Deutsche Bank Nat'l Trust Co. v. Karr

Citation306 So.3d 882
Decision Date17 April 2020
Docket Number1190036
CourtAlabama Supreme Court

Sara Anne Ford and Nikaa Jordan of Lightfoot, Franklin & White, LLC, Birmingham; and Jesse P. Evans III and Albert C. Boykin III of Evans & Evans, Birmingham, for appellant.

Randy H. Beard of Beard & Beard Attorneys at Law, Guntersville, for appellees.

BRYAN, Justice.

Deutsche Bank National Trust Company ("Deutsche Bank") seeks appellate review of an order entered by the Marshall Circuit Court ("the circuit court"). Because we conclude that the order appealed from is not a final judgment, we dismiss the appeal.


In January 2016, Deutsche Bank filed a complaint seeking possession of certain property ("the property") to which it claimed title by virtue of purchase at a foreclosure sale. According to Deutsche Bank, Dortha Karr granted a mortgage in the property to Ameriquest Mortgage Company ("the mortgage"), which thereafter "transferred and assigned" the mortgage to Deutsche Bank, as trustee, under the terms of a "Pooling and Servicing Agreement." Deutsche Bank alleged that, after the foreclosure sale, it served a written demand for possession of the property on Dortha, but she refused to vacate the property.

Dortha answered Deutsche Bank's complaint, denying, among other things, that Deutsche Bank possessed a valid mortgage interest in the property and enumerating several "affirmative defenses," including the doctrine of res judicata. In addition, Dortha asserted two counterclaims against Deutsche Bank: the tort of outrage and slander of title. Deutsche Bank answered Dortha's counterclaims, denying several allegations and asserting a number of "affirmative defenses."

Deutsche Bank thereafter amended its complaint, referencing Randy Karr as an additional defendant and including allegations that Randy had "initialed every page of the mortgage and signed it immediately after the signature of" Dortha. Deutsche Bank's amended complaint also asserted specific counts for ejectment, "default under promissory note," and "equitable relief." In relevant part, the amended complaint also set forth additional allegations regarding the creation of a promissory note that was secured by the mortgage ("the promissory note"), including an allegation that the promissory note had been "properly" assigned to Deutsche Bank and that Deutsche Bank was the holder of the promissory note and was entitled to the debt owed under the terms of the promissory note. Dortha answered the amended complaint, denying Deutsche Bank's material allegations.

Deutsche Bank later filed an amended answer in response to Dortha's counterclaims, asserting that she lacked "standing" to "attack" the mortgage and that the mortgage should not be vacated because Dortha and Randy (hereinafter collectively referred to as "the Karrs") had not "offered to do equity by restoring the $317,625.00 of value they received under the" promissory note.

Deutsche Bank thereafter moved for leave to file a second amended complaint, seeking to formally add Randy as a defendant to the action, to assert additional allegations pertaining to him, and to assert a specific count seeking also his ejectment from the property. The Karrs moved to "strike [Deutsche Bank]'s motion for leave to file the second amended complaint and a claim against Randy," contending that the second amended complaint was "too late" because it was filed three years after the complaint was filed and was filed after discovery was "substantially complete." They also asserted that Randy was not a proper party to the action, that Randy's "right to possession" of the property had already been adjudicated in a separate action -- case no. CV-2012-900434 -- and that Deutsche Bank lacked "standing to prosecute an ejectment action against Randy." Deutsche Bank filed a response to the Karrs' motion, arguing, among other things, that Dortha lacked "standing to prosecute her" counterclaims.

On April 11, 2019, the circuit court entered an order that provided, in its entirety:

"Motion to Strike is hereby GRANTED for Mr. Randy Karr.
"The Court notes that all claims in this case were previously litigated in case number CV-2012-900434 between Dortha Karr, Shane Wilks, and Susan Wilks.[1] Said case was heard by [another judge in this circuit court], and it involved the same real estate.
"Costs taxed to [Deutsche Bank]."

(Capitalization in original; emphasis added.)

The case-action summary in the State Judicial Information System ("SJIS") contains five entries on April 15, 2019, that respectively reflect the following:

"Case Assigned Status of Disposed
"Court Action Judge: Tim Riley
"Disposed on 04/11/2019 by (Other)
"C001 Disposed by (Other) on 04/11/2019
"D001 Disposed by (Other) on 04/11/2019."

Earlier case-action-summary entries indicate that "C001" referred to Deutsche Bank and that and "D001" referred to Dortha. The "(Other)" noted in the foregoing entries appears to be a reference to the circuit court's April 11, 2019, order, which is the only action taken by the circuit court on that date that is reflected on the case-action summary.

