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Smalls v. Wells Fargo Bank, N.A.

Alabama Court of Civil Appeals

November 9, 2017

Charissa A. Smalls
v.
Wells Fargo Bank, N.A.

         Appeal from Madison Circuit Court (CV-16-900965)

          DONALDSON, JUDGE

         Generally, a party may appeal only from an adverse ruling, not from one granting the relief sought by the party. See Lewis v. Providence Hosp., 483 So.2d 398, 398 (Ala. 1986). Charissa A. Smalls ("Smalls") appeals from the order of the Madison Circuit Court ("the trial court") dismissing a complaint that Wells Fargo Bank, N.A. ("Wells Fargo"), had filed against her. Smalls has not appealed from an adverse ruling. We therefore dismiss the appeal.

         Facts and Procedural History

         The parties are before this court for the fourth time regarding real property in Madison County ("the property"). Smalls and Lloyd Harper, who were married at the time, purchased the property in 1998. They financed the purchase of the property with a promissory note secured by a mortgage on the property. Smalls and Harper divorced in 2006, and all of Harper's interest in the property was conveyed to Smalls pursuant to an agreement between them. The property first became the subject of litigation before the trial court in an action in which Wells Fargo sought a judicial-foreclosure sale of the property and Smalls contested Wells Fargo's right to foreclose ("the foreclosure action"). The trial court entered a judgment in favor of Wells Fargo, and Smalls appealed on April 7, 2014. In Smalls v. Wells Fargo Bank, N.A., 180 So.3d 910 (Ala. Civ. App. 2015) ("Smalls I"), we affirmed the judgment in part, reversed the judgment in part, and remanded the cause. On remand, the trial court entered another judgment in favor of Wells Fargo, and Smalls and her current husband, Eugene C. Smalls ("Eugene"), who had been added as a party, appealed on January 5, 2016. On August 19, 2016, we affirmed the judgment without an opinion, in Smalls v. Wells Fargo Home Mortgage et al., (No. 2150308, August 19, 2016), __ So.3d __ (Ala. Civ. App. 2016) ("Smalls II") (table). On October 17, 2016, Smalls and Eugene filed a petition for a writ of certiorari in the Alabama Supreme Court seeking review of our decision in Smalls II.[1]

         While the appeal in Smalls II was pending, Wells Fargo filed a complaint against Smalls on June 9, 2016, initiating the present action.[2] Wells Fargo alleged a claim in the nature of ejectment pursuant to § 6-6-280, Ala. Code 1975. According to its allegations, Wells Fargo had conducted a foreclosure sale and had purchased the property on March 14, 2016. In her answer, Smalls alleged as counterclaims many of the claims she had alleged in the foreclosure action. On November 30, 2016, after this court had issued its decision in Smalls II, Smalls filed a "Motion to Dismiss with Prejudice, " arguing that Wells Fargo had failed to state a claim upon which relief can be granted, that Wells Fargo was not a real party in interest that has standing to enforce the promissory note or to foreclose on the property, and that the petition for a writ of certiorari seeking review of our decision in Smalls II, which was then pending in our supreme court, precluded the present action from being heard on its merits.

         On December 13, 2016, the trial court entered an order "transferring" the present action from Judge Chris Comer, who was originally assigned the case, to Judge Dennis O'Dell, who had presided over the foreclosure action. On December 19, 2016, Smalls filed an objection to the "transfer" order reassigning the case. In her objection, Smalls argued, in part, that the trial court lacked jurisdiction to enter the order, asserting that the Alabama Supreme Court had jurisdiction over the present action because of the then pending petition for a writ of certiorari in the foreclosure action.

         On January 10, 2017, Smalls filed a notice of appeal from the December 13, 2016, order. We treated the case as a petition for a writ of mandamus in Ex parte Smalls, [Ms. 2160234, May 5, 2017] __ So.3d __ (Ala. Civ. App. 2017). In Ex parte Smalls, we summarized the contentions of the parties as follows:

"In her petition, Smalls contends that this case should be dismissed with prejudice and that the trial court lacked jurisdiction to enter a transfer order. She argues that Wells Fargo has failed to state a claim, that Wells Fargo was not the real party in interest with standing to conduct a foreclosure of the property, and that the trial court lacks subject-matter jurisdiction in the present action because of the pending petition for a writ of certiorari in the foreclosure action. She also attacks the evidentiary basis of Wells Fargo's ejectment claim, reiterating many of her arguments against Wells Fargo's right to foreclose on the property that she made in Smalls I and Smalls II. Before this court, Wells Fargo agrees that the present action should be dismissed, not based on those arguments advanced by Smalls in the trial court and before this court but, instead, because Wells Fargo asserts it is prosecuting two actions with the same claims and parties in contravention of § 6-5-540, Ala. Code 1975.5
"5 Section 6-5-440 provides:
"'No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the pendency of the former is a good defense to the latter if commenced at different times.'"

__ So.3d at __. In Ex parte Smalls, this court denied Smalls's petition for a writ of mandamus because the trial court had not ruled on Smalls's motion to dismiss and her objection to the "transfer" order and because the primary ground for dismissal that the parties discussed in their arguments to this court--namely, the applicability of § 6-5-540, Ala. Code 1975--had not been presented to the trial court.

         On May 12, 2017, the supreme court denied the petition for a writ of certiorari in Smalls II, without an opinion. On the same day, this court issued a certificate of judgment in Smalls II.

         On May 18, 2017, Smalls filed a motion to dismiss in the present action. As the ground for dismissal, Smalls asserted that Wells Fargo had conceded that it had mistakenly prosecuted two actions with the same claims and parties in the same court in violation of § 6-5-440. On the same day, the ...


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