Branch Banking and Trust Company v. Maclay Construction, Inc. et al
Filing
31
ORDER granting BBT's 20 Motion for Summary Judgment. BBT shall, on or before 4/4/16 supplement its submission to establish the costs, expenses and work, as set out. Final judgment will be issued upon resolution of the attorney fees. Signed by Judge Kristi K. DuBose on 3/21/2016. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BRANCH BANKING AND TRUST
COMPANY, successor in interest to
COLONIAL BANK, by asset acquisition
from the FDIC, as Receiver for Colonial
Bank,
Plaintiff,
v.
MACLAY CONSTRUCTION, INC. and
CHARLES A. MACLAY,
Defendants.
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CIVIL ACTION NO. 15-00398-KD-N
ORDER
This action is before the Court on plaintiff Branch Banking and Trust Company’s (BBT)
motion for summary judgment, brief, and evidentiary material in support. (Docs. 20, 21)1 Upon
consideration, and for the reasons set forth herein, BBT’s motion is GRANTED.
I.
Factual Background
Defendants Maclay and Maclay Construction did not respond to the motion for summary
judgment. Therefore, they did not dispute BBT’s statement of undisputed facts. Accordingly, the
“Court will deem uncontroverted material facts to be admitted solely for the purpose of deciding
the motion for summary judgment.” S. D. Ala. CivLR 56(d).
1
BBT frequently cites Attachment 1 to Exhibit A (doc. 21-1) as the source of true and
correct copies of the notes, guarantees, mortgages, assignments, allonges, and other documents.
However, BBT did not provide the Court with page numbers. Attachment 1 consists of fortyeight pages.
2
Note 1 was the last of a series of notes that were executed in favor of Colonial Bank and
renewed at various times between July 24, 2006 and August 13, 2008. (Doc. 21-1, p. 3, ¶ 4)
3
In the motion for summary judgment, BBT alleges that Maclay executed and delivered
to Colonial on August 13, 2008, a personal Guarantee whereby he guaranteed all debts owed to
Colonial under Note 1. (Doc. 21, p. 6) The Court was unable to locate a Guarantee signed on
August 13, 2008 in Attachment 1 to Exhibit A, Ufen’s Affidavit. Also, Ufen made a sworn
A. Note 1, Mortgage, and Guarantee
On August 13, 2008, Defendant Maclay Construction, Inc. executed and delivered to
Colonial Bank a Commercial Promissory Note and Security Agreement (Note 1)2 in the principal
amount of $250,000.00. (Doc. 1 at ¶ 6; Doc. 9, Defendants' Answer, at ¶ 6; Doc. 21-1, p. 16,
Attachment 1 to Exhibit A, Affidavit of BBT Vice President Marya Ufen). Under the terms of
Note 1, Maclay Construction agreed to make payments when due and “[i]f legal proceedings are
instituted to enforce the terms of this Note,” Maclay Construction agreed “to pay all costs of
[Colonial Bank] in connection therewith, including reasonable attorney fees.” (Id.)
