McGlothlin v. First Alabama Bank

• Decision Date: 29 May 1992
• Citation: 599 So.2d 1137
• Parties: Michael D. McGLOTHLIN and Mary L. McGlothlin v. FIRST ALABAMA BANK. 1910371.
• Court: Alabama Supreme Court

Page 1137

599 So.2d 1137

Michael D. McGLOTHLIN and Mary L. McGlothlin v. FIRST ALABAMA BANK.

1910371.

Supreme Court of Alabama.

May 29, 1992.

Marshall H. Sims, Trussville, for appellants.

Hewitt L. Conwill, Roy M. Johnson III, and Joel C. Watson of Conwill, Justice & Johnson, Columbiana, and Joel C. Watson, Alabaster, for appellee.

SHORES, Justice.

This appeal arises out of a complaint for redemption filed by First Alabama Bank (as junior mortgagee) against Michael David McGlothlin and Mary McGlothlin and Guaranty Federal Savings and Loan Association in the Shelby County Circuit Court. The trial court entered an order of summary judgment on June 11, 1990, in favor of First Alabama. Almost one year later, Joel Watson, who had represented the McGlothlins in negotiations prior to the filing of the complaint for redemption, filed a motion to intervene and a "motion for new trial/motion to reconsider order on summary judgment." These motions followed the filing of a malpractice suit by the McGlothlins against Watson.

By order of July 8, 1991, the trial court allowed Watson's intervention for purposes of his "motion for new trial/motion to reconsider order on summary judgment," and found that its order on summary judgment was not final and that the case could have been further litigated had the parties not chosen to settle it. Having found that the parties to the redemption case had voluntarily settled following a pretrial order, the court dismissed the case. The McGlothlins appeal the order of dismissal and the trial court's failure to alter, amend, or vacate it. We affirm.

There are two issues presented on appeal: (1) Whether the trial court's order on summary judgment was a final judgment, and (2) whether the trial court erred in allowing intervention.

The order on summary judgment reads as follows:

"This cause came on before the Court on Plaintiff/Counterclaim Defendant, First Alabama Bank's Motion for Summary Judgment and Defendants, Michael D. McGlothlin and Mary L. McGlothlin's Answer to Summary Judgment. Upon consideration of said motions, along with briefs of counsel for said Plaintiff and said Defendants with supporting affidavits and pleadings in support thereof, the Court finds the following:

"1. That First Alabama Bank as successor of Shelby State Bank was a junior mortgagee at the time the property subject of this lawsuit was foreclosed by the first mortgagee.

"2. That the mortgage foreclosure deed was given to the Defendants on November 8, 1988.

"3. That First Alabama Bank made a written demand of the Defendants for statement in writing of the debt and all lawful charges claimed by them pursuant to 6-5-234 of the Code of Alabama, 1975, which said demand was received by said Defendants on January 18, 1989.

"4. That more than ten (10) days after such written demand, the Defendants furnished First Alabama Bank with a written statement of the debt and the lawful charges claimed by them.

"5. On February 9, 1989, First Alabama Bank appointed Robert J. Dow as its referee pursuant to 6-5-244 of the Code of Alabama, 1975, and advised the Defendants of same.

"6. That on September 27, 1989, the said Robert J. Dow made his inspection.

"7. That no referee has ever been appointed by the Defendants in this cause pursuant to 6-5-244, Code of Alabama, 1975.

"8. That a summons and complaint was filed by First Alabama Bank on May 1, 1989, to redeem the said property.

"9. That as the Defendants have failed to comply with the provisions of Article 14, Title 6, Chapter 5 of the Code of Alabama, 1975, it is

"Accordingly, ORDERED, ADJUDGED, and DECREED by the Court that the Plaintiff be and is hereby entitled to a summary judgment in its favor pursuant to Rule 56 of the Alabama Rules of Civil Procedure and that under and by virtue of Plaintiff's complaint the Plaintiff shall pay the sum of $55,136.03 plus legal interest from the date of the foreclosure sale until the date of the filing of the Plaintiff's complaint for redemption, the payment being distributed first to Guaranty Federal Savings and Loan Association for the amount due by the Defendants, Michael D. McGlothlin and Mary L. McGlothlin, and the balance, if any, left over from said payment to the Defendants, Michael D. McGlothlin and Mary L. McGlothlin.

"Further, it is ORDERED that the counterclaim of the Defendants, Michael D. McGlothlin and Mary L. McGlothlin, be and [it] is hereby dismissed.

"Costs of Court are hereby taxed to the Defendants, Michael D. McGlothlin and Mary L. McGlothlin.

"DONE and ORDERED this 11th day of June, 1990."

The trial court's order dated July 8, 1991, states in pertinent part:

"Thereupon, the court reviewed its Order in this cause on the Summary Judgment dated June 11, 1990, and finds that this order was not final as the order did not contain the language required under Rule 54 of the Alabama Rules of Civil Procedure stating that, 'as there is no just reason for delay,' nor did the judgment say it was final.

"The Court finds that such order was a pre-trial order until its finality was had.

"As the court had not entered a final judgment, the parties were free to further litigate the matter, which they chose not to do, as shown by documents produced in open court.

"According to the said documents and the parties present at this hearing, in October, 1990 a conveyance was executed by [the McGlothlins] to the Plaintiff of the subject property and a settlement sheet made.

"The Court finds that, as a matter of law and fact in this case, based on the pleadings and responses filed following the Court's order on Motion for Summary Judgment, the McGlothlins settled their case with First Alabama Bank as to all claims in this case. The Court further finds from the pleadings and the documents produced in open court, that after June 11, 1990, the McGlothlins had sufficient facts and circumstances available to them to convince this Court that the Court's order on Motion on Summary Judgment should have been reversed; said evidence being uncontroverted at the Court's last hearing that Joel C. Watson and first Alabama Bank's attorney, the Honorable James Fuhrmeister, had an agreement that even though the McGlothlins did not return the list of improvements to Mr. Watson on the last day permitted by the statute, the Bank would no[t] reject said list on that basis; other...