Ex parte Deborah Habeb. PETITION FOR WRIT OF MANDAMUS (In re: Deborah Habeb v. Accor North America, Inc., et al.)

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REL: 03/23/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2110060 Ex p a r t e Deborah Habeb PETITION FOR WRIT OF MANDAMUS (In r e : Deborah Habeb v. Accor North America, (Mobile C i r c u i t Court, THOMAS, Inc., e t a l . ) CV-10-902267) Judge. I n M a r c h 2 0 0 9 , D e b o r a h Habeb operated by Accor North America, r e n t e d a room Inc. ("Accor"). i n a Motel 6 According to 2110060 Habeb's welts complaint, on 2010, her she skin as was a bitten by result. bed sued She b u g s AND Accor alleging various theories of l i a b i l i t y , suffered in October including breach of the i m p l i e d warranty o f h a b i t a b i l i t y ; u n j u s t enrichment in the the alternative, inducement; gross 1 975, Deceptive § alleged 8-19-1 that habitable with bed practice By judgment offer bugs Trade et letter ("the such dated April t o Habeb p u r s u a n t read, the the 1, fraud in simple and under the claim codified a t A l a . Code specifically, that conduct by "general Act"); i t knew t h a t that liability; asserted a represented prohibited of judgment also and Practices Act, seq. had when and fraud; Habeb Accor were trade promissory negligence." Alabama assumpsit; premises or, Habeb i t s accommodations premises amounted were infected to an unlawful made an offer Act. 2011, to Rule Accor 68, A l a . R. in i t s entirety, as C i v . P. of That follows: "Please accept this correspondence a s an O f f e r o f J u d g m e n t p u r s u a n t t o R u l e 68 o f t h e A l a b a m a R u l e s o f C i v i l P r o c e d u r e . The D e f e n d a n t , A c c o r N o r t h A m e r i c a , o f f e r s t o a l l o w j u d g m e n t t o be t a k e n a g a i n s t i t b y t h e P l a i n t i f f , D e b r a [ s i c ] Habeb, f o r t h e amount o f $ 2 , 5 0 0 . 0 0 , e a c h p a r t y t o b e a r i t s o r h e r own c o s t s . " Habeb f i l e d on April 7, her n o t i c e 2011. of acceptance In her notice 2 of of the o f f e r of judgment acceptance, which asked 2110060 that o f judgment as r e q u i r e d b y R u l e 68, Habeb f u r t h e r s t a t e d t h a t s h e i n t e n d e d to file the c l e r k a motion 10(a)(3), attorney On of Habeb requires April 12, with on a trial intended might language and t h a t to include be each p a r t y under t o award a a "motion reasonable to had not l e f t open t h e amount any award Accor had, i n f a c t , of attorney appeared " i t s ... own c o s t s " fees t o mean t h a t addition, the extended made Such as a c o m p l e t e that included attorney's fees resolution of t h i s was n o t e n t i t l e d as of or fees, i t was extended matter." Accor to attorney of the In "was No o f f e r was fees. taxation of f o r the f u l l and final f u r t h e r argued that Habeb the A c t because, Accor fees under 3 fees. including attorney contemplation each judgment r e s o l u t i o n of the claim. f o r additional costs offer offer the i n d i c a t i n g that a n d i t s own a t t o r n e y stated to which to consider p a r t y was t o b e a r i t s own c o s t s Accor enforce i n which i targued that the i n the o f f e r o f judgment was t o b e a r § 8-19- the A c t . the o f f e r of judgment entitled. contained fees under filed court, 1, 2 0 1 1 , o f f e r o f j u d g m e n t fees court litigant 2011, Accor the t r i a l the o f f e r of attorney fee to a successful attorney been judgment f o r an award which settlement" April enter 2110060 contended, before Act, would Accor would have had admitted Habeb In her 718 had have to have admitted according 694 that a trial contended i n her i n accordance a hearing and after considering the parties, denying denying 68 offer of law, for an the for or unlawful of judgment had trial Accor's of judgment. she said, "there was stands fee offer of judgment that costs. also c o u r t has motion She no accepted offer of and entered to the an enforce never court mutual 4 to of pleadings order the role enter on counsel, filed by August 24, settlement and entered on the concluded, as a assent in judgment. arguments t h a t j u d g m e n t be trial the attorney than briefs for an 68 i t heard Horn, award other an court The settlement. situation at which the the o f B i r m i n g h a m v. i s t o b e a r i t s own with Habeb's r e q u e s t that enforce must a Rule offer-of-judgment the to opposition that a t r i a l After 2011, under liable offer on C i t y court t h a t each p a r t y judgment found the which, on specifies 68 awarded liability motion ( A l a . 