author: THOMPSON, Presiding Judge.

text:
    ADVANTAGE SALES OF ALABAMA, INC. v. Carol S. CLEMONS. Liberty Mutual Insurance Company v. Carol S. Clemons. PMA Insurance Group v. Carol S. Clemons.
    2050755, 2051065, and 2051066.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      Joseph H. Driver and Donald B. Kirkpatrick II of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant Advantage Sales of Alabama, Inc.
    J. Wesley Hughes of The Law Office of Earl H. Lawson, Jr., Birmingham, for appellant Liberty Mutual Insurance Company.
    Matthew C. Williams and Zachary J. Peagler of Estes, Sanders & Williams, LLC, Birmingham, for appellant PMA Insurance Group.
    Kenneth D. Haynes of Haynes & Haynes, P.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Carol S. Clemons sued her former employer, Advantage Sales of Alabama, Inc. (“Advantage”), seeking to recover workers’ compensation benefits based on alleged work-related injuries that she sustained on June 20, 2000, February 23, 2001, and March 26, 2002, while she was employed by Advantage. Clemons claimed that she had injured her right shoulder on June 20, 2000, that she had developed carpal tunnel syndrome in her right arm and wrist on February 23, 2001, and that she had sustained injuries to her elbows on March 26, 2002. Advantage answered and denied liability.

At the time of the June 20, 2000, and the February 23, 2001, injuries, Advantage was insured by Legion Insurance Company (“Legion”). On March 28, 2002, Legion was ordered into rehabilitation by a Pennsylvania trial court. On July 28, 2003, the Pennsylvania trial court declared Legion insolvent and entered an order of liquidation. As a result of Legion’s insolvency, the Alabama Insurance Guaranty Association (“AIGA”) assumed Legion’s obligations with respect to Clemons’s June 20, 2000, and February 23, 2001, claims against Advantage. See § 27-42-8(a)(2), Ala.Code 1975. On February 23, 2004, Clemons and Advantage entered into a consent order settling all workers’ compensation claims related to Clemons’s June 20, 2000, injury to her shoulder and Clemons’s February 23, 2001, injury to her right arm and wrist. The order left the issue of future medical benefits open.

On March 21, 2005, Clemons filed her first amended complaint in which she alleged that in or about July 2004 she developed carpal tunnel syndrome in both of her hands and wrists. Clemons named Liberty Mutual Insurance (“Liberty”) and The PMA Insurance Group (“PMA”) as defendants and asked the court to determine which carrier was responsible for the payment of Clemons’s workers’ compensation claims. Both Liberty and PMA were workers’ compensation insurance carriers for Advantage during the time Clemons allegedly suffered her injuries. On June 1, 2005, Clemons amended her complaint a second time to add AIGA as a defendant because, she asserted, she was uncertain whether the carpal tunnel syndrome she alleged had developed in or about July 2004 was a recurrence of her February 2001 injury or was a new injury.

On August 23, 2005, AIGA filed a motion for a summary judgment, and on October 12, 2005, PMA filed a motion for a summary judgment. On January 24, 2006, the trial court entered a summary judgment in favor of AIGA; the trial court did not rule on PMA’s summary-judgment motion. Following the presentation of ore tenus evidence, the trial court entered a detailed final judgment on May 24, 2006, in which it found Clemons to be permanently and totally disabled as the result of her work-related injuries. The trial court apportioned the payment of compensation benefits equally between Liberty and PMA. On June 14, 2006, Advantage appealed.

On June 21, 2006, PMA filed a post-judgment motion in which it argued that the trial court had erred in apportioning liability between successive insurance carriers in violation of the “last injurious exposure” rule. On August 1, 2006, the trial court entered an amended final judgment in which it granted PMA’s postjudgment motion, found Clemons’s July 2004 injury to be a new injury or condition that occurred during Liberty’s policy coverage, and reapportioned liability to hold Liberty responsible for payment of Clemons’s medical bills related to the July 2004 injury. PMA and Liberty timely appealed. This court granted a joint motion filed by Advantage, PMA, and Liberty to consolidate the three appeals.

