Ex Parte Carpenter
510 So. 2d 549
Ala.
1987
Check Treatment

Lead Opinion

ADAMS, Justice.

We are of the opinion that the petition for writ of certiorari should be denied. However, our denial of the writ should not be construed as an adoption of the Court of Civil Appeals’ interpretation of Reynolds v. First Alabama Bank, 471 So.2d 1238 (Ala.1985), as it pertains to the awarding of attorney fees. Here, Judge Bradley has interpreted Reynolds as being inapposite because this case involves “the award of an attorney’s fee to a winning party in a fraud case not [emphasis added] involving a common fund.” In Reynolds, we reversed Judge Price’s holding that attorney fees must be awarded exclusively from the common fund established by plaintiffs’ attorneys. We said in Reynolds that part of the attorney fees should have been assessed against the defendant bank and not against the common fund; however, the existence of a common fund was not in that instance, and is not in the present case, a prerequisite to the awarding of attorney fees.

WRIT DENIED.

*550MADDOX, JONES, ALMON, SHORES, BEATTY, HOUSTON and STEAGALL, JJ., concur. TORBERT, C.J., concurs specially.



Concurrence Opinion

TORBERT, Chief Justice

(concurring specially).

I agree that the writ is due to be denied. As my dissent in Reynolds v. First Alabama Bank, 471 So.2d 1238 (Ala.1985), points out I believe that the Reynolds Court misapplied the historical rules that determined when an attorney fee award could be made against an opposing party.

Attorney fee awards are appropriate in equity cases 1) where the suit confers a substantial benefit on the members of an ascertainable class by creating a common fund, and such an attorney fee is paid from the fund, or 2) where an unfounded action or defense is brought or maintained in bad faith, vexatiously, wantonly, or for oppressive reasons, and such an award is made against the party bringing the action or defense. See my dissent in Reynolds, supra. Neither of these situations exists in this case; therefore, attorney fees should not have been awarded.