1998), judgment i s entered Rule be been to Accor, opposed Accor's 2d could liability. proposition a fees o p p o s i t i o n , Habeb r e l i e d So. after have to trade practice; not attorney or Rule matter a meeting of 2110060 the minds between t h e p a r t i e s [ a s t o t h e ] c o n d i t i o n s and terms [upon which] this distinguished parties offer Horn, rather of judgment had After included a motion August 24, 2011, o r d e r , timely filed Supreme petition fell 1975, § 12-3-11, the t r i a l offer judgment Accor, permit however, concluded offer that t h e amount we h a v e that to court court's denied, o f mandamus determined of this argues seeks to enter with seek the p a r t i e s the a writ fees court 5 to this mandamus which, 68 she the A c t . correctly assent should the see A l a . of under d i d not mutually explained: i n the on t h e R u l e i t s terms, trial Habeb that court, judgment attorney that 68 the issue and t r a n s f e r r e d t h e p e t i t i o n court the of the the t r i a l o f judgment and t h a t Habeb's p e t i t i o n As that of the Rule court a writ Habeb court court. the t r i a l consistent her trial noting and thus within the j u r i s d i c t i o n directing argues, fees That f o r consideration. of within seeking Court. The t h e terms to reconsider which a petition Alabama court that a d d r e s s e d by t h e Horn filing end." appropriately, an amount f o r a t t o r n e y n o t been Code would i n Horn had n o t argued judgment had litigation be to the denied. 2110060 "'"[M]andamus is a drastic and e x t r a o r d i n a r y w r i t t h a t w i l l b e i s s u e d o n l y when t h e r e i s : ( 1 ) a clear legal right in the p e t i t i o n e r to the order sought; ( 2 ) an i m p e r a t i v e d u t y u p o n t h e respondent to perform, a c c o m p a n i e d b y a r e f u s a l t o do so; (3) the lack of another a d e q u a t e r e m e d y ; a n d (4) p r o p e r l y invoked jurisdiction of the court." E x p a r t e H o r t o n , 711 S o . 2 d 9 7 9 , 983 ( A l a . 1 9 9 8 ) . ' " Ex parte Builders Insurer's Fund, (quoting Ex p a r t e 821 ( A l a .2003), Inc., & Contractors 980 So. Alloy 68 r e a d s , 1003, Wheels overruled 23 S o . 3d 6 3 5 , 657 Rule 2d Ass'n of M i s s i s s i p p i Self- 1006 ( A l a . C i v . App. 2007) Int'l, on o t h e r L t d . , 882 So. 2d 819, g r o u n d s b y Ex p a r t e DBI, ( A l a . 2009)). in pertinent part: " A t a n y t i m e m o r e t h a n f i f t e e n (15) d a y s b e f o r e the t r i a l b e g i n s , a p a r t y d e f e n d i n g a g a i n s t a c l a i m may s e r v e u p o n t h e a d v e r s e p a r t y a n o f f e r t o a l l o w j u d g m e n t t o be t a k e n a g a i n s t t h e d e f e n d i n g p a r t y f o r t h e money o r p r o p e r t y o r t o t h e e f f e c t s p e c i f i e d i n the o f f e r , w i t h c o s t s then accrued. I f within ten (10) days after the s e r v i c e of the o f f e r , the adverse party serves w r i t t e n n o t i c e that the o f f e r is accepted, e i t h e r p a r t y may t h e n f i l e t h e o f f e r and n o t i c e of acceptance together with proof of s e r v i c e t h e r e o f and t h e r e u p o n t h e c l e r k s h a l l e n t e r j u d g m e n t . An o f f e r n o t a c c e p t e d s h a l l be deemed w i t h d r a w n and e v i d e n c e t h e r e o f i s not admissible except i n a proceeding to determine costs. I f the j u d g m e n t f i n a l l y o b t a i n e d b y t h e o f f e r e e i s n o t more f a v o r a b l e t h a n t h e o f f e r , t h e o f f e r e e must pay t h e 6 2110060 c o s t s i n c u r r e d a f t e r t h e m a k i n g o f t h e o f f e r . The f a c t t h a t a n o f f e r i s made b u t n o