Ex parte Rountree
| Decision Date | 25 April 1997 |
| Citation | 694 So.2d 13 |
| Parties | Ex parte Thomas L. ROUNTREE. (In re Tracy F. Hudmon SHIVER, v. Kenneth R. HUDMON). 2960093. |
| Court | Alabama Court of Civil Appeals |
Macbeth Wagnon, Jr., of Bradley, Arant, Rose & White, Birmingham, for petitioner.
Bill Pryor, Atty. Gen., and Robert M. Weinberg, Asst. Atty. Gen., for respondent.
Thomas L. Rountree petitions for a writ of prohibition seeking an order from this court directing the trial judge in the underlying case to withdraw his order requiring Rountree to appear and respond to a contempt citation.
The underlying case began when the defendant, Kenneth Hudmon, was served on October 1, 1996, with a summons to appear at a rule nisi hearing on October 3, 1996, concerning the payment of delinquent child support and other monies allegedly owed to his former wife, plaintiff Tracy F. Hudmon Shiver. Hudmon sought Rountree's representation on October 2, 1996. Rountree informed Hudmon that he would be unable to represent Hudmon at the October 3, 1996, hearing because of other commitments, but that he could represent Hudmon if the matter could be continued for three to four weeks. Rountree contacted Shiver's lawyer, John Ben Jones 1, about a continuance. Shiver would not agree to a continuance, and Rountree informed Hudmon that he could not represent him.
Later that day, Hudmon told Rountree that he had contacted the trial judge's secretary and that she had suggested that Rountree write a letter to the judge discussing a continuance. Rountree wrote a letter to the trial judge dated October 2, 1996, and gave it to Hudmon to take to the hearing the next day. Rountree's letter contained the following paragraph:
"While this letter is not notice of appearance, I would represent Mr. Hudmon if the matter is continued for three to four weeks."
On the morning of October 3, 1996, Shiver changed her mind about the continuance. Jones, without having contacted Rountree, telephoned the trial judge's secretary, discussed the situation, and telefaxed a proposed order he had prepared granting the continuance to the trial judge's office. This proposed order left the date for the rescheduled hearing blank, but showed Rountree as attorney for Hudmon. The trial judge granted the continuance and rescheduled the hearing for October 8, 1996. Because the trial judge granted the continuance, no hearing took place and Hudmon did not deliver Rountree's letter dated October 2, 1996. Rountree received a copy of the rescheduling order on October 5, 1996. Rountree contacted Hudmon on October 7, 1996, to advise him that he was not available and that Hudmon would have to appear pro se or find another lawyer. Rountree also contacted Melton and informed him that he was not representing Hudmon.
On October 8, 1996, Hudmon appeared at the hearing with Rountree's October 2 letter and delivered that letter to the trial judge. The trial judge conducted the hearing and entered a judgment against Hudmon on October 22, 1996. That judgment also directed Rountree to appear before the trial judge on October 29, 1996, "and explain to this Court why he should not be cited for contempt for his failure to appear at the instant hearing, that is at 9:00 a.m. on October 8, 1996." While the trial judge's comments in the record and in his letter reply to the petition for prohibition indicate that he did not necessarily intend to incarcerate Rountree for his first contempt, i.e., the failure to appear at the October 8 hearing, the record of the proceedings on October 8 shows that the trial judge stated that "I'm going to cite Mr. Rountree for contempt of court for failure to appear in connection with this matter."
When Rountree learned of the trial judge's statement, he contacted the judge's office on October 9, 1996. Although there is no record of that conversation, it appears that Rountree informed the trial judge that he was not representing Hudmon, but that the judge refused to change his order requiring Rountree to appear on October 29 to address the contempt citation. On October 17, 1996, Rountree wrote a letter to the trial judge detailing the events to that point, reasserting that he was not representing Hudmon, and apologizing for any inconvenience to the judge. The letter also requested that the trial judge relieve Rountree of the order to appear before the court on October 29. The judge responded to Rountree's letter with his own letter dated October 22, 1996, stating that he required Rountree to appear in response to the contempt citation as ordered.
