Abatement Statute, Ala. Code § 6-5-440 and Injunctions

Tipp v. JPMC Specialty Mortgage, LLC, [Ms. 1200600, Dec. 3, 2021], ___ So. 3d ___ (Ala. 2021). The Court (Mitchell, J.; Parker, C.J., and Shaw, Bryan, and Mendheim, JJ., concur) affirms a judgment of the Mobile Circuit Court concluding Tipp’s claims were barred by the doctrine of res judicata, the applicable statute of limitations and Alabama’s abatement statute, § 6-5-440, Ala. Code 1975, and affirms the circuit court’s entry of a permanent injunction prohibiting Tipp from initiating any further proceedings relating to a foreclosure of property previously owned by her parents without first obtaining permission from that court.

The Court recites the lengthy history of efforts by Tipp to sue JPMC claiming its initial foreclosure of the property was fraudulent. The Court notes that Tipp repeatedly commenced actions against JPMC alleging wrongful-foreclosure, slander-of-title, trespass and fraud claims against JPMC and other defendants. Ms. **2-12. In each of those claims, the issues were resolved in favor of JPMC and against Tipp. Id.

Because the evidence revealed that another action was pending in the United States District Court for the Southern District of Alabama arising from the same facts, the Court concludes the Mobile Circuit Court correctly entered summary judgment in the present action on the basis of the abatement statute, § 6-5-440 (providing that “[n]o 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”). Ms. **11-12. Following the holding in Ex parte Compass Bank, 77 So. 3d 578, 587 (Ala. 2011), § 6-5-440 precludes the instant state-court action because “an action pending in federal court abate[s] the ‘subsequently filed state-court action…arising out of the same facts.’”).

The Court also notes that affirmance of the summary judgment entered by the Mobile Circuit Court is proper because “where the trial court has set forth multiple grounds supporting the entry of summary judgment, we will affirm that judgment if any of those grounds provides a basis for the judgment.” Ms. *13, citing Norvell v. Norvell, 275 So. 3d 497, 506 (Ala. 2018). Here, “the trial court’s judgment can be affirmed based on the abatement statute.” Id.

The Court also explains that the permanent injunction against future litigation entered by the Mobile Circuit Court is appropriate because JPMC demonstrated “success on the merits, a substantial threat of irreparable injury if the injunction is not granted, that the threatened injury to [JPMC] outweighs the harm the injunction may cause the [other party], and that granting the injunction will not disserve the public interest.” Ms. *16, quoting Sycamore Mgmt. Grp., LLC v. Coosa Cable Co., 42 So. 3d 90, 93 (Ala. 2010). The Court especially notes that “in light of Tipp’s history of litigation and stated intent to continue litigating this case regardless of the many judgments that have been entered against her, the permanent injunction is reasonable and serves the public interest by helping to conserve precious judicial resources.” Ms. *18, citing Walden v. ES Capital, LLC, 89 So. 3d 90, 108-09 (Ala. 2011) (explaining that injunctions to halt harassing and vexatious litigation of matters that have already been litigated support the interests of justice and are favored by the courts).

The Court concludes with a direct warning to this litigant, stating

“[s]hould she continue to pursue frivolous litigation against JPMC, either directly or indirectly, and those matters end up back before this Court, we will strongly consider an order requiring her to pay JPMC's attorney fees and costs. See Guthrie v. Fanning, [Ms. 1190852, Dec. 11, 2020] ___ So. 3d ___ (Ala. 2020) (emphasizing this Court's authority to sanction, either on the motion of the appellee or on the Court's own initiative, an appellant whose appeal is determined to be frivolous or without substantial justification).”

Ms. *19.

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