Advantage, PMA, and Liberty raise several issues on appeal. Advantage contends that the trial court erred by considering evidence that Clemons suffered from depression as a result of her work-related injuries, that substantial evidence did not support a finding that Clemons was permanently and totally disabled, and that Clemons was not entitled to recover permanent-total-disability benefits outside of the schedule set forth in § 25 — 5—57(a), Ala. Code 1975. PMA and Liberty both contend that the trial court erred in its application of the “last injurious exposure” rule. However, as discussed below, the disposi-tive issue, raised by Advantage on appeal, is whether the trial court erred by considering evidence of a psychological injury when that issue was raised by Clemons for the first time at trial. Advantage specifically contends that it did not learn of Clemons’s allegation that she suffered from depression as a result of her work-related injuries until the trial had commenced, that it objected to the submission of evidence regarding Clemons’s depression at trial, and that the trial court’s consideration of that evidence unduly prejudiced Advantage.

Rule 15(b), Ala. R. Civ. P., states, in pertinent part:

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence .... The Court is to be liberal in granting permission to amend when justice so requires.”

“The determination of whether an issue has been tried by the express or implied consent of the parties within the meaning of Rule 15(b), Ala. R. Civ. P., is a matter that lies within the discretion of the trial court.” Hathcock v. Hathcock, 685 So.2d 736, 738 (Ala.Civ.App.1996) (citing McCollum v. Reeves, 521 So.2d 13 (Ala.1987)). The trial court’s determination as to whether an issue has been tried by consent will not be reversed on appeal absent an abuse of that discretion. Id.

“ ‘ “[I]f Rule 15 is to be of any benefit to the bench, bar, and the public, the trial judges must be given discretion to allow or refuse amendments.... We state also that Rule 15 must be liberally construed by the trial judges. But, that liberality does not include a situation where the trial on the issues will be unduly delayed or the opposing party unduly prejudiced.” ’ ”

Tounzen v. Southern United Fire Ins. Co., 701 So.2d 1148, 1150 (Ala.Civ.App.1997), quoting Hayes v. Payne, 523 So.2d 333, 334 (Ala.1987), quoting in turn Stead v. Blue Cross-Blue Shield of Alabama, 294 Ala. 3, 6, 310 So.2d 469, 471 (1975).

Our review of the record indicates that Clemons did not allege that she suffered from depression in her original complaint or in the two subsequent amendments to her complaint. In her brief on appeal, Clemons contends that Advantage was initially put on notice that she suffered from depression as a result of her physical, work-related injuries when she testified in a deposition before trial regarding her depression. Clemons’s deposition was not submitted as evidence at trial; instead, it was attached as an exhibit to the summary-judgment motion filed by PMA before trial. A copy of the deposition contained in the record indicates that Clemons testified that she suffered from depression because of “this whole ordeal” and explained in detail how her depression had affected her daily life. However, the record indicates that when she was asked in her deposition if she was seeking compensation based on depression in her workers’ compensation action, Clemons responded in the negative.

The record reveals that counsel for Advantage objected at trial to questioning regarding Clemons’s depression. During the direct examination of Clemons, the following exchange occurred:

“[CLEMONS]: I am a lot worse today than back then, because I was slammed against the wall with depression. ...
“I cannot concentrate. I am fatigued. I could not sleep. I was put on Xanax, Ambien. I was already taking Zoloft.
“... But I have been depressed for a long period of time. No income, it’s mental, it’s physical. Lack of sleep; when you don’t sleep, you can’t function.
“[COUNSEL FOR CLEMONS]: How does that depression manifest itself in your daily activities?
“[COUNSEL FOR ADVANTAGE]: You Honor, I’m going to object to this line of questioning and testimony. There’s been no allegation whatsoever in the summons or complaint or the amended complaints with regards to depression. We’re hearing about it today.
“[COUNSEL FOR CLEMONS]: Depression is a by-product of her physical injuries, and she’s testified about it at deposition that was taken less than two years ago.
“[THE TRIAL COURT]: Restate your question.
“[COUNSEL FOR ADVANTAGE]: She specifically stated that she was not claiming depression in her lawsuit, on page 59, your Honor.
“[THE TRIAL COURT]: Restate your question.
“[COUNSEL FOR CLEMONS]: The question, Ms. Clemons, how has your depression manifested itself to the point that it has affected your daily activities?
“[COUNSEL FOR ADVANTAGE]: Same objection.
“[THE TRIAL COURT]: I sustain the objection.
“[COUNSEL FOR CLEMONS]: Do you believe that you should return to work back at Advantage if the position was offered to you like the one you had in September of 2003?
“A: No, I would not be able to.
“[COUNSEL FOR CLEMONS]: Why not?
“A: Because I’m not physically or mentally able to do anything.
“[COUNSEL FOR CLEMONS]: Why do you say that?
“A: Because I’m just a totally crazy person. I mean—
“[COUNSEL FOR ADVANTAGE]: Your Honor, might I ask the Court for a standing objection with regards to relevance—
“[THE TRIAL COURT]: I can’t hear you.
“[COUNSEL FOR ADVANTAGE]: Might I request a standing objection with regard to relevance concerning any testimony with regards to depression or mental status, as it was not originally pled in the summons and complaint.
“[THE TRIAL COURT]: No. I told you I will only consider relevant evidence.
“[COUNSEL FOR ADVANTAGE]: Thank you. I will maintain my objection.
“[THE TRIAL COURT]: All right. Let’s go.”