Note 1 was secured by a Real Estate Mortgage executed by Maclay Construction, dated
July 24, 2006, and re-recorded on March 6, 2009, in Mortgage Book 6502, Page 1226, in the
Office of the Judge of Probate of Mobile County, Alabama. (Doc. 21-1, p. 4, Ufen Affidavit, ¶ 6;
Doc. 21-1, p. 30-37)
Maclay Construction defaulted under the terms of Note 1 by failing to pay the full
amount owed on the maturity date of August 11, 2009. (Doc. 21-1, p. 6, Ufen Affidavit, ¶ 13)
By reason of the default, BBT became entitled to foreclose on the real property described in the
Mortgage. The property securing Note 1 was sold at foreclosure sale on April 21, 2010, to BBT,
the highest bidder, in the amount of $50,050.00. (Doc. 21-1, p. 6, Ufen Affidavit, ¶ 14)
At time of foreclosure, BBT was due $267,678.46 under Note 1. BBT credited the sale
bid amount of $50,050.00 to the outstanding debt. After credit, BBT is owed $ 217,628.46 under
Note 1 as of February 9, 2016 (excluding attorney fees, costs, and expenses). BBT is not seeking
additional interest accrued since that time on the Note. (Doc. 21-1, p. 6, Ufen Affidavit, ¶ 17)
2
Note 1 was the last of a series of notes that were executed in favor of Colonial Bank and
renewed at various times between July 24, 2006 and August 13, 2008. (Doc. 21-1, p. 3, ¶ 4)
2
Previously on December 13, 2006, Maclay executed a Guarantee3 whereby he guaranteed
all debts then owing to Colonial Bank by Maclay Construction, or any debts thereafter owed to
Colonial Bank. (Doc. 21-1, p. 4, Ufen Affidavit, ¶ 8) Under the terms of the “continuing
Guarantee”, Maclay guaranteed payment of all debts “of every kind and description, whether
now owing or hereinafter arising out of credit previously, contemporaneously, or hereinafter
granted” by Colonial Bank to Maclay Construction. (Doc. 21-1, p. 27) Maclay waived “all
notices hereunder, demand, presentation and any and all notices of protest, default, or
nonpayment.” (Id.) Maclay also agreed to pay all of Colonial’s “costs incurred to enforce this
Guarantee, including reasonable attorney fees.” (Id.)
B. Note 2, Mortgage, and Guarantee
On October 23, 2008, Maclay Construction executed and delivered to Colonial a
Commercial Promissory Note and Security Agreement (“Note 2”) in the principal amount of
$146,000.00. (Doc. 1 at ¶ 21; Doc. 9, Defendants' Answer, at ¶ 21; Doc. 21-1, p. 18-19,
Attachment 1 to Exhibit A, Ufen Affidavit). Under the terms of Note 2, Maclay Construction
agreed to make payments when due and “[i]f legal proceedings are instituted to enforce the terms
of this Note,” Maclay Construction agreed “to pay all costs of [Colonial Bank] in connection
therewith, including reasonable attorney fees.” (Id.)
Note 2 was secured by a Real Estate Mortgage executed by Maclay Construction, dated
December 13, 2006, and recorded on December 14, 2006, in Mortgage Book 6096, Page 1714 in
the Office of the Judge of Probate of Mobile County, Alabama. (Doc. 21-1, p. 4, Ufen Affidavit,
3
In the motion for summary judgment, BBT alleges that Maclay executed and delivered
to Colonial on August 13, 2008, a personal Guarantee whereby he guaranteed all debts owed to
Colonial under Note 1. (Doc. 21, p. 6) The Court was unable to locate a Guarantee signed on
August 13, 2008 in Attachment 1 to Exhibit A, Ufen’s Affidavit. Also, Ufen made a sworn
statement that the Guarantee was executed December 13, 2006. (Doc. 21-1, p. 4, ¶ 8)
3
¶ 7; Doc. 21-1, p. 38- 42)
Maclay Construction defaulted under the terms of Note 2 by failing to pay the full
amounts owed on the maturity date of October 22, 2009. (Doc. 21-1, p. 6, Ufen Affidavit, ¶ 13)
By reason of the default, BBT became entitled to foreclose on the real property described in the
Mortgage. The property securing the loans was sold at the foreclosure sale on April 22, 2010, to
the highest bidder, in the amount of $135,590.00. (Doc. 21-1, p. 6, Ufen Affidavit, ¶ 14)
At time of foreclosure, BBT was owed $153,772.70 for Note 2 and applied the sale bid
amount of $135,590.00 to the outstanding balance. After giving credit for the foreclosure sale bid
amount, BBT is owed $18,182.70 under Note 2 as of February 9, 2016 (excluding attorney fees,
costs, and expenses). BBT is not seeking additional interest that has accrued since that time.
