Branch Banking and Trust Company v. Howard et al

Filing 73

Order directing defendants' counsel to Show Cause by 3/22/2013 for his failure to comply with the directive in March 8 Order. The Court will enter a separate judgment in favor of BB&T and against Howard and Churchill, jointly and severally, in the total amount of $2,082,271.02. The Clerk's Office is directed to close this file for administrative and statistical purposes, provided, however, that the Court will retain jurisdiction over the show cause issue on a post-judgment basis. Signed by Chief Judge William H. Steele on 3/18/2013. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRANCH BANKING AND TRUST
COMPANY,
Plaintiff,
v.
PETER HOWARD, et al.,
Defendants.

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CIVIL ACTION 12-0175-WS-N

ORDER
This matter comes before the Court on the Status Report (doc. 72) filed by plaintiff’s
counsel on March 15, 2013.
On March 8, 2013, the undersigned entered an Order (doc. 71) that, inter alia, found that
plaintiff, Branch Banking and Trust Company, was entitled to a judgment against defendants,
Peter J. Howard and Churchill, LLC, in the amount of $2,078,962.52, plus additional
prejudgment interest accruing at the rate of $330.85 per diem, from March 9, 2013 through the
entry of final judgment. The March 8 Order noted that BB&T is claiming (and has
demonstrated) a contractual right to recover attorney’s fees and other collection costs incurred in
enforcing the underlying loan and guaranty documents against Howard and Churchill. As to the
amount of fees to be awarded, the March 8 Order directed as follows: “the parties are ordered to
discuss the matter in good faith, and to file a joint status report reflecting the status and results of
such negotiations on or before March 15, 2013.” (Doc. 71, at 14.)
The Status Report filed on March 15, 2013 was not a joint document, but was instead
filed solely by plaintiff’s counsel. To explain this noncompliance with the March 8 Order,
plaintiff’s counsel writes that “BB&T, through counsel, has made numerous attempts through
phone calls and emails to reach out to Defendants’ counsel throughout the week” in conformity
with that Order, but that “Defendants’ counsel has failed to respond to these attempts.” (Doc. 72,
at 1.) In the Status Report, BB&T further notifies the Court that, in the interests of efficiency

and containment of litigation expenses, as well as that of moving forward to enforce the
judgment, BB&T has decided not to pursue an award of attorney’s fees in this matter.
In light of the information set forth in the Status Report, it is hereby ordered as follows:
1.

Defendants’ counsel is ordered to show cause, on or before March 22, 2013, for
his failure to comply with the clear directive in the March 8 Order that he consult
with plaintiff’s counsel regarding the attorney’s fee issue and submit a joint report
concerning those discussions;1

2.

Plaintiff having elected to forego filing a formal petition for attorney’s fees, the
final judgment will not include an award of contractual fees and other costs of
collection incurred by plaintiff in this action;

3.

There being no remaining merits issues to decide, the Court will enter a separate
judgment contemporaneously herewith in favor of BB&T and against Howard and
Churchill, jointly and severally, in the total amount of $2,082,271.02 (inclusive of
the unpaid principal, accrued interest, and late fees and other fees prescribed by
contract); and

4.

The Clerk’s Office is directed to close this file for administrative and statistical
purposes, provided, however, that the Court will retain jurisdiction over the showcause issue on a post-judgment basis.

DONE and ORDERED this 18th day of March, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

During the course of this litigation, defense counsel twice requested (and
received) an extension of time to file a response to a potentially dispositive motion, both times
leading the Court to believe that he was indeed preparing a substantive response, but simply
required more time to complete it. On both occasions, however, defense counsel filed no
response whatsoever after being granted the requested extension, such that the only result of his
motions for extension was to impede the prompt and timely resolution of this matter. Given this
sequence of events in this very case, the Court will not turn a blind eye to counsel’s apparent
disregard of the March 8 Order.

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