54(b) Certification Made After Notice of Appeal Filed is a Nullity

In Pike v. Reed, released by the Alabama Court of Civil Appeals on July 25, the court held that a Rule 54(b) certification made after a notice of appeal was filed was a nullity. 

The trial court entered an order on November 5, 2007 which determined liability, but did not determine the relief to which the plaintiff was entitled.  The parties jointly moved the trial court to certify that order as final on January 28, 2008.  However, on January 31, 2008, before the trial court had ruled on the joint motion seeking certification of the November 5 judgment, the defendant filed a notice of appeal.  That appeal was docketed.  

On February 1, 2008, the day after the defendant initiated the appeal, the trial court entered an order certifying the November 5 order as a final judgment.  On March 11, 2008 the defendant filed another notice of appeal, which was also docketed.

In questioning its own jurisdiction, the court noted the well-known rule that an appeal will only lie from a final judgment. The November 5 order, however, was not a final judgment because it left the issue of damages undetermined.  Moreover, although the February 1 order purported to certify it as a final judgment, the notice of appeal which was filed the day before divested the trial court of jurisdiction to enter any such order.  Accordingly, no final judgment had been entered and the court lacked jurisdiction.