Brewer v. Fairchild, et al., [Ms. SC-2024-0302, Sep. 20, 2024] __ So. 3d __ (Ala. 2024). The Court (Sellers, J.; Parker, C.J., and Wise, Stewart, and Cook, JJ., concur) dismisses Anthony and Cassie Brewer’s appeal from a summary judgment entered by the Mobile Circuit Court in favor of Darryl Fairchild on the issue of possession in an ejectment action. Fairchild had purchased the subject residence at a foreclosure sale. The Brewers added BANA and Carrington as third-party defendants to the ejectment action, asserting claims for breach of contract and wrongful foreclosure. The trial court certified the summary judgment as final pursuant to Rule 54(b).
The Court first explains the “trial court anticipates doing further adjudicative work [on Fairchild’s claim for waste] and expects further evidence to be submitted, after which, presumably, it will enter a final judgment.” Ms. *8. The Court “dismiss[es] the Brewers’ appeal. See Stephens v. Fines Recycling, Inc., 84 So. 3d 867, 879 (Ala. 2011) (noting that Rule 54(b) certifications should be entered only in exceptional cases and that appellate review in a piecemeal fashion is not favored).” Ibid.
The Court awards frivolous appeal sanctions to BANA and Carrington in the amount of double costs against the appellants’ attorney Kenneth J. Lay. The Court notes “Rule 38 [Ala. R. App.] does not establish a standard or criteria to determine what is a frivolous appeal; however, the grant or denial of damages under the rule is within the sound discretion of the appellate court.” Ms. *9, citing Gilbert v. Congress Life Ins. Co., 646 So. 2d 592, 594 (Ala. 1994).
On appeal, the appellants relied on the mortgagee’s failure to comply with certain notice provisions in the mortgage. Despite BANA and Carrington establishing in the trial court that those notice provisions were not in the subject mortgage, attorney Lay continued to represent to the Supreme Court the mortgage contained those provisions. The Court “find[s] it unacceptable that, despite being informed of this grave mistake during the proceedings below, Lay continues to blatantly represent to this Court that the mortgage at issue contains certain notice provisions when it does not.” Ms. *10. The Court emphasizes that the sanction “award is to be paid by Lay and is not to be charged to the Brewers.” Ms. *12.