(Doc. 21-1, p. 6, Ufen Affidavit, ¶ 17)
Also, on October 23, 2008, Maclay executed a Guarantee whereby he guaranteed all
debts then owing to Colonial Bank by Maclay Construction, or any debts thereafter owed to
Colonial Bank. (Doc. 21-1, p. 4-5, Ufen Affidavit, ¶ 9) Under the terms of the “continuing
Guarantee,” Maclay guaranteed payment of all debts “of every kind and description, whether
now owing or hereinafter arising out of credit previously, contemporaneously, or hereinafter
granted” by Colonial Bank to Maclay Construction. (Doc. 21-1, p. 29) Maclay waived “all
notices hereunder, demand, presentation and any and all notices of protest, default, or
nonpayment.” (Id.) Maclay also agreed to pay all of Colonial’s “costs incurred to enforce this
Guarantee, including reasonable attorney fees.” (Id..)
C. The Federal Deposit Insurance Corporation’s assignment to BBT
Initially, Colonial Bank owned and held the promissory notes and guarantee agreements.
On August 14, 2009, Colonial Bank was closed by the Alabama State Banking Department and
4
the Federal Deposit Insurance Corporation was appointed Receiver. (Doc. 21-1, p. 52-58)
BB&T purchased substantially all of the assets of Colonial Bank from the FDIC, including the
Notes and Guarantees at issue.
BBT now owns and holds Note 1 and Note 2, all modifications and renewals, and the
associated loan documents, including Maclay’s Guarantees, by way of the Purchase and
Assumption Agreement with the FDIC (see http:www.fdic.gov/bank/individual/failed/colonialal_P_and_A.pdf), the Assignment of Security Instruments and Other Loan Documents, recorded
in Book 6642, Page 1636, in the Office of the Judge of Probate of Mobile County, Alabama,
(doc. 21-1, p. 50-51), and by virtue of the Allonges to Note 1 and Note 2. (Doc. 21-1, p. 11, 17).
II.
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Rule 56(c) governs procedures and provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may
object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it
may consider other materials in the record.
5
(4) Affidavits or Declarations. An affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.
Fed. R. Civ. P. 56(c).
BBT, as the party seeking summary judgment, bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the BBT as the moving party “fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if any, showing the
non-movant [Maclay and Maclay Construction] has made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993); Clark, 929 F.2d at 608.
If BBT carries its initial summary judgment burden, the responsibility shifts to Maclay
and Maclay Construction “to show the existence of a genuine issue of material fact.” Fitzpatrick
v. City of Atlanta, 2 F.3d at 1115. If they fail to make a sufficient showing on an essential
element of their case with respect to which they have the burden of proof, then BBT, the moving
party, is entitled to summary judgment. Celotex, 477 U.S. at 323. In deciding whether the nonmoving parties Maclay and Maclay Construction have met their burden, the evidence of the nonmovant is to be believed and all justifiable inferences drawn in their favor. Tipton v. Bergrohr
GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations
omitted); McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (On
motion for summary judgment, “[t]he evidence, and all reasonable inferences, must be viewed in
the light most favorable to the nonmovant....”)
6
III.
Analysis
A.
Governing Law
“[A] federal court in a diversity case is required to apply the laws, including principles of
conflict of laws, of the state in which the federal court sits.” Manuel v. Convergys Corp., 430
F.3d 1132, 1139 (11th Cir. 2005) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496
(1941)). Therefore, the Court must decide which state’s law governs this breach of contract
action between defendants Maclay and Maclay Construction, citizens of Alabama, and BBT, a
citizen of North Carolina. In Alabama, the courts follow the traditional conflict-of-law principles
of lex loci contractus. Lifestar Response of Ala., Inc. v. Admiral Ins. Co., 17 So. 3d 200, 213
(Ala. 2009). Accordingly, contract claims are governed by the laws of the state where the
contract was made, unless the contracting parties chose a particular state’s law to govern their
agreement, Cherry, Bekaert & Holland v. Brown, 582 So. 2d 502, 506 (Ala. 1991).
