Mississippi Valley Title Insurance Company v. J. Garrison Thompson , 754 F.3d 1330 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-16188
________________________
D. C. Docket No. 2:11-cv-00538-WS-C
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY,
WELLS FARGO BANK, N.A.,
OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY,
Plaintiffs-Appellees,
versus
J. GARRISON THOMPSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(June 19, 2014)
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Before TJOFLAT, Circuit Judge, and MOORE* and SCHLESINGER,** District
Judges.
SCHLESINGER, District Judge:
This appeal presents a relatively simple question, but one that the Alabama
Supreme Court is best-equipped to answer: Does an “attorney agent” who works
under contract for a title insurance company provide a “legal service” within the
meaning of Ala. Code § 6–5–574, when he performs a title search, analyzes
documents in the chain of title, forms an unwritten opinion on the status of title
based on those documents, and then issues a commitment to insure or an insurance
policy based on his unwritten opinion? The District Court answered this question
in the negative and, therefore, did not subject this action to Alabama’s statute of
limitations for “legal service liability actions against . . . legal service provider[s]”
found within Ala. Code § 6–5–574. The District Court then granted summary
judgment to Plaintiff-Appellee Mississippi Valley Title Insurance Co. and its
affiliate, Old Republic National Title Insurance Co. (collectively “Mississippi
Valley”). Defendant-Appellant J. Garrison Thompson (“Thompson”) argues that
the District Court erred, and that it should have granted summary judgment in his
*
Honorable K. Michael Moore, United States District Judge for the Southern District of
Florida, sitting by designation.
**
Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.
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favor because Mississippi Valley’s action against him was time-barred by Ala.
Code § 6–5–574. He was, he argues, providing a legal service in his capacity as
“attorney agent” for Mississippi Valley.
After careful review of Alabama court decisions interpreting the meaning of
“legal service” both in connection with and apart from Ala. Code § 6–5–574, we
conclude that this appeal presents an issue of first impression that the Alabama
Supreme Court is best-suited to resolve. We therefore certify the question to the
Alabama Supreme Court.
I. FACTS AND PROCEDURAL HISTORY
Thompson is an attorney who practices law in Alabama. In February 2000,
Mississippi Valley and Thompson entered into an agreement that appointed him an
“attorney agent” authorized to issue title insurance commitments and policies on
behalf of Mississippi Valley. The briefs discuss at length Thompson’s hiring
process and the manual he received. But most important, for purposes of this
appeal, is Thompson’s own description of the work he performed. In his affidavit,
Thompson averred that his duties as attorney agent required him to: “perform a
title search, analyze the documents in the chain of title, draw conclusions from
those documents, and formulate an opinion as to the status of title and how the
documents in the chain of title affect record title to the property.” (DE 52–1 at p.
2). Thompson then issued commitments to insure and insurance policies.
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In 2001, and again in 2003, Thompson messed up. Namely, he missed a
prior mortgage that had been recorded in 1997 and did not except that prior
mortgage from coverage in a title insurance commitment and policy that he issued
in November 2001. He also failed to except a 2001 mortgage on the same property
from a title insurance commitment that he issued in October 2003.
Mississippi Valley brought a diversity suit against Thompson in September
2011. Thompson moved for summary judgment on the ground that Mississippi
Valley’s suit was time-barred under Ala. Code § 6–5–574. The District Court
denied his motion and instead granted summary judgment to Mississippi Valley,
holding that the statute of limitations did not apply. In the District Court’s view,
Thompson was not performing a legal service when he did the title search work,
formed an opinion on the insurability of title, and issued the insurance policy and
commitments to insure. After the banks involved entered a settlement, the District
Court entered judgment against Thompson in the amount of $94,697.20.
Thompson then initiated this appeal.
