Fox v. Hughston

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Fox v. Hughston, 382 So.3d 1207 (Ala. 2023)
• Docket Number: SC-2022-0564
• Decision Date: 10 March 2023
• Parties: Erica Rae FOX v. Harold V. HUGHSTON III and Sheila Morgan

382 So.3d 1207

Erica Rae FOX

v.Harold V. HUGHSTON III and Sheila Morgan

SC-2022-0564

Supreme Court of Alabama.

March 10, 2023

*Note from the reporter of decisions: Judge Self, circuit judge, Lauderdale County, was appointed to preside over this case upon the recusal of the circuit judges in the 31st Judicial Circuit.

Jerry M. Blevins, Montgomery, for appellant.

Robert V. Wood, Jr., and Elena G. Moats of Wilmer & Lee, P.A., Huntsville, for appellee Harold V. Hughston III.

Sheila F. Morgan, Tuscumbia.

PER CURIAM.

In this legal-malpractice action, Erica Rae Fox appeals from a summary judgment entered by the Colbert Circuit Court in favor of her former criminal-defense attorneys, Harold V. Hughston III and Sheila Morgan ("the defense attorneys"). The trial court determined that the applicable statute of limitations barred Fox’s action. We affirm.

Facts and Procedural History

On August 12, 2016, Ronnie Credille murdered Fox’s husband, Jason Fox. Credille shot Jason in the head as he entered the doorway of the residence that he shared with Fox and their children. Fox and Credille were alleged to have been involved in an adulterous relationship. A grand jury indicted Fox for capital murder on January 12, 2017. Fox was accused of arranging for Credille to murder Jason so that she could collect the proceeds from Jason’s life-insurance policy. The trial court presiding over the criminal action declared Fox indigent and appointed the defense attorneys to represent her. On October 26, 2018, at the conclusion of a five-day jury trial, the jury convicted Fox of capital murder, and, on November 28, 2018, she was sentenced to life imprisonment without the possibility of parole.

The transcript of Fox’s trial indicates that, on October 26, 2018, after the jury had reached its verdict and the trial court had polled the jury members, Morgan provided an oral notice of appeal in open court. Rule 3(a)(2), Ala. R. App. P., however, provides that,

"[i]n criminal cases, an appeal permitted by law as a matter of right to an appellate court shall be taken by filing a written notice of appeal with the clerk of the trial court within the time allowed by Rule 4, [Ala. R. App. P.,] or by the defendant’s giving an oral notice of appeal at the time of sentencing, which oral notice shall be noted of record …."

(Emphasis added.) Fox contends that, at the conclusion of the sentencing hearing, she made it clear to the defense attorneys that she wanted to appeal her conviction and sentence and that they represented to her that a notice of appeal had been perfected. Despite that representation, there is no oral notice of appeal contained in the transcript of the sentencing hearing.

On December 28, 2018, the defense attorneys filed a motion for a new trial on Fox’s behalf. That motion was denied by operation of law on January 28, 2019. See Rule 24.4, Ala. R. Crim. P.¹ Nevertheless, the trial court held a hearing on the motion for a new trial on March 7, 2019. At the conclusion of the hearing, the trial court entered an order purportedly denying the motion for a new trial. After January 28, 2019, however, the trial court did not have jurisdiction to rule on the motion for a new trial, and therefore its order purporting to deny the motion was void. See Edgar v. State, 646 So. 2d 683 (Ala. 1994). The transcript of the hearing on the motion for a new trial reflects that Morgan again provided an oral notice of appeal in open court. Neither oral notice of appeal was effective because neither was given at the time of sentencing. See Rule 3(a)(2), Ala. R. App. P. See also Ex parte Soule, 892 So. 2d 879, 880 n.1 (Ala. 2004) ("An oral notice of appeal is effective only if it is made at the time of sentencing.").

Because the deadline by which Fox was required to file a written notice of appeal of her conviction and sentence is calculated from the date on which her motion for a new trial was denied by operation of law, her written notice of appeal was due to be filed on or before March 11, 2019. See Rule 4(b)(1), Ala. R. App. P. The record in Fox’s criminal case, which Hughston provided as an exhibit to his motion for a summary judgment in this case, does not contain a timely written notice of appeal.

