Metcalf v. Pentagon Fed. Credit Union

Decision Date02 May 2014
Docket Number2120425.
Citation155 So.3d 256
PartiesPamela White METCALF v. PENTAGON FEDERAL CREDIT UNION.
CourtAlabama Court of Civil Appeals

Kenneth James Lay of Hood & Lay LLC, Birmingham, for appellant.

Leonard N. Math of Chambless Math & Carr, P.C., Montgomery, for appellee.

Opinion

THOMPSON, Presiding Judge.

In May 2012, Pentagon Federal Credit Union (“Pentagon”) filed in the Jefferson Circuit Court (“the trial court) a complaint seeking to eject Pamela White Metcalf and “any occupants of [property located at a certain address] from the property. Pentagon based its ejectment claim on a foreclosure deed that Pentagon asserted it had obtained on September 3, 2010. In its complaint, Pentagon also sought an award of damages for Metcalf's failure to surrender the property. Pentagon's September 3, 2010, foreclosure deed indicates that Joyce E. White, Metcalf's mother, was the mortgagor on a mortgage issued by Pentagon. According to allegations in Metcalf's answer, White died on September 6, 2008. Although in her answer to Pentagon's complaint Metcalf alleged that she was the administrator of her mother's estate, the record contains no evidence or indication that an estate was opened for White, and the trial court specifically found that there was “no probate or administration of the estate of Ms. Joyce E. White.” Metcalf, both in the underlying action and in this appeal, is proceeding in her individual capacity and not in any capacity as a representative of an estate of White. Also, nothing in the record indicates that there is any contractual relationship between Metcalf and Pentagon.

On June 7, 2012, Metcalf, acting pro se, answered the complaint; she asserted that she had made mortgage payments to Pentagon for approximately 18 months while she lived at the property.

Pentagon moved for a summary judgment on September 6, 2012. In support of that motion, Pentagon presented evidence indicating that it had obtained the foreclosure deed on September 3, 2010, and that it had demanded possession of the property from Metcalf. The letter pursuant to which Pentagon demanded possession of the property was addressed to “Estate of Joyce E. White, c/o Pamela White Metcalf at the address of the foreclosed property. Pentagon also submitted an order of the trial court in a separate action between Pentagon and Chace A. White that specified that Pentagon was entitled to possession of the property and awarded Pentagon damages to be determined later representing rent and other damage caused by Chace White's failure to surrender the property to Pentagon. The record on appeal does not reflect the nature, if any, of Chace White's relationship to Joyce White or Metcalf, and there is no evidence pertaining to any interest Chace White might have had in the property.

Metcalf did not file a response to the summary-judgment motion.1 On October 3, 2012, the trial court entered an order denying Pentagon's summary-judgment motion. On October 15, 2012, Pentagon filed a purported motion to alter, amend, or vacate that October 3, 2012, order. See SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n. 1 (Ala.Civ.App.2007) ( “A valid postjudgment motion may only be taken in reference to a final judgment.”). In support of that motion, Pentagon submitted evidence indicating that, in its 2010 foreclosure action, it had made service of process by publication. After conducting a hearing, the trial court entered an order on November 9, 2012, granting Pentagon's motion for a summary judgment and awarding it possession of the property.

On December 21, 2012, Metcalf, still proceeding pro se, filed what she called a motion to appeal in the trial court. In that motion to appeal,” Metcalf asked the trial court to reconsider its November 9, 2012, summary-judgment order. Neither the trial-court clerk nor the trial judge considered Metcalf's December 21, 2012, motion to appeal to be a notice of appeal to this court. Rather, after conducting a hearing, the trial court entered an order on January 10, 2013, in which it found that Metcalf's December 21, 2012, motion was made pursuant to Rule 60(b), Ala. R. Civ. P.; the trial court denied that motion.

Metcalf, represented by counsel, filed a notice of appeal on February 21, 2013. Our supreme court transferred the appeal to this court pursuant to § 12–2–7, Ala.Code 1975. This court assigned appeal number 2120425 to the appeal.2

Initially, we note that the trial court's November 9, 2012, summary-judgment order did not address Pentagon's claim for an award of damages for Metcalf's refusal to surrender the property to it. An order that resolves fewer than all the claims of the parties is not a final judgment that will support an appeal. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). Accordingly, the November 9, 2012, summary-judgment order was not a final judgment that would support an appeal.