II. STANDARDS OF REVIEW
This court reviews a district court’s grant of summary judgment de novo,
United States v. One Piece of Real Prop. Located at 5800 SW 74th Ave., Miami,
Fla., 363 F.3d 1099, 1101 (11th Cir. 2004), applying the same standard the district
court applied, Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292,
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1314 (11th Cir. 2011). This court will affirm a grant of summary judgment if the
movant has shown “that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A
district court’s interpretation and application of a statute of limitations presents a
legal question that this Court reviews de novo. United States v. Gilbert, 136 F.3d
1451, 1453 (11th Cir. 1998).
III. DISCUSSION
Section 6–5–574(a) of the Alabama Code generally applies a two-year
limitations period to the filing of “legal service liability actions against a legal
service provider.” Ala. Code § 6–5–574(a). Under no circumstance may a legal
service liability action be commenced more than four years after the date on which
the act or omission occurred. Id. A “legal service provider” includes “[a]nyone
licensed to practice law by the State of Alabama or engaged in the practice of law
in the State of Alabama.” Id. § 6–5–572(2). Thompson clearly qualifies as a legal
service provider. A “legal service liability action” is defined as “[a]ny action
against a legal service provider in which it is alleged that some injury or damage
was caused in whole or in part by the legal service provider’s violation of the
standard of care applicable to a legal service provider.” Id. § 6–5–572(1). As the
Alabama Supreme Court has clarified, an action against a legal service provider is
not a “legal service liability action” unless it involves a claim “originating from
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[the] receipt of legal services.” Cunningham v. Langston, Frazer, Sweet & Freese,
P.A., 727 So. 2d 800, 803 (Ala. 1999).
Mississippi Valley brought this action against Thompson in September 2011
for events that occurred in November 2001 and October 2003—well beyond four
years later. Therefore, if this action is a “legal service liability action”—one that
originates from Mississippi Valley’s receipt of Thompson’s “legal
services”—Mississippi Valley’s action is clearly time-barred by § 6–5–574(a).
The Alabama Supreme Court has had occasion to define “legal service” in the title
insurance context, both in relation to and apart from the statute at issue in this
appeal. These decisions do not squarely resolve the issue of whether Thompson
was providing a legal service during his title search and insurance issuance
activities.
In Land Title Ins. Co. of Ala. v. State ex rel. Porter, 299 So. 2d 289, 290–91
(Ala. 1974), the State brought suit to enjoin a title insurance company’s non-
attorney agents from reviewing title records and issuing commitments with
specified conditions on the theory that they were engaged in the unauthorized
practice of law. The Alabama Supreme Court held that these actions by non-
attorney agents did not constitute the unauthorized practice of law. Id. at 296. The
court observed that “[i]t is clear that a title insurance company must be allowed to
review public records and specify any curative work to be done before it will issue
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a policy.” Id. at 295. Although the decision did not involve an interpretation of
Ala. Code § 6–5–574 and dealt with non-attorney agents, Land Title would seem to
suggest that making decisions about the insurability of title and issuing
commitments to insure does not involve the practice of law.
In Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala. 1985),
however, the Alabama Supreme Court emphasized the narrowness of Land Title
and noted that a non-lawyer engages in the unauthorized practice of law when he
renders a title opinion before issuing insurance. Id. at 556 (citing Land Title for the
proposition that for a non-attorney to “undertake to render a title opinion on the
property . . . would have amounted to the unauthorized practice of law”). Like
Land Title, Upton did not involve an interpretation of Ala. Code § 6–5–574 and
dealt only with non-attorney agents. But at the very least, Upton’s dictum suggests
that one provides a legal service when he produces a formal, written opinion on the
insurability of title.
Finally, in Mississippi Valley Title Ins. Co. v. Hooper, 707 So. 2d 209, 211
(Ala. 1997), the Alabama Supreme Court had occasion to interpret Ala. Code §
6–5–574 directly. The court found that a title insurance company’s attorney agent
provided a “legal service” within the meaning of Ala. Code § 6–5–574 when he
wrote title opinions and acted on them to issue insurance policies. Id. at 215–16.
In this case, Mississippi Valley sued one of its attorney agents for mistakes he
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made when performing title searches and issuing insurance policies. Id. at 211.
