Richard D. Gaynor, as personal representative of the Estate of Arthur L. Bacon v. Tom L. Larkin

Rel: September 12, 2025

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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2025
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SC-2025-0232
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Richard D. Gaynor, as personal representative of the Estate of
Arthur L. Bacon, deceased

v.

Tom L. Larkin

Appeal from Talladega Circuit Court
(CV-24-900537)

BRYAN, Justice.

Richard D. Gaynor, as personal representative of the estate of

Arthur L. Bacon, deceased, purports to appeal from an order of the
SC-2025-0232

Talladega Circuit Court. For the reasons explained below, we dismiss

the appeal.

Background

Gaynor commenced this action in November 2024, naming Tom L.

Larkin and Jerome B. Williams as defendants. According to the

complaint, approximately three days after Bacon's death, a durable

power of attorney in favor of Larkin, a licensed attorney, was recorded in

the Talladega Probate Court. Bacon had purportedly executed the

durable power of attorney in September 2019. The complaint further

alleged that, hours before Bacon's death, Larkin had executed a deed

conveying all of Bacon's real property to Williams. The complaint

asserted nine separate counts, which, in sum, collectively sought

avoidance of the conveyance and specified awards of damages.

Williams filed a motion to dismiss the complaint, asserting several

bases for a dismissal. Thereafter, Larkin also filed a motion to dismiss,

also asserting multiple bases for a dismissal.

On March 3, 2025, the circuit court entered an order granting

Larkin's motion to dismiss. That same day, the circuit court entered an

order stating: "Counsel for the [p]laintiff shall have 30 days to amend the

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complaint in the above[-]styled action to include the necessary heirs

and/or otherwise all 'real parties' in interest pursuant to Rule 17 and

Rule 19 of the Alabama Rules of Civil Procedure." Gaynor thereafter

requested an extension of time to "respond" to the circuit court's orders.

Williams and Larkin filed responses opposing Gaynor's request for

additional time; in his response, Larkin asserted that the reasons Gaynor

had given for his request were irrelevant to the basis for Larkin's

dismissal from the action.

On April 11, 2025, Gaynor filed a notice of appeal to this Court,

purportedly appealing from the circuit court's March 3, 2025, order

dismissing Larkin from the action. 1 On April 21, 2025, the circuit court

entered an order stating:

"On March 3rd, this Court entered an order dismissing
Tom Larkin as a [p]arty in this [m]atter. For clarification and
reference, said dismissal is a final order as to party Tom
Larkin for purposes of appeal subject to Alabama Rules of
Civil Procedure 58(b)."

1Apparently, Gaynor also erroneously filed a duplicate notice of
appeal to the Court of Civil Appeals, and that court transferred the
appeal to this Court. We docketed that appeal as case no. SC-2025-0338.
Upon Gaynor's motion, we dismissed that appeal by order on May 16,
2025.
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Analysis

We dismiss this appeal. "Without a final judgment, this Court is

without jurisdiction to hear an appeal. Cates v. Bush, 293 Ala. 535, 307

So. 2d 6 (1975)." Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.

2d 316, 320 (Ala. 2001). "The general rule is that a trial court's order is

not final unless it disposes of all claims as to all parties." Dickerson v.

Alabama State Univ., 852 So. 2d 704, 705 (Ala. 2002)(emphasis added).

The circuit court's March 3, 2025, order granted Larkin's motion to

dismiss but did not adjudicate Gaynor's claims against Williams.

Therefore, the March 3, 2025, order was not a final judgment.

"[W]hen an action contains more than one claim for relief, 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.' Rule
54(b)[, Ala. R. Civ. P.] (emphasis added)."

Dickerson, 852 So. 2d at 705. The circuit court's March 3, 2025, order did

not purport to direct the entry of a final judgment regarding Gaynor's

claims against Larkin pursuant to Rule 54(b), Ala. R. Civ. P.