After the trial court heard Fox’s motion for a new trial, the defense attorneys filed a motion to withdraw from representing Fox. The trial court granted the defense attorneys’ motion to withdraw on March 25, 2019, but it was not until April 1, 2019, that the trial court appointed Charlie Bottoms as appellate counsel to represent Fox in her anticipated appeal. Bottoms promptly filed a written notice of appeal on Fox’s behalf on April 2, 2019. The record in Fox’s criminal case reflects that this was the first written notice of appeal filed therein. On April 11, 2019, the Alabama Court of Criminal Appeals entered an order requiring Fox to show cause why her appeal should not be dismissed on the ground that her notice of appeal was not timely filed. Bottoms filed a response in which he contended that Fox’s appeal should not be dismissed because, he argued, "[Fox] and/or her trial council [sic] gave an oral notice of appeal at the sentencing hearing." The Court of Criminal Appeals stayed the appeal on June 5, 2019.

Bottoms then filed a motion to reinstate the appeal or, in the alternative, to order a new sentencing hearing for Fox. Bottoms stated: "The undersigned attorney has reviewed the transcript of the sentencing hearing provided to him and the record does not reflect that [Fox] gave an oral notice of appeal at the sentencing hearing." On July 17, 2019, the Court of Criminal Appeals dismissed Fox’s appeal as un- timely. Fox v. State (No. CR-18-0670, July 17, 2019). That court held that Morgan’s oral notice of appeal after the jury returned its verdict was ineffective and, therefore, that Bottoms’s written notice of appeal was not timely filed. Bottoms filed an application for rehearing; that court overruled the application on August 5, 2019. Bottoms then filed a petition for a writ of certiorari with this Court. We granted the petition, but on December 20, 2019, we quashed the writ, Ex parte Fox (No. 1180913, 316 So. 3d 232 (Ala. 2019) (table), and, on the same date, the Court of Criminal Appeals certified its judgment of dismissal as final.

Meanwhile, on August 12, 2019, Fox wrote a letter to Morgan. The letter stated, in pertinent part:

"I do not understand the fact of the notice of appeal at my sentencing hearing can’t be found and is not documented, and apparently we are out of time for my direct appeal. I know you do not represent me any more, but you did then. Can you please write me back and let me know (explain) what is going on."

Fox submitted an affidavit she executed on February 28, 2022, as evidence in the legal-malpractice action ("the 2022 affidavit"). She testified as follows in the 2022 affidavit:

"Around February 1, 2020, I learned that my appeal had been dismissed by the appellate court because the appeal had been untimely filed. I was unsure whether Attorneys Hughston and Morgan, or Attorney Bottoms, had failed to timely file the appeal. Nor did I know I had a potential claim against Attorneys Hughston and Morgan for not timely filing my appeal. I knew I needed to have an attorney look into the matter for me."

Fox and her parents retained attorney Richard Bite on February 14, 2020, to pursue postconviction relief on her behalf. She testified in the 2022 affidavit that, to her knowledge, Bite never filed the petition necessary to commence postconviction proceedings pursuant to Rule 32, Ala. R. Crim. P. Fox and her parents have filed a separate complaint against Bite alleging legal malpractice, fraud, conversion, and breach of contract.

Fox further testified in the 2022 affidavit that, on or about September 22, 2021, she retained attorney Jerry Blevins, her counsel in this case, "to look into [her] case and to pursue post-conviction relief." Fox then testified that it was not until on or about October 1, 2021, that she "learned that [her] appeal [had been] dismissed because the oral notice of appeal given by Attorney Morgan [had been] ineffective and learned for the first time that [she] had a claim against Attorneys Hughston and Morgan regarding the handling of [her] case."

On November 5, 2021, Fox sued the defense attorneys under the Alabama Legal Services Liability Act ("the ALSLA"), § 6-5-570 et seq., Ala. Code 1975, alleging legal-malpractice claims. Fox alleged that the defense attorneys had failed to file a proper and timely notice of appeal in Fox’s criminal case and that they had misrepresented to her that a proper notice of appeal had been given. On November 22, 2021, Fox filed a petition pursuant to Rule 32, Ala. R. Crim. P., seeking to pursue an out-of-time appeal in her criminal case because, she alleged, the defense attorneys had failed to timely perfect her appeal in that case. Fox’s postconviction case is proceeding separately.

The defense attorneys filed answers and moved to dismiss the complaint in the legal-malpractice action. The defense attorneys each filed a motion for a summary judgment, asserting, among other arguments, that Fox’s claims were barred by the two-year statute of limitations set out in § 6-5-574, Ala. Code 1975, which is a part of the ALSLA. Fox filed a motion for a partial summary judgment as to liability and as to a portion of her alleged damages, as well as a motion to strike certain evidence offered in opposition to her summary-judgment motion. The trial court set all motions for a hearing. On March 24, 2022, the trial court entered a final judgment granting the defense attorneys’ summary-judgment motions, denying Fox’s summary-judgment motion, and denying Fox’s motion to strike. Fox appealed.

Standard of Review

[1–6] " ‘ "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 app...