Future-Advance Mortgage - Priority - Rehearing


GHB Construction & Dev. Co., Inc. v. West Alabama Bank and Trust, [Ms. 1170484, Mar. 29, 2019] __ So. 3d __ (Ala. 2019). This plurality decision (Sellers, J.; Mendheim and Mitchell, JJ., concur; Parker, C.J., Bolin, Shaw, Wise, Bryan, and Stewart, JJ., concur in the result) withdraws the opinion issued September 21, 2018, which had reversed the Walker Circuit Court’s dismissal of GHB’s claim and held that “a future-advance mortgage does not create a mortgage lien until some indebtedness is incurred by the mortgagor under the future-advance mortgage.” GHB Construction & Dev. Co. v. West Alabama Bank and Trust, [Ms. 1170484, Sept. 21, 2018] __ So. 3d __ (Ala. 2018) at *14.

On rehearing, the Court affirmed the Walker Circuit Court’s judgment dismissing GHB Construction’s claim alleging its materialman’s lien had priority over West Alabama Bank and Trust’s lien under a future-advance mortgage. Justice Shaw’s concurring opinion, joined by Justices Bolin, Wise, Bryan, and Stewart, points out that defendant WABT cited § 35-4-34 for the first time on rehearing. Even though “new arguments on rehearing to reverse a trial court’s judgment are not considered,” Ms. *19 (emphasis in the original), the concurrence observes that “[i]f this Court on original submission could have affirmed the trial court’s judgment on the basis of § 35-4-34 despite the fact that no party raised it, then this Court, in its discretion can on rehearing affirm the trial court’s judgment on that basis.” Ms. *20.

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