Rel: December 1, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2023-2024

_________________________

SC-2023-0058

_________________________

Eli Global, LLC, and Greg Lindberg

v. 

Ronald Cieutat; Todd Vereen; Deborah Simison, as personal

representative of the Estate of David Glenn Finnegan, deceased;

Floyd Slay, Jr.; Timothy Andrews; Tyla Fowlkes; Mark Bier and 

Shawn Bier, as personal representatives of the Estate of Debra 

Little, deceased; Thomas Williams; Erin Bailey Kelso; 

Jan Wheeler; Eugene Dreher IV; Nancy Dreher; Joseph Moose;

Phillip Epstein; Michael Dandurand; William McFarland; 

Angela Clark; Carol Jean Moorhead; and Michael Rudge

Appeal from Mobile Circuit Court

(CV-20-900993)
SC-2023-0058

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MENDHEIM, Justice.

Eli Global, LLC, and Greg Lindberg appeal, challenging a summary 

judgment entered against them by the Mobile Circuit Court in an action 

commenced by Ronald Cieutat, Todd Vereen, and multiple other 

plaintiffs involving Eli Global's alleged failure to fulfill its obligations on 

a promissory note and Lindberg's alleged failure to fulfill his obligations 

on a guaranty of that promissory note. Eli Global and Lindberg also 

challenge the circuit court's award of attorney fees and expenses to the 

plaintiffs. We affirm the circuit court's summary judgment, but we 

remand the case to the circuit court for it to enter an order articulating 

its reasons for the award of attorney fees and expenses.

I. Facts

In 2002, Cieutat and Vereen founded Hemophilia Preferred Care, 

Inc., a company focused on treating individuals with hemophilia. The 

company eventually expanded its business via several affiliated entities 

to include patients with conditions such as Crohn's disease, hepatitis C, 

multiple sclerosis, rheumatoid arthritis, and other specialized conditions. 

The flagship entity became HPC, LLC ("HPC"), and its affiliated entities 

were: Hemophilia Preferred Care of Memphis, Inc.; HPC Biologicals, Inc.;
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HPCNC, Inc.; HPC Specialty Rx West Virginia, Inc.; HPC Speciality Rx 

of Kansas, Inc.; Hemophilia Preferred Care of Oklahoma, Inc.; HPC 

Specialty Rx Reed, Inc.; and Hemophilia Preferred Care of Mississippi, 

Inc. Cieutat and Vereen served as the chief officers of those entities, and 

together they owned a majority stake in HPC and its affiliated entities, 

but 21 other individuals held smaller shares of HPC and its affiliated 

entities (Cieutat, Vereen, and the other owners are collectively referred 

to as "the Sellers").

In mid-2017, Eli Global agent Michael Pereira approached Cieutat, 

who was serving as chief executive officer ("CEO") of HPC and its 

affiliated entities, about Eli Global's interest in purchasing HPC and its 

affiliated entities.1 On November 16, 2017, Eli Global formed Specialty 

Pharmacy Investments, LLC, which later changed its name to HPCSP 

Investments, LLC ("HPCSP"), for the express purpose of acquiring HPC 

and its affiliated entities. 

1In an affidavit submitted by Pereira in this litigation, Pereira 

explained that "Eli Global, LLC, [is] the trade name for a group of 

affiliated companies operating in various industries throughout the 

United States and other countries."
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4

On January 19, 2018, HPCSP entered into an "Equity Purchase 

Agreement" with the Sellers in which HPCSP agreed to purchase a 100% 

interest in HPC and its affiliated entities. The Equity Purchase 

Agreement designated Cieutat as the "Sellers' Representative" for the 

transaction, provided that the "Sellers' Representative shall have the 

power and authority to receive from [HPCSP] any and all amounts 

payable by [HPCSP] to Sellers under this Agreement, the Sellers' Note 

and the Equity Equivalence Agreement,[2] on behalf of Sellers," and 

stated that the "Sellers' Representative agrees ... to allocate and 

distribute such payments to Sellers in such amounts, at such times and 

on such terms as may be separately agreed by Sellers and Sellers' 

Representative." One of the "Conditions to Closing" provided in the 

Equity Purchase Agreement was: "Sellers' Representative shall have 

received a promissory note issued by Eli Global, LLC, in an aggregate 

original principal amount of $12,200,000, in substantially the form of, 

2The parties do not discuss the Equity Equivalence Agreement in 

their briefs. By its terms, the Equity Equivalence Agreement gave the 

Sellers "certain contingent, deferred consideration in return (and as an 

additional inducement) for the Sellers' agreement to sell the Acquired 

Shares (as defined in the [Equity] Purchase Agreement), which 

additional consideration will be determined based on the [new] 

Company's future financial performance in accordance therewith."
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and having the terms set forth on, Exhibit D (the 'Sellers Note'), duly 

executed by Eli Global, LLC." Indeed, the Equity Purchase Agreement 

defined the "Purchase Price" for the transaction to be "the Closing 

Payment, plus the Equity Equivalence Agreement Payments, plus the 

Sellers' Note." The Equity Purchase Agreement provided that it was to 

be "governed by, construed and enforced in accordance with the laws of 

the State of New York without giving effect to the principles of conflict of 

laws." 

As part of the acquisition of HPC and its affiliated entities, HPCSP 

also executed on January 19, 2018, an "Executive Employment 

Agreement" with Cieutat to retain Cieutat as CEO of HPCSP for an 

initial term of five years.

The sale of HPC and its affiliated entities closed on April 13, 2018. 

It is undisputed that, on that date, Eli Global executed a "Promissory 

Note" in the amount of $12,200,000 that Cieutat received as the Sellers' 

representative on behalf of all the Sellers. Because the terms of the 

Promissory Note are integral to the arguments in this appeal, we set out 

here the key provisions of the Promissory Note:

"For value received, the undersigned, Eli Global, LLC, a 

Delaware limited liability company ('Maker'), hereby 
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promises to pay to the order of Ron Cieutat (on behalf of 

Sellers (as defined below)), as Sellers' Representative 

('Payee'), at such place, or to such other party, as the legal 

holder of this Promissory Note may from time to time 

designate in writing, in lawful currency of the United States 

of America, the principal sum of Twelve Million Two Hundred 

Thousand Dollars ($12,200,000), together with interest upon 

the principal amount at the rate of 4.0% per annum, in 

immediately available funds. The principal balance of this 

Promissory Note and all accrued interest thereon will be 

payable as set forth below. This Promissory Note is being 

issued pursuant to Section 9.2(c) of that certain Stock 

Purchase Agreement, dated as of January 19, 2018 (the 

'[Equity] Purchase Agreement'), by and among [Cieutat], as 

Sellers' Representative, HPCSP Investments, LLC, a North 

Carolina limited liability company, as buyer (' Buyer'), and the 

individuals party thereto as sellers ('Sellers'). Capitalized 

terms used but not otherwise defined herein shall have the 

meanings set forth in the Purchase Agreement.

"1. Payments; Maturity Date. [Eli Global] will repay this 

Promissory Note in five (5) equal annual installments of 

principal in the amount of $2,440,000 each, plus all accrued 

interest to the date of each such payment, with such payments 

due and payable on the first five anniversaries of the date

hereof (such final payment date, the 'Maturity Date'). If not 

sooner repaid, the principal amount of this Promissory Note 

and all accrued interest thereon will be due and payable in 

full on the Maturity Date. All payments of principal and 

interest and any other charges due hereunder shall be 

payable to [Eli Global] through any recognized means 

designated by [Cieutat, as the Sellers' representative,]

including, without limitation, electronic transfer, wire 

transfer and/or debit. [Eli Global] agrees that the obligations 

to make the payments set forth in this paragraph are 

guaranteed pursuant to the Guaranty attached hereto as 

Exhibit A.
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"....

"5. Right of Offset. In accordance with Section 11.10 of 

the [Equity] Purchase Agreement, [Eli Global] is authorized, 

at any time and from time to time, to the fullest extent 

permitted by Law, to set-off and apply any and all amounts 

payable by [Eli Global] to [Cieutat, as the Sellers'

representative,] under this Promissory Note against any 

amounts payable by [Cieutat, as the Sellers' representative,]

to [HPCSP] under Article XI of the [Equity] Purchase 

Agreement or otherwise. In the event of such offset, [Eli 

Global] will provide notice to [Cieutat, as the Sellers'

representative,] of such setoff amount and promptly deliver a 

replacement Promissory Note reflecting the new principal 

amount owed thereunder to [Cieutat, as the Sellers' 

representative]. [Cieutat, as the Sellers' representative,]

agrees, in exchange for such replacement Promissory Note 

and upon receipt thereof, to return this Promissory Note to 

[Eli Global] for cancellation.

"6. Default. A default under this Promissory Note will 

exist if any of the following occurs (each an 'Event of Default'):

"(a) If [Eli Global] fails to perform any 

obligation or covenant under this Promissory Note 

and such failure continues for at least fifteen (15) 

business days after the date on which [Eli Global]

has been given notice of such failure to perform ....

"....

"7. Acceleration. Upon any Event of Default under this 

Promissory Note, the entire principal sum hereof may, at the 

sole option of [Cieutat, as the Sellers' representative], be 

declared at once due and payable, without demand or notice, 

the same being expressly waived, time being of the essence of 

this obligation .... [Eli Global] shall pay all reasonable and 

actual costs and expenses incurred by [Cieutat, as the Sellers' 
SC-2023-0058

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representative,] in connection with collecting or attempting to 

collect any sums due under this Promissory Note or enforcing 

any provision of this Promissory Note, including but not 

limited to reasonable attorneys' fees and disbursements and 

applicable statutory costs, whether incurred out of court or in 

litigation, including pre-trial, appellate and bankruptcy 

proceedings.