On April 17, 2019, Deutsche Bank filed a "motion to reconsider" the April 11, 2019, order, arguing, among other things, that it had shown good cause for amending its complaint and that the judgment entered in case no. CV-2012-900434 did not preclude Deutsche Bank, under the doctrine of res judicata, from maintaining the instant action. The Karrs filed a response to Deutsche Bank's motion, and Deutsche Bank later filed a "supplement" to its motion.

On September 4, 2019, the circuit court entered an order denying Deutsche Bank's motion that provided, in relevant part:

"The Court, after duly considering the arguments of the parties, both written and oral, pertaining to [Deutsche Bank]'s Motion to Reconsider this Court's Order of April 11, 2019, wherein [Deutsche Bank]'s Motion for Leave to Amend the Complaint was denied, and this action was dismissed by operation of res judicata, this Court finds as follows:
"With regard to [Deutsche Bank]'s Motion to Reconsider the dismissal of this action, this Court has reviewed all pleadings and orders in Ocwen Loan Servicing, LLC v. Dortha Karr, [case no.] CV-2012-900434, and determines that the Plaintiff in said action [is the party] from whom [Deutsche Bank] derives its standing by virtue of assignment. It is noted that Ocwen Loan Servicing, LLC, represented itself to the Court in the afore-referenced action to be the ultimate assignee of the mortgage which is the subject matter of the instant action.2 Upon its sua sponte review of [case no.] CV-2012-900434, the Court recognizes that the asserted claims of Ocwen Loan Servicing, LLC, are of such degree of similarity against ... Dortha ... as the claims asserted herein by [Deutsche Bank], that [Deutsche Bank]'s claims against [Dortha] are hereby barred by operation of res judicata. This Court finds that despite dismissal of the substantially similar claims without prejudice, there exists a judgment on the merits [in case no.] CV-2012-900434, in which rights under the subject mortgage were represented as belonging to the ultimate assignee, Ocwen Loan Servicing, LLC. As the currently plead[ed] claims were presented in the previous action, and could have been adjudicated in said action, said claims are now barred. Accordingly, [Deutsche Bank]'s Motion to Reconsider this Court's Order dismissing this action, is hereby DENIED."

(Capitalization in original.) Deutsche Bank thereafter filed a document entitled "Supplement to Record," attaching pleadings and orders from case no. CV-2012-900434.

On October 16, 2019, Deutsche Bank filed a notice of appeal to this Court, naming the Karrs as appellees. On the same day, Deutsche Bank filed, in the alternative, a petition for the writ of mandamus in this Court, noting that the circuit court's September 4, 2019, order did not address Dortha's counterclaims (no. 1190033). On October 31, 2019, this Court issued an order denying Deutsche Bank's mandamus petition.


The Karrs have filed a motion to dismiss Deutsche Bank's appeal, arguing that it was not timely filed under Rule 4(a)(1), Ala. R. App. P. Rule 4(a)(1) provides, in pertinent part:

"[I]n all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from ...."

(Emphasis added.) The Karrs contend that the circuit court's April 11, 2019, order constituted a final judgment and that Deutsche Bank's October 16, 2019, notice of appeal was, therefore, untimely.

The Karrs acknowledge that, following the entry of the circuit court's April 11, 2019, order, Deutsche Bank filed a "motion to reconsider" on April 17, 2019, and that, if the circuit court's April 11, 2019, order was a final judgment, Deutsche Bank's "motion to reconsider" could be construed as a postjudgment motion filed pursuant to Rule 59(e), Ala. R. Civ. P. See Evans v. Waddell, 689 So. 2d 23, 26-27 (Ala. 1997) ("While the Alabama Rules of Civil Procedure do not speak of a motion to reconsider,’ this Court has repeatedly construed motions so styled, when they have been filed within 30 days after the entry of a final judgment, to be Rule 59(e) motions.").

Postjudgment motions filed pursuant to Rule 59(e) within 30 days of the entry of a final judgment "suspend the running of the time for filing a notice of appeal." Rule 4(a)(3), Ala. R. App. P. However, the Karrs note that, if not ruled upon, such motions generally remain pending for only 90 days, after which time they are deemed denied by operation of law. Rule 59.1, Ala. R. Civ. P.3 Under such circumstances, "the time for filing a notice of appeal shall be computed from the date of denial of such motion by operation of law, as provided for in Rule 59.1." Rule 4(a)(3).


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