Will Contest Not Final Where Trial Court Reserved Jurisdiction on Pending Motions

A judgment disposing of a will contest was not final where the trial court reserved jurisdiction on pending motions, and had not adjudicated two claims in the defendant’s “Motion for Affirmative Relief.” The appeal was dismissed for lack of jurisdiction. Hoegh v. Burton, No. 2070278 (Ala. Civ. App. Aug. 29, 2008).

This will contest was brought by the deceased’s alleged niece. The probate court ruled that the niece lacked standing to challenge the will, and dismissed her suit. Her subsequent appeals (to the circuit and then the appellate courts) were dismissed as late. The niece then filed a Rule 60(b) motion in the circuit court for relief from the judgment. The circuit court denied this motion, but “retained jurisdiction over remaining ‘matters which are properly pending.’” The niece again appealed.

The Court of Civil Appeals held that the judgment was not final because it left issues unresolved. (Neither party had raised this question, but being jurisdictional, the Court of Civil Appeals raised it itself.) Before the probate court’s initial decision dismissing the suit, the defendant executor had filed a “Motion for Affirmative Relief.” In that motion, the executor: (1) sought attorney fees under the Alabama Litigation Accountability Act (ALAA); and (2) made a detinue claim for “the return of property removed from” and “damage done to” the decedent’s home. Neither claim had been adjudicated.

The appellate court noted that while “the ALAA claim . . . , alone, might not prevent the judgment from being final,” the pending detinue claim did. The judgment thus did not “resolve all issues or determine the rights and liabilities of all the parties.” Nor did it contain a certification of finality under Rule 54(b). The niece’s appeal was therefore from a non-final judgment, and was dismissed for lack of jurisdiction.