Opinion
2180245
03-20-2020
William DELEVIE v. CARRINGTON MORTGAGE SERVICES, LLC
Kenneth James Lay of Hood & Lay, LLC, Birmingham, for appellant. Christopher A. Bottcher and T. Dylan Reeves of McGlinchey Stafford, Birmingham, for appellee.
Kenneth James Lay of Hood & Lay, LLC, Birmingham, for appellant.
Christopher A. Bottcher and T. Dylan Reeves of McGlinchey Stafford, Birmingham, for appellee.
EDWARDS, Judge.
William Delevie ("William") appeals from a summary judgment entered by the Calhoun Circuit Court ("the trial court") against him and in favor of Carrington Mortgage Services, LLC ("CMS"), regarding CMS's claim for ejectment and William's counterclaims of wrongful foreclosure and breach of contract.
On October 29, 2007, William and his wife, Lauren Delevie, executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Loan America, Inc. ("LAI"), as mortgagee, and LAI's successors and assigns ("the mortgage"). The mortgage secured a promissory note in the principal amount of $98,455 ("the note") that Lauren also executed on October 29, 2007, in favor of LAI, as lender. William was not a party to the note. The mortgaged property, which is located in Calhoun County, was William and Lauren's residence ("the property").
Lauren defaulted on the note, with her last payment having been made in October 2009. The note and the mortgage were assigned to Bank of America, N.A. ("BOA"), and, thereafter, BOA transferred the servicing of the loan and the note and the mortgage to CMS. On October 9, 2017, CMS accelerated the indebtedness due under the note and gave William and Lauren notice of the acceleration; CMS also informed William and Lauren that CMS would foreclose on the property on December 28, 2015. CMS published notice of the scheduled foreclosure sale in The Anniston Star, a local newspaper, and an auctioneer for CMS conducted the foreclosure sale on December 28, 2015. CMS was the highest bidder at the foreclosure sale. On December 30, 2015, the auctioneer executed a foreclosure deed on behalf of CMS to CMS.
On February 3, 2016, an attorney for CMS sent a "Notice to Vacate" to William and Lauren at the address for the property. The notice to vacate demanded possession of the property and that William and Lauren vacate the property. Thereafter, CMS filed a complaint in the trial court, alleging that CMS held legal title to the property, that William and Lauren were in physical possession of the property, and that William and Lauren had refused to surrender possession of the property to CMS. CMS requested that the trial court issue a writ of ejectment, that William and Lauren be removed from the property, and that the trial court award CMS "such other further relief" as was just. See Ala. Code 1975, § 6-6-280.
On March 23, 2016, William and Lauren filed an answer, generally denying CMS's allegations and asserting several affirmative defenses to CMS's ejectment claim, including that the foreclosure was void for various reasons. William and Lauren also asserted numerous counterclaims against CMS, including claims of wrongful foreclosure and breach of contract.
Except for William and Lauren's claims of wrongful foreclosure and breach of contract, all of their other claims against CMS were dismissed and are not pertinent to William's appeal. Also, William and Lauren alleged claims against third-party defendants BOA and MERS. Those claims were subsequently dismissed, and William has not appealed regarding the dismissal of those claims.
CMS filed an answer to William and Lauren's counterclaims, generally denying William and Lauren's allegations and asserting several affirmative defenses to the counterclaims. Thereafter, William and Lauren amended their answer and their counterclaims, and CMS filed an answer to the amended counterclaims. The trial court set the case for a trial to be held on July 24, 2017; however, the trial setting was continued on several occasions, and the trial eventually was scheduled for January 28, 2019.
On March 8, 2018, CMS filed a motion for a summary judgment regarding its ejectment claim and William and Lauren's claims of wrongful foreclosure and breach of contract. William and Lauren filed a response in opposition to CMS's motion for a summary judgment, and the trial court held a hearing regarding CMS's motion for a summary judgment on July 17, 2018. On August 31, 2018, CMS filed an "Itemization of Damages" based upon a pretrial order that the trial court had entered on August 2, 2018. CMS's itemization states:
"[CMS] seeks damages pursuant to Section 6-6-280 of the Alabama Code [1975]. These damages include ‘mesne profits and damages for waste or any other injury to the lands, as the plaintiffs interests in the lands entitle him to recover, to be computed up to the time of the verdict.’ Ala. Code [1975,] § 6-6-280(b). These damages are calculated by fair rental value of the property. [CMS] will testify that $856.22 per month, the amount of [William and Lauren's] regularly scheduled mortgage payment, represents a fair rental value of the property. [CMS] seeks $856.22 for each month since the December 28, 2015, foreclosure sale up to the time of the verdict. That amount approximately totals $28,255.26."
We note that CMS's summary-judgment motion had included no such itemization or a request for an award for its purported damages.
On October 11, 2018, the trial court entered an order granting CMS's motion for a summary judgment regarding its claim for possession of the property and regarding William and Lauren's claims of wrongful foreclosure and breach of contract. The October 2018 order did not address CMS's request for damages. William appealed to this court. This court transferred the appeal to the supreme court for lack of jurisdiction. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.
William and Lauren divorced at some point, and Lauren has not appealed from the October 2018 order. Also, William's appeal was stayed for several months as a result of his filing a bankruptcy petition; his bankruptcy case was eventually dismissed.
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We do not address William's arguments on appeal because we lack jurisdiction to do so.
" ‘It is a settled jurisprudential principle that an appellate court must initially consider whether it has jurisdiction to hear and decide an appeal: "[J]urisdictional matters are of such magnitude that we take notice of them
at any time and do so even ex mero motu." Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987).’
" Alabama Dep't of Revenue v. WestPoint Home, LLC, 256 So. 3d 1197, 1199 (Ala. Civ. App. 2018)."
Denault v. Federal Nat'l Mortg. Ass'n, 284 So. 3d 913, 922 (Ala. Civ. App. 2019). "[E]xcept in limited circumstances not applicable here, this court does not have jurisdiction to consider an appeal taken from a nonfinal judgment." Id. at 923. "For a judgment to be final, it must ‘put[ ] an end to the proceedings between the parties to a case and leave[ ] nothing for further adjudication.’ Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So. 2d 316, 320 (Ala. 2001)." Id.
Based on the record before us, CMS's ejectment claim sought both possession of the property and damages for William and Lauren's purported wrongful detention of the property. See, e.g., Federal Land Bank of New Orleans v. Farris, 226 Ala. 574, 575, 148 So. 123, 124 (1933). However, CMS's motion for a summary judgment addressed only its request for possession of the property; CMS did not request a judgment regarding its request for damages, evidence as to which it was purportedly going to offer at trial. CMS's request for damages remains pending in the trial court, and no final judgment has been entered in this case. See Denault supra ; Lucky v. Deutsche Bank Nat'l Trust Co., 46 So. 3d 966 (Ala. Civ. App. 2009) ; see also Vestavia Country Club v. Armstrong, 271 Ala. 294, 296, 123 So. 2d 130, 133 (1960) ("[D]amages for detention is not essential to an ejectment action, but where such are claimed and a default judgment is entered with leave to prove the damages, such judgment is not final until the damages are either proved or waived."). Accordingly, we dismiss William's appeal.
APPEAL DISMISSED.
Thompson, P.J., and Moore, Donaldson, and Hanson, JJ., concur.