Savage v. Marlow

148 So. 3d 72, 2013 WL 3155026, 2013 Ala. Civ. App. LEXIS 140
CourtCourt of Civil Appeals of Alabama
DecidedJune 21, 2013
Docket2120078
StatusPublished

This text of 148 So. 3d 72 (Savage v. Marlow) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Savage v. Marlow, 148 So. 3d 72, 2013 WL 3155026, 2013 Ala. Civ. App. LEXIS 140 (Ala. Ct. App. 2013).

Opinions

PITTMAN, Judge.

Gloria Savage (“Gloria”) appeals from a judgment in favor of Dr. Timothy Marlow, MAG Mutual Insurance Company (“MAG Mutual”), and Jack Hinton, Jr. We dismiss the appeal.

In March 2012, Gloria, Courtney Savage (“Courtney”), and Loretta Savage (“Loretta”) sued Marlow, MAG Mutual, and Hinton, alleging that, in 2009, Loretta had sued Marlow, stating a claim of medical malpractice; that, during Mar-low’s deposition in Loretta’s action, Mar-low had disclosed confidential medical information regarding Gloria; that, during his closing argument in Loretta’s action, Hinton, an attorney representing Marlow in that action, had disclosed confidential medical information regarding Gloria; and that Hinton was an agent of MAG Mutual, Marlow’s medical-malpractice insurer. Based on those allegations, Gloria, Courtney, and Loretta (collectively “the plaintiffs”) stated various tort claims against Marlow, MAG Mutual, and Hinton (collectively “the defendants”).

The defendants filed a motion seeking, among other things, the dismissal of the plaintiffs’ claims and an assessment of attorney fees and costs against the plaintiffs and their attorney pursuant to the Alabama Litigation Accountability Act (“the ALAA”), § 12-19-270 et seq., Ala.Code 1975. The plaintiffs responded to the motion, and, subsequently, the trial court held a hearing regarding the motion. Thereafter, on May 21, 2012, the trial court entered a judgment (“the May 21, 2012, judgment”) (1) determining that the plaintiffs had failed to state a claim upon which relief could be granted and dismissing all the plaintiffs’ claims; (2) determining, based on an analysis of the 12 factors listed in § 12-19-273, a part of the ALAA, that the plaintiffs and their attorney had brought the action without substantial justification and that the attorney fees and costs incurred by the defendants in defending the action should be assessed against the plaintiffs and their attorney pursuant to the ALAA; and (3) granting the defendants a period of 10 days from the entry of the May 21, 2012, judgment to submit documentation establishing the amount of the attorney fees and costs they had incurred in defending the action so that the trial court could assess a specific [74]*74amount of attorney fees and costs pursuant to the ALAA.

On June 8, 2012, the plaintiffs filed a motion (“the June 8, 2012, motion”) titled “Motion to Reconsider Judgment Entered by the Court on the 21st Day of May 2012 or[,] in the Alternative, [to] Grant Relief from [that] Judgment Under Rule 60(b)(6) of the [Alabama Rules of Civil Procedure].” That same day, the plaintiffs filed a pleading titled “Amendment to Complaint,” which stated that Courtney and Loretta were “no longer [plaintiffs or parties to this matter.” After the defendants had submitted documentation establishing the amount of the attorney fees and costs they had incurred in defending the action, the trial court, on June 12, 2012, entered a judgment (“the June 12, 2012, judgment”) assessing attorney fees and costs totaling $8,826 against the plaintiffs and their attorney pursuant to the ALAA.

On July 22, 2012, the 62d day after the entry of the May 21, 2012, judgment and the 40th day after the entry of the June 12, 2012, judgment, Gloria filed a motion (“the July 22, 2012, motion”) titled “Second Request for Hearing” in which she asserted that the June 8, 2012, motion was a Rule 59, Ala. R. Civ. P., motion; that the June 8, 2012, motion had requested a hearing; and that the trial court was required to hold such a hearing.1

On September 17, 2012, the trial court held a hearing regarding the June 8, 2012, motion and the July 22, 2012, motion; however, the trial court did not enter a written order ruling on those motions. On October 22, 2012, Gloria filed a notice of appeal.2 Thereafter, the supreme court transferred Gloria’s appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Jurisdictional issues are of such importance that an appellate court will take notice of them at any time and will do so even ex mero motu. See, e.g., Marsh v. Marsh, 852 So.2d 161, 163 (Ala.Civ.App.2002). Because “[t]he timely filing of a notice of appeal is a jurisdictional act,” Marsh, 852 So.2d at 163, we must first determine whether Gloria’s notice of appeal was timely filed.

If a trial court does not adjudicate a pending ALAA claim in an otherwise final judgment on the merits of an action or reserve jurisdiction in that judgment to consider the ALAA claim subsequent to the entry of that judgment, the ALAA claim is deemed to be implicitly denied by that judgment. See Klinger v. Ros, 33 So.3d 1258, 1260 (Ala.Civ.App.2009) (“Our supreme court has held that, when a trial court enters an otherwise final judgment on the merits of a case but fails to address a pending ALAA claim or to reserve jurisdiction to later consider that claim, the ALAA claim is implicitly denied .... ”). On the other hand, if the trial court reserves jurisdiction to consider the ALAA claim subsequent to the entry of the otherwise final judgment on the merits, the trial court has jurisdiction to adjudicate the ALAA claim subsequent to the entry of the otherwise final judgment on [75]*75the merits. Klinger, 33 So.3d at 1260-61 (“‘[T]he trial court can hold a separate hearing on an ALAA claim after the entry of the final judgment on the merits provided that the trial court specifically reserves jurisdiction to hear the ALAA claim.’” (quoting Casey v. McConnell, 975 So.2d 384, 389 (Ala.Civ.App.2007))). In the present case, although the May 21, 2012, judgment did not fully adjudicate the ALAA claim because it did not specify the amount of the attorney fees and costs assessed pursuant to the ALAA, it reserved jurisdiction to enter a judgment specifying the amount of the assessment after the entry of the May 21, 2012, judgment. Thus, the trial court retained jurisdiction to enter the June 12, 2012, judgment specifying the amount of that assessment. Id.

In the context of claims seeking attorney fees and costs pursuant to theories of recovery other than the ALAA, the appellate courts have held that “a decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication,” State Bd. of Educ. v. Waldrop, 840 So.2d 893, 899 (Ala.2002), and that “attorney-fee matters are separate and distinct from matters going to the merits of a dispute and ... an appeal may be taken from a final judgment as to either aspect of a case,” Niezer v. SouthTrust Bank, 887 So.2d 919, 923 (Ala.Civ.App.2004). However, we have not found an Alabama case determining whether an otherwise final judgment on the merits in which the trial court has reserved jurisdiction to adjudicate an ALAA claim subsequent to the entry of the otherwise final judgment on the merits is a final, appealable judgment despite its failure to dispose of the ALAA claim or is an interlocutory judgment because it did not dispose of the ALAA claim. Thus, in the present case, it appears that established precedent does not resolve the issue whether the May 21, 2012, judgment was a final, appealable judgment or an interlocutory judgment. Consequently, it is unclear whether this appeal involves two final, appealable judgments — i.e., both the May 21, 2012, judgment and the June 12, 2012, judgment — or only one final, appeal-able judgment — i.e., the June 12, 2012, judgment.

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Bluebook (online)
148 So. 3d 72, 2013 WL 3155026, 2013 Ala. Civ. App. LEXIS 140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/savage-v-marlow-alacivapp-2013.