"8. No Waiver; Remedies Cumulative. The failure of 

[Cieutat, as the Sellers' representative,] or [Eli Global] to 

exercise any right or remedy provided hereunder or available 

at law shall not be a waiver or release of such rights or 

remedies or the right to exercise any right or remedy at 

another time. The remedies provided [Cieutat, as the Sellers' 

representative,] in this Promissory Note and the [Equity] 

Purchase Agreement shall be cumulative and concurrent, and 

shall be in addition to every other right or remedy now or 

hereafter provided by law or equity. Such remedies may be 

pursued singly, successively or together against [Eli Global], 

any guarantor of this Promissory Note, or any other security 

for this Promissory Note at the option of [Cieutat, as the 

Sellers' representative]. [Eli Global] hereby expressly waives 

any right to make a claim for or relating to the marshaling of 

assets. The failure to exercise or delay in exercising any such 

remedy shall not be construed as a waiver or release thereof.

"....

"13. Governing Law. This Promissory Note shall be 

governed by, construed and enforced in accordance with the 

laws of the State of New York without giving effect to the 

principles of conflict of laws."

It is also undisputed that on the same date, April 13, 2018, and 

pursuant to the terms of the Promissory Note, Lindberg executed a 

"Guaranty" of payment on the Promissory Note. Because the terms of the 
SC-2023-0058

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Guaranty are also integral to the arguments in this appeal, we set out 

here the provisions of the Guaranty:

"This Guaranty ('Guaranty'), dated as of April 13, 2018, 

is made by Greg Lindberg ('Guarantor') in favor and for the 

benefit of Ron Cieutat (on behalf of Sellers), as Sellers' 

Representative ('Payee').

"Reference is made to that certain Promissory Note, in 

an aggregate original principal amount of $12,200,000, issued 

by Eli Global, LLC, a Delaware limited liability company 

('Maker'), to [Cieutat, as the Sellers' representative,] on the 

date hereof (the 'Promissory Note').

"By his signature below [Lindberg] hereby irrevocably 

and unconditionally guaranties for the benefit of [Cieutat, as 

the Sellers' representative], as primary obligor and not merely 

as surety, the due and punctual payment in full of all 

obligations owing by [Eli Global] under the Promissory Note 

when the same shall become due, whether at stated maturity, 

by required prepayment or otherwise (collectively, the 

'Guarantied Obligations').

"This Guaranty is a continuing guaranty and shall 

remain in effect until all of the Guarantied Obligations shall 

have been paid in full. This Guaranty is a guaranty of 

payment when due and not of collectability. [Cieutat, as the 

Sellers' representative,] may enforce this Guaranty upon the 

occurrence of a failure by [Eli Global] to pay any of the 

payments due pursuant to the Promissory Note.

"This Guaranty is not intended, and will not be 

construed, to create any rights in any parties other than 

[Cieutat, as the Sellers' representative,] and no other person 

may assert any rights as third-party beneficiary hereunder.
SC-2023-0058

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"This Guaranty shall be governed by, construed and 

enforced in accordance with the laws of the State of New York 

without giving effect to the principles of conflict of laws."

It is undisputed that in April 2019 Eli Global made its first of the 

five installment payments pursuant to the terms of the Promissory Note 

to Cieutat, as the Sellers' representative,3 but that Eli Global failed to 

make its 2020 installment payment even after Cieutat, on behalf of the 

Sellers, sent Eli Global and Lindberg a written notice of default. Eli 

Global likewise has not made any subsequent installment payments. It 

is undisputed that Lindberg made no payments pursuant to the 

Guaranty.

On October 15, 2019, Cieutat's employment as CEO of HPCSP was 

terminated by HPCSP portfolio manager Michael Pereira. In a 

termination letter Pereira sent to Cieutat, Pereira stated that Cieutat 

was being fired for cause based on an allegedly severe decline in the 

company's financial health and because of Pereira's determination that 

Cieutat had "engaged in discriminatory conduct based on gender, 

3Eli Global did not make its first installment payment in a timely 

manner, but it cured the default within 15 days of being notified of its 

failure to make the payment.
SC-2023-0058

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including but not limited to, gender discrimination, pregnancy 

discrimination, and pay discrimination." 

On May 6, 2020, Cieutat, Vereen, and the other 21 Sellers filed a 

complaint in the Mobile Circuit Court against Eli Global and Lindberg.4

The Sellers asserted a claim of breach of contract against Eli Global for 

its failure to make payments pursuant to the Promissory Note. The 

Sellers asserted a claim against Lindberg for breach of the Guaranty.5

Cieutat, on behalf of the Sellers, attached signed and executed copies of 

the Promissory Note and the Guaranty to the complaint. 

On July 27, 2020, Eli Global filed an answer to the complaint and 

counterclaims against Cieutat. Eli Global's counterclaims against 

4On February 18, 2020, the Sellers filed a separate lawsuit against 

HPCSP and Lindberg in the Mobile Circuit Court alleging that HPCSP 

and Lindberg had failed to properly allocate the purchase price in tax 

filings as required by the Equity Equivalence Agreement, resulting in 

higher tax liability on the Sellers. HPCSP subsequently removed that 

case to the United States District Court for the Southern District of 

Alabama, but it was later remanded to the Mobile Circuit Court.

5During the course of the litigation below, two of the Sellers died,

and the personal representatives of their estates were substituted as 

plaintiffs, and four of the Sellers voluntarily dismissed their claims 

against Eli Global and Lindberg at certain points in the litigation, thus 

leaving only the individuals identified as appellees in the style of this 

case.
SC-2023-0058

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Cieutat alleged fraud, intentional/negligent misrepresentation, and 

unjust enrichment. Eli Global alleged that Cieutat had failed to disclose 

during the negotiations to purchase HPC and its affiliated entities that 

Cieutat had engaged in employment discrimination as CEO of HPC, 

behavior that substantially reduced the value of the company. On 

September 4, 2020, Lindberg filed an answer to the complaint and 

counterclaims against Cieutat, which were almost identical to Eli 

Global's answer and counterclaims.

On October 5, 2020, Cieutat filed a motion to dismiss the 

counterclaims asserted against him by Eli Global and Lindberg. In that 

motion, Cieutat asserted, among other things, that,

"[s]hortly before the first installment payment was due [on 

the Promissory Note], Mr. Lindberg was indicted based on 

evidence that he attempted to bribe the North Carolina 

Insurance Commissioner. ... Strapped for cash, Eli Global 

terminated Mr. Cieutat under the guise that he had been 

engaging in unidentified discriminatory conduct.

"[Eli Global and Lindberg] failed to make the second 

installment payment under [the] Promissory Note in April 

2020. A federal jury found Mr. Lindberg guilty of bribery in 

May 2020, and he was sentenced to seven years in prison." 

On November 19, 2020, Eli Global and Lindberg filed a response in 

opposition to Cieutat's motion to dismiss their counterclaims. On 
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December 8, 2020, the circuit court denied Cieutat's motion to dismiss, 

but the circuit court treated the motion as a motion for a more definite 

statement with respect to the counterclaims alleging fraud, which the 

circuit court granted. On January 22, 2021, Eli Global and Lindberg filed 

an amended counterclaim against Cieutat in which they offered more 

detailed allegations of fact concerning Cieutat's alleged discriminatory 

conduct. On February 1, 2021, Cieutat filed an answer to Eli Global and 

Lindberg's amended counterclaim.6

On December 6, 2019, Cieutat commenced a lawsuit in Mobile 

Circuit Court against Eli Global, HPCSP, and Pereira asserting claims of 

breach of contract, fraudulent inducement, and intentional interference 

with contractual relations ("the employment lawsuit"). On January 19, 

2021, Cieutat, Eli Global, HPCSP, and Pereira executed a "Settlement 

Agreement and Mutual Release" that precipitated a dismissal of the 

employment lawsuit. A portion of the settlement agreement contained a 

mutual release of parties and claims to the extent described therein. In 

pertinent part, that portion of the settlement agreement provided:

"C. MUTUAL RELEASE OF PARTIES

6On December 22, 2021, Cieutat filed an amended answer to 

Eli Global and Lindberg's amended counterclaim.
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"For and in consideration of the obligations and 

agreements set forth herein, consideration which the 

Parties[7] acknowledge is sufficient, the Parties hereby agree 

to the following:

"Except as expressly outlined in Section C(vi) and C(vii), 

the Parties hereby irrevocably and unconditionally release 

and forever discharge each other and their representatives, 

attorneys, affiliates, officers, directors, successors, heirs and 

assigns ('Released Parties') with respect to any and all claims 

and causes of action of any nature whatsoever, both past and 

present, known and unknown, foreseen and unforeseen, at 

law or in equity, which were or could have been asserted by 

the Parties or on behalf of the Parties by any person, 

government authority, or entity, arising in connection with, 

resulting from, or relating in any way to the Lawsuit, or 

relating, directly or indirectly, to Cieutat's employment with 

Employer Parties,[8] and any affiliates. ...

"....

"vi. Anything contained in this Agreement to 

the contrary notwithstanding, the terms of Section 

C shall not apply to any claims or defenses brought 

in the following lawsuits currently on file:

"(i) Ronald Cieutat et al. v. 

HPCSP Investments, LLC and Greg E. 

Lindberg, in the Circuit Court of 

Mobile County, Alabama, Case No. 

02-CV-2020-900422.00; and

7The "Parties" are defined earlier in the settlement agreement to be 

HPCSP, Eli Global, Pereira, and Cieutat.

8The "Employer Parties" are defined earlier in the settlement 

agreement to be HPCSP, Eli Global, and Pereira.
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"(ii) Ronald Cieutat et al. v. Eli 

Global, LLC and Greg E. Lindberg, in 

the Circuit Court of Mobile County, 

Alabama, Case No. CV-2020-

900993.00.

"vii. Anything contained in this Agreement 

to the contrary notwithstanding, the terms of this 

Section C shall not apply to any claims Cieutat, the 

Employer Parties, or others have or may have in 

the future with respect to any of the following:

"(i) The Equity Purchase 

Agreement executed January 19, 2018;

"(ii) The Equity Equivalence 

Agreement executed on our about 

April 13, 2018; and

"(iii) The Promissory Note 

executed on or about April 13, 2018.

"Except as expressly outlined in Section C(vi) and C(vii), 

it is understood and agreed that the release set forth herein 

is intended as and shall be deemed to be a full and complete 

release of any and all claims that the Parties may have arising 

out of Cieutat's employment with Employer Parties and/or the 

Employment Agreement, arising on or before the date of 

execution of this Agreement, and said release is intended to 

cover and does cover any and all causes of action thereof and 

arising out of or in connection with any occurrence arising on 

or before the Effective Date of this Agreement."

