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Autrey v. Memory

Alabama Court of Civil Appeals

January 23, 2015

George Nick Autrey II
v.
Von Memory

Released for Publication August 5, 2015.

Appeal from Lee Circuit Court. (CV-10-900441). Christopher J. Hughes, Trial Judge.

AFFIRMED.

For Appellant: William Eugene Rutledge, Rutledge & Yaghmai, Birmingham.

THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

OPINION

Page 1261

THOMAS, Judge.

George Nick Autrey II sued Von Memory in the Lee Circuit Court (" the trial court" ) in October 2010. Autrey sought damages for alleged legal malpractice. The trial court entered a summary judgment in favor of Memory on July 23, 2013; Autrey appealed that judgment to the Alabama Supreme Court, which affirmed the summary judgment, without an opinion. Autrey v. Memory (No. 1121298, May 16, 2014), __ So.3d __ (Ala. 2014) (table).

After the completion of the appellate proceedings arising from the summary judgment, Memory sought an award of $44,080.07 in costs in the trial court. He supported his motion seeking an award of costs with an affidavit from his attorney. Autrey objected to an award of costs to Memory, arguing that the costs were not reasonably necessary and that Memory was not entitled to an award of costs because his malpractice insurer, which had represented him at trial, had borne those costs. Autrey sought permission to depose Memory's attorney regarding the costs for which Memory requested reimbursement; the trial court denied Autrey's request, and it declined to reconsider its decision when Autrey requested permission to depose Memory's counsel a second time. After considering briefs from both parties on the issue whether Memory was entitled to recover costs if those costs had been borne by his insurer, the trial court entered an order awarding $14,953.22 in costs to Memory. After his postjudgment motion was denied, Autrey timely appealed that order to the Alabama Supreme Court, which transferred the appeal to this court because, our supreme court concluded, the amount involved is within our jurisdiction. See Ala. Code 1975, § 12-3-10.[1]

On appeal, Autrey argues that the trial court's award of costs to Memory should be reversed because, he contends, the award is a " windfall" to Memory because Memory's insurer actually paid those costs.[2] Autrey cites no authority standing

Page 1262

for the proposition that Memory, as a prevailing party defended by an insurer, is not entitled to an award of costs under Rule 54(d), Ala. R. Civ. P. Memory, on the other hand, presented in the trial court, and presents on appeal, authority indicating that the fact that his insurer paid the costs is irrelevant to the award of costs under Rule 54(d). Although Autrey is correct that Memory relies on authority from " other jurisdictions," it is clear that Memory does so because no Alabama court has addressed the precise question raised in this appeal.

Rule 54(d) reads:

" Except when express provision therefor is made in a statute, costs shall be allowed as of course to the prevailing party unless the court otherwise directs, and this provision is applicable in all cases in which the state is a party plaintiff in civil actions as in cases of individual suitors. In all cases where costs are adjudged against any party who has ...

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