During the direct examination of Clemons’s husband, William V. Clemons, the following occurred:

“[COUNSEL FOR CLEMONS]: All right. And have you noticed in the last two or three years changes in her demeanor, her attitude, that you would associate with depression?
“A: Yes, sir, I have. Sometimes when I’m laying over in Sheffield and I’ll call home to see how everything’s going, she just seems real down and—
“[COUNSEL FOR ADVANTAGE]: You Honor, I’m going to renew my objection with regards to her mental state and depression.
“[THE TRIAL COURT]: Hearsay. Sustain the objection.”

In its May 24, 2006, judgment, the trial court found that Clemons continued to suffer from “both physical and psychological disabilities” and that, as a result, Clemons “would be unable to sustain gainful employment and is not capable of being retrained for gainful employment.” In so finding, the trial court set forth, in detail, the testimony elicited at trial regarding Clemons’s depression and indicated its reliance on that testimony in reaching its judgment. In its August 1, 2006, amended judgment, the trial court continued to rely on Clemons’s claim of depression in finding that she had suffered a permanent and total disability.

In T.L.H. v. R.A.R., 977 So.2d 482 (Ala.Civ.App.2007), T.L.H. engaged in an extramarital relationship with R.A.R. that resulted in the birth of a child. On March 3, 2005, T.L.H. filed a complaint against R.A.R. seeking, among other things, compensatory damages for medical expenses related to her pregnancy and punitive damages. 977 So.2d at 491. R.A.R. subsequently filed a separate petition in the trial court on July 25, 2005, alleging that he was the child’s biological father and seeking a determination of his custodial rights to the child. T.L.H. answered and counterclaimed, seeking, among other things, full custody of the child. In her response to R.A.R.’s July 25, 2005, petition, T.L.H. did not ask to be reimbursed for the medical expenses associated with her pregnancy or the birth of the child. Following an ore tenus hearing, the trial court entered a judgment in which it ordered, among other things, R.A.R. to reimburse T.L.H. for medical expenses she had paid related to the birth of the child and to pay all outstanding medical expenses related to the birth of the child. 977 So.2d at 490. T.L.H.’s March 3, 2005, action was still pending at that time.

T.L.H. appealed, arguing, among other things, that the trial court had erred by ordering R.A.R. to reimburse her for medical expenses related to the birth of the child when she did not seek such relief at trial but, instead, specifically requested that relief in a separate civil action. T.L.H. v. R.A.R., 977 So.2d at 490. The record on appeal indicated that T.L.H. had objected when counsel for R.A.R. first raised the issue of money owed as a result of the child’s birth. T.L.H. alleged in her postjudgment motion that no evidence was presented at trial regarding the amount of money T.L.H. had paid for expenses related to her pregnancy and the birth of the child. Relying on Rule 15(b), this court reversed, holding that “the issue of payment of medical expenses associated with the child’s birth was not tried by the express or implied consent of the parties.” T.L.H. v. R.A.R., 977 So.2d at 491. In so holding, this court stated that the trial court had prejudiced T.L.H. when it “amended the pleadings to include a claim for previously incurred and outstanding medical expenses associated with the birth of the child when no evidence was presented at trial relating to those expenses.” 977 So.2d at 491.

In Kohler Co. v. Miller, 921 So.2d 436 (Ala.Civ.App.2005), Miller filed a complaint seeking workers’ compensation benefits for injuries to her hands, wrists, and arms caused by repetitive motions made during her employment with Kohler. At trial, Miller attempted to amend her complaint to claim for the first time that the effects of her hand, wrist, and arm injuries extended to her neck and shoulders. 921 So.2d at 443. The trial court allowed evidence pertaining to Miller’s neck and shoulder pain over the objection of Kohler. The trial court subsequently entered a judgment finding that Miller had suffered a 29% permanent partial disability.

