James v. Alabama Coalition For Equity, Inc.

• Decision Date: 12 December 1997
• Citation: 713 So.2d 937
• Parties: 128 Ed. Law Rep. 483 Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al. Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. Mary HARPER, suing as next friend of Deion Harper and Perry Phillips, minors, et al. ALABAMA COALITION FOR EQUITY, INC. v. Fob JAMES, Jr., et al. ALABAMA COALITION FOR EQUITY, INC. v. Fob JAMES, Jr., et al. Deion HARPER, et al. v. Fob JAMES, Jr., et al. Deion HARPER, et al. v. Fob JAMES, Jr., et al. STATE SUPERINTENDENT OF EDUCATION and State Board of Education v. ALABAMA COALITION FOR EQUITY, INC., et al. STATE SUPERINTENDENT OF EDUCATION and State Board of Education v. ALABAMA COALITION FOR EQUITY, INC., et al. 1960327, 1960328, 1960470 to 1960473, 1960489 and 1960490.
• Court: Alabama Supreme Court

Page 937

713 So.2d 937

128 Ed. Law Rep. 483

Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. ALABAMA COALITION FOR EQUITY, INC., an Alabama nonprofit corporation, et al.

Fob JAMES, Jr., in his official capacity as Governor of the State of Alabama and as president of the State Board of Education, et al. v. Mary HARPER, suing as next friend of Deion Harper and Perry Phillips, minors, et al.

ALABAMA COALITION FOR EQUITY, INC. v. Fob JAMES, Jr., et al.

ALABAMA COALITION FOR EQUITY, INC. v. Fob JAMES, Jr., et al.

Deion HARPER, et al. v. Fob JAMES, Jr., et al.

Deion HARPER, et al. v. Fob JAMES, Jr., et al. STATE SUPERINTENDENT OF EDUCATION and State Board of Education v. ALABAMA COALITION FOR EQUITY, INC., et al. STATE SUPERINTENDENT OF EDUCATION and State Board of Education v. ALABAMA COALITION FOR EQUITY, INC., et al.

1960327, 1960328, 1960470 to 1960473, 1960489 and 1960490.

Supreme Court of Alabama.

Dec. 12, 1997.

Bill Pryor, atty. gen., and Brock B. Gordon, Mobile, for appellant Attorney General Bill Pryor.

M. Roland Nachman, Jr., Montgomery; and William P. Gray, Jr., legal advisor to the Governor for appellants Governor James and Finance Director Sage Lyons.

Michael R. White, general counsel, Department of Education; and Denise B. Azar and Ashley H. Hamlett, Office of General Counsel, Department of Education, for appellants State Superintendent of Education and State Board of Education.

Robert D. Segall of Copeland, Franco, Screws & Gill, Montgomery; and Christopher A. Hansen, American Civil Liberties Union Foundation, New York City, for Harper cross-appellants/appellees.

Reuben W. Cook, Alabama Disabilities Advocacy Program, Tuscaloosa, for Alabama Disabilities Advocacy Program and John Doe.

C.C. Torbert, Jr., of Maynard, Cooper & Gale, Montgomery; James Allen Main and L. Landis Sexton of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery; Michael D. Waters of Miller, Hamilton, Snider & Odom, Montgomery; and James G. Speake of Speake & Speake, Moulton, for appellees/cross appellants Alabama Coalition for Equity, Inc., et al.

COOK, Justice.

These cases arise out of the ongoing litigation known as the "Public School Equity Funding Case." See Ex parte James, 713 So.2d 869 (Ala.1997); Pinto v. Alabama Coalition for Equity, 662 So.2d 894 (Ala.1995); Opinion of the Justices No. 338, 624 So.2d 107 (Ala.1993). They are appeals and cross appeals from a judgment of the Montgomery County Circuit Court awarding to the Alabama Coalition for Equity, Inc. ("ACE"), the Alabama Disabilities Advocacy Program ("ADAP"), and Mary Harper, the original plaintiffs in this action (collectively the "plaintiffs-cross appellants"), interim attorney fees, that is, fees for their efforts that culminated in the order entered in the Liability Phase. We affirm.

The judgment in the Liability Phase was entered on March 31, 1993. On June 9, 1993, the Honorable Eugene Reese, judge of the Montgomery County Circuit Court, acting pursuant to Ala. R. Civ. P. 54(b), certified that judgment as final. The same day, he entered a separate order stating in part:

"The plaintiffs are entitled and allowed their costs and expenses, including the award of reasonable attorneys' fees for the attorneys for the plaintiffs, in such amounts as the court shall hereafter determine upon application of the plaintiffs. The parties plaintiff may make application for interim attorneys' fees and interim costs and expenses by application to this court, with notice to the parties defendant, on or before January 1, 1994, or upon application to this court, at some later date.

"This Order involves a final decision as to fewer than all of the claims of the plaintiffs, and there is no just reason for delay. Accordingly, pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, the court certifies this Order as a final judgment."

(Emphasis added.) No appeals were taken, either from the Liability Phase judgment, or, from the June 9, 1993, order involving attorney fees (the "Reese Fee Order").

