Rose v. Penn & Seaborn, LLC
| Decision Date | 07 June 2019 |
| Docket Number | 2180184 |
| Citation | 295 So.3d 94 |
| Parties | Christopher E. ROSE v. PENN & SEABORN, LLC; Cervera, Ralph, Reeves, Baker & Hastings, LLC; and Joel Gregg |
| Court | Alabama Court of Civil Appeals |
Alabama Supreme Court 1180733
Christopher E. Rose, appellant, pro se.
Charles Hudson of Penn & Seaborn, LLC, Montgomery; and Christina D. Crow of Jinks, Crow & Dickson, P.C., Union Springs, for appellees.
Christopher E. Rose, appearing pro se, appeals from a judgment of the Pike Circuit Court ("the trial court") ordering him to pay an attorney fee to Penn & Seaborn, LLC ("P&S"); Cervera, Ralph, Reeves, Baker & Hastings, LLC ("CRRB&H"); and Joel Gregg (P&S, CRRB&H, and Gregg are hereinafter referred to collectively as "the attorneys").
The record indicates the following. Rose retained Shane Seaborn of P&S and Grady Reeves and Clifton Hastings of CRRB&H to represent him in connection with claims he was pursuing against corporate defendants pertaining to gasoline that had leaked from underground fuel-storage tanks into the soil on his property. Seaborn associated Gregg as counsel because Gregg has experience in underground-tank litigation. Rose signed a contingent-fee employment contract ("the fee agreement") in which he agreed to pay the attorneys 45% "solely from the proceeds" of the net amount recovered, "whether by settlement, trial, or otherwise."
In March 2013, Seaborn, Reeves, and Hastings filed on behalf of Rose a complaint against the corporate defendants in connection with the leaked gasoline. In the complaint, Rose asserted a number of tort claims and sought monetary damages against the corporate defendants. On January 30, 2015, the parties mediated the claims and agreed to settle the case for $100,000, and Rose executed a settlement agreement ("the first settlement agreement").
On August 13, 2015, the corporate defendants filed a motion to enforce the first settlement agreement, asserting that Rose had refused to present the agreement and a release discharging the corporate defendants from liability on the claims ("the release") to the individual who held the mortgage on the property at issue for his consent and approval as required by the first settlement agreement. On September 9, 2015, the trial court entered a summary judgment enforcing the first settlement agreement.
On September 14, 2015, Rose sent an e-mail to Seaborn informing him that Rose was "terminating our agreement." Rose wrote that he was meeting another attorney to "make plans" to appeal the September 9, 2015, judgment, adding that Seaborn was "ordered to refrain from any further interaction with the [defendants] or the judge in this matter on my behalf" and to "withdraw, remove, or prevent subordinate attorneys retained by you to assist in this case" from taking any further action. Rose explicitly stated that he "fully and completely rescind[ed] any agreement that gives you any authority to represent or bind me in any agreements." Rose then said: "This email is intended as an emergency stop work order to provide reasonable review of the facts and to investigate charges of ethics violation, case tampering and negligence." On September 16, 2015, the attorneys filed a notice of an attorney's lien in the trial court. They also filed a motion to withdraw from their representation of Rose.
Rose, acting pro se, proceeded with an appeal of the September 9, 2015, judgment. On April 29, 2016, this court reversed that judgment on the ground that a genuine issue of material fact existed as to why the mortgage holder, Rose's father-in-law, Glen Bracewell, had not signed the release and no legal argument had been made by any party as to the legal effect of Bracewell's failure to fulfill that requirement specified in the first settlement agreement. Rose v. Interstate Oil Co., 208 So. 3d 26, 29 (Ala. Civ. App. 2016). The cause was remanded for further proceedings. Id.