On appeal, Kohler argued, among other things, that the “[trial] court erred by allowing [Miller] to present evidence indicating that she had pain extending to her neck and shoulders because, it [said], [Miller] did not timely assert those complaints.” Kohler, 921 So.2d at 442. This court declined to reverse on that issue because in that case the trial court had expressly stated that it had not considered whether Miller’s injuries to her hands, wrists, and arms caused pain to her neck and shoulders. Further, this court held that the admission of evidence regarding Miller’s pain in her neck and shoulders was harmless error because the trial court had not relied on it when making its judgment.

As in T.L.H., the record reveals that Clemons’s claim of depression was not tried by the express or implied consent of the parties. Advantage objected when counsel for Clemons first raised the issue of depression at trial. Pursuant to Rule 15(b), Ala. R. Civ. P., it is incumbent on the objecting party to show that the evidence would in some way prejudice the party. Advantage has demonstrated that it was prejudiced in that Clemons presented evidence of depression at trial over the objections of Advantage, the trial court sustained the objections, and the trial court then considered the evidence of depression in finding Clemons to be permanently and totally disabled. In light of the prejudice to Advantage, we cannot excuse the admission of the evidence of Clemons’s depression as harmless error. Unlike the trial court in Kohler, the trial court in this case, as indicated in its final judgment, considered Clemons’s depression when finding Clemons to be permanently and totally disabled, although it had stated that it would “only consider relevant evidence.” Accordingly, we conclude that Advantage was unduly prejudiced by the trial court’s decision to amend the pleadings and to consider Clemons’s claim of depression.

Given that the trial court’s finding of permanent and total disability is based, in part, on its finding that Clemons is suffering from depression, we reverse the trial court’s judgment finding Clemons to be permanently and totally disabled and remand the action for the trial court to make a disability determination without considering Clemons’s claim of depression. Because we are reversing on this basis, we pretermit discussion of the remaining issues raised on appeal.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

BRYAN and MOORE, JJ., concur in the result, without writing.

      . The record indicates that PMA insured Advantage at the time of Clemons’s March 2002 injury and that Liberty became Advantage’s workers’ compensation insurance carrier in July 2004.

      . We note that Advantage’s appeal was held in abeyance pending the disposition of PMA's postjudgment motion. See Hurley v. Hurley, 980 So.2d 985, 987 n. 1 (Ala.Civ.App.2007) (holding that a wife’s appeal was held in abeyance when the wife filed her notice of appeal before the husband timely filed his postjudgment motion); McConico v. Culliver, 955 So.2d 447 (Ala.Civ.App.2006) (holding that an appeal filed before a timely post-judgment motion is filed is held in abeyance pending the disposition of the postjudgment motion); see also Rule 4(a)(5), Ala. R.App. P.


source: Caselaw Access Project

license: Public Domain

text:
    BB&S GENERAL CONTRACTORS, INC., and Diane Bowen v. THORNTON & ASSOCIATES, INC.
    2060456.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2007.

      Allen G. Woodard of Woodard, Patel & Sledge, Andalusia, for appellants.
    Craig S. Dillard of Webb & Eley, P.C., Montgomery; and J. Matthew Horne, Clayton, for appellee.
   THOMPSON, Presiding Judge.

The facts underlying the dispute in this action may be summarized briefly for the purposes of resolving this appeal. The parties’ claims result from a disagreement regarding the performance under a contract to cut timber from certain real property. Pursuant to that contract, Thornton & Associates, Inc. (“Thornton”), for a specified price, was to harvest timber from certain real property to which BB&S General Contractors, Inc. (“BB&S”), held the timber rights. It appears that Stanley R. Bowen, Sr., and his wife, Diane Bowen, were shareholders in BB&S.

Thornton hired a third party to harvest the timber pursuant to its contract with BB&S. Stanley Bowen, Sr., halted the harvesting after approximately half of the timber had been cut because he believed that the work was not being performed according to the terms of the contract. Thornton then sought to be paid the full amount specified under the contract.