Notes 1 and 2 were executed and delivered to Colonial Bank, BBT’s predecessor, in
Mobile, Alabama. Each Note states that “[t]his Agreement has been delivered in the state where
the Lender is located and shall be construed in accordance with the laws of that State” Thus, the
Notes are governed by the laws of Alabama.
The Guarantees do not contain any statement regarding the applicable law. However,
both show Colonial Bank as the Lender with its location as Mobile, Alabama and that the
borrower Maclay Construction is located in Mobile, Alabama. Since the Guarantees were made
in Alabama, and the contracting parties did not chose otherwise, Alabama law controls the
Guarantees.
B. Breach of Contract for Note 1 and 2
“A promissory note is a form of contract; therefore, it must be construed under general
7
contract principles.” Merchants Bank v. Head, 161 So.3d 1151, 1154 (Ala. 2014) (citing
Bockman v. WCH, L.L.C., 943 So.2d 789, 795 (Ala. 2006) (quoting Dawkins v. Walker, 794
So.2d 333, 339 (Ala. 2001), quoting in turn Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33,
35–36 (Ala.1998)). “The elements of a breach-of-contract claim under Alabama law are (1) a
valid contract binding the parties; (2) the plaintiff's performance under the contract; (3) the
defendant's nonperformance; and (4) resulting damages.” Shaffer v. Regions Financial Corp., 29
So.3d 872, 880 (Ala.2009) (internal quotes omitted).
On motion for summary judgment, BBT argues that it has established a prima facie case
for enforcement of the Notes. BBT argues that it has produced the Notes and shown that they
were executed and that it has provided affidavit testimony as to the amounts due and Maclay
Construction’s failure to make the required payments. BBT also argues that Maclay Construction
has not established any valid defense to the debt and has not presented any evidence to dispute
the amount of the debt. Defendant Maclay Construction did not respond to the motion for
summary judgment.
The uncontroverted evidence shows that a contract existed between BBT and Maclay
Construction, i.e., the Notes; that BBT performed under the terms of the Notes by loaning funds
to Maclay Construction; that Maclay Construction failed to pay the Notes according to their
terms which resulted in a default on the respective mortgages and two foreclosures; and that
BBT was damaged by Maclay Construction’s failure to pay.4 The Affidavit of BBT’s Vice
4
In the answer to the complaint, Defendants assert that BBT was not the holder of the
loan documents and was not otherwise entitled to enforce the Notes. Defendants did not respond
to the motion for summary judgment and therefore, did not present any evidence to support this
statement or to create a genuine issue of material fact as to whether BBT has standing to enforce
the Notes. BBT has now presented sufficient evidence that the FDIC was the successor to
Colonial Bank’s statutory right as a holder of the Notes, and transferred the Notes to BBT for the
(Continued)
8
President Ufen is sufficient evidence of Maclay Construction’s failure to make the required
payments. Ufen stated that “[t]he Company defaulted under the terms of the Notes by failing to
pay the full amounts owed under Note 1, on the maturity date of August 11, 2009, and under
Note 2, on the maturity date of October 22, 2009.” (Doc. 21-1, p. 6 ¶13)
As to the amount due, Ufen stated that after applying the purchase price from the
foreclosures, BBT was owed $217,628.46 as the balance due on Note 1 and $18,182.70 as the
balance due on Note 2. (Id., ¶ 17). In support, Ufen provided a copy of the account statement,
which showed the debt owed at the time of foreclosure and affirmed that the debt amount was
correct. (Id., ¶ 18; 59-61 (Attachment 2 – Account Statement). See Wells Fargo Bank, N.A. v.
Vergos, 2012 WL 206169, *2 (S.D. Ala. Jan. 24, 2012) (“Alabama law provides that the proffer
of a copy of the note and affidavit testimony as to the amounts due under the note, as well as the
defendant's failure to make the required payments, is sufficient to establish a plaintiff's case to
recover a note.”) (citing Griffin v. American Bank, 628 So.2d 540, 543 (Ala. 1993) (affidavit
submitted by bank president)). Accordingly, summary judgment is due to be granted in BBT’s
favor and judgment entered against Maclay Construction in the amount of $217,628.46 as to
Note 1 and $ 18,182.70 as to Note 2, for a total amount of $241,952.75 as of February 9, 2016.
