Ex parte Taylor Coal Co., Inc.

• Decision Date: 27 February 1981
• Citation: 401 So.2d 1
• Parties: Ex parte TAYLOR COAL COMPANY, INC. (In re Willis A. Crocker, et al. v. All Coal, Iron, Ore, Gas, Oil, etc.) 79-959.
• Court: Alabama Supreme Court

Page 1

401 So.2d 1

Ex parte TAYLOR COAL COMPANY, INC. (In re Willis A. Crocker, et al. v. All Coal, Iron, Ore, Gas, Oil, etc.)

79-959.

Supreme Court of Alabama.

Feb. 27, 1981.

Rehearing Denied July 2, 1981.

Charles Nolen, Fayette, Tweedy, Jackson & Beech, Jasper, Wilbor J. Hust and Olin W. Zeanah of Zeanah, Donald & Hust, Tuscaloosa, for petitioner.

Louis P. Moore of Holder, Moore & Grocholski, Fayette, Sam M. Phelps and Eugene A. Beatty of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for respondent.

ADAMS, Justice.

This case comes to us on petition for writ of mandamus seeking a writ directed to the Honorable Clatus Junkin, Circuit Judge for Fayette County, Alabama, to enter an order which:

1. disqualifies Louis P. Moore in the firm of Holder, Moore and Grocholski from representing the defendants;

2. disqualifies Sam M. Phelps in the firm of Phelps, Owens, Jenkins, Gibson and Fowler from representing the defendants in this case;

3. disqualifies or enjoins Robert O. Sigler, who is a party to this action, from participating in this case; and,

4. seals the entire record in this case.

The motion to disqualify was filed on May 29, 1980, by the petitioner, Taylor Coal Company, Inc. It had filed a complaint in intervention in this case on January 14, 1977. Its contention in the motion was that Louis Moore had in the past rendered title opinions to it on some of the land involved in this litigation prior to his employment by the defendants and, therefore, he, as well as his law firm, his co-counsel and Robert O. Sigler are disqualified from participation in this lawsuit.

Discovery was had in connection with the motion and a hearing was held ore tenus on July 15, 1980. The trial judge denied the motion on August 30, 1980, and entered a detailed opinion in which he reached the following conclusions:

1. Neither Louis Moore, nor anyone in the firm of Holder, Moore and Grocholski, received any information of a confidential nature from Taylor Coal Company, Inc., during the period of time within which Mr. Moore was rendering title opinions to Taylor Coal Company, Inc.

2. Neither Sam M. Phelps, nor anyone in the firm of Phelps, Owens, Jenkins, Gibson and Fowler, received any such information from Louis Moore or any member of the firm of Holder, Moore and Grocholski.

3. There was no evidence of any reason for the disqualification of, or the issuance of an injunction against, Robert O. Sigler, who is a party to this action.

4. Any relief to which the movant otherwise may have been entitled was barred by the doctrine of laches.

Jurisdiction

At first blush, it would appear that this controversy could be resolved very simply by denying the writ because of the narrow field of operation of a petition for writ of mandamus. The cases are replete with statements to the effect that mandamus does not lie to review a judge's acts of discretion. East v. Todd, 284 Ala. 495, 226 So.2d 153 (1969); Assured Investors Life Insurance Company v. National Union Associates, Inc., 362 So.2d 228 (Ala.1978). Ordinarily, the matter should come to us by way of review on appeal, the judge below having exercised his discretion not to disqualify defendant's counsel and his co-counsel. However, the petitioner has leveled serious charges of violations of Canons 4 and 9, Code of Professional Responsibility of the Alabama State Bar, against two lawyers licensed to practice before this Court. The impact of those violations on the present litigation is too important for us to ignore until these charges come to us on appeal. As far as we have been able to determine, the issues presented by the petitioner, surprisingly, are of first impression in this state and could taint the trial of the case below, unless resolved at this time. We said in Jones v. Alabama State Bar, 353 So.2d 508, 509 (Ala.1977), quoting from In re Evans, 42 Utah 282, 130 P. 217 (1913):

The summary jurisdiction which the court has over its attorneys as officers of the court is also invoked. That jurisdiction is inherent, continuing, and plenary, and exists independently of statute or rules of equity, and ought to be assumed and exercised as the exigencies and necessity of the case require, not only to maintain and protect the integrity and dignity of the court, to secure obedience to its rules and process, and to rebuke interference with the conduct of its business, but also to control and protect its officers, including attorneys.

Because of the urgency of the matters raised in the petition, we proceed to review them. Mandamus lies when no other adequate remedy is available. Ex parte Locke, 346 So.2d 419 (Ala.1977); Ex parte Osborn, 375 So.2d 467 (Ala.1979).

Unfortunately, due to the delicate interplay of ethical and equitable considerations in this case, a fairly comprehensive review of the facts involved in this protracted and checkered litigation will be necessary.