On April 21, 2025, the circuit court entered an order stating that

the March 3, 2025, order was "a final order as to … Larkin for purposes

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of appeal subject to Alabama Rules of Civil Procedure 58(b)." (Emphasis

added.) Assuming that the circuit court intended to cite Rule 54(b)

instead of Rule 58(b), the circuit court lacked jurisdiction to certify the

March 3, 2025, order as final pursuant to Rule 54(b) because, by the time

the circuit court entered its April 21, 2025, order, Gaynor had already

filed a notice of appeal to this Court on April 11, 2025. See Foster v.

Greer & Sons, Inc., 446 So. 2d 605, 607 (Ala. 1984)(overruled on other

grounds by Ex parte Andrews, 520 So. 2d 507 (Ala. 1987))("The [Rule]

54(b) orders entered after the appeal was taken were nullities, since the

trial court was without power at that time to enter them.").

In Foster, this Court adopted a remand procedure that invests a

trial court with jurisdiction that is limited to making a proper Rule 54(b)

certification. 446 So. 2d at 609-10 ("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. … This should not be viewed as an attempt to promote the

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improper use of Rule 54(b), but only as a means of advancing the policy

behind Rule 54(b) in a proper case. 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).").

We decline to order such a remand in this case because it is not

apparent to us at this stage that a Rule 54(b) certification would be

appropriate. See Million v. Shumaker, 384 So. 3d 609, 616 (Ala. 2023)("A

Rule 54(b) certification is not proper if ' " 'the issues in the claim being

certified and a claim that will remain pending in the trial court " 'are so

closely intertwined that separate adjudication would pose an

unreasonable risk of inconsistent results.' " ' " ' Fuller v. Birmingham-

Jefferson Cnty. Transit Auth., 147 So. 3d 907, 911 (Ala. 2013)(quoting

Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256, 1263 (Ala. 2010)).").

We note that, although Larkin disagrees with this assessment on

appeal, Gaynor has asserted to this Court that "[t]here is no clear

indication from the record as to why the two [d]efendants received

different outcomes, as it related to their [m]otions for [d]ismissal by the

[the circuit c]ourt." Gaynor's brief at 17.

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Moreover, the record before this Court indicates that Gaynor's

complaint may yet be amended in the circuit court. See, e.g., Million, 384

So. 3d at 616 ("[T]he circuit court specifically ordered Million to 'amend

her complaint within thirty (30) days to provide a more clear and concise

statement of her allegations.' Dismissing the appeal will allow the circuit

court to receive Million's amended complaint, which will hopefully allow

the circuit court to discern the actual claims Million is asserting. Until

there is greater clarity concerning Million's claims, it does not seem

prudent at this juncture to remand the case and limit the circuit court's

jurisdiction to simply choosing whether to enter a Rule 54(b) certification

of the interlocutory order dismissing Million's claims against

Shumaker.").

"This Court has repeatedly emphasized that
' " ' "[c]ertifications under Rule 54(b) should be entered only in
exceptional cases," ' " ' because piecemeal appeals -- which
typically entail considerable delay and expense -- are
disfavored. Fuller v. Birmingham-Jefferson Cnty. Transit
Auth., 147 So. 3d 907, 911 (Ala. 2013)(quoting Dzwonkowski
v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 363 (Ala. 2004)); see
also Wright [v. Harris], 280 So. 3d [1040,] 1043 [(Ala. 2019)]
(' " '[C]ertifications under Rule 54(b) are disfavored.' " '
(citations omitted)); Highlands of Lay, LLC v. Murphree, 101
So. 3d 206, 209 (Ala. 2012)(' " 'It is uneconomical for an
appellate court to review facts on an appeal following a Rule
54(b) certification that it is likely to be required to consider
again when another appeal is brought after the [trial] court
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renders its decision on the remaining claims or as to the
remaining parties.' " ' (citations omitted))."

Bowling v. U.S. Bank Nat'l Ass'n, 380 So. 3d 1030, 1033-34 (Ala. 2023).

Accordingly, in this case, we decline to order a limited remand pursuant

to the procedure set forth in Foster and instead dismiss this appeal.

APPEAL DISMISSED.

Stewart, C.J., and Shaw, Mendheim, and McCool, JJ., concur.

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