C. Breach of Guarantees
“Every suit on a guaranty agreement requires proof of the existence of the guaranty
purpose of enforcement of the Notes. See Branch Banking and Trust Company v. Imagine CBQ,
LLC, 2012 WL 1252582, *4 (S.D. Ala. April 13, 2012) (finding that the Purchase and
Assumption Agreement between the FDIC and BBT and the Assignment from the FDIC to BBT
were sufficient evidence to establish that BBT had standing to sue to enforce the Notes and
Guarantees at issue).
9
contract, default on the underlying contract by the debtor, and nonpayment of the amount due
from the guarantor under the terms of the guaranty.” Delro Industries, Inc. v. Evans, 514 So.2d
976, 979 (Ala.1987); see also Branch Banking & Trust Co. v. Bynum, 2013 WL 4874322, at *3
(N.D. Ala. Sept. 12, 2013) (“Because a guaranty agreement is a contract, the elements for a
breach of guaranty claim are the same as those for a breach of contract claim.”).
By their terms, the Guarantees are continuing. Generally “to recover under a ...
continuing guaranty, an additional element, notice to the guarantor of the debtor's default, must
be proved”, Delro Industries, 514 So.2d at 979, unless the guarantor has waived this notice
requirement through the terms of the guaranty. RBC Bank v. CMI Electronics, Inc., Slip Copy,
2010 WL 2719096, *2 (M.D. Ala. Jul. 8, 2010) (providing that “[i]n the case of a continuing
guaranty, it is also necessary to prove that the guarantor received notice of the debtor's default,
unless that right has been waived by the terms of the guaranty contract.”).
In that regard, “[t]he language of the guaranty is controlling in determining whether the
holder of the guaranty is under a duty to notify the guarantor of a default by the principal, and
notice need not be given when the terms of the guaranty expressly dispense with the need for it.”
Sharer v. Bend Millwork Systems, Inc., 600 So.2d 223, 226 (Ala.1992) (applying the rule to a
continuing guaranty); Branch Banking & Trust Co. v. Broaderip, 2011 WL 3511774, at *4 (S.D.
Ala. Aug. 11, 2011) (same). The Guarantees contain an express waiver of the right to receive
“all notices hereunder[.]” (Doc. 21-1, p. 27, 29) Therefore, based on the terms of the
Guarantees, Maclay has waived his right to receive notice and BBT need not provide proof of
notice.
As to the first element, BBT argues that Maclay executed the continuing Guarantees and
agreed to the terms. The uncontroverted evidence, the sworn statement of BBT’s Vice President
10
Ufen, shows that the Guarantees exist. (Doc. 21-1, p. 4, Ufen Affidavit, ¶ 8; ¶ 9) Maclay does not
dispute the existence of the Guarantees. Therefore, the first element is met.
As to the second element, BBT argues that Maclay Construction has defaulted under the
terms of the underlying contracts, specifically Notes 1 and 2. In support, BBT cites Ufen’s
Affidavit, which states as follows:
13. The Company defaulted under the terms of the Notes by failing to pay the full
amounts owed under Note 1, on the maturity date of August 11, 2009, and under
Note 2, on the maturity date of October 22, 2009.
Doc. 21-1, p. 6 ¶13). The uncontroverted evidence, Ufen’s sworn statement, shows that Maclay
Construction defaulted on the terms of the underlying contracts by failing to make payments
when due. Maclay does not dispute that Maclay Construction has not paid the balance due on the
Notes. Therefore, the second element is met.
