final judgment under Rule 54(b). A
supplemental record reflecting the trial court’s action
should be prepared and forwarded to this Court. The
judgment will be considered final as of the date any new
order is entered. If no such supplemental record is
forwarded to this Court within 14 days of the date of
release of this opinion, this appeal will be dismissed.


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

[fn1] The City notes in its brief to this Court that its
motion to strike the second amended complaint remains
outstanding, with no ruling from the trial court.