PRIOR PENDING ACTION - EX PARTE COMPASS D/B/A BBVA COMPASS AND AMY HOVIS
In
Ex parte Compass d/b/a BBVA Compass and Amy Hovis, [Ms. 1100870, Aug. 5, 2011] __ So. 3d __(Ala. 2011), the Alabama Supreme
Court held that under Ala. Code ¤ 6-5-440, the plaintiff's
pending appeal in federal court abates his subsequently filed state-court
action against the same defendants when both actions arise out of the
same set of facts. In October 2010, Plaintiff filed a complaint against
Defendants in federal district court alleging breach of contract, breach
of fiduciary duty, violations of the Truth in Lending Act, violations
of the Real Estate Settlement procedures Act, fraud, deceit, and violations
of the Fair Debt Collections Practices Act. In December 2010, the federal
district court dismissed the plaintiff's federal claims with prejudice
and declined to exercise supplemental jurisdiction over the remaining
state law claims. On February 11, 2011, Plaintiff filed a Notice of Appeal
with the United States Court of Appeals for the Eleventh Circuit. He appealed
the dismissal of his federal law claims as well as the district court's
refusal to exercise jurisdiction over the state law claims. On the same
day, Plaintiff filed a complaint in Madison County Circuit Court against
the same defendants alleging breach of contract, breach of fiduciary duty,
fraudulent concealment, accounting for bonds, deprivation of possession
of personal property in violation of Ala. Code ¤ 6-5-260, conversion,
money had and received, unjust enrichment, and civil conspiracy. The causes
of action in the state court complaint arose from the same set of facts
as the federal causes of action on appeal. The Court recognized that Terrell
v. City of Bessemer, 406 So. 2d 337 (Ala. 1981) outlined an exception
to the abatement rule that "applies to allow a second action on the
same cause when the court in the first action would
clearly not have had jurisdiction to entertain the omitted theory or ground or,
having jurisdiction, would
clearly have declined to exercise jurisdiction as a matter of discretion"
(emphasis in original). However, the Court held that this exception did
not apply to the present case because "it remains unclear whether
the federal district court will entertain [the plaintiff's] state-law
claims, which will be reinstated if [the plaintiff] succeeds on appeal."