Hancock Bank v. Peavy et al

Filing 23

MEMORANDUM OPINION AND ORDER entered that that plaintiff shall have and take from defendants John R. Peavy and Peavy Construction Company, Inc. the sum of $717,550.71, with post-judgment interest to accrue at the rate of 0.11% from this date forward. Signed by Magistrate Judge William E. Cassady on 8/26/2014. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WHITNEY BANK,

:

Plaintiff,

:

vs.

:

JOHN R. PEAVY and PEAVY
CONSTRUCTION COMPANY, INC.,

CA 14-0080-C

:
:

Defendants.
MEMORANDUM OPINION AND ORDER
This cause is back before the Court on plaintiff’s motion for entry of final
judgment (Doc. 22). By order entered July 31, 2014, the Court granted plaintiff’s motion
for summary judgment and in doing so specifically found that the moving party had
established its “entitlement to a judgment in the amount of $673,405.94 through June 4,
2014 and to an additional award of interest and other charges since the just-referenced
date (until entry of final judgment) and of costs and fees, including attorneys’ fees.”
(Doc. 21, at 10.) Because the Bank had not submitted proof of attorneys’ fees and costs it
had incurred in this matter, the Court advised the parties that a supplemental order and
final judgment would be entered following the Bank’s supplemental submission and
any response by the defendants. (Id.)
The Bank timely filed its supplemental submission on August 8, 2014 (Doc. 22);
however, the defendants filed no response to plaintiff’s supplemental submission (see
Docket Sheet). Plaintiff’s supplemental submission contains the same evidence as
attached to its summary judgment motion regarding the accrual of interest on the two
notes made the subject of the Court’s July 31, 2014 order (Doc. 21), namely, that
“interest has accrued on the First Loan at a per diem rate of $167.51, and on the Second

Loan at a per diem rate of $140.95.” (Doc. 22, Exhibit 1, Buntin aff., at ¶ 6; see also Doc.
17, Exhibit A, Affidavit of Richard Buntin, at ¶ 17 (same per diem rates set forth).) The
summary judgment order entered on July 31, 2014 considered interest through June 4,
2014 but not thereafter. (See Doc. 21, at 10.) Accounting for an additional eighty-three
(83) days of interest through August 27, 2014, results in an additional interest award of
$25,602.18.
Plaintiff’s supplemental submission also contains proof (including invoices) that
it has incurred costs and expenses totaling $5,980.00; most of this amount is attributable
to the first and second loans defaulted upon by the defendants (that is, $150.00 for a title
abstract, $1,780.00 for a survey, $1,500.00 for Phase I environmental costs, and $1,900.00
for an appraisal) but some costs are directly associated with this action (that is, $400.00
in filing fees and $250.00 for an expert witness). The affidavit of Richard Buntin
establishes the reasonableness of the costs and expenses incurred by the Bank as part of
its collection efforts—that is, the costs for title abstract, survey, appraisal, and Phase I
environmental. (Doc. 22, Exhibit 1, Affidavit of Richard Buntin, at ¶ 4 (“Whitney Bank
incurred these services which were necessary because the collateral for the loan[s] is
commercial property that had not been inspected since the loan[s] w[ere] made. In
order to foreclosure (sic) the collateral, Whitney Bank must conduct due diligence in
order to determine if there are other liens against the collateral, whether there are
existing encroachments, whether hazardous materials are on the property and the fair
market value in order to make an opening bid amount that does not shock the
conscience. I regularly engage these services in collection efforts . . . .”).) In addition, the
defendants make no argument that the expenses attributable to the loans were
unreasonable or that the costs associated with this action—that is, the filing fees and the