On December 22, 2021, the Sellers filed a summary-judgment 

motion and a brief and exhibits in support thereof. On August 11, 2022, 
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the Sellers supplemented their summary-judgment motion. In their 

supplement, the Sellers attempted to refute Eli Global and Lindberg's 

allegations asserting that the reason Eli Global refused to make further 

payments on the Promissory Note was because Eli Global had been 

fraudulently induced to execute the Promissory Note without being 

informed of Cieutat's alleged discrimination against women employed by

HPC. The Sellers argued that Eli Global had defaulted on the Promissory 

Note because of financial difficulties with the loan it had obtained to help 

finance the purchase of HPC and its affiliated entities. The Sellers also 

alleged that Eli Global was "cash strapped and trying to fund the 

criminal defense of Lindberg from approximately March 2019 until the 

fall of 2019."

On August 23, 2022, Eli Global and Lindberg filed a response in 

opposition to the Sellers' summary-judgment motion along with exhibits 

in support thereof. In their opposition, Eli Global and Lindberg continued 

to assert that "Cieutat had a long-standing history of discriminating 

against women and women with children, abusing employees by cursing 

at and threatening them, and conducting his business by instilling fear 

and intimidating others," but that such behavior had been concealed from 
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Eli Global and Lindberg until after the sale of HPC and its affiliated 

entities. They argued that 

"had [Eli Global and Lindberg] known they were purchasing 

a company with such corrupt leadership they would not have 

agreed to execute the Promissory Note and Guaranty or would 

not have agreed to the amount set forth in the Note. 

[Eli Global and Lindberg] did not pay for the company they 

were led to believe they were getting and were forced to restructure and overhaul the company as a result of Cieutat's 

damaging behavior. Consequently, [Eli Global and Lindberg] 

were justified in any alleged non-payment and a fact issue as 

to that justification remains."

On August 24, 2022, the Sellers filed their reply to Eli Global and 

Lindberg's opposition to the summary-judgment motion along with 

several exhibits in support thereof. 

On September 21, 2022, the circuit court entered its initial order 

addressing the Sellers' summary-judgment motion. In that order, the 

circuit court entered a summary judgment in favor of the Sellers

"on the claims asserted by [the Sellers] and all counterclaims 

asserted against [Cieutat].

"Judgment is hereby entered in favor of [the Sellers] in 

the principal amount of $9,760,000.00 plus interest of 

$1,450,989.60 through September 21, 2022. Additional 

interest per diem of $1,626.67 shall accrue beginning 

September 22, 2022, until the judgment is satisfied.

"[The Sellers] have thirty (30) days from the date of this 

Order to submit an affidavit and fee bills setting forth their 
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request for attorneys' fees, expenses, and costs. [Eli Global 

and Lindberg] have 14 days to object, following which date, 

the Court will enter judgment for reasonable attorneys' fees, 

expenses, and costs."

(Footnote omitted.)

On October 5, 2022, the Sellers submitted a "Motion to Enter 

Attorneys' Fees and Costs Award." In that motion, the Sellers noted that 

the Promissory Note contained a provision requiring Eli Global to pay 

attorney fees and expenses incurred by the Sellers in connection with 

attempting to collect sums due under the Promissory Note. They 

explained that Cieutat and Vereen had split attorney fees and expenses 

in this case, that two law firms and a separate attorney had been engaged 

for the case, and that the total amount of attorney fees was $208,491.75, 

and the total amount of expenses was $15,853.38. The Sellers attached 

affidavits from Cieutat, Vereen, and one of their attorneys, Jennifer S. 

Holifield, in support of their motion. Holifield testified in her affidavit to 

the hourly rate charged by herself, by the other attorney in her firm who 

worked on the case, and by her firm's paralegals. Holifield stated that 

she had reviewed the invoices from the other attorneys for the Sellers 

and that their "rates are standard for the areas in which they were 

charged, and were fair and reasonable for the work that was performed." 
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She also testified that she was familiar with and had considered the 

factors to be considered when determining the appropriate amount of an 

award of attorney fees, which were set forth in Peebles v. Miley, 439 So. 

2d 137 (Ala. 1983). After listing those factors, Holifield stated: "[I]t is my 

professional opinion that the attorneys' fee and expenses of $224,345.13 

charged to [the Sellers] in this matter is fair, standard and reasonable, 

was necessary, and is due to be awarded against [Eli Global and 

Lindberg], jointly and severally, under the promissory note and 

guaranty." The Sellers also submitted slightly redacted copies of a large 

number of invoices from their attorneys that documented charged fees 

and expenses.

On October 7, 2022, the circuit court entered an order awarding the 

Sellers $224,345.13 in attorney fees and expenses to be paid by Eli Global 

and Lindberg "jointly and severally." On October 11, 2022, the circuit 

court set aside its October 7, 2022, order, and it gave Eli Global and 

Lindberg until October 20, 2022, to file an objection to the Sellers' motion 

for payment of attorney fees and expenses.

Shortly thereafter, Eli Global and Lindberg obtained new counsel 

to represent them in this case. On October 20, 2022, Eli Global and 
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Lindberg filed their "Opposition and Objections to Plaintiffs' Motion to 

Enter Attorneys' Fees and Costs Award." In that opposition, Eli Global 

and Lindberg argued that the requested attorney fees and expenses were 

"unreasonable and unsupported." Specifically, they contended that some 

fees were redundant, that internal law-firm billing records were 

insufficient to demonstrate the actual cost of incurred expenses, and that 

some of the attorney fees and expenses were for "unsuccessful motions or 

motions necessitated by [the Sellers'] own conduct," such as when the 

Sellers switched law firms during the litigation.

On October 21, 2022, Eli Global and Lindberg filed a Rule 59(e), 

Ala. R. Civ. P., postjudgment motion requesting that the circuit court 

alter, amend, or vacate the summary judgment entered for the Sellers. 

In that motion, for the first time, Eli Global and Lindberg contended that 

the summary judgment should be vacated because the Promissory Note 

was a negotiable instrument under New York's version of the Uniform 

Commercial Code ("the New York UCC") and the Sellers never presented 

"any evidence that they are (or any of them is) the owner and holder of 

the negotiable instrument underlying their note and guaranty claims." 

Because of that alleged lack of evidence, Eli Global and Lindberg insisted, 
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the summary judgment should be vacated. Eli Global and Lindberg also 

argued, for the first time, that Cieutat had released Lindberg from any 

liability on the Guaranty in the settlement agreement executed in the 

employment lawsuit. Finally, the postjudgment motion contended that 

the circuit court's summary-judgment order was unclear as to whether 

the judgment amount was due to be paid only to Cieutat on behalf of all 

the Sellers or whether "each existing [Seller] is entitled to judgment 

against Eli Global and Lindberg in the specified amounts."

On December 13, 2022, the Sellers filed a response to Eli Global and 

Lindberg's postjudgment motion. In their response, the Sellers first noted 

that Eli Global and Lindberg's main arguments were entirely new. They 

further contended that the Promissory Note was not a negotiable 

instrument under the New York UCC; that, even if it was, there was 

never any dispute that Cieutat held the Promissory Note; that such an 

objection was an affirmative defense that Eli Global and Lindberg never 

pleaded; and that Cieutat never released Lindberg from his obligation 

under the Guaranty. 

Also on December 13, 2022, the Sellers filed a reply to Eli Global 

and Lindberg's opposition to the Sellers' motion for payment of attorney 
SC-2023-0058

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fees and expenses. The Sellers responded to each of the arguments from 

Eli Global and Lindberg in detail. In particular, the Sellers discussed the 

applicability of the Peebles factors at length. Additionally, the Sellers 

submitted along with their reply a second affidavit from attorney 

Holifield in which she provided further explanation for why she believed 

the fee award was reasonable. Eli Global and Lindberg responded by 

submitting an affidavit from one of their attorneys, Abigail R.S. 

Campbell, asserting that Eli Global and Lindberg's production of 

discovery was appropriate and that all requested depositions were 

necessary.

On December 21, 2022, the circuit court entered an order it titled 

"Final Judgment." Because the details of that order are integral to 

arguments in this appeal, we set out the substance of the December 21, 

2022, order here:9

"The Court on December 14, 2022, heard [the Sellers']

Motion to Enter Attorneys' Fees and Costs Award; [Eli Global 

and Lindberg's] Opposition and Objections to [the Sellers']

Motion to Enter Attorneys' Fees and Costs Award; [the 

Sellers'] Reply to [Eli Global and Lindberg's] Opposition and 

Objections to [the Sellers'] Motion to Enter Attorneys' Fees 

and Costs Award; [Eli Global and Lindberg's] Rule 59(e) 

Motion to Alter, Amend, or Vacate Judgment; and [the 

9The circuit court's record citations are omitted.
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Sellers'] Objection to [Eli Global and Lindberg's] Rule 59(e) 

Motion to Alter, Amend, or Vacate Judgment. The court 

considered the above motions, responses, replies, materials 

submitted; the pleadings on file; and counsel's arguments and 

concludes as follows:

"1. The Court's prior order on [the Sellers'] Motion for 

Summary Judgment should be amended to clarify that the 

judgment awards Ronald Cieutat in his representative 

capacity only a single judgment amount (for the purposes of 

collecting the judgment), instead of awarding each [Seller] an 

independent judgment against Eli Global, LLC and Greg 

Lindberg; however, nothing herein shall be construed as 

removing or altering each [Seller's] right as between 

themselves to their share of the judgment;

"2. [The Sellers'] motion to enter attorneys' fees and 

costs award is granted; and

"3. Except as stated in the preceding paragraph number 

one, [Eli Global and Lindberg's] Rule 59(e) Motion to Alter, 

Amend, or Vacate Judgment is denied.