History of Litigation

This action was commenced on November 12, 1976, when Willis Crocker filed a bill to quiet title to certain mineral lands in Fayette County. The defendants are: (1) The Pearson Coal and Iron Company, (2) Robert O. Sigler, (3) Ensearch Exploration, Inc., and (4) a group which has been referred to as the "Pearson Heirs." The "Pearson Heirs" include the following: Nancy Milliken Barth, Robert A. Blackstone, Elliott H. Bridges, James R. Bridges, Jr., Roberta Bridges Grimes, Constance Pike Hill, Rosa B. Hughes, Alexander Rutledge Pearson, Alfred Eubank Pearson, James Pugh Pearson, Jr., Robert H. Pearson, Edwin Bertram Pike, Jr., and Howard N. Rix; J. Michael Rediker, Charles R. Terry, R. H. Woodrow, Jr., and Henry B. Gray, III, as Trustees of the B. F. Roden estate; and the First National Bank of Hot Springs, Arkansas, as Trustee for Madelyn Thompson under the will of Fern O. Rix, deceased. Louis Moore, as attorney for these defendants, filed a motion to dismiss on December 17, 1976.

Taylor Coal Company filed a complaint in intervention on January 14, 1977. The complaint alleged a leasehold interest through Willis Crocker and requested a determination of the validity of the lease. The complaint also sought a declaration that Taylor Coal Company was not liable in damages for any coal which the corporation mined from the lands involved. Mr. Moore then filed an answer on behalf of his clients on the grounds that the plaintiffs and the plaintiff intervenor had failed to join necessary parties. The Court ordered that the necessary parties be joined within thirty days. After three extensions of time for the purpose of adding these parties, the case was dismissed on July 22, 1977, for want of prosecution. The judgment was appealed to this Court. We dismissed the appeal on April 5, 1980, because the appellant failed to file a brief!

Sam M. Phelps entered the picture between July 22, 1977, and October, 1977, when Louis Moore associated him and the firm of Phelps, Owens, Jenkins, Gibson and Fowler for the purpose of filing a trespass action on behalf of the "Pearson Heirs" and Robert O. Sigler. On November 18, 1977, Moore and Phelps filed such an action in the United States District Court for the Northern District of Alabama. The defendants in the case were Taylor Coal Company, Taylor and Son Coal Company, Walter Scott Taylor, Sr., and Walter Scott Taylor, Jr. The District Court dismissed the action on August 3, 1979, for lack of subject matter jurisdiction because Pearson Coal and Iron Company was a necessary party whose joinder would destroy diversity jurisdiction.

On the same day, Moore and Phelps re-filed the action in the Circuit Court for Tuscaloosa County, Alabama. In the Tuscaloosa action the "Pearson Heirs" and Mr. Sigler asserted the same claims against Taylor Coal Company and the other defendants as were asserted in the previously dismissed federal action. In addition, Drummond Coal Company and Carlos Waid were made defendants in the Tuscaloosa action. On August 15, 1979, Taylor Coal Company filed an amendment to its complaint in intervention in this action (the Fayette action), despite the court's July 22, 1977, order of dismissal for failure to join necessary parties.

On December 11, 1978, the Circuit Court of Tuscaloosa County, Alabama, dismissed the Tuscaloosa trespass action because of the pending action in Fayette County, Alabama. On December 12, 1979, Judge Junkin, in the Fayette County action, granted a motion to strike Taylor Coal Company's amendment to the complaint in intervention because the action had been dismissed on July 22, 1977. Both of the judgments, namely, the judgment in the Tuscaloosa case and the judgment in the Fayette case, were appealed to us.

On February 8, 1980, we reversed and remanded both of these cases and stayed the Tuscaloosa action, pending the outcome of this case (the Fayette action). Taylor Coal Company, Inc. v. Pearson, 380 So.2d 779 (Ala.1980). Taylor Coal Company filed its motion to disqualify on May 29, 1980.

Actions of the Parties

Louis Moore rendered seven title opinions to Taylor Coal Company over a seven month period from September, 1975 to March, 1976. Only two of the opinions covered land involved in this action, namely, the first opinion, dated September 10, 1975, and the last opinion, dated March 3, 1976. In each opinion, Moore certified that the "Pearson Heirs" owned the mineral interests in the land.

Richard Willcutt, an employee of Taylor Coal Company first contacted Moore about giving a title opinion to Taylor Coal Company in September, 1975. He came to Moore's office in Fayette, Alabama, requested an opinion and gave Mr. Moore an abstract of title prepared by Lucy Crutcher. Mr. Moore mailed the title opinion and the abstract to Taylor Coal Company's office in Bessemer, but kept a copy of the opinion and a copy of the abstract in his office file. The extent of the attorney-client relationship between Mr. Moore and Taylor Coal Company was the rendering of title opinions based on public records in Fayette County.

Taylor...