         Case: 12-16188   Date Filed: 06/19/2014   Page: 1 of 11


                                                                   [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)
               Case: 12-16188       Date Filed: 06/19/2014       Page: 2 of 11


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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