Thornton later sued BB&S and Diane Bowen, alleging claims of breach of contract, misrepresentation, negligence, wantonness, conversion, and unjust enrichment. BB&S and Diane Bowen (hereinafter “the defendants”) answered, denying the material allegations of the complaint. The defendants later counterclaimed, seeking damages on claims of breach of contract, trespass, and trespass to timber, and also seeking damages pursuant to § 35-14-1, Ala.Code 1975, which provides a statutory penalty for wrongfully cutting trees.

Thornton moved for a summary judgment on the defendants’ counterclaims, and the defendants opposed that motion. On February 27, 2006, the trial court entered an order denying Thornton’s summary-judgment motion as it pertained to the breach-of-contract counterclaim, but granting that motion with regard to the defendants’ trespass, trespass-to-timber, and statutory-penalty counterclaims. The trial court expressly certified the February 27, 2006, order as final pursuant to Rule 54(b), Ala. R. Civ. P.

On August 26, 2006, Thornton renewed its motion for a summary judgment on the defendants’ breach-of-contract counterclaim, and it submitted additional evidence in support of that motion. On December 6, 2006, the trial court granted Thornton’s renewed motion and entered a summary judgment in favor of Thornton on the defendants’ breach-of-contract counterclaim. The trial court also certified the December 6, 2006, order as final pursuant to Rule 54(b). On January 11, 2007, the defendants appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

The defendants purport to appeal the December 6, 2006, order resolving the breach-of-contract counterclaim. In their brief submitted to this court, however, the defendants raise only issues pertaining to whether Thornton may be held liable for the trespasses the defendants allege were committed by the third party Thornton hired to cut the timber. The defendants maintain that Thornton ratified the third party’s actions and, therefore, that Thornton should be determined to be liable for the alleged trespass. See Ex parte May Refrigeration Co., 344 So.2d 156, 159 (Ala.1977) (“It is the law that one may ratify the acts of another not done in the name of the former.”); see also C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 7, 135 So.2d 166, 167 (1961) (superseded by statute on other grounds) (distinguishing an employer’s liability for various forms of trespass by an agent taken at the employer’s direction from those not taken at the employer’s direction).

Thus, the defendants’ arguments on appeal are more properly directed to the counterclaims resolved in the February 27, 2006, order. The defendants’ notice of appeal, however, was filed well in excess of the 42 days allowed to appeal that order, had it been a final judgment. See Rule 4(a)(1), Ala. R.App. P. (a notice of appeal shall be filed within 42 days of the entry of a judgment). We conclude, however, that neither the February 27, 2006, order nor the December 6, 2006, order, were appropriate for Rule 54(b) certification and, therefore, that neither order constituted a judgment that would support an appeal.

Jurisdictional matters, such as whether an order is final so as to support an appeal, are of such importance that a court may take notice of them ex mero motu. Reid v. Reid, 844 So.2d 1212, 1214 (Ala.Civ.App.2002); and Wilson v. Glasheen, 801 So.2d 848, 849 (Ala.Civ.App.2001). Rule 54(b), Ala. R. Civ. P., allows a trial court, in appropriate instances, to “direct the entry of a final judgment as to one or more but fewer than all of the claims or parties.” With regard to subsection (b), the Committee Comments on 1973 Adoption to Rule 54 provide, in pertinent part:

“This subdivision regulates the relation of that joinder to the usual requirement, in Alabama as elsewhere, that appeal must be only from a final judgment, save in unusual circumstances. See Code of Ala., Tit. 7, § 754. In general the rule adopts equity practice of a ‘split judgment.’ See Equity Rule 69. The rule provides that, in the absence of affirmative action by the judge, no decision is final until the entire case has been adjudicated. The one exception is that where the court has completely disposed of one of a number of claims, or one of multiple parties, and has made an express determination that there is no just reason for delay, the court may direct the entry of judgment on that claim or as to that party. The judgment so entered is a final judgment in all respects, and may be appealed .... ”

In some instances, a Rule 54(b) certification may not be appropriate. When pending claims “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,’ ” our courts may determine a Rule 54(b) certification to be invalid. Gray v. Central Bank of Tuscaloosa, N.A., 519 So.2d 477, 479 (Ala.1987) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). See also Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88 (Ala.2002) (setting aside a Rule 54(b) certification and dismissing the appeal as being from a non-final judgment when the trial court considered breach-of-contract claims without considering the counterclaim alleging fraud). The mere fact that claims “may have arisen out of the same set of facts does not prevent them from being multiple claims.” Pate v. Merchants Nat'l Bank of Mobile, 409 So.2d 797, 799 (Ala.1982) (citing Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975)).

