Post-Notice Rule 54(b) Certifications Are Nullities; Foster Remand Is Discretionary When Finality and Intertwined Issues Are Unclear

1. Introduction

In Richard D. Gaynor, as personal representative of the Estate of Arthur L. Bacon, deceased v. Tom L. Larkin (Ala. Sept. 12, 2025), the Supreme Court of Alabama dismissed an attempted appeal from an order dismissing one defendant (Tom L. Larkin) while claims against another defendant (Jerome B. Williams) remained pending in the Talladega Circuit Court.

The underlying dispute arose from alleged end-of-life transactions: the complaint alleged that a durable power of attorney in favor of Larkin (a licensed attorney) was recorded shortly after Arthur L. Bacon’s death, and that Larkin executed a deed conveying all of Bacon’s real property to Williams just hours before Bacon died. The plaintiff, Richard D. Gaynor (as personal representative), asserted nine counts seeking to avoid the conveyance and obtain damages.

The key appellate issue was jurisdictional: whether the March 3, 2025 dismissal of Larkin constituted an appealable final judgment when claims against Williams were not adjudicated, and whether a later “clarification” order could supply finality after the notice of appeal had been filed.

2. Summary of the Opinion

The Court held that it lacked appellate jurisdiction because the order dismissing Larkin did not dispose of all claims as to all parties and was not properly certified as final under Rule 54(b), Ala. R. Civ. P. The Court further concluded that the circuit court’s later order purporting to deem the dismissal “final” (citing “Rule 58(b)”) could not cure the jurisdictional defect because it was entered after the notice of appeal—at which point the trial court lacked jurisdiction to enter a Rule 54(b) certification. Finally, the Court declined to use the limited remand procedure associated with Foster because, on the record presented, it was not apparent that a Rule 54(b) certification would be appropriate, and the complaint remained subject to amendment in the circuit court.

3. Analysis

3.1. Precedents Cited

  • Cates v. Bush, 293 Ala. 535, 307 So. 2d 6 (1975): Cited for the foundational proposition that, without a final judgment, the Supreme Court of Alabama lacks jurisdiction to hear an appeal.
  • Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So. 2d 316 (Ala. 2001): Reinforces the final-judgment requirement as a jurisdictional prerequisite, quoted here as the immediate jurisdictional anchor.
  • Dickerson v. Alabama State Univ., 852 So. 2d 704 (Ala. 2002): Supplies the “general rule” that an order is not final unless it disposes of all claims as to all parties, and frames the exception via Rule 54(b).
  • Foster v. Greer & Sons, Inc., 446 So. 2d 605 (Ala. 1984) (overruled on other grounds by Ex parte Andrews, 520 So. 2d 507 (Ala. 1987)): (i) Establishes that Rule 54(b) orders entered after an appeal is taken are “nullities” because the trial court lacks power at that time; and (ii) describes a remand mechanism that can temporarily re-vest limited jurisdiction in the trial court solely to consider Rule 54(b) certification.
  • Page v. Preisser, 585 F.2d 336 (8th Cir. 1978): Quoted (through Foster) for the admonition that Rule 54(b) certifications should not be routine or a “courtesy or accommodation to counsel.”
  • Million v. Shumaker, 384 So. 3d 609 (Ala. 2023): Used to illustrate two related limitations on Rule 54(b) practice: (i) certification is improper where claims are closely intertwined; and (ii) dismissal of an appeal may be preferable where the complaint is being amended and the case’s actual claim structure is not yet clear.
  • Fuller v. Birmingham- Jefferson Cnty. Transit Auth., 147 So. 3d 907 (Ala. 2013) (quoting Lighting Fair, Inc. v. Rosenberg, 63 So. 3d 1256 (Ala. 2010)): Provides the governing “closely intertwined” standard: Rule 54(b) certification is improper if separate adjudication creates an unreasonable risk of inconsistent results.
  • Bowling v. U.S. Bank Nat'l Ass'n, 380 So. 3d 1030 (Ala. 2023) (quoting Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354 (Ala. 2004), and citing Wright [v. Harris], 280 So. 3d 1040 (Ala. 2019), and Highlands of Lay, LLC v. Murphree, 101 So. 3d 206 (Ala. 2012)): A consolidated reminder that Rule 54(b) certifications are disfavored, should be reserved for exceptional cases, and can be inefficient by producing piecemeal appeals that force appellate courts to revisit the same factual record multiple times.