Rountree did not attend the October 29, 1996, hearing, and the trial judge stated:
On that same day, Rountree filed this petition for writ of prohibition in this Court and this Court stayed further proceedings pending consideration of the petition.
In his response to Rountree's petition, the trial judge asserts that Rountree was representing Hudmon because of his contacts with Jones and Melton seeking a continuance in the underlying case. Based on his contention that Rountree was representing a client in his court, the trial judge claims to have authority to impose contempt sanctions. The judge further asserts that this Court should not address the writ of prohibition because, he contends, the writ is procedurally inappropriate. The judge argues that Rountree's proper procedural route is by appeal or writ of mandamus after the trial judge imposes some sanction for Rountree's contempt.
The trial judge's procedural argument is that a writ of prohibition cannot apply to this case because he has not yet done anything. Although the judge has apparently twice found Rountree in contempt, once issuing a warrant for his arrest, he nevertheless argues that because Rountree has not appeared before him and participated in the proceeding, nothing has actually happened. The judge argues that this Court must first allow him to complete the two pending contempt proceedings, and then review by appeal the validity of his determinations. The Attorney General supports this argument with citation to Ex parte State ex rel. Knight, 229 Ala. 513, 158 So. 317 (1934), to the effect that a writ of prohibition will not issue when an appeal will lie for the same alleged errors.
The Attorney General follows the proposition that prohibition does not lie when there is review by appeal with discussion of the rule that review of contempt proceedings is by appeal. See Ala.Code 1975, § 12-1-11 (), and Rule 70A(g), Ala.R.Civ.P. (review of contempt proceedings is by appeal or writ of habeas corpus). See also Ex parte Baker, 623 So.2d 304 (Ala.Civ.App.1993), and T.P.W.C. v. J.R.W., 622 So.2d 931 (Ala.Civ.App.1993). The Attorney General argues that this Court should therefore dismiss the petition.
Rountree's reply to this argument is that a writ of prohibition is appropriate to prevent a trial court from acting beyond its jurisdiction or authority. Rountree argues that the writ of prohibition should issue under the circumstances of this case, because, he says, the trial judge does not have the authority to find Rountree in contempt or to compel Rountree to appear before him to explain why he should not be held in contempt.
We agree with the trial judge that he has entered no formal order imposing contempt sanctions. However, this necessarily means that there is no order from which an appeal will lie. Our review of the record strongly supports the inference that the trial judge sought to compel Rountree to appear so that contempt sanctions could be imposed. Because Rountree seeks to prohibit the trial judge from compelling Rountree to come before him and thereby subject Rountree to contempt sanctions, we conclude that Rountree's resort to a petition for a writ of prohibition is procedurally correct in this case.
The critical factual consideration in this case is whether Rountree was ever properly before the trial judge so that the judge would have the authority to order Rountree to appear at a hearing and to hold him in contempt. We find no Alabama law on point with this fact situation. Rountree argues, in addition to the fact that he has consistently disclaimed representation, that case law as to what constitutes an "attorney of record" and when a party "appears" before a court supports his position. Rountree cites Lee v. Martin, 533 So.2d 185 (Ala.1988), and Maner v. Maner, 279 Ala. 652, 189 So.2d 336 (1966), in support of his argument that he is not an "attorney of record" in this case.
In Maner, a domestic relations case, our Supreme Court discussed the term "attorney of record:"
"An 'attorney of record' means an attorney who has filed an appearance or pleading in the cause and is therefore presumed to have authority to bind his client by acceptance of service."
279 Ala. at 658, 189 So.2d at 342. (Citations omitted.)
In Lee, our supreme court discussed what constitutes a party's "appearance" in a default case under Rule 55, Ala.R.Civ.P.:
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