As to the third element, BBT argues that Maclay failed to pay the debts of Maclay
Construction. In support, BBT again cites to Ufen’s Affidavit at Paragraph 13, which states that
“[b]y failing to fully and promptly pay the debts of Construction as required under the
Guarantees, Defendant Construction breached the terms of the Guarantees. (Exhibit A at ¶ 13).”
(Doc. 21, p. 11) (emphasis added) Reading the sentence in context, use of the phrase
“Defendant Construction” is apparently an error and BBT meant “Defendant Maclay” had
breached the terms of the Guarantees. Defendant Maclay did not respond to the motion for
summary judgment and therefore, did not dispute that he did not pay BBT according to the terms
of the Guarantees. Also, the Court notes that Maclay admitted in his answer that he “breached
the terms of … the guarantees by failing to pay the full amount due on the maturity date.” (Doc.
9, p. 9, ¶ 37; p. 10, ¶ 42) Accordingly, summary judgment is due to be granted in BBT’s favor
and judgment entered against Maclay in the amount of $217,628.46 as to Note 1 and $ 18,182.70
11
as to Note 2, for a total amount of $241,952.75 as of February 9, 2016.
D. BBT’s Claim for Attorney Fees and expenses.
BBT argues that according to the terms of the Notes and Guarantees, Maclay
Construction and Maclay agreed to pay all costs of collection including a reasonable attorneys
fee. BBT argues that costs in the amount of $948.54 and a reasonable attorney fees in the amount
of $5,136.05 have been incurred, for a total amount of $6,084.59. BBT relies upon the Affidavit
of it counsel, Patrick L.W. Sefton, as to the work performed, time expended, and hourly rates for
the attorneys, and an itemization of the costs incurred. (Doc. 21-2)
Under Alabama law, the courts follow “the American rule, whereby attorney fees may be
recovered if they are provided for by statute or by contract” or “special equity”. Jones v.
Regions Bank, 25 So.3d 427, 441 (Ala. 2009) (citations omitted); Hartford Acc. & Indem. Co. v.
Cochran Plastering Co., Inc., 935 So.2d 462, 472 (Ala. Civ. App. 2006) (citations omitted)
(same); see also In re Martinez, 416 F.3d 1286, 1288 (11th Cir. 2005) (“Generally, in federal
litigation, ... a prevailing litigant may not collect an attorney's fee from his opponent unless
authorized by either a federal statute or an enforceable contract between the parties.”). Also, a
contract provision for attorneys’ fees is “susceptible to breach.” Army Aviation Center Federal
Credit Union v. Poston, 460 So.2d 139, 141 (Ala.1984); see Ierna v. Arthur Murray Int'l, Inc.,
833 F.2d 1472, 1476 (11th Cir.1987) (“When the parties contractually provide for attorneys' fees,
the award is an integral part of the merits of the case.”). In making the Notes, Maclay
Construction agreed that “[i]f legal proceedings are instituted to enforce the terms of this Note,”
it would “pay all costs of the Lender in connection therewith, including reasonable attorney
fees.” (Doc. 21-1, p. 16, 18) In making the Guarantees, Maclay agreed to “pay all Beneficiary’s
costs incurred to enforce this Guarantee, including reasonable attorney fees.” (Id., p. 27, 29)
12
Based on the express terms of the Notes and Guarantees, the Court finds that BBT is entitled to
its costs and reasonable attorney fees.
In that regard, “[t]he determination of whether an attorney fee is reasonable is within the
sound discretion of the trial court.” Kiker v. Probate Court of Mobile County, 67 So.3d 865, 867
(Ala. 2010) (citations omitted). Generally, the courts begin with the lodestar analysis: A
determination of the reasonable hourly rate multiplied by the hours reasonably expended.” Bivins
v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008); Norman v. Housing Authority of City
of Montgomery, 836 F. 2d 1292, 1303 (11th Cir. 1988). When making this determination, the
district court may consider the twelve factors5 identified in Pharmacia Corp. v. McGowan, 915
So.2d 549, 552–53 (Ala. 2004) (quoting Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740,
749 (Ala. 1988)); cf. Bivins, 548 F. 3d at 1350 (addressing the twelve factors6 from Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974)). “The product of these
two figures is the lodestar and there is a strong presumption that the lodestar is the reasonable
sum the attorneys deserve.” Bivins, 548 F.3d at 1350 (internal citations and quotation omitted).