"Accordingly, judgment is hereby entered in favor of 

Ronald Cieutat in his representative capacity on behalf of all 

of [the Sellers], jointly and severally against Defendants 

Eli Global, LLC d/b/a Global Growth and Greg Lindberg, 

(a) in the principal amount of $9,760,000.00 plus interest of 

$1,450,989.60 through September 21, 2022, and additional 

interest per diem of $1,626.67 beginning on September 22, 

2022, until the judgment is satisfied; (b)(i) $61,330.00 in 

attorneys' fees and $4,446.96 in expenses with the Baker 

Donelson firm, (ii) $17,575.00 in attorneys' fees with Bob 

Clute, and (iii) $138,211.75 in attorneys' fees and $11,406.42 

in expenses with the Speegle Hoffman firm; and (c) all of 

which shall accrue post-judgment interest at the highest 

lawful rate.
SC-2023-0058

24

"This is a final and appealable judgment, and all other 

relief not expressly granted in this judgment is denied."

Eli Global and Lindberg appeal from the circuit court's 

December 21, 2022, order.

II. Standard of Review

"This Court's review of a summary judgment is de novo. 

Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 

(Ala. 2003). We apply the same standard of review as the trial 

court applied. Specifically, we must determine whether the 

movant has made a prima facie showing that no genuine issue 

of material fact exists and that the movant is entitled to a 

judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue 

Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 

952-53 (Ala. 2004). In making such a determination, we must 

review the evidence in the light most favorable to the 

nonmovant. Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986). 

Once the movant makes a prima facie showing that there is 

no genuine issue of material fact, the burden then shifts to the 

nonmovant to produce 'substantial evidence' as to the 

existence of a genuine issue of material fact. Bass v. 

SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 

(Ala. 1989); Ala. Code 1975, § 12-21-12. '[S]ubstantial 

evidence is evidence of such weight and quality that fairminded persons in the exercise of impartial judgment can 

reasonably infer the existence of the fact sought to be proved.' 

West v. Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871 

(Ala. 1989)."

Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala. 2004).

" '"The determination of whether an attorney fee is 

reasonable is within the sound discretion of the trial court and 

its determination on such an issue will not be disturbed on 

appeal unless in awarding the fee the trial court exceeded that 
SC-2023-0058

25

discretion. State Bd. of Educ. v. Waldrop, 840 So. 2d 893, 896 

(Ala. 2002); City of Birmingham v. Horn, 810 So. 2d 667, 

681-82 (Ala. 2001); Ex parte Edwards, 601 So. 2d 82, 85 (Ala. 

1992), citing Varner v. Century Fin. Co., 738 F.2d 1143 (11th 

Cir. 1984)." '"

Regions Bank v. Lowrey, 154 So. 3d 101, 108 (Ala. 2014) (quoting Kiker 

v. Probate Court of Mobile Cnty., 67 So. 3d 865, 867 (Ala. 2010), quoting 

in turn Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552 (Ala. 2004)).

III. Analysis

Eli Global and Lindberg seek a reversal of the summary judgment 

entered against them, and they challenge the amount of the award of

attorney fees and expenses. We will examine those arguments in 

separate parts of our analysis.

A. The Circuit Court's Summary Judgment in Favor of the Sellers

Eli Global and Lindberg's sole argument for reversal of the 

summary judgment entered against them is the one they presented in 

their postjudgment motion: they contend that the Promissory Note is a 

negotiable instrument under the New York UCC and that the Sellers 

never presented conclusive evidence that Cieutat -- or any other Seller --

possessed the Promissory Note at the time the Sellers initiated this 

action. Eli Global and Lindberg assert that the foregoing failure of proof
SC-2023-0058

26

dooms the Sellers' claim seeking payment on the Promissory Note

because the New York UCC requires such proof in order for a claimant to 

enforce a negotiable promissory note. They further argue that because 

the Sellers' promissory-note claim fails, Lindberg owes no duty to pay 

them under the Guaranty. 

The Sellers' first objection to the foregoing argument is that 

Eli Global and Lindberg never presented it in response to the Sellers' 

summary-judgment motion. Indeed, Eli Global and Lindberg never 

raised an issue concerning possession of the Promissory Note in their 

answers to the complaint, and throughout the lengthy discovery --

interrogatories to each Seller and depositions of all the Sellers -- Eli 

Global and Lindberg never once inquired about who possessed the 

Promissory Note. The first time any issue was raised concerning 

possession of the Promissory Note was in Eli Global and Lindberg's 

postjudgment motion. Therefore, the Sellers argue, Eli Global and 

Lindberg waived that argument. 

Eli Global and Lindberg respond by noting that the circuit court 

had discretion to consider new arguments presented in the postjudgment 

motion.
SC-2023-0058

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" '"[A] trial court has the discretion to consider a new legal 

argument in a post-judgment motion, but is not required to do 

so."' Special Assets, L.L.C. v. Chase Home Fin., L.L.C., 991 

So. 2d 668, 678 (Ala. 2007) (quoting Green Tree Acceptance, 

Inc. v. Blalock, 525 So. 2d 1366, 1369 (Ala. 1988))."

Espinoza v. Rudolph, 46 So. 3d 403, 416 (Ala. 2010). Eli Global and 

Lindberg further assert that the circuit court's December 21, 2022, order 

demonstrates that the circuit court did consider, but rejected on the 

merits, their new arguments presented in their postjudgment motion. 

For support, Eli Global and Lindberg cite the opening paragraph of the 

circuit court's December 21, 2022, order, in which the circuit court stated, 

in part: "The Court on December 14, 2022, heard ... [Eli Global and 

Lindberg's] Rule 59(e) Motion to Alter, Amend, or Vacate Judgment .... 

The court considered the above motions, responses, replies, materials 

submitted; the pleadings on file; and counsel's arguments and concludes 

as follows: ...."

The foregoing statement from the circuit court's December 21, 2022, 

order certainly indicates that the circuit court "considered" the new 

arguments Eli Global and Lindberg presented in their postjudgment 

motion, but it does not tell us whether the circuit court considered the 

merits of those arguments as opposed to rejecting them because they 
SC-2023-0058

28

were not raised earlier in the litigation. See Espinoza, 46 So. 3d at 416

(concluding that "[t]here is no indication that the trial court considered 

the merits of the legal argument raised for the first time in Jabez's 

postjudgment motion, and we will not presume that it did"). We are 

dubious of Eli Global and Lindberg's extremely belated assertion of 

arguments based on the New York UCC. However, because the circuit 

court may have considered the merits of Eli Global and Lindberg's new 

postjudgment arguments, we will address them on the merits.

1. Is the Promissory Note a Negotiable Instrument?

New York law applies with respect to the Promissory Note because 

the Promissory Note contains a choice-of-law provision that states as 

much. As we have already noted, Eli Global and Lindberg argue that the 

Sellers failed to prove who was the holder/possessor of the Promissory 

Note, a fact that, they say, is a requirement under the New York UCC for 

a claimant to be able to enforce a negotiable instrument. See Eli Global 

& Lindberg's brief, p. 15. 

Under New York law, "[a] 'promissory note [is] a negotiable 

instrument within the meaning of the Uniform Commercial Code'

(Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 674[, 838 
SC-2023-0058

29

N.Y.S.2d 622] [2007]; see UCC 3-104[2][d]; US Bank, N.A. v Zwisler, 147 

AD3d 804, 806[, 46 N.Y.S.3d 213] [2017]." Bayview Loan Servicing, LLC 

v Kelly, 166 AD3d 843, 845, 87 N.Y.S.3d 569, 571 (2018). According to the 

New York UCC:

"(1) Any writing to be a negotiable instrument within 

this Article must

"(a) be signed by the maker or drawer; and

"(b) contain an unconditional promise or 

order to pay a sum certain in money and no other 

promise, order, obligation or power given by the 

maker or drawer except as authorized by this 

Article; and

"(c) be payable on demand or at a definite 

time; and

"(d) be payable to order or to bearer."10

N.Y. U.C.C. Law § 3-104.

10N.Y. U.C.C. Law § 3-111 provides, in part:

"An instrument is payable to bearer when by its terms 

it is payable to

"....

"(b) a specified person or bearer ...."
SC-2023-0058

30

Eli Global and Lindberg contend that the Promissory Note "is a 

negotiable instrument because it is made 'payable to the order of' a payee 

-- Cieutat as the Sellers' representative -- and its payment obligation --

the amount due and payment date -- is discernable on its face." Eli Global 

& Lindberg's brief, pp. 15-16. There is no dispute that the Promissory 

Note was signed by Eli Global, that it was payable at a definite time, and 

that it was payable to Cieutat, as the Sellers' representative. The Sellers 

argue, however, that the Promissory Note was not an "unconditional 

promise" under the New York UCC because it was subject to, or 

dependent upon, the Equity Purchase Agreement. 

The Sellers observe that the opening paragraph of the Promissory 

Note states, in part: 

"This Promissory Note is being issued pursuant to 

Section 9.2(c) of that certain Stock Purchase Agreement, 

dated as of January 19, 2018 (the '[Equity] Purchase 

Agreement'), by and among [Cieutat], as Sellers' 

Representative, HPCSP Investments, LLC, a North Carolina 

limited liability company, as buyer ('Buyer'), and the 

individuals party thereto as sellers ('Sellers')."

Section 9.2(c) of the Equity Purchase Agreement states:

"ARTICLE IX

"Conditions to Closing
SC-2023-0058

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"....

"9.2. Conditions to the Obligations of Sellers. The 

obligations of Sellers to consummate the transactions 

contemplated by this Agreement are further subject to the

satisfaction or the waiver by [Cieutat, as the Sellers' 

representative,] at or prior to the Closing of each of the

following conditions:

"....

"(c) Sellers' Note. [Cieutat, as the Sellers' 

representative,] shall have received a promissory note issued 

by Eli Global, LLC, in an aggregate original principal amount 

of $12,200,000, in substantially the form of, and having the 

terms set forth on, Exhibit D (the 'Sellers Note'), duly 

executed by Eli Global, LLC."

In other words, the Promissory Note declared that it was being issued 

because delivery of the executed Promissory Note to Cieutat, as the 

Sellers' representative, was a condition of closing the sale of HPC and its 

affiliated entities. 

