Wells Fargo Bank, N.A.
National Bank of Commerce
from Jefferson Circuit Court (CV-12-901247)
Fargo Bank, N.A. ("Wells Fargo"), appeals from the
Jefferson Circuit Court's denial of its claim for
attorney fees against National Bank of Commerce
("NBC"). We affirm the judgment of the circuit
claim at issue in this appeal stems from a lawsuit concerning
the deposit of a check issued on June 18, 2009, by Jennifer
Champion, treasurer of Jefferson County, in the amount of
$178, 916.42 in settlement of claims made in Winston v.
Jefferson County, Case No. CV-07-2297, a class-action
lawsuit concerning excess tax bids. The check was drawn on
Jefferson County's account with Wachovia Bank, N.A., a
predecessor to Wells Fargo, and it was jointly payable to the
order of Carl Prewitt, Debra Prewitt, Renasant Bank, and
Moore Oil Co., Inc. ("Moore Oil").
the check was issued, it was mailed to the Prewitts at their
home in Trussville, and it was received by Debra Prewitt. On
June 22, 2009, the check was stamped "for deposit only,
" and it was deposited to an account in the name of
Liberty Investing, LLC ("Liberty Investing"), at
Red Mountain Bank, a predecessor to NBC, using a remote
scanner that was provided by NBC's predecessor to
Creative Edge Landscaping, Inc. ("Creative
Edge"). It is undisputed that the check was
deposited without endorsements and that the Prewitts were not
signatories on the Liberty Investing account.
NBC's predecessor accepted the check and credited the
Liberty Investing account, it presented the check to Wells
Fargo's predecessor for payment. Wells Fargo's
predecessor paid the check and debited Jefferson County's
account. The Prewitts received the proceeds of the check over
time through a series of withdrawals and transfers from the
Liberty Investing account.
2011, Moore Oil became aware of the check, and by a letter
dated September 14, 2011, it demanded that Jefferson County
pay Moore Oil the amount of the check because, Moore Oil
contended, it was entitled to the proceeds of the check.
Wells Fargo asserts that Jefferson County then
"contacted Wells Fargo, seeking repayment" of the
check. In contrast, NBC asserts that Jefferson County has not
"made a demand to Wells Fargo for reimbursement of the
proceeds from the check." Neither party, however,
provides record support for these assertions concerning the
October 13, 2011, Wells Fargo sent a letter to NBC asserting
that NBC's predecessor had breached its presentment
warranty under § 7-4-208, Ala. Code 1975, by accepting
the check for payment without proper endorsements and then
presenting it for payment to Wells Fargo's predecessor.
On October 26, 2011, NBC sent a response to Wells Fargo in
which it asserted that "applicable Alabama law precludes
any recovery by Wells Fargo based on a presentment warranty
against NBC for any funds paid under this check."
April 20, 2012, Moore Oil filed an action in the Jefferson
Circuit Court against the Prewitts, Wells Fargo, and NBC,
alleging that each of the defendants was liable for
conversion of the check. On May 3, 2012, Wells Fargo sent a
letter to NBC demanding that it defend and indemnify Wells
Fargo in the action filed by Moore Oil. On May 9, 2012, NBC
sent a response in which it declined to defend or to
indemnify Wells Fargo, citing the reasons provided in its
previous letter to Wells Fargo.
30, 2012, Wells Fargo answered Moore Oil's complaint,
denying liability for conversion of the check, and it filed
cross-claims against both NBC and the Prewitts for indemnity
and money had and received and cross-claims solely against
NBC for breach of warranty and unjust enrichment.
18, 2012, NBC answered Moore Oil's complaint, denying
liability for conversion of the check, and it filed
cross-claims and third-party claims against Liberty
Investing, Creative Edge, the Prewitts, Edward Parker, and
Shea and Amanda Mitchell, including claims alleging
contractual indemnity, common-law indemnity, breach of
contract, breach of transfer warranty, fraud, and fraudulent
suppression based on the wrongful deposit of the check in
violation of NBC's predecessor's
Oil subsequently amended its complaint several times to
assert claims against Liberty Investing, Creative Edge,
Parker, and Shea Mitchell alleging conversion and conspiracy
and seeking prejudgment interest. On August 12, 2013, the
circuit court granted a motion to stay the action pending
this Court's ruling in First United Security Bank v.
McCollum, 178 So.3d 372 (Ala. 2014). The trial court
returned the action to its active docket by order dated
October 30, 2014.
April 29, 2015, Wells Fargo moved for a partial summary
judgment against NBC. On May 22, 2015, NBC filed its response
in opposition to the motion. Wells Fargo filed a reply in
support of its motion on May 27, 2015.
September 25, 2015, Moore Oil filed a motion for a partial
summary judgment on its claims against NBC, Wells Fargo,
Liberty Investing, Creative Edge, the Prewitts, and Shea
Mitchell. Both Wells Fargo and NBC opposed the motion on the
ground that Moore Oil was not entitled to the proceeds of the
November 9, 2015, the circuit court issued an order in which
it entered a partial summary judgment in favor of Moore Oil
on its conversion claims against Wells Fargo, NBC, the
Prewitts, and Shea Mitchell, stating:
"The Plaintiff's Motion for Partial Summary Judgment
is granted in part. The plaintiff's claims against
defendants National Bank of Commerce and Wells Fargo Bank,
N.A., under Ala. Code §§ 7-3-420 and 7-3-310 [are]
granted. Judgment against these defendants on this claim will
be entered. Additionally, the plaintiff's motion with
regard to its conversion claims against defendants Carlton
Prewitt, Debra Prewitt and Shea Mitchell is granted. In all
other respects, plaintiff's motion is denied."
same order, the circuit court granted in part Wells
Fargo's motion for a summary judgment against NBC,
"The Motion for Partial Summary Judgment, filed by Wells
Fargo, N.A, against co-defendant National Bank of Commerce is
granted in part. The court finds that NBC is legally
obligated to indemnify Wells Fargo against any demand of the
plaintiff herein against Wells Fargo. The court denies
Wells Fargo's request for attorneys' fees."
to NBC, following the circuit court's November 9, 2015,
order, Moore Oil, NBC, Parker, Creative Edge, and Liberty
Investing entered into a settlement agreement resolving the
claims between them. Wells Fargo did not participate in the
April 28, 2016, the circuit court entered an order in which
it observed that "[b]y separate orders entered today,
several defendants have been dismissed from this
action." The circuit court requested that the parties
inform it as to whether any other disposition was required in
the case. On May 9, 2016, the circuit court entered an order
dismissing all remaining claims in the action with prejudice.
Fargo subsequently filed this appeal from the circuit
court's November 9, 2015, order, specifically challenging
the denial of its claim for attorney fees.