The trial court twice dismissed the suit on the grounds that the limitations period
set forth in Ala. Code § 6–5–574 applied, and Mississippi Valley did not allege a
breach of any duty apart from one that the attorney agent owed as a legal service
provider. Id. at 211–12. The Alabama Supreme Court agreed, citing Upton. Id. at
215–16. Nowhere in its Hooper opinion did the court indicate that the attorney
agent ever advised the title insurance company about the insurability of title.
Rather, it appears that the attorney agent had simply decided to issue insurance
based on a written title opinion that he had provided to himself. This, the court
held, amounted to the provision of legal services, thus triggering the limitations
period in Ala. Code § 6–5–574. Id. at 215–16.
A narrow reading of Land Title, Upton, and Hooper is that an attorney agent
provides a legal service only when the legal opinion upon which he bases his
decision to insure (or commit to insure) title is a formal, written one. In essence,
this is the interpretation that the District Court adopted below and that Mississippi
Valley urges this Court to adopt on appeal. A broader reading of the cases is that
an attorney agent performs a legal service when he forms a legal opinion, whether
written or unwritten, and insures or commits to insure title based on that opinion.
This is the interpretation that Thompson urges this Court to adopt if it does not
certify a question to the Alabama Supreme Court.
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Both readings urged by the Parties are plausible, and neither the Parties’
briefs nor our own research have yielded any other Alabama Supreme Court
opinions that interpret the meaning of “legal service” in Ala. Code § 6–5–574. In
addition, our research has revealed no other Alabama appellate decisions that
interpret the meaning of “legal service” in Ala. Code § 6–5–574 in the title
insurance context. In short, we can find no Alabama appellate decisions that
directly speak to whether an attorney agent provides a legal service when he
conducts a title search and then insures (or commits to insure) title based on an
informal, unwritten opinion about the insurability of title.
IV. CERTIFIED QUESTION
“When substantial doubt exists about the answer to a material state law
question upon which the case turns, a federal court should certify that question to
the state supreme court in order to avoid making unnecessary state law guesses and
to offer the state court the opportunity to explicate state law.” Forgione v. Dennis
Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996) (per curiam) (citation
omitted). “Only through certification can federal courts get definitive answers to
unsettled state law questions. Only a state supreme court can provide what we can
be assured are ‘correct’ answers to state law questions, because a state’s highest
court is the one true and final arbiter of state law.” Id. (internal quotation marks
omitted). Because we find that the resolution of this appeal turns on a material,
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unsettled state-law question, we believe that the best course of action is to wait
until the final arbiter of Alabama law has spoken.
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA
PURSUANT TO RULE 18 OF THE ALABAMA RULES OF APPELLATE
PROCEDURE: We respectfully certify the following question TO THE
SUPREME COURT OF ALABAMA AND THE HONORABLE JUSTICES
THEREOF:
Is an attorney whom an insurance company hires as an attorney
agent providing a “legal service” within the meaning of Ala. Code
§ 6–5–574 when he performs a title search, forms an unwritten
opinion about the status of title, and then acts on that unwritten
opinion by issuing a commitment to insure or an insurance
policy?
Our phrasing of the certified question does not restrict the Alabama Supreme
Court’s consideration of this case. As the former Fifth Circuit has stated:
[T]he particular phrasing used in the certified question is not to
restrict the Supreme Court’s consideration of the problems involved
and the issues as the Supreme Court perceives them to be in its
analysis of the record certified in this case. This latitude extends to
the Supreme Court’s restatement of the issue or issues and the manner
in which the answers are to be given, whether as a comprehensive
whole or in subordinate or even contingent parts.
Martinez v. Rodriguez, 394 F.2d 156, 159 n.6 (5th Cir. 1968) (citations omitted);
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see also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc) (adopting as binding precedent all decisions of the former Fifth Circuit
rendered prior to the close of business on September 30, 1981).
To assist the Alabama Supreme Court, we hereby order that the entire record
in this case, together with copies of the Parties’ briefs, be transmitted herewith.
QUESTION CERTIFIED.
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