Hunt v. NationsCredit Fin. Servs. Corp.

• Court: Alabama Court of Civil Appeals
• Writing for the Court: CRAWLEY.
• Citation: Hunt v. NationsCredit Fin. Servs. Corp., 902 So.2d 75 (Ala. Civ. App. 2004)
• Decision Date: 03 December 2004
• Parties: Marie HUNT and Patrick W. Richardson v. NationsCREDIT FINANCIAL SERVICES CORPORATION.

902 So.2d 75

Marie HUNT and Patrick W. Richardson v. NationsCREDIT FINANCIAL SERVICES CORPORATION.

2030147.

Court of Civil Appeals of Alabama.

December 3, 2004.

Patrick W. Richardson of Bell Richardson, LLP, Huntsville, for appellants.

James C. Huckaby, Jr., John W. Scott, and Kimberly W. Geisler of Huckaby Scott & Dukes, PC, Birmingham, for appellee.

CRAWLEY, Judge.

On October 8, 2002, Marie Hunt sued NationsCredit Financial Services Corporation and Stanford Properties, LLC, seeking an accounting on a loan made to her by Robert C. Rice. Hunt alleged that in 1986 she had signed a promissory note with the face amount of $35,000, secured by a mortgage of residential real property, payable to Rice; that Rice had actually given her as consideration for the note and mortgage only $23,354.87, which, she claimed, she had repaid in full; that NationsCredit was the assignee of the note and mortgage; and that NationsCredit had wrongly declared her to be in default, had foreclosed on the mortgage, and had sold her property to Stanford Properties for $28,000 on October 3, 2002. Hunt sought a judgment declaring the foreclosure sale invalid. She also sought a temporary restraining order ("TRO") and a preliminary injunction to suspend the running of the time provided in § 6-5-251, Ala.Code 1975, for her to redeem the property and to prevent NationsCredit and Stanford Properties from making or recording any deed to the property pending a final judgment on the merits of her claims.

On October 8, 2002, the trial court granted Hunt's motion for a TRO, conditioned upon payment of a bond in the amount of $10,000 to cover the costs of NationsCredit and Stanford Properties, including reasonable attorneys fees, in the event the court later determined that they had been wrongfully enjoined. Patrick W. Richardson, Hunt's attorney, was the surety on her bond. Following a hearing on October 30, 2002, the trial court, on November 13, 2002, dissolved the TRO, denied Hunt's motion for a preliminary injunction and determined that NationsCredit and Stanford had been wrongfully enjoined. The trial court subsequently dismissed with prejudice Hunt's claims against Stanford Properties. NationsCredit answered Hunt's complaint, asserting various affirmative defenses.

On February 18, 2003, NationsCredit moved the court to award it costs and attorney fees, pursuant to Rule 65.1, Ala. R. Civ. P., and pursuant to the terms of the promissory note executed by Hunt, as a consequence of its having been wrongfully enjoined. Following a hearing, the trial court, on April 24, 2003, awarded NationsCredit attorney fees in the amount of $19,122.49.

On June 25, 2003, NationsCredit moved for a summary judgment on Hunt's underlying claims. On November 4, 2003, the trial court entered a summary judgment for NationsCredit on all pending claims and issues; that judgment included a provision directing payment of the attorney fees previously awarded to NationsCredit in the trial court's April 24 order. Hunt and Richardson appealed to the Alabama Supreme Court.¹ The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

I.

NationsCredit has filed a motion to dismiss as untimely that portion of Hunt and Richardson's appeal that deals with the award of attorney fees to NationsCredit after the dissolution of the TRO. This court deferred ruling on the motion until the case was submitted on the briefs of the parties. Now, having considered the merits of the motion to dismiss, we conclude that the motion is due to be denied because Hunt and Richardson's notice of appeal was timely filed.

On April 24, 2003, the trial court entered an order awarding NationsCredit attorney fees and costs as a consequence of its holding that NationsCredit had been wrongfully enjoined. On April 30, Hunt moved for an order, pursuant to Rule 54(b), Ala. R. Civ. P., making the court's attorney-fee award final. On May 5, the trial court entered an order, pursuant to Rule 54(b), certifying its April 24 order as final and staying the enforcement of the attorney-fee award pending appeal. On May 13, NationsCredit filed a motion in opposition to the Rule 54(b) certification, maintaining that an immediate appeal would be unnecessary and expensive and would create piecemeal appellate review. On May 16, the trial court granted NationsCredit's motion, set aside its May 5 Rule 54(b) certification, and set the finality issue for a June 5 hearing.