Although both parties, in their arguments in their briefs submitted to this court, recognize the possibility that the November 9, 2012, summary-judgment order was not a final judgment, neither party addresses the impact of the nonfinality of that order with regard to this court's jurisdiction over the appeal. However, this court must take notice of jurisdictional issues, and, therefore, we address the implications of the nonfinality of the November 9, 2012, summary-judgment order. Gregory v. Ferguson, 10 So.3d 596, 597 (Ala.Civ.App.2008).

The trial court treated Metcalf's December 21, 2012, motion to appeal the November 9, 2012, summary-judgment order as a motion filed pursuant to Rule 60(b), Ala. R. Civ. P. However, a Rule 60(b) motion, because it seeks relief from a final judgment, may be filed only in reference to a final judgment. Rule 60(b), Ala. R. Civ. P.; First Southern Bank v. O'Brien, 931 So.2d 50, 52 (Ala.Civ.App.2005). The November 9, 2012, summary-judgment order was not a final judgment, and, therefore, the December 21, 2012, motion to appeal could not properly be treated as a Rule 60(b) motion seeking relief from a final judgment.

Regardless, in her December 21, 2012, motion to appeal,” Metcalf sought reconsideration of the trial court's interlocutory November 9, 2012, summary-judgment order. See Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (“The ‘character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.’ (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969) )). The trial court denied that motion on January 10, 2013; in entering the ruling, however, the trial court again failed to rule on Pentagon's remaining pending damages claim. Accordingly, the January 10, 2013, order also did not constitute a final judgment that would support Metcalf's appeal to this court.

Upon submission of Metcalf's appeal in this matter to this court, this court remanded the cause to the trial court. On December 26, 2013, the trial court entered an order certifying its orders as final pursuant to Rule 54(b), Ala. R. Civ. P. Thus, the December 26, 2013, Rule 54(b) order constitutes an order that is sufficiently final to support the appeal in this matter. On January 27, 2014, Metcalf filed a timely postjudgment motion, and the trial court entered an order denying that motion on March 28, 2014. Metcalf's appeal is deemed to have been timely filed after the entry of the final order denying the postjudgment motion. See Rule 4(a)(4), Ala. R.App. P.

In the first issue raised in her brief submitted to this court, Metcalf argues that the trial court erred in entering its November 9, 2012, summary-judgment order because that order did not address Pentagon's claim for monetary damages and because it failed to address what she contends on appeal are counterclaims she asserted.

We conclude that Metcalf is correct that the November 9, 2012, summary-judgment order was not final. However, even if Metcalf could raise that issue in an appeal, Metcalf's argument that the trial court erred in failing to rule on the remaining pending damages claim is moot given the trial court's December 26, 2013, Rule 54(b) certification of finality of the November 9, 2012, summary-judgment order.

We also reject Metcalf's argument that she had asserted counterclaims against Pentagon and that the pendency of those unadjudicated counterclaims also rendered the November 9, 2012, summary-judgment order nonfinal. Although, in her answer to Pentagon's complaint, Metcalf made a number of assertions concerning Pentagon's conduct toward her, Metcalf made no claims against Pentagon and made no request for relief. Metcalf's answer cannot be said to have provided any notice to Pentagon or the trial court that she was asserting counterclaims against Pentagon.

Metcalf briefly contends that the trial court erred in failing to treat her December 21, 2012, motion to appeal as a notice of appeal to this court. As explained above, however, it is clear from the substance of that motion that Metcalf was seeking reconsideration of the November 9, 2012, summary-judgment order.See Ex parte Alfa Mut. Gen. Ins. Co., supra. Also, the record contains no indication that Metcalf argued to the trial court that it had erroneously considered her motion as one seeking reconsideration of the November 9, 2012, ruling.

Even assuming, however, that the trial court should have treated the motion to appeal as a notice of appeal, this court would have lacked jurisdiction over the appeal, because it would have been taken from a nonfinal order. Also, Metcalf has failed to argue on appeal how she was prejudiced by the trial court's failure to treat her motion to appeal as a notice of appeal. The appellant bears the burden of demonstrating error on appeal; it is not the function of an appellate court to search the record for error or to create arguments on behalf of the appellant. Franklin v. Woodmere at the Lake, 89 So.3d 144, 150 (Ala.Civ.App.2011).

Metcalf also argues that the...

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