5
“(1) [T]he nature and value of the subject matter of the employment; (2) the learning, skill, and
labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and
reputation of the attorney; (5) the weight of his responsibilities; (6) the measure of success
achieved; (7) the reasonable expenses incurred; (8) whether a fee is fixed or contingent; (9) the
nature and length of a professional relationship; (10) the fee customarily charged in the locality
for similar legal services; (11) the likelihood that a particular employment may preclude other
employment; and (12) the time limitations imposed by the client or by the circumstances.”
Pharmacia Corp., 915 So.2d at 552–53.
6
“Those factors are: (1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.” Bivins, 548 F. 3d at 1350 (quoting
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir.1974)).
13
Once the lodestar is calculated, the use of some of these factors may continue when the
district court considers whether to adjust the lodestar. Association of Disabled Americans v.
Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006) (citing Hensley v. Eckerhart, 461
U.S. 424, 434 n.9, 103 S.Ct. 1933, 1940 n. 9 (1983)) (noting that the district courts may consider
the twelve factors outlined in Johnson, but that “many of these factors usually are subsumed
within the initial calculation of hours reasonably expended at a reasonable hourly rate.”); Bivins,
548 F.3d at 1352 (finding that the “Johnson factors are to be considered in determining the
lodestar figure” but “should not be reconsidered in making either an upward or downward
adjustment to the lodestar—doing so amounts to double-counting.”)
Additionally, the Court may utilize its own “knowledge and expertise” to determine the
reasonableness of requested attorney's fees. Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir.
1994). Overall, the movant bears the burden of establishing the “reasonableness” of the
attorney’s fees by providing specific evidence to support the hours and rates claimed. American
Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999); Taylor Newman
Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 Fed. Appx. 888, 895 (11th Cir. 2011).
In regard to the work performed, Seldon states that his firm reviewed the loan documents,
investigated the factual background, sent demand letters to Maclay Construction and Maclay,
filed the complaint, obtained service, continued to correspond with BBT, discussed the potential
for settlement, prepared the Rule 26(f) report, prepared and sent interrogatories and requests for
production, and prepared the summary judgment motion and brief. (Doc. 21-2)
As to the time expended and the hourly rates, Seldon states that he billed for 25.40 hours
at an hourly rate of $200.00. He also states that he has practiced since 1996 and that $200.00 per
hour is within the range of rates charged by lawyers of similar experience. Seldon also states
14
that Brett Hargett, an attorney with seven years of experience, billed for 0.70 hours at an hourly
rate of $170.00 per hour, and that his hourly rate is within the range charged by lawyers of
similar experience. Seldon asserts that based upon his experience the fees and expenses sought
are reasonable in light of the work necessary to prosecute the case, that the fees represent less
than 3% of the balance owed on the loans, and that this matter has been handled as efficiently as
possible. (Doc. 21-2)
Upon consideration of BBT’s submission, the relevant factors, and review of the Court’s
docket, the Court finds that the work performed and the hours expended are reasonable under the
circumstances. As BBT stated and as the docket confirms, this has been a straightforward
enforcement of a debt due with limited motion practice and without extensive or contested
discovery.
The Court further finds that the hourly rates are reasonable in that they are comparable to
“the prevailing market rate in the legal community for similar services by lawyers of reasonably
comparable skills, experience, and reputation.” Blum v. Stenson, 465 U.S. 886, 895–896 n. 11,
104 S.Ct. 1541 (1984); Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292,
1299 (11th Cir. 1988); American Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423, 437 (11th
Cir.1999) (The “relevant market” is the “place where the case is filed.”); Branch Banking and
Trust Co. v. Imagine CBQ, LLC, 2012 WL 1987830, *2 (S.D. Ala. June 4, 2012) (finding that
$200.00 per hour was a reasonable hourly rate for an attorney with fourteen years of experience
and that $170.00 was a reasonable hourly rate for an attorney with five years of experience).