3.2. Legal Reasoning

  1. No final judgment existed. The March 3, 2025 order dismissed only Larkin; it did not adjudicate claims against Williams. Under Dickerson, such an order is interlocutory and not appealable absent Rule 54(b) certification.
  2. No valid Rule 54(b) certification was entered. The March 3 order did not “direct the entry of a final judgment” with an “express determination that there is no just reason for delay” as Rule 54(b) requires.
  3. The April 21 “finality” order could not cure the defect. Even assuming the circuit court meant Rule 54(b) (not “Rule 58(b)”), the April 21 order came after Gaynor filed his notice of appeal on April 11. Under Foster v. Greer & Sons, Inc., post-notice Rule 54(b) orders are “nullities” because jurisdiction had shifted to the appellate court.
  4. The Court declined a limited Foster remand. Although Foster permits remand in some situations so the trial court may consider a proper Rule 54(b) certification, the Supreme Court exercised discretion not to do so here because:
    • The propriety of certification was not apparent—particularly given the possibility that the claims against Larkin and Williams are “closely intertwined,” raising the risk of inconsistent results under Million, Fuller, and Lighting Fair, Inc. v. Rosenberg.
    • The circuit court had ordered the plaintiff to amend the complaint to add necessary heirs and/or “real parties” under Rule 17 and Rule 19, suggesting the case’s party alignment and claim framing were still developing—making piecemeal appellate review especially imprudent (as in Million).
    • Consistent with Bowling v. U.S. Bank Nat'l Ass'n and related authorities, the Court emphasized the strong policy against routine Rule 54(b) certifications and the inefficiency of piecemeal appeals.

3.3. Impact

This decision does not announce a novel doctrinal test so much as it tightens procedural discipline in multi-party cases by applying and integrating the Court’s prior final-judgment and Rule 54(b) jurisprudence in a practical posture common to civil litigation:

  • Reinforced jurisdictional sequencing. Parties cannot rely on after-the-fact “clarifications” of finality once a notice of appeal has been filed; trial courts generally lose power to create appealability via Rule 54(b) after appellate jurisdiction attaches.
  • Heightened skepticism toward piecemeal review where pleadings are in flux. When amendments (including joinder of real parties/necessary parties) are contemplated, the Court signals that Rule 54(b) certification—and especially a Foster remand to pursue it—may be an uphill battle.
  • Strategic guidance for litigants. Appellants should ensure either (i) all claims against all parties are resolved, or (ii) a proper Rule 54(b) certification is entered before filing a notice of appeal. Filing first and seeking certification later risks dismissal and delay.

4. Complex Concepts Simplified

  • Final judgment: a decision that ends the case in the trial court by resolving all claims against all parties. Without it, appellate courts typically cannot review the case.
  • Interlocutory order: a non-final order entered while the case is still ongoing (e.g., dismissing one defendant while the case continues against another).
  • Rule 54(b) certification: an exception allowing a trial court, in limited circumstances, to make an otherwise interlocutory order immediately appealable by expressly finding “no just reason for delay” and directing entry of judgment as to particular claims/parties.
  • Jurisdictional transfer on appeal: once a notice of appeal is filed from an appealable order, authority over the matters involved generally shifts to the appellate court; the trial court’s ability to alter the appealed order is sharply limited.
  • Real party in interest (Rule 17) and necessary parties (Rule 19): rules ensuring the correct persons are before the court—those who legally own the claim (Rule 17) and those whose absence would prevent complete or fair adjudication (Rule 19).
  • Closely intertwined claims: when issues overlap so strongly that deciding one portion on appeal while the rest proceeds in the trial court risks inconsistent outcomes or duplicated appellate work.

5. Conclusion

The Supreme Court of Alabama dismissed the appeal for lack of a final judgment because claims remained pending against a co-defendant and no timely, valid Rule 54(b) certification existed. It further held that any attempted post-notice certification was a nullity under Foster v. Greer & Sons, Inc., and it declined to order a limited remand to pursue certification where intertwined issues and impending amendments made piecemeal appellate review inappropriate. The decision underscores that appellate jurisdiction in Alabama depends on genuine finality (or properly invoked exceptions), and that Rule 54(b) remains an “exceptional case” mechanism—not a routine pathway to immediate appeal.