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AWARD OF ATTORNEY'S FEES UNDER LITIGATION ACCOUNTABILITY ACT - EFFECT OF PLAINTIFF'S VOLUNTARY DISMISSAL OF CLAIM: GREEN V. BEARD AND BEARD, ATTORNEYS

Green v. Beard and Beard, Attorneys, [Ms. 2160590, Dec. 8, 2017] __ So. 3d __ (Ala. Civ. App. 2017). This unanimous decision by Judge Moore (Thompson, P.J. and Pittman, Thomas, and Donaldson, JJ., concur) affirms the Marshall Circuit Court’s award of attorney fees pursuant to the Alabama Litigation Accountability Act (the ALAA), against Attorney Phil Green. Purporting to act on behalf of Willadean Willard, Green filed a libel claim against attorneys Beard and Beard alleging that an interrogatory propounded by Beard and Beard to Willadean in Willadean’s divorce action defamed her. Ms. *2. The interrogatory asked whether during her marriage, Willadean had engaged in sexual relations with any person other than her spouse. Ibid. Subsequent to the filing of the libel action, Green withdrew and Willadean’s new counsel filed a notice of voluntary dismissal prior to the filing of an answer or summary judgment in the libel action. Ms. *3.

On appeal, Green argued, inter alia, that the trial court lacked jurisdiction to enter an award under the ALAA because Willadean’s voluntary dismissal was effective without an order of the trial court pursuant to Rule 41(a)(1), Ala. R. Civ. P. Ms. *4-5. While agreeing with the premise of Green’s argument concerning the effect of a notice of voluntary dismissal, the court rejected Green’s argument that the trial court lacked jurisdiction to enter an award pursuant to the ALAA. The court first noted that in § 12-9-272(d), Ala. Code 1975, the legislature provided that no award pursuant to the ALAA could be entered if a voluntary dismissal is filed within 90 days after filing. The court held that “[i]t stands to reason that the legislature intended that, conversely, if the claim is dismissed more than 90 days after the claim is filed, attorney’s fees and costs may be assessed.” Ms. *5. The court further noted that a trial court retains jurisdiction for 30 days to modify a judgment sua sponte or pursuant to a Rule 59(e) motion. Ibid. The court noted that the trial court’s order awarding attorney’s fees to Beard and Beard against Green pursuant to the ALAA was entered within 30 days of the filing of Willadean’s voluntary dismissal. The court reasoned “[t]herefore, the trial court acted within its jurisdiction to modify the effectual dismissal to award attorney’s fees.” Ms. *6.

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