The Sellers also point to paragraph 5 of the Promissory Note, which 

states:

"5. Right of Offset. In accordance with Section 11.10 of 

the [Equity] Purchase Agreement, [Eli Global] is authorized, 

at any time and from time to time, to the fullest extent 

permitted by Law, to set-off and apply any and all amounts 

payable by [Eli Global] to [Cieutat, as the Sellers' 

representative,] under this Promissory Note against any 

amounts payable by [Cieutat, as the Sellers' representative,]

to [HPCSP] under Article XI of the [Equity] Purchase 
SC-2023-0058

32

Agreement or otherwise. In the event of such offset, [Eli 

Global] will provide notice to [Cieutat, as the Sellers' 

representative,] of such setoff amount and promptly deliver a 

replacement Promissory Note reflecting the new principal 

amount owed thereunder to [Cieutat, as the Sellers' 

representative]. [Cieutat, as the Sellers' representative,]

agrees, in exchange for such replacement Promissory Note 

and upon receipt thereof, to return this Promissory Note to 

[Eli Global] for cancellation."

Section 11.10 of the Equity Purchase Agreement states:

"ARTICLE XI

"Survival and Indemnification

"....

"11.10. Set-Off. Sellers hereby acknowledge and agree 

that [HPCSP] is authorized, at any time and from time to 

time, to the fullest extent permitted by Law, to set-off and 

apply any and all amounts payable by [HPCSP] to any Seller 

or Sellers' Representative (on behalf of Sellers) (including 

amounts outstanding under the Sellers' Note or any amounts 

payable to any Seller pursuant to the Equity Equivalence 

Agreement or under Article VII[11]

) against any amounts 

11Article VII of the Equity Purchase Agreement concerns the 

payment of taxes on the sale. Section 7.11 states:

"7.11. Right of Offset. Without limiting their respective 

rights under this Article VII in any respect, (a) Sellers' 

Representative (on behalf of Sellers) may (but shall not be 

obligated to) offset amounts owed by [HPCSP] to Sellers' 

Representative (on behalf of Sellers) under this Article VII 

against amounts otherwise payable by Sellers' Representative 

(on behalf of Sellers) to [HPCSP] under this Article VII and 

(b) [HPCSP] may (but shall not be obligated to) offset amounts 
SC-2023-0058

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payable by any Seller or by Sellers' Representative (on behalf 

of Sellers) to [HPCSP] under this Article XI, under Article VII 

or otherwise upon providing at least 10 days' prior written 

notice."

(Emphasis added.) The Sellers contend that the foregoing references in 

the Promissory Note to the Equity Purchase Agreement demonstrate 

that the Promissory Note is not an unconditional promise to pay and that, 

therefore, it is not a negotiable instrument under the New York UCC.

Eli Global and Lindberg counter by arguing that the Promissory 

Note's references to the Equity Purchase Agreement are "informational," 

rather than "conditional," and therefore do not render the Promissory 

Note nonnegotiable. Eli Global & Lindberg's reply brief, p. 6. For support, 

Eli Global and Lindberg cite N.Y. U.C.C. Law § 3-105 and its Official 

Comment. In pertinent part, § 3-105 provides:

"(1) A promise or order otherwise unconditional is not 

made conditional by the fact that the instrument

"....

owed by Sellers' Representative (on behalf of Sellers) to 

[HPCSP] under this Article VII in accordance with Section 

11.10. The Parties agree that the exercise of such right of 

offset will not constitute a breach of a covenant under this 

Agreement, and that neither the exercise of nor the failure to 

exercise such right of offset will constitute an election of 

remedies or limit a Party in any manner in the enforcement 

of any other remedies that may be available to it."
SC-2023-0058

34

"(b) states its consideration, whether 

performed or promised, or the transaction which 

gave rise to the instrument, or that the promise or 

order is made or the instrument matures in 

accordance with or 'as per' such transaction; or

"(c) refers to or states that it arises out of a 

separate agreement or refers to a separate 

agreement for rights as to prepayment or 

acceleration; or

"....

"(2) A promise or order is not unconditional if the 

instrument

"(a) states that it is subject to or governed by 

any other agreement; or

"(b) states that it is to be paid only out of a 

particular fund or source except as provided in this 

section."

The relevant portions of the Official Comment to § 3-105 explain:

"2. Paragraph (b) of subsection (1) is an amplification of 

Section 3(2) of the original act. The final clause is intended to 

resolve a conflict in the decisions over the effect of such 

language as 'This note is given for payment as per contract for 

the purchase of goods of even date, maturity being in 

conformity with the terms of such contract.' It adopts the 

general commercial understanding that such language is 

intended as a mere recital of the origin of the instrument and 

a reference to the transaction for information, but is not 

meant to condition payment according to the terms of any 

other agreement.
SC-2023-0058

35

"3. Paragraph (c) of subsection (1) likewise is intended 

to resolve a conflict, and to reject cases in which a reference 

to a separate agreement was held to mean that payment of 

the instrument must be limited in accordance with the terms 

of the agreement, and hence was conditioned by it. Such a 

reference normally is inserted for the purpose of making a 

record or giving information to anyone who may be interested, 

and in the absence of any express statement to that effect is 

not intended to limit the terms of payment. Inasmuch as 

rights as to prepayment or acceleration has to do with a 

'speed-up' in payment and since notes frequently refer to 

separate agreements for a statement of these rights, such 

reference does not destroy negotiability even though it has 

mild aspects of incorporation by reference. ...

"....

"8. Paragraph (a) of subsection (2) retains the generally 

accepted rule that where an instrument contains such 

language as 'subject to terms of contract between maker and 

payee of this date,' its payment is conditioned according to the 

terms of the agreement and the instrument is not negotiable. 

The distinction is between a mere recital of the existence of 

the separate agreement or a reference to it for information, 

which under paragraph (c) of subsection (1) will not affect 

negotiability, and any language which, fairly construed, 

requires the holder to look to the other agreement for the 

terms of payment. The intent of the provision is that an 

instrument is not negotiable unless the holder can ascertain 

all of its essential terms from its face. In the specific instance 

of rights as to prepayment or acceleration, however, there 

may be a reference to a separate agreement without 

destroying negotiability [As amended 1962]."

(Emphasis added.)
SC-2023-0058

36

Eli Global and Lindberg contend that the reference in the first 

paragraph of the Promissory Note to the Equity Purchase Agreement is 

exactly the kind of reference the Official Comment to § 3-105 states is "a 

reference to the transaction for information, but is not meant to condition 

payment according to the terms of any other agreement." We agree. The 

reference to the Equity Purchase Agreement in the first paragraph of the 

Promissory Note simply observes that the execution of the Promissory 

Note was one of the conditions of the sale closing. 

However, Eli Global and Lindberg also insist that "there are no 

conditions to payment not stated in the note and a payee need not look 

elsewhere to discern the payment terms." Eli Global & Lindberg's reply 

brief, p. 7. That position is difficult to square with paragraph five of the 

Promissory Note concerning the right of set off, which is determined by 

references to the Equity Purchase Agreement. The sections of the Equity 

Purchase Agreement implicated by paragraph 5 of the Promissory Note 

indicate that Eli Global could be entitled to reductions in the amounts it

owed under the Promissory Note due to taxes or indemnification paid in 

accordance with the Equity Purchase Agreement and the Equity 

Equivalence Agreement. Eli Global and Lindberg assert that those 
SC-2023-0058

37

provisions merely refer to "possible early discharge of the note in whole 

or in part without suggesting an external payment condition let alone one 

that would extend payment beyond the payment dates." Eli Global & 

Lindberg's reply brief, p. 7. But the reality is that paragraph five of the 

Promissory Note makes payments under the Promissory Note potentially 

contingent upon factors provided in the Equity Purchase Agreement. 

Moreover, on a broader level, the fact is that the Promissory Note 

is a part of the Equity Purchase Agreement. In addition to the fact that 

a required condition of closing the sale was Eli Global's providing the 

Promissory Note to the Sellers, Article I of the Equity Purchase 

Agreement defines the "Transaction Documents" as including "this 

Agreement, the Equity Equivalence Agreement, the Employment 

Agreements and the Sellers' Note ...." Paragraph 12.2 of the Equity 

Purchase Agreement also states:

"12.2 Entire Agreement. This Agreement (including the 

Schedules and Exhibits hereto) and other Transaction 

Documents constitute the entire agreement among the 

Parties and supersede any prior understandings or 

agreements by or among the Parties, written or oral, to the 

extent they related in any way to the subject matter hereof 

and thereof."
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38

(Emphasis added.) The Promissory Note was an exhibit to the Equity 

Purchase Agreement. Additionally, paragraph eight of the Promissory 

Note provides that "[t]he remedies provided [Cieutat, as the Sellers' 

representative,] in this Promissory Note and the [Equity] Purchase 

Agreement shall be cumulative and concurrent ...." (Emphasis added.) 

Finally, Eli Global and Lindberg themselves argued in their response to 

the Sellers' summary-judgment motion that that the Promissory Note 

was part of the Equity Purchase Agreement. That argument was integral 

to their original (but abandoned on appeal) defense to the Sellers' claims:

"[Eli Global and Lindberg] clearly assert that they relied on 

information Cieutat provided to Eli Global in negotiating the 

terms of and executing the Guaranty Agreement, Promissory 

Note and overall transaction.

"Cieutat's duty to disclose or to correct misinformation 

does not arise as part of the [Equity Purchase Agreement]

alone. Rather, because [Eli Global and Lindberg] requested 

information from Cieutat and relied on information from him 

in taking an action -- i.e. executing the Promissory Note and 

Guaranty -- he had a duty to not mislead [Eli Global and 

Lindberg]."

(Citations omitted.) In short, because the Promissory Note was part of a 

larger transaction, all of its essential terms were not contained therein, 

meaning that the Promissory Note was not a negotiable instrument. 

Because the Promissory Note was not negotiable, the Sellers were not 
SC-2023-0058

39

required to prove who possessed the Promissory Note in order to enforce 

it.

2. Possession of the Promissory Note

Even if the Promissory Note could be construed as a negotiable 

instrument, we believe Eli Global and Lindberg's argument that the 

Sellers failed to prove who possessed the Promissory Note also fails. 

