Appeal from non-final judgment dismissed

The Court of Civil Appeals reviewed the issue of its jurisdiction ex mero motu and dismissed the appeal where there were claims still pending in the trial court. Gatlin v. Joiner, [Ms. 2070206] (Ala. Civ. App. Aug. 22, 2008).  In its decision, the court addressed the effect of claims being left out of the charge given to the jury.

In Gatlin, the plaintiff sued for trespass, slander of title, ejectment, conversion, negligence, and wantonness, and also sought a permanent injunction in a property dispute.  The trial court granted summary judgment to the defendant on all claims other than trespass, negligence, wantonness and the claim for injunction.

The case was tried to a jury, but, the jury was only charged as to the trespass claim.  No charge was given as to negligence, wantonness or the claim for injunction.  The jury returned a verdict for the plaintiffs, but only awarding nominal damages.  The defendant appealed the decision, but the Court of Civil Appeals dismissed the appeal as being from a non-final judgment.

First, the court discussed the effect of omitting the negligence and wantonness claims from the jury charges.  Although there was no order or judgment disposing of the negligence and wantonness claims, "the omission of those claims from the jury charge was tantamount to a judgment as a matter of law ("JML") in favor of Joiner and the Neals and against Gatlin with respect to those claims."  Slip. Op. p. 5.  Thus, the judgment was final as to those claims.

The omission of the injunction claim, however, was not tantamount to a JML.  The jury could not decide the equitable claim for an injunction.  Rather, the trial court was required to rule. Because the trial court had not ruled on the injunction, the judgment did not resolve all claims against all parties.  Therefore, the appeal had to be dismissed.