The record contains no ruling by the trial court on June 5 with respect to the finality issue. Instead, the record shows that on June 5 Hunt filed a petition for a writ of mandamus in the Court of Civil Appeals. This court denied the writ on August 26, 2003. On review by the Alabama Supreme Court, that court also declined, on October 10, 2003, to issue a writ of mandamus. On October 10, Hunt filed a renewed Rule 54(b) motion in the trial court. On November 4, the trial court entered a summary judgment in favor of NationsCredit on all pending claims and issues; that judgment included a provision directing payment of the attorney fees previously awarded to NationsCredit in the trial court's April 24 order. Hunt and Richardson filed a notice of appeal on November 5.

Citing Niezer v. SouthTrust Bank, 887 So.2d 919 (Ala.Civ.App.2004), NationsCredit moves this court to dismiss as untimely Hunt and Richardson's appeal of the November 4 order directing payment of the attorney fees awarded to NationsCredit in the April 24 order. We conclude that Niezer is inapplicable.

In Niezer, the administratrix of an estate sued SouthTrust Bank and Niezer, seeking a declaration of the rights and liabilities of the parties with respect to a certificate of deposit made payable to Niezer upon the death of the decedent. Niezer answered, counterclaimed, and cross-claimed, alleging claims of negligence and breach of fiduciary duty against the bank and claims of conversion against the administratrix, the estate, and the bank. The bank asserted a conditional counterclaim against the administratrix, maintaining that if it were found liable to Niezer, then it should be entitled to recover damages from the administratrix. The bank and Niezer each moved for, and the trial court entered on December 3, 2002, summary judgments on the claims asserted by the parties. Apparently, the bank's conditional counterclaim was the only claim not explicitly resolved by the entry of the summary judgments. However, because the trial court determined that the bank was not liable to Niezer on Niezer's claims of negligence, breach of fiduciary duty, and conversion, it is apparent that the condition underlying the bank's conditional counterclaim never occurred and that the case was, therefore, completely resolved by the summary judgments entered on December 3, 2002.

Niezer subsequently requested an award of attorney fees from the bank. The trial court denied Niezer's attorney-fee request on March 14, 2003. On March 25, Niezer moved the trial court for permission to take an "interlocutory appeal." The trial court signed a "Certificate ... of Appealability," reciting the grounds stated in Rule 5(a), Ala. R.App. P. Niezer then petitioned the Alabama Supreme Court for permission to appeal from the denial of his request for an award of attorney fees. On May 22, the supreme court denied Niezer's petition on the following grounds:

"First, the Supreme Court concluded that Rule 5(a), Ala. R.App. P., had not been complied with. However, the Supreme Court also concluded that ... Niezer's petition was due to be denied `on the grounds that an interlocutory appeal will not lie where the right to appeal a final judgment exists.'"

Niezer v. SouthTrust Bank, 887 So.2d at 922 (quoting Ex parte Niezer (No. 1021148) (unpublished order)) (footnote omitted).

On June 24, 2003 Niezer moved the trial court to "finalize" its judgment, asserting that the supreme court had refused to hear his appeal because, he claimed, "`the judgment was not final.'" Niezer v. SouthTrust Bank, 887 So.2d at 922. The trial court granted that motion the following day. On July 23, Niezer filed a notice of appeal to the Court of Civil Appeals. SouthTrust moved to dismiss the appeal as untimely, arguing that the trial court's March 14, 2003, order denying an award of attorney fees was a final judgment from which Niezer had not filed a notice of appeal within 42 days. See Rule 4(a)(1), Ala. R.App. P. This court agreed with SouthTrust's argument and dismissed the appeal as untimely. We held:

"We can interpret the Supreme Court's ruling [denying Niezer's request to appeal an interlocutory order pursuant to Rule 5(a), Ala. R.App. P.,] only as a conclusion that the trial court's March 14, 2003, order was a `final judgment'; under Ala.Code 1975, 12-22-2, such that interlocutory review of that order was neither necessary nor appropriate."

Niezer v. SouthTrust Bank, 887 So.2d at 922. This court noted that the denial of Niezer's request for a Rule 5(a), Ala. R.App. P., appeal was consistent with prior caselaw from our supreme court, see Kelley v. Kelley, 271 Ala. 683, 127 So.2d 616 (1961); Kimbrough v. Dickinson, 251 Ala. 677, 39 So.2d 241 (1949), and from the United States Supreme Court, see Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988), "to the effect that attorney-fee matters are separate and distinct from matters going to the merits of a dispute and that an appeal may be taken from a final judgment as to either aspect of a case." Niezer v. SouthTrust Bank, 887 So.2d at 923. This court also recognized

"that there is federal authority for the position that an order denying a party's request for an award of attorney fees is not appealable if a final judgment has not previously been entered on the merits of the case. See Sandwiches, Inc. v. Wendy's Int'l, Inc., 822 F.2d 707 (7th Cir.1987)."

Niezer v. SouthTrust Bank, 887 So.2d at 923 (emphasis added). "A `final judgment is a ...