In Pate v. Merchants National Bank of Mobile, supra, upon the default on a promissory note, a bank sued, among other parties, certain guarantors of the note. One of the guarantors counterclaimed against the bank, alleging that before the execution of the promissory note, the bank had improperly converted certain funds from her account. The trial court entered a summary judgment in favor of the bank on its claims, and it certified its order as final pursuant to Rule 54(b). The guarantor appealed, arguing that the trial court had erred in entering a final judgment with regard to the bank’s claims while her counterclaim was still pending. Our supreme court affirmed, concluding that the Rule 54(b) certification was appropriate because “[ejither of the[] claims could have been separately enforced” and that the case was “an example of the type of situation Rule 54(b) was intended to cover.” Pate v. Merchants Nat’l Bank of Mobile, 409 So.2d at 800.

In Branch v. SouthTrust Bank of Dothan, N.A., supra, a bank sued Branch seeking repayment of a promissory note. Branch counterclaimed, asserting that an agent of the bank had made a fraudulent misrepresentation upon which he had relied in executing the promissory note. The trial court entered a summary judgment in favor of the bank on its claim, but it refused to enter a summary judgment in favor of the bank on Branch’s counterclaim. The trial court certified the summary judgment on the bank’s claim as final pursuant to Rule 54(b), and, among his arguments on appeal, Branch asserted that the trial court had erred in certifying its judgment as final. Our supreme court agreed and set aside the Rule 54(b) certification. In reaching its holding, the court stated:

“The facts in this case, however, do not present the type of situation that Rule 54(b) was intended to cover. The counterclaim asserted by Branch is based upon an alleged fraudulent representation by an agent of SouthTrust upon which Branch claims he relied in executing the promissory note. It therefore appears that the issues in the two claims in this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.”

Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d at 1374.

In Winecoff v. Compass Bank, 854 So.2d 611 (Ala.Civ.App.2003), the Winecoffs redeemed two savings bonds at a bank, and the bank overpaid the amount actually due on those bonds. The bank then “set off,” or deducted, an amount from the Wine-coffs’ checking account as partial repayment of the overpayment on the bonds. 854 So.2d at 612. The Winecoffs sued the bank, alleging that the setoff was improper, and the bank counterclaimed, alleging that the setoff was proper and seeking the remainder of the amount it had overpaid the Winecoffs. The trial court entered a summary judgment in favor of the bank on the Winecoffs’ claims, and, although it noted that the bank’s counterclaim was still pending, the trial court certified its order as final pursuant to Rule 54(b). This court determined that “the claims and the counterclaim each rested on the issue whether [the bank] could validly effect a setoff against the Winecoffs’ joint checking account.” Winecoff v. Compass Bank, 854 So.2d at 614. Therefore, this court held that the claims and the counterclaim were too closely intertwined to render the Rule 54(b) certification valid. Accordingly, this court set aside the Rule 54(b) certification and dismissed the appeal as having been taken from a nonfinal judgment. Id.

In this case, Thornton alleged in its breach-of-contract claim that it had not been paid for its performance pursuant to the terms of the contract. The defendants counterclaimed, alleging that Thornton had breached the contract by failing to properly perform the terms of the contract. Thus, the interpretation of the contract and a determination as to which party breached the contract is central to the parties’ contract claims; accordingly, the parties’ contract claims are dependent on each other and a resolution of one claim would impact the determination of the other. The defendants’ other three counterclaims were based on the theory that, in violating the terms of the contract, Thornton had trespassed and improperly cut certain trees. Thus, those claims also “rested on the issue” of the proper interpretation of the contract to determine whether Thornton or the third party who cut the trees had improperly performed under the terms of the contract. See Winecoff v. Compass Bank, 854 So.2d at 614. “It therefore appears that the issues in ... this case are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d at 1374. Accordingly, we conclude that the trial court erred in certifying its partial summary judgments on the defendants’ counterclaims as final pursuant to Rule 54(b), and we dismiss the appeal. See Winecoff v. Compass Bank, supra.

APPEAL DISMISSED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., recuses himself.

      . The complaint designated this party as "Mrs. Stanley R. Bowen, Sr.” At the time the action was initiated, Stanley R. Bowen, Sr., had died.