As to costs and expenses, Seldon states that BBT incurred expenses for postage, copies,
Federal Express, service of process, computerized research, investigation, and court costs. He
also asserts that the expenses incurred were reasonable in light of the work necessary to
prosecute the case. (Doc. 21-2) In making the Notes, Maclay Construction agreed that “[i]f
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legal proceedings are instituted to enforce the terms of this Note,” it would “pay all costs of the
Lender in connection therewith[.]” (Doc. 21-1, p. 16, 18) In making the Guarantees, Maclay
agreed to “pay all Beneficiary’s costs incurred to enforce this Guarantee[.]” (Id., p. 27, 29)
Upon consideration of the terms of the Notes and Guarantees, the Court finds that BBT is
entitled to recover the costs and expenses as requested. See Peppertree Apartments LTD v
Peppertree Apartments, 631 So.2d 873, 878 (Ala. 1993) (providing that “[t]he intention of the
parties controls when a court construes the terms of a promissory note, and that intention is to be
derived from the provisions of the contract, if the language is plain and unambiguous[ ]”).
Additionally, Sefton’s Affidavit sufficiently supports a finding that the collection costs and
expenses incurred are reasonable. Accordingly, BBT is granted the amount of $948.54, for the
reasonable costs and expenses of collection.
As previously stated, in making the Guarantees, Maclay guaranteed payment of “all other
debts, obligations, and liabilities of every kind and description, whether now owing or hereafter
arising out of credit … granted by the Beneficiary [(BBT)] to” Maclay Construction and also
agreed to “pay all Beneficiary’s [(BBT’s)] costs incurred to enforce this Guarantee, including
reasonable attorney fees.” (Id., p. 27, 29) (bracketed text added) Thus, by the terms of the
Guarantee, Maclay is liable for all reasonable attorney fees, expenses and costs incurred in
enforcement of the Notes and the Guarantees.
However, in making the Notes, Maclay Construction agreed that “[i]f legal proceedings
are instituted to enforce the terms of this Note,” it would “pay all costs of the Lender in
connection therewith, including reasonable attorney fees.” (Doc. 21-1, p. 16, 18) The terms of
the Notes do not indicate that Maclay Construction agreed to pay any attorney fees, costs or
expenses arising from BBT’s efforts to recover from Maclay on the Guarantees. See Synovus
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Bank v. M/V ACCU V, 2012 WL 4760780, *2 (S.D. Ala. Oct. 4, 2012) (“By this language,
Accumarine agreed to pay reasonable attorney’s fees arising from the plaintiff’s efforts to
recover from Accumarine but not such fees associated with the plaintiff’s efforts to recover from
the various guarantors. Accordingly the plaintiff will not be awarded attorney’s fess and
expenses incurred in connection with its efforts to recover from the guarantors.”)
Since Sefton did not delineate which hours of work were expended or the costs and
expenses incurred for collection of the Notes as opposed to the Guarantees, the Court is unable to
determine the attorney fees, costs and expenses for which Maclay Construction is liable.
Accordingly, BBT shall, on or before April 4, 2016, supplement its submission with sufficient
evidence to establish the work expended, costs, and expenses related to enforcement of the
Notes.
IV.
Conclusion
Upon consideration, and for the reasons set forth herein, the Court finds that there is no
genuine dispute of material fact and that BBT is entitled to judgment as a matter of law regarding
Maclay Construction’s breach of the Notes and Maclay’s breach of the Guarantees. Accordingly,
BBT’s motion for summary judgment is GRANTED.
Final judgment shall issue by separate document as provided in Rule 58(a) of the Federal
Rules of Civil Procedure upon resolution of the attorney fees, costs and expenses incurred in
regard to enforcement of the Notes.
DONE and ORDERED this the 21st day of March 2016.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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