On July 4, 2012, Margaret Hulgan (“Hulgan”) tripped and fell over a diagonal crossbar supporting a light pole in the parking lot at Civitan Park, owned by the City of Guntersville (“the City”).  The deed conveying the park property to the City specified that the property was “for public recreation for the benefit of all members of the general public without distinction or discrimination and in accordance with generally recognized standards of development and operation of such lands for public parks or for areas providing public access to the waters of public lakes.” Hulgan sued the City and alleged that the City “owed a duty to ... Hulgan not to create, cause, and/or allow unreasonably dangerous conditions to exist at or on [the] City’[s] ... property.” Hulgan also alleged that the diagonal crossbar over which she tripped was a hidden danger; and thus, the City was not entitled to immunity under §§ 35-15-1 et seq. and 35-15-20 et seq., (“the recreational-use statutes”). The City filed a motion for summary judgment on the grounds that it was entitled to immunity under the recreational-use statutes and under § 11-47-190 of the Alabama Code. The trial court denied the City’s motion, and the City appealed. 

On appeal, Hulgan based her argument on § 35-15-24, Ala. Code, which “carves out an exception to the liability limitations provided in §§ 35–15–22 and –23” (the recreational-use statutes). The exception allows a finding of liability when the entity is proven to have actual knowledge of the dangerous condition. The City argued that it “had no actual notice as required by § 35-15-24 that the alleged defect giving rise to [Hulgan’s] injuries in this case constituted an unreasonable risk of death or serious bodily harm.”  

In support of its argument, the City submitted affidavit testimony of David Wood, the supervisor of maintenance for the City’s department of parks and recreation, which indicated that “despite the diagonal crossbar having been in place for nearly 20 years before Hulgan allegedly tripped on it, the City had not received a complaint indicating that the crossbar presented a dangerous condition.” Further, the affidavit stated that the City “had no knowledge that there was any potential of a nighttime trip hazard presented by the crossbar upon which [Hulgan] contends she tripped and fell in this case.” In response, Hulgan argued that she presented substantial evidence indicating that the conditions of § 35-15-24  were met, thus allowing her to maintain the action against the City. In support of her argument, Hulgan submitted affidavit testimony from Thomas E. Cooper, an engineer, which concluded “that the light in question and route of ingress/egress (including the pole and [diagonal crossbar]) were unreasonably dangerous.”  

The Court found that Cooper’s affidavit was “merely an opinion on the danger allegedly presented by the diagonal crossbar.” Although the affidavit may have demonstrated that the City had “constructive knowledge,” it was not enough to show that the City had “actual knowledge” as required by § 35-15-24 to support a finding of liability. Thus, in finding that the City demonstrated it had a clear legal right to immunity, and that Hulgan failed to present substantial evidence to overcome the City’s right to immunity, the Alabama Supreme Court granted the City mandamus relief, and ordered the trial court to enter summary judgment in favor of the City. 

Bebee Properties, LLC (“Bebee”) appealed from a summary judgment entered by the trial court in favor of Margaret Ard (“Margaret”) on its claims against her. Margaret cross-appealed from a summary judgment entered in favor of Bebee and Thomas Greer (“Greer”) on two counts of her counterclaim. Greer is the sole member of Bebee Properties. Greer was an officer of another company for which Margaret’s husband, David Ard (“David”) had worked for approximately 20 years. In 2006, Greer issued a check from Bebee’s account to David, representing a loan from Bebee. Margaret deposited the check into the Ard’s joint checking account. Margaret then issued a check to their mortgage company to pay off the Ard’s mortgage on their property. In 2012, David committed suicide. In June of 2013, Bebee filed a notice of lis pendens regarding the Ard’s property in the probate court and a complaint against Margaret in the circuit court. Bebee asserted that the loan was made based on a contractual agreement between Bebee and the Ards that the title to the property would be held in trust for Bebee and that the property would be sold for Bebee’s benefit, or that the title to the property would be conveyed to Bebee. Bebee asserted that even if Margaret was not a party to the contract between Bebee and David, she was a third party beneficiary. In its complaint, Bebee sought a constructive trust on the property or a conveyance of the property to Bebee, and a second count seeking a judgment on the balance of the loan. 

Margaret filed an answer and a counterclaim where she asserted the Statute of Frauds as a defense. Margaret’s counterclaim asserted the following: count one sought a judgment declaring that she was not indebted to Bebee; count two was a claim to cancel the notice of lis pendens filed by Bebee; count three sought compensatory and punitive damages for slander of title; count four asserted intentional infliction of emotional distress; count five asserted a claim under the Alabama Litigation Accountability Act (“ALAA”); and count six asserted a claim of invasion of privacy. Margaret then filed a motion for partial summary judgment on Bebee’s complaint as well as to counts one, two, three, and five of her counterclaim. Margaret’s motion was denied.  

In January of 2016, Margaret filed another motion for partial summary judgment in which she primarily focused on her Statute of Frauds defense. Additionally, Margaret incorporated her previous motion for partial summary judgment. In February of 2016, Bebee and Greer filed a joint motion for partial summary judgment as to counts four and six of Margaret’s counterclaim. The trial court entered a partial summary judgment order granting judgment in favor of Margaret on both counts of Bebee’s complaint and in favor of Bebee and Greer on counts four and six of Margaret’s counterclaim. Margaret then filed a “conditional” motion to alter and amend the portion of the partial summary judgment order entered in favor of Bebee and Greer, arguing that the order should be vacated because she was not given the chance to be heard on their motion. She described the motion as “conditional” because she explained it “was filed only as a precaution in the event that Bebee attempted to appeal from the judgment.” The trial court then entered an order pursuant to Rule 54(b) certifying the partial summary judgment as final regarding the claims addressed in that order. Bebee timely filed a notice of appeal to the Supreme Court of Alabama, who in turn deflected the case pursuant to § 12-2-7(6) of the Alabama Code.  

Though neither parties raised the issue of the finality of the partial summary judgment order on appeal, the Alabama Court of Civil Appeals noted: “jurisdictional matters [such as the finality of the judgment from which an appeal arises,] are of such magnitude that we take notice of them at any time and do so even ex mero motu.” In citing Branch v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373 (Ala. 1987), the court stated: “Rule 54(b) certification is not proper, however, when the unadjudicated claims are so closely intertwined [with the claims adjudicated in the judgment as final] that separate adjudication would pose an unreasonable risk of inconsistent results.” After discussing the elements of the claims that remained pending and the elements of the claims already adjudicated, the court found that because at least some of the claims that were resolved in the trial court’s partial summary judgment are “common to, and therefore intertwined with,” the claims that remained pending in the trial court, the trial court exceeded its discretion in certifying the summary judgment as final. Accordingly, the Court of Civil Appeals dismissed the parties’ appeals as being from a nonfinal judgment.