Eli Global and Lindberg initially contend that the Sellers "had to 

conclusively prove that they -- as holders of the note -- possessed the note 

when they sued and filed their summary judgment motion." Eli Global & 

Lindberg's brief, p. 15. To support that proposition, Eli Global and 

Lindberg cite Aurora Loan Servicing, LLC v. Taylor, 25 N.Y.3d 355, 34 

N.E.3d 363, 12 N.Y.S.3d 612 (2015). But Eli Global and Lindberg

misconstrue Taylor. 

The Taylor court explained that Aurora Loan Servicing, LLC 

("Aurora"), had filed a foreclosure action against the Taylors.

"The Taylors filed a motion for summary judgment, 

asserting that Aurora did not have standing to bring this 

foreclosure action. Aurora cross-moved for summary 

judgment. In support of its cross motion, Aurora submitted 

the affidavit of Sara Holland (Holland affidavit), Aurora's 

legal liaison, who stated that based on her 'personal 

knowledge' of the facts as well as her 'review of the note, 

mortgage and other loan documents' and 'related business 
SC-2023-0058

40

records ... kept in the ordinary course of the regularly 

conducted business activity,' the 'original Note has been in the 

custody of Plaintiff Aurora Loan Services, LLC and in its 

present condition since May 20, 2010.' Holland also stated 

that, 'prior to the commencement of the action, Aurora Loan 

Services, LLC, has been in exclusive possession of the original 

note and allonge affixed thereto, indorsed to Deutsche Bank 

Trust Company Americas as Trustee, and has not transferred 

same to any other person or entity.' A copy of the note and 

allonge were attached to the affidavit.

"....

"The critical issue we must resolve is whether the record 

demonstrates a basis for finding that Aurora had standing to 

commence this mortgage foreclosure action. The physical 

delivery of the note to the plaintiff from its owner prior to 

commencement of a foreclosure action may, in certain 

circumstances, be sufficient to transfer the mortgage 

obligation and create standing to foreclose ....

"Applying these principles of New York law, Aurora was 

vested with standing to foreclose. The evidence established 

that, as of 2006, Deutsche, as trustee under the PSA, became 

the lawful owner of the note. The Holland affidavit establishes 

that Aurora came into possession of the note on May 20, 2010, 

prior to the May 24, 2010 commencement of the foreclosure 

action. ...

"Contrary to the Taylors' assertions, to have standing, it 

is not necessary to have possession of the mortgage at the time 

the action is commenced. This conclusion follows from the fact 

that the note, and not the mortgage, is the dispositive 

instrument that conveys standing to foreclose under New 

York law. In the current case, the note was transferred to 

Aurora before the commencement of the foreclosure action --

that is what matters."
SC-2023-0058

41

Taylor, 25 N.Y.3d 355, 359-61, 34 N.E.3d at 365-66, 12 N.Y.S.2d at 614-

15 (emphasis added).

From the foregoing, it is clear that Taylor does not stand for the 

proposition that, to file their summary-judgment motion, the Sellers had 

to conclusively prove that a particular one of them possessed the 

Promissory Note. Instead, Taylor noted that when the Taylors, the 

defendants, raised the issue of Aurora's "standing" to bring a foreclosure 

action, Aurora had to provide prima facie evidence that it possessed the 

note before commencing the foreclosure action.12 Taylor's explanation 

aligns with several other New York cases, which state that once the 

defendant in a foreclosure action has raised the issue of the plaintiff's 

"standing" to foreclose, the plaintiff must provide prima facie evidence of 

possession of the note in question. Moreover, those cases also state that 

a lack of such "standing" initially must be pleaded as an affirmative 

defense, or the defense is waived and cannot be raised in response to a 

12We note that the cases Eli Global and Lindberg cite for the 

proposition that the Sellers needed to demonstrate that one of them had 

physical possession of the note are, unlike this case, mortgage-foreclosure 

cases. It is unclear whether the rule in those cases applies to the type of 

promissory note at issue here, but, as we explain in the text, even under 

such cases Eli Global and Lindberg's argument fails. 
SC-2023-0058

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plaintiff's summary-judgment motion. See, e.g., Bayview Loan Servicing, 

LLC v. Freyer, 192 A.D.3d 1421, 1422-23, 145 N.Y.S.3d 647, 649 (2021) 

(explaining that "'[w]here, as here, the issue of standing is raised as an 

affirmative defense, the plaintiff must also prove its standing in order to 

be entitled to relief' (Deutsche Bank Natl. Trust Co. v Monica, 131 AD3d 

737, 738[, 15 N.Y.S.3d 863] [2015] [internal quotation marks and 

citations omitted] .... A 'plaintiff has standing in a mortgage foreclosure 

action where it is both the holder or assignee of the subject mortgage and 

the holder or assignee of the underlying note at the time the action is 

commenced' (Citibank, N.A. v Abrams, 144 AD3d 1212, 1214[, 40 

N.Y.S.3d 653] [2016] [internal quotation marks and citations omitted]; 

see JPMorgan Chase Bank, N.A. v Verderose, 154 AD3d 1198, 1200[, 63 

N.Y.S.3d 579] [2017]). 'Holder status is established where the plaintiff 

possesses a note that, on its face or by allonge, contains an indorsement 

in blank or bears a special indorsement payable to the order of the 

plaintiff' (McCormack v Maloney, 160 AD3d 1098, 1099[, 75 N.Y.S.3d 

294] [2018] [internal quotation marks and citations omitted]."); 

JPMorgan Chase Bank, Nat'l Ass'n v. Caliguri, 36 N.Y.3d 953, 954, 160 

N.E.3d 693, 694, 136 N.Y.S.3d 225, 226 (2020) (same); Wells Fargo Bank, 
SC-2023-0058

43

NA v. Ostiguy, 127 A.D.3d 1375, 1376, 8 N.Y.S.3d 669, 670-71 (2015)

(same).13

13In a concurrence in US Bank N.A. v. Nelson, 36 N.Y.3d 998, 163 

N.E.3d 49, 139 N.Y.S.3d 118 (2020), Justice Rowan Wilson disagreed 

with the approach taken by New York courts on this issue, stating:

"The law governing [whether the plaintiff is the current 

holder of the defendant's note] is not our jurisprudence on 

standing but rather the law of negotiable instruments, 

codified in New York's Uniform Commercial Code. ... 

"....

"In the past decade, New York courts have firmly 

adopted the mistaken use of the word 'standing' to refer to 

questions about whether the plaintiff in a foreclosure action 

holds the defendant's note. The consequence of that 

mislabeling has caused many courts to hold that the note's 

obligor (the homeowner, typically) must plead 'lack of 

standing' as an affirmative defense ...."

36 N.Y.3d at 1007-09, 163 N.E.3d at 55-56, 139 N.Y.S.3d at 124-25. Even 

so, Justice Wilson still believed that all that was required of the plaintiff 

in that case was to present the note with the summary-judgment motion. 

See Nelson, 36 N.Y.3d at 1012, 163 N.E.3d at 58, 139 N.Y.S.3d at 127

("When US Bank moved for summary judgment, it attached the Nelsons' 

note, indorsed in blank, the mortgage, and the assignment of the 

mortgage. Doing so established, prima facie, US Bank's right to judgment 

as a matter of law. To defeat US Bank's motion for summary judgment, 

the Nelsons were required to adduce admissible facts controverting US 

Bank's proof of ownership .... That they utterly failed even to attempt to 

do. US Bank, therefore, was entitled to summary judgment."). In this 

case, the Sellers fulfilled that requirement because Cieutat, on behalf of 

the Sellers, attached a signed and executed copy of the Promissory Note 

to the complaint.
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44

Based on the foregoing New York case authorities -- including 

Eli Global and Lindberg's own cited authority, Taylor -- Eli Global and 

Lindberg waived in two ways the issue whether the Sellers possessed the 

Promissory Note at the time they commenced this action. First, it is 

undisputed that Eli Global and Lindberg never asserted a lack of 

"standing" as an affirmative defense in their answers to the Sellers' 

complaint. Second, Eli Global and Lindberg did not raise the issue of 

possession in response to the Sellers' summary-judgment motion.

In response to the problem that they never raised the possession 

issue -- either in their answers or in response to the Sellers' summaryjudgment motion -- Eli Global and Lindberg retreat from their initial 

assertion that the Sellers' had to conclusively prove possession and,

instead, posit that the propositions from the foregoing cases do not apply 

because in those cases "each plaintiff presented a prima facie case." Eli 

Global & Lindberg's reply brief, p. 15. In contrast, they say, the Sellers 

"never presented a prima facie case because they did not plead 

or prove who among them, if any of them, possessed the note. 

That is, [the Sellers] never put possession at issue in the first 

instance .... Because [the Sellers] did not present a prima 

facie case, [Eli Global and Lindberg] were not required to 

assert lack of standing as an affirmative defense." 

Id. at 16.
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We note that in making the foregoing argument, Eli Global and 

Lindberg have subtly lowered the Sellers' alleged burden of proof on 

summary judgment from needing "conclusive proof" of possession to 

requiring "prima facie" proof, which suggests that their initial argument 

misstated the law. However, Eli Global and Lindberg's updated 

argument continues to misstate what New York authorities say. The 

cases repeatedly state that possession of a negotiable promissory note 

only becomes an issue if that issue is challenged by the defendant. 

Eli Global and Lindberg did not raise the possession issue in a timely 

manner, and they consequently waived the issue.

In any event, Eli Global and Lindberg admitted in their answers to 

the complaint and in their amended counterclaim that Cieutat, as the 

Sellers' representative, entered into the Equity Purchase Agreement 

with HPCSP, that Eli Global executed the Promissory Note in 

conjunction with the Equity Purchase Agreement, that the Promissory 

Note was part of the Equity Purchase Agreement, and that Cieutat 

received and possessed the Promissory Note. They also admitted that 

Eli Global made the first payment under the Promissory Note to Cieutat 

in his capacity as the Sellers' representative. Specifically, in their 
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"Amended Counterclaim against Ron Cieutat" filed on January 22, 2021, 

Eli Global and Lindberg stated:

"10. The sale of HPC to HPCSP closed on or about 

April 13, 2018, and, under the terms of the [Equity Purchase 

Agreement], Cieutat, on behalf of the Sellers of HPC, received 

a promissory note issued by Eli Global for the amount of 

$12,200,000 to be paid out over five (5) years in equal 

installments of $2,440,000 each, plus interest ('Promissory 

Note'). As further part of the sale, Lindberg signed a Guaranty 

Agreement personally guaranteeing the Promissory note.