It is undisputed that, after the case was remanded, the parties, including Bracewell, who had been added as a party to the action on March 13, 2018, reached a new agreement to settle the matter for $125,000 ("the second settlement agreement"). On May 7, 2018, Rose, still appearing pro se, filed in the trial court a "memorandum in opposition to [the] fee" that the attorneys sought for their work in this matter and requested a release of the attorney's lien. Bracewell, who was represented by counsel, filed a response to Rose's memorandum in opposition to the fee, referencing "the $125,000 settlement proceeds" set out in the second settlement agreement and arguing that he was entitled to "the entire principal sum of $100,000 plus all accumulated and accrued interest." On May 23, 2018, the attorneys filed a response to Rose's memorandum, attaching the fee agreement and correspondence from Rose, including the e-mail in which Rose terminated their representation.
On October 24, 2018, the trial court held an ore tenus hearing on the attorney-fee issue. At that hearing, Rose testified that, while they were representing him, the attorneys did their jobs and that Seaborn was a "skilled, competent attorney." However, Rose said, he did not believe that the attorneys were entitled to compensation in this matter because he questioned their ethics and he believed that they had tried to "defraud" Bracewell. Rose testified that he had hired Seaborn, that Seaborn was his employee, and that, as Seaborn's employer, it was Rose's "responsibility to hold him to an account." He also said that "it is not unreasonable to be stern or strong with an employee." Rose made unsupported speculative or conjectural statements, but he presented no evidence of any wrongdoing or misconduct by any of the attorneys.
Seaborn, Reeves, Hastings, and Gregg testified regarding their experience, their billing rates, and the estimated amount of time each had put into this case before Rose discharged them. Seaborn testified that he had associated Gregg on the matter because, he said, Gregg had an expertise in underground-tank litigation. Seaborn said that, among other things, he had both propounded discovery and worked with Rose to respond to discovery. Seaborn had also taken depositions. That discovery was used in reaching both settlements in this action. Based on the testimony the attorneys presented, it appears that, if Rose were billed by the hour, he would owe the attorneys a total of more than $63,310. The attorneys' expenses were $3,411.50. Other attorneys testified regarding the reasonable amount of an attorney fee for the work performed.
On November 7, 2019, the trial court entered an order awarding the attorneys a fee equaling 45% of $96,588.50, which represents the amount of the first settlement agreement–-$100,000–-less expenses of $3,411.50; the attorney fee was calculated to be $43,464.83. Adding expenses of $3,411.50, the trial court entered a total award to the attorneys in the amount of $46,876.33. In determining the award, the trial court explained:
"In making the foregoing award of fees and expenses, the Court, of course, considered the contingency fee employment contract, as well as the numerous hours expended by counsel in handling the case, their time records reflecting the nature of the services performed and the amount of time it consumed, the reasonableness of the services performed, the fees customarily charged in the locality of Pike County for similar services undertaken on a contingent fee basis, and perhaps most importantly, that their efforts were the procuring cause of the first $100,000.00 of the achieved final settlement."
Rose filed a timely notice of appeal to this court, which transferred the appeal to our supreme court for lack of subject-matter jurisdiction. The supreme court then transferred the case to this court pursuant to § 12-2-7(6), Ala. Code 1975.
At the hearing on the issue of an attorney fee, the trial court received both ore tenus and documentary evidence.
Spencer v. Spencer, 258 So. 3d 326, 327-28 (Ala. 2018).
In this appeal, Rose observes that the attorneys did not represent him in his previous appeal, that the original judgment that ordered the enforcement of the first settlement agreement was reversed, and that the attorneys were not representing him when the second settlement agreement was reached. Rose further points out that the fee agreement did not include appellate work. He maintains that the attorneys "declined to take an appeal," saying that he gave them an opportunity to represent him on appeal before he discharged them. Accordingly, Rose argues, because the attorneys were not representing him when the second settlement was reached, they were not entitled to receive a fee. This is the same argument Rose made to the trial court in his memorandum in opposition to the fee.
In support of his argument, Rose cites opinions from other states that are factually distinguishable from the instant case. For example, Dinter v. Sears,...
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