In 1996, the plaintiffs-cross appellants petitioned the trial court for awards of attorney fees and expenses for their efforts through March 31, 1993, that is, for the litigation of the Liability Phase. On November 19, 1996, the Honorable Sarah M. (Sally) Greenhaw, judge of the Montgomery County Circuit Court, entered an order awarding fees in the amounts of $1,800,000; $1,564,375; and $235,360 to ACE, Harper, and ADAP, respectively (the "Greenhaw Fee Order"). Appeals and cross appeals followed. Appeals were filed in cases 1960327 and 1960328 by Governor Fob James, Jr.; State Finance Director Sage Lyons; and Attorney General Jeff Sessions (the "James Appellants"). Appeals were also filed in cases 1960489 and 1960490 by State Superintendent of Education Ed Richardson and the State Board of Education. Cross appeals were filed in cases 1960470 and 1960471 by ACE, and in cases 1960472 and 1960473 by Harper and ADAP.

On March 20, 1997, this Court issued an order to Judge Greenhaw, stating in pertinent part:

"It appearing to the Court that all claims have not been adjudicated, this cause is remanded to you for a determination as to whether to make the interlocutory order of November 19, 1996, awarding attorneys' fees, a final judgment pursuant to the provisions of Rule 54(b), Alabama Rules of Civil Procedure.

"If you elect to enter the 54(b) order, or any other final judgment, a supplemental record reflecting such action should be prepared and forwarded to this Court within fourteen (14) days from the date shown on this remand. The judgment will be considered final as of the date the new order is entered.

"Failure to respond to this remand within fourteen (14) days will result in dismissal of the appeal as being from a non-final order."

On March 26, 1997, Judge Greenhaw certified the Greenhaw Fee Order as a final judgment pursuant to Rule 54(b). We first address issues regarding the finality and appealability of these fee orders.

I. Finality and Appealability

At the outset, we note that none of the appellants challenges the specific amounts awarded the plaintiffs-cross appellants. They challenge only the entitlement vel non to an award of attorney fees in this action.

A. The Reese Fee Order

The appellants first contend that the Reese Fee Order was interlocutory and insist that, because it addressed only the liability for fees, but postponed until a future date the actual assessment of the fees, it was not such an order as could be made final pursuant to Rule 54(b). In other words, they contend, Rule 54(b) did not authorize the certification of the Reese Fee Order as a final judgment. We agree with this contention.

Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (Rule 54(b) "confers appellate jurisdiction over an order of judgment only where the trial court 'has completely disposed of one of a number of claims, or one of multiple parties' " (emphasis in Tanner )). For the application of this rule in the specific context of an award of attorney fees, see Sidag Aktiengesellschaft v. Smoked Foods Products Co., 813 F.2d 81 (5th Cir.1987).

The Sidag case arose out of an action commenced in 1979 by Sidag Aktiengesellschaft and Sicilia di R. Biebow & Co. ("Sidag") against, among others, Smoked Foods Products Company and Sales U.S.A., Inc. ("Sales"). Id. at 82. On September 19, 1984, following a number of judgments adverse to Sidag, a magistrate ordered Sidag to " 'pay the expenses and attorneys' fees incurred by' Sales 'in obtaining [an] Order of Dismissal [in that stage of the litigation] and in continuing to defend against Plaintiffs' claims since July 28, 1982.' " Id. at 83. At that time, however, the magistrate merely "directed Sales to submit by affidavit an itemized list of its said costs, expenses, and attorneys' fees [within] thirty days." Id. Nevertheless, by an order dated September 26, 1984, the magistrate attempted to certify the September 19 order as a final judgment, stating in part: "Pursuant to Fed. R. Civ. P. 54, the court now expressly determines that there is no just reason for delay and hereby directs entry of separate final judgment ... awarding said dismissed parties costs and attorneys' fees against plaintiffs in accordance with the Order ... dated September 19, 1984. ..." Id.

On the appeal of the judgment of dismissal, the Court of Appeals for the Fifth Circuit "affirmed ... the dismissal of all claims against Sales." Id. "Thereafter, Sales filed in the district court its itemized costs, expenses, and attorneys' fees." Id. "Subsequently, the magistrate, by order dated August 28, 1986 and entered August 29, 1986, approved a portion of the attorneys' fees and expenses claimed by Sales, in various amounts totaling $27,365.32." Id. Although the August 28, 1986, order awarding a definite sum in attorney fees was never certified as final, Sidag appealed.

The Court of Appeals for the Fifth Circuit dismissed the appeal as being from an interlocutory order. Id. at 84. In doing so, it explained:

"Rule 54(b) certification has no purpose other than to make final a given adjudication which would otherwise be nonfinal by reason of, but only by reason of, the continued presence in the same suit of other undisposed of claims or parties. Only a fully adjudicated whole claim against a party may be certified under Rule 54(b). See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-44, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976). ... If a purported Rule 54(b) certification of a ruling respecting a claim is not authorized by that rule, the certification is wholly ineffective. ...

"Here the magistrate's September 1984 Rule 54(b) certification purported to certify for appeal his ruling that Sidag was liable for Sales' attorneys' fees. The certification in respect to...