"....

"22. In or about April 2019, in accordance with the 

Promissory Note, Eli Global made a payment of $2,440,000 to 

the HPC sellers, which included Cieutat."

Eli Global and Lindberg insist that those admissions are 

meaningless. 

"Whether Cieutat received the note in April 2018 does 

not prove that he still possessed it over two years later when 

[the Sellers] sued.

"....

"That Cieutat received the first payment is not 

surprising since he is the [the Sellers'] representative. But 

that does not mean he personally possessed the note. 

Somebody had to receive the payment and distribute the 

funds, including to the note possessor."

Eli Global & Lindberg's reply brief, p. 13 (footnote omitted).
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47

However, Cieutat, on behalf of the Sellers, submitted an executed 

copy of the Promissory Note as an exhibit to their complaint, and 

Eli Global and Lindberg never denied the legitimacy of the presented 

Promissory Note. In fact, in their answers to the complaint, both Eli 

Global and Lindberg repeatedly stated that "the Promissory Note speaks 

for itself."

"A plaintiff may establish, prima facie, its standing as the 

holder of the note by demonstrating that a copy of the note, 

properly endorsed 'either to bearer or to an identified person 

that is the person in possession' (UCC 1-201[b][21][A]; see

[UCC] 3-301), either on the note itself, 'or on a paper so firmly 

affixed thereto as to become a part thereof' (UCC 3-202[2]), 

was among the exhibits annexed to the complaint at the time 

the action was commenced ...."

HSBC Bank USA, N.A. v. Carchi, 177 A.D.3d 710, 712, 111 N.Y.S.3d 679, 

682 (2019). 

Additionally, New York U.C.C. Law § 1-201(21)(A) defines a 

"holder" as "the person in possession of a negotiable instrument that is 

payable either to bearer or to an identified person that is the person in 

possession." The Promissory Note itself states that Cieutat is the holder 

of the note whom Eli Global would pay: 

"For value received, the undersigned, Eli Global, LLC, a 

Delaware limited liability company ('Maker'), hereby 

promises to pay to the order of Ron Cieutat (on behalf of 
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48

Sellers (as defined below)), as Sellers' Representative 

('Payee'), at such place, or to such other party, as the legal 

holder of this Promissory Note ... the principal sum of Twelve 

Million Two Hundred Thousand Dollars ($12,200,000), 

together with interest upon the principal amount at the rate 

of 4.0% per annum, in immediately available funds."

(Emphasis added.)

Cieutat's submission of the Promissory Note with the complaint, 

Eli Global's first payment on the note to him, and Eli Global and 

Lindberg's admissions constituted more than sufficient prima facie 

evidence that Cieutat possessed the Promissory Note when the Sellers 

commenced this action. See, e.g., Jin Sheng He v. Sing Huei Chang, 83 

A.D.3d 788, 789, 921 N.Y.S.2d 128, 130 (2011) ("To establish prima facie 

entitlement to judgment as a matter of law with respect to a promissory 

note, a plaintiff must show the existence of a promissory note executed 

by the defendant containing an unequivocal and unconditional obligation 

to repay and the failure of the defendant to pay in accordance with the 

note's terms ...."); Griffon V, LLC v. 11 E. 36th, LLC, 90 A.D.3d 705, 707, 

934 N.Y.S.2d 472, 474 (2011) (same). Eli Global and Lindberg fail to cite 

any evidence in the record suggesting that Cieutat ever transferred or 

lost possession of the Promissory Note. Therefore, even if the Promissory 

Note was negotiable, and even if Eli Global and Lindberg had not waived 
SC-2023-0058

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the possession issue, the fact of possession was sufficiently established 

for the Sellers' summary-judgment motion. Accordingly, Eli Global and 

Lindberg failed to demonstrate that the Sellers lacked the right to enforce 

payment on the Promissory Note. 

3. Did Cieutat Release His Claims Against Lindberg?

Aside from the argument seeking to escape liability to all the 

Sellers for payment under the Promissory Note, Lindberg contends that 

he should not have to pay the amount of the judgment that is owed to 

Cieutat because, he says, Cieutat released his guaranty claim against 

Lindberg in the settlement agreement executed in the employment 

lawsuit. As we recounted in the rendition of facts, the settlement 

agreement in the employment lawsuit arose from an action commenced

by Cieutat against HPCSP, Eli Global, and Eli Global representative 

Michael Pereira, and those parties executed the settlement agreement. 

In Part C of that settlement agreement, the parties agreed to 

"irrevocably and unconditionally release and forever 

discharge each other and their representatives, attorneys, 

affiliates, officers, directors, successors, heirs and assigns 

('Released Parties') with respect to any and all claims and 

causes of action of any nature whatsoever ... resulting from, 

or relating in any way to the Lawsuit, or relating, directly or 

indirectly, to Cieutat's employment with Employer Parties, 

and any affiliates. ..." 
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Lindberg contends that he is a representative of the released parties 

because he signed the Equity Purchase Agreement as HPCSP's manager 

and signed the Promissory Note as Eli Global's manager. 

However, Part C also contained express carveouts from the

generally broad release. We repeat the carveouts for the benefit of this 

analysis:

"vi. Anything contained in this Agreement to the 

contrary notwithstanding, the terms of Section C shall not 

apply to any claims or defenses brought in the following 

lawsuits currently on file:

"(i) Ronald Cieutat et al. v. HPCSP 

Investments, LLC and Greg E. Lindberg, in the 

Circuit Court of Mobile County, Alabama, Case 

No. 02-CV-2020-900422.00; and

"(ii) Ronald Cieutat et al. v. Eli Global, LLC 

and Greg E. Lindberg, in the Circuit Court of 

Mobile County, Alabama, Case No. CV-2020-

900993.00.

"vii. Anything contained in this Agreement to the 

contrary notwithstanding, the terms of this Section C shall 

not apply to any claims Cieutat, the Employer Parties, or 

others have or may have in the future with respect to any of 

the following:

"(i) The Equity Purchase Agreement 

executed January 19, 2018;
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"(ii) The Equity Equivalence Agreement 

executed on our about April 13, 2018; and

"(iii) The Promissory Note executed on or 

about April 13, 2018."

Lindberg contends that although section C.vii(iii) expressly 

exempted Cieutat's claims with respect to the Promissory Note, 

"it did not mention Lindberg's guaranty. Stated differently, by 

including the note without mentioning the guaranty, the 

parties excluded the guaranty from the exceptions to the 

release. The parties could have written § C(vii) to exclude both 

the Promissory Note executed on or about April 13, 2018, and 

Lindberg's Guaranty had they agreed to expand the release 

carve out in that manner. But they did not do that. Instead, 

they limited Cieutat's release carve out to only his 

claims/rights vis-à-vis the note and left the release intact as 

to Lindberg's guaranty."

Eli Global & Lindberg's brief, pp. 21-22 (emphasis in original; footnotes 

omitted).

Lindberg's argument entirely ignores the language in section C.vi 

of the settlement agreement, which expressly exempts from release "any 

claims or defenses brought in" this very case.14 That carveout obviously 

14Lindberg's neglect of the language in section C.vi of the settlement 

agreement on appeal is curious given that he highlighted that language 

in the response to the summary-judgment motion:

"The Settlement Agreement executed by the 

Employment Litigation parties specifically carved out claims 
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52

implicates Cieutat's claims against Lindberg with respect to the 

Guaranty in this case. As the Sellers note, "[t]hese two carve-outs are 

separately numbered exceptions to the Release. In fact, the two carveouts are referred to conjunctively and cumulatively throughout the 

Release." Sellers' brief, p. 27. Thus, there is no reason to read section C.vii 

as somehow deliberately releasing Lindberg from claims Cieutat already 

had asserted against Lindberg in the present litigation. In short, 

Cieutat's claims against Lindberg based on the Guaranty were not 

released in the settlement agreement, and Lindberg's suggestion 

otherwise is meritless. 

B. The Circuit Court's Award of Attorney Fees and Expenses to the 

Sellers

As we noted in our rendition of the facts, paragraph seven of the 

Promissory Note expressly provides:

"[Eli Global] shall pay all reasonable and actual costs and 

expenses incurred by [Cieutat, as the Sellers' representative,]

in connection with collecting or attempting to collect any sums 

or defenses brought in this litigation (the 'Note Litigation') as 

well as any claims 'Cieutat, the Employer Parties, or others 

have or may have in the future with respect to' the [Equity 

Purchase Agreement], the Equity Equivalence Agreement, 

and the Promissory Note."

(Footnote omitted.)
SC-2023-0058

53

due under this Promissory Note or enforcing any provision of 

this Promissory Note, including but not limited to reasonable 

attorneys' fees and disbursements and applicable statutory 

costs, whether incurred out of court or in litigation ...."

In Pharmacia Corp. v. McGowan, 915 So. 2d 549, 552-53 (Ala. 

2004), this Court stated:

"This Court has set forth 12 criteria a court might 

consider when determining the reasonableness of an attorney 

fee:

"'(1) [T]he nature and value of the subject matter 

of the employment; (2) the learning, skill, and 

labor requisite to its proper discharge; (3) the time 

consumed; (4) the professional experience and 

reputation of the attorney; (5) the weight of his 

responsibilities; (6) the measure of success 

achieved; (7) the reasonable expenses incurred; 

(8) whether a fee is fixed or contingent; (9) the 

nature and length of a professional relationship; 

(10) the fee customarily charged in the locality for 

similar legal services; (11) the likelihood that a 

particular employment may preclude other 

employment; and (12) the time limitations 

imposed by the client or by the circumstances.'