t a c c e p t e d d o e s n o t p r e c l u d e a s u b s e q u e n t o f f e r . When t h e l i a b i l i t y o f one p a r t y t o a n o t h e r h a s b e e n d e t e r m i n e d b y v e r d i c t o r o r d e r o r j u d g m e n t , b u t t h e amount o r e x t e n t o f t h e l i a b i l i t y r e m a i n s t o be d e t e r m i n e d b y f u r t h e r proceedings, t h e p a r t y a d j u d g e d l i a b l e may make a n o f f e r o f j u d g m e n t , w h i c h s h a l l h a v e t h e same e f f e c t as a n o f f e r made b e f o r e t r i a l i f i t i s s e r v e d w i t h i n a reasonable time, not less t h a n t e n (10) d a y s , p r i o r t o t h e commencement o f h e a r i n g s t o d e t e r m i n e the amount o r e x t e n t o f l i a b i l i t y . " Under Atkinson Alabama v. Long, Thus, a r e f e r e n c e not made attorney fees to costs by Accor, then, 68 o f f e r each o f judgment fees. could that fees. ( A l a . C i v . A p p . 1 990 ) . to attorney by i n d i c a t i n g noted parties terms above, of the Rule the parties' agree w i t h trial the t r i a l had not reached arguments presented a i n a Rule attorney The o f f e r n o t have party does of referenced was t o b e a r i t s costs. As in do n o t i n c l u d e 5 5 9 S o . 2 d 5 5 , 58 constitute a reference judgment own law, costs court distinct the regarding the offer judgment. Based court have that o f t h e minds respective could determined a meeting of to the t r i a l the t r i a l and 68 court c o u r t , and t o t h i s filings that and a t o r a l the only r e a c h e d was t h a t different understanding 7 on t h e court both argument, we conclusion that the the parties each had about whether the 2110060 o f f e r e d a m o u n t i n c l u d e d an a m o u n t f o r a t t o r n e y the offer of judgment l e f t l a t e r d e c i s i o n by between the conclusion regarding Techs., that the the of 1991), trial which Engineers, (Ala. 234, trial a meeting of (Ala. between open f o r disagreement the of judgment. 238 disagreement Credit court's the Ex p a r t e 1 997) the minds Indus. (determining parties a meeting conclusion of Services, Inc., 946 cited with I n c . v. D o w n t o w n P r o p e r t i e s #1, In W h i t a k e r , setting of p a r t i e s to meeting of aside Whitaker, the the United affirmed over the one minds on F.2d the Rule minds 68 offer regarding 8 F.2d Whitaker 1222 (6th C i r . approval i n Auburn 675 States So. 2d at 417 Appeals court's 1226. court's of Court 415, of a judgment e n t e r e d 946 with federal district the federal district the i s i n keeping supreme c o u r t our judgment. approved a 2d Sixth Circuit decision the So. court's 1996). the of had agreement prevented Associated for supports offer fees This material clearly terms of the an court. p a r t i e s never the 707 i s s u e of a t t o r n e y issue). The v. that material portion trial parties Inc., a the the fees or whether on a Rule 68 offer Whitaker court determination that The judgment had the terms of not the come to offer of 2110060 judgment and t h e r e f o r e enforceable Like court contract that was the f e d e r a l the acceptance formed. district was invalid a n d no Id. court i n Whitaker, the trial i n the p r e s e n t case concluded that the p a r t i e s ' m a t e r i a l disagreement precluded, over as contract. a Our the terms matter of supreme of the offer law, the formation court has indicated of of judgment a that binding general c o n t r a c t p r i n c i p l e s a r e a p p l i e d t o R u l e 68 o f f e r s o f j u d g m e n t , see Auburn Eng'rs, conclusion is principles Techs., Habeb relief failed that the w r i t So. So. 2d a t 417, and t h e t r i a l consistent governing 707 has 675 2d contract a t 238. with a n d we application formation. a clear therefore of See Ex p a r t e Accordingly, to demonstrate she s e e k s , the court's we legal Indus. conclude right deny t h e p e t i t i o n f o r DENIED. Thompson, P . J . , and P i t t m a n Moore, J . , concurs and B r y a n , i n the r e s u l t , 9 that to the o f mandamus. PETITION the J J . , concur. without w r i t i n g .

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