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expert witness fees—are unreasonable. Accordingly, plaintiff has established its
entitlement to reasonable costs and expenses in the amount of $5,980.00.
Plaintiff has also submitted evidence that it incurred attorneys’ fees (and nominal
additional costs, including postage, copying costs, and process server costs) totaling
$12,562.59. (Doc. 22, Exhibit 1, Buntin aff., at ¶ 5 & Exhibit F to Buntin aff.) In Alabama,
attorneys’ fees are recoverable when provided for in a contract, see. e.g., James v. James,
768 So.2d 356, 360 (Ala. 2000), as is the case here (see Doc. 21, at 4-5 (citing relevant
provisions of the notes and promissory notes obligating defendants to pay plaintiff’s
attorneys’ fees and costs)), and in the Eleventh Circuit, “a request for attorneys’ fees
pursuant to a contractual clause is considered a substantive issue.” Brandon, Jones,
Sandall, Zeide, Kohn, Chalal & Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349, 1355 (2002),
abrogated as stated in Ray Haluch Gravel Co. v. Central Pension Fund of International Union of
Operating Engineers and Participating Employers,

U.S.

, 134 S.Ct. 773, 187 L.Ed.2d

669 (2014). In addition, Rule 54(d)(1) recognizes that costs may be awarded to the
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prevailing party. Thus, plaintiff is entitled to an award of attorneys’ fees and the
aforementioned nominal costs referenced above totaling $12,562.59. Compare SE Property
Holdings, LLC v. Loyal Advertising, LLC, 2012 WL 2253243, *5 (S.D. Ala. June 15, 2012)
(“Defendants did not contest plaintiff’s assertion of its right to an award of reasonable

In Ray Haluch Gravel Co., the Supreme Court made clear that “[w]hether [a] claim
for attorney’s fees is based on a statute, a contract, or both, the pendency of a ruling on an
award for fees and costs does not prevent, as a general rule, the merits judgment from
becoming final for purposes of appeal.” Id. at
, 134 S.Ct. at 777. Based on this ruling, this
Court arguably erred in failing to enter a final judgment on the merits of this action on July 31,
2014. Since, however, the defendants in this case have filed no responses to the various orders
entered in this case, the withholding of final judgment in this case has done no harm to the
defendants’ appellate rights. In the future, however, this Court will enter a final judgment on
the merits even where the moving party does not make a concurrent showing regarding its
entitlement to attorneys’ fees and costs.
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and necessary attorneys’ fees and expenses, nor did they contest the amount sought.
The court finds that the amounts set forth in plaintiff’s brief are reasonable and
necessary and should be awarded.”) with id. at *1 (attorneys’ fees totaling $15,350.50)
and Wells Fargo Bank, N.A. v. Maclay Construction, Inc., 2011 WL 6668319, *4 (S.D. Ala.
Dec. 20, 2011) (attorneys’ fees totaling $22,152.72). Therefore, the total amount of
attorneys’ fees and costs/expenses due and owing plaintiff comes to $18,542.59.
Finally, plaintiff is due to be awarded post-judgment interest on the total award,
that is, $717,550.71 ($673,405.94 + $25,602.18 + $18,542.59), at the statutory rate. In a
diversity case, like the present one (see Doc. 1, ¶ 6 (“Subject matter jurisdiction is proper
pursuant to 28 U.S.C. § 1332, as complete diversity exists between the parties and the
amount in controversy exceeds $75,000.00, exclusive of interest and costs.”)), “a district
court will apply the federal interest statute, 28 U.S.C. § 1961(a), rather than the state
interest statute[]” in awarding post-judgment interest. Insurance Co. of North America v.
Lexow, 937 F.2d 569, 572 n.4 (11th Cir. 1991) (citation omitted). “Such interest shall be
calculated from the date of the entry of the judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield, as published by the Board of
Governors of the Federal Reserve System, for the calendar week preceding[] the date of
the judgment.” 28 U.S.C. § 1961(a). The average 1-year constant maturity Treasury yield
for the week ending August 22, 2014 was 0.11%.
www.federalreserve.gov/releases/h15/current. Therefore, post-judgment interest shall
accrue at the statutory rate of 0.11% from this date forward.
DONE and ORDERED this the 26th day of August, 2014.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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