"Van Schaack v. AmSouth Bank, N.A., 530 So. 2d 740, 749 

(Ala. 1988). These criteria are for purposes of evaluating 

whether an attorney fee is reasonable; they are not an 

exhaustive list of specific criteria that must all be met. Beal 

Bank v. Schilleci, 896 So. 2d 395, 403 (Ala. 2004), citing 

Graddick v. First Farmers & Merchants Nat'l Bank of Troy, 

453 So. 2d 1305, 1311 (Ala. 1984).

"We defer to the trial court in an attorney-fee case 

because we recognize that the trial court, which has presided 
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over the entire litigation, has a superior understanding of the 

factual questions that must be resolved in an attorney-fee 

determination. [City of Birmingham v. ]Horn, 810 So. 2d 

[667,] 681-82 [(Ala. 2001)], citing Hensley v. Eckerhart, 461 

U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). 

Nevertheless, a trial court's order regarding an attorney fee 

must allow for meaningful appellate review by articulating 

the decisions made, the reasons supporting those decisions, 

and how it calculated the attorney fee. Horn, 810 So. 2d at 

682, citing American Civil Liberties Union of Georgia v. 

Barnes, 168 F.3d 423, 427 (11th Cir. 1999); see also Hensley, 

461 U.S. at 437, 103 S.Ct. 1933."15

15The Sellers and Eli Global and Lindberg apply Alabama law in 

arguing about whether the circuit court's award of attorney fees and 

expenses was appropriate. They do not address whether the Promissory 

Note's choice-of-law clause has any bearing on the circuit court's 

evaluation of the reasonableness of an award of attorney fees and 

expenses. The answer to such a question would depend upon whether a 

claim for contractual attorney fees is substantive or procedural in nature

because, in an action based on a contract with a choice-of-law provision, 

substantive matters are governed by the law of the chosen jurisdiction --

New York in this instance -- but matters of procedure are governed by 

the law of the forum. See, e.g., Etheredge v. Genie Indus., Inc., 632 So.

2d 1324, 1326 (Ala. 1994) ("'[A] court will apply foreign law only to the 

extent that it deals with the substance of the case, i.e., affects the 

outcome of the litigation, but will rely on forum law to deal with the 

"procedural" aspects of the litigation.'" (quoting Eugene F. Scoles & Peter 

Hay, Conflict of Laws 57 (1992))). However, this Court has not addressed 

whether a claim for contractual attorney fees is substantive or procedural 

in nature, and reviews by other courts reveal that this is not a settled 

issue in other jurisdictions. See, e.g., 1600 Barberry Lane 8 LLC v. 

Cottonwood Residential O.P. LP, 493 P.3d 580, 586-87 (Utah 2021); 

Boswell v. RFD-TV the Theater, LLC, 498 S.W.3d 550, 557-60 (Tenn. Ct. 

App. 2016). Because the parties do not ask us to address that question 

and because they agree that Alabama law applies to the issue of the 

reasonableness of the attorney-fee award, we will apply Alabama law.
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Eli Global and Lindberg contend that the Sellers failed to prove that 

the circuit court's awarded attorney fees and expenses are recoverable 

because, instead of addressing the foregoing 12 factors that were first 

enunciated in Peebles v. Miley, 439 So. 2d 137, 140-41 (Ala. 1983), they 

say that the Sellers only presented "conclusory testimony that [the] fee 

[was] based on the hours spent and the results achieved." Eli Global & 

Lindberg's brief, p. 24.

We reject Eli Global and Lindberg's contention that the Sellers did 

not provide adequate explanations or evidentiary support for their 

request for attorney fees and expenses. As we recounted in our rendition 

of the facts, the Sellers submitted multiple affidavits -- including two 

affidavits from one of their current attorneys -- a large number of invoices 

detailing their attorneys' fees and expenses, and arguments that 

discussed the Peebles factors in detail. When viewed as a whole, the 

Sellers' submissions were more than adequate to allow the circuit court 

to determine whether the Sellers' requested attorney fees and expenses 

were reasonable.

However, Eli Global and Lindberg also contend that the circuit 

court's order awarding attorney fees and expenses did not "provide for 
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56

meaningful appellate review by articulating the decision made, the 

reasons supporting that decision, and how it calculated the attorneys' 

fees." Eli Global & Lindberg's brief, p. 28; see Pharmacia, 915 So. 2d at

553. The Sellers do not really dispute that contention, arguing instead 

that the circuit court's order "was supported by facts and analysis" that 

they submitted. Sellers' brief, p. 33. Although, as we already have stated, 

we agree that the Sellers submitted sufficient facts and analysis in 

support of their requested award, that is not the standard we have 

applied to a circuit court's order awarding attorney fees and expenses. 

See, e.g., Kiker v. Probate Ct. of Mobile Cnty., 67 So. 3d 865, 868 (Ala. 

2010) ("In this case, the probate court's December 22, 2009, order 

awarding attorney fees and expenses ... provides no indication as to 

whether the probate court considered the criteria set forth for 

determining the reasonableness of an attorney fee as detailed in 

Pharmacia, 915 So. 2d at 552-53 .... Additionally, the probate court's 

order neither indicates how the probate court calculated the attorney fees 

nor provides a basis for ascertaining the exact amount of [the] award 

specifically attributable to attorney fees. Although the probate court 

stated in its original order of November 24, 2009, that its decision was 
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57

based on the 'evidence and argument presented,' the probate court 

provides no detailed application of the facts regarding the attorney fees 

to the factors detailed in Pharmacia."); Madison Cnty. Dep't of Hum. Res. 

v. T.S., 53 So. 3d 38, 44 (Ala. 2009) ("In this case, the trial court's order 

approving an attorney fee ... plus litigation expenses ... provides no 

indication as to whether the trial court considered the criteria set forth 

for determining the reasonableness of an attorney fee as detailed in 

Pharmacia, nor does it indicate how the trial court calculated the 

attorney fee. Although the trial court states that its decision is based on 

the evidence, it provides no detailed application of the facts regarding 

Fees's fee to the factors set forth in Pharmacia.").

Concerning attorney fees and expenses, the circuit court's 

December 21, 2022, order simply stated:

"2. [The Sellers'] motion to enter attorneys' fees and 

costs award is granted; and

"....

"Accordingly, judgment is hereby entered in favor of 

Ronald Cieutat in his representative capacity on behalf of all 

of [the Sellers], jointly and severally against Defendants 

Eli Global LLC d/b/a Global Growth and Greg Lindberg, ... 

(b)(i) $61,330.00 in attorneys' fees and $4,446.96 in expenses 

with the Baker Donelson firm, (ii) $17,575.00 in attorneys' 

fees with Bob Clute, and (iii) $138,211.75 in attorneys' fees 
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and $11,406.42 in expenses with the Speegle Hoffman firm; 

and (c) all of which shall accrue post-judgment interest at the 

highest lawful rate."

The circuit court's order "does not expressly state that the circuit 

court considered each of the 12 factors set out in Pharmacia," but as we 

noted in Moultrie v. Wall, 143 So. 3d 128, 137 (Ala. 2013), that shortfall 

is not sufficient to find error with the award. Still, the order's threadbare 

nature does not "allow for meaningful appellate review by articulating 

the decisions made, the reasons supporting those decisions, and how it 

calculated the attorney fee." Pharmacia, 915 So. 2d at 553. Perhaps 

sensing that we might reach such a conclusion, the Sellers argue that 

"this Court is authorized to render judgments that it believes the trial 

court should have rendered" and, thus, "may enter a reasoned judgment 

in the [Sellers'] favor supporting the attorneys' fees and expenses award." 

Sellers' brief, p. 47. But as we observed in Pharmacia, "[w]e defer to the 

trial court in an attorney-fee case because we recognize that the trial 

court, which has presided over the entire litigation, has a superior 

understanding of the factual questions that must be resolved in an 

attorney-fee determination." Pharmacia, 915 So. 2d at 553. Therefore, we 

conclude that the proper course of action is to remand this case to the 
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circuit court for the entry of an explanatory order articulating the 

decision it made, and its reason for that decision, which resulted in the 

attorney fees and expenses it awarded to the Sellers.16 Cf. Kiker, 67 So. 

3d at 870; Beal Bank, SSB v. Schilleci, 896 So. 2d 395, 409-10 (Ala. 2004).

IV. Conclusion

The Promissory Note was not a negotiable instrument. Even if we 

construed it as such under the New York UCC, the Sellers were not 

required to prove who possessed the Promissory Note because Eli Global 

and Lindberg waived that argument in the circuit court. Even if 

Eli Global and Lindberg had not waived their possession argument, the 

Sellers presented a sufficient prima facie case to establish that Cieutat, 

as the Sellers' representative, possessed the Promissory Note, and Eli 

Global and Lindberg presented no evidence to refute his possession.

Accordingly, the Sellers had the right to enforce payment on the 

16

"We note that, when an appellate court remands a case, 

the trial court's authority is limited to compliance with the 

directions provided by the appellate court; it does not have the 

authority to reopen for additional testimony except where 

expressly directed to do so. Madison Cty. Dept. of Human Res. 

v. T.S., 53 So. 3d 38 (Ala. 2009)."

Ex parte Shinaberry, 326 So. 3d 1037, 1043 n.3 (Ala. 2020).
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Promissory Note, and Eli Global and Lindberg do not dispute the amount 

owed under the Promissory Note. Additionally, Cieutat did not release 

his claims against Lindberg that are based on the Guaranty. Therefore,

we affirm the circuit court's judgment finding Eli Global and Lindberg 

liable based on the Promissory Note and the Guaranty, and we affirm its 

award of the principal amount plus interest due based on that liability. 

However, because the circuit court's December 21, 2022, order did not 

provide sufficient explanation as to how it determined the award of 

attorney fees and expenses, we remand the case for the circuit court to 

enter an order articulating its reasons for that portion of the order. Due 

return shall be made to this Court within 42 days of the date of this 

opinion.

AFFIRMED IN PART AND REMANDED WITH INSTRUCTIONS.

Parker, C.J., and Shaw, Wise, Bryan, Stewart, Mitchell, and Cook, 

JJ., concur.

Sellers, J., concurs in the result.