Glass v. Hinde

• Decision Date: 04 March 1987
• Citation: 504 So.2d 316
• Parties: Robert GLASS, an individual, and as a partner in Allied Sign & Display Co., a partnership v. Jack K. HINDE, individually, and as a partner in Allied Sign & Display Co., a partnership. Civ. 5610.
• Court: Alabama Court of Civil Appeals

Page 316

504 So.2d 316

Robert GLASS, an individual, and as a partner in Allied Sign & Display Co., a partnership v. Jack K. HINDE, individually, and as a partner in Allied Sign & Display Co., a partnership.

Civ. 5610.

Court of Civil Appeals of Alabama.

March 4, 1987.

Donald Hugh Jones and Jack H. Harrison, Birmingham, for appellant.

David N. Lichtenstein and John Joseph Smith, Jr., Birmingham, for appellee.

EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a garnishment case.

The trial court determined that Mr. Glass, the plaintiff, substantially failed to comply with a pretrial order which had been previously entered by the trial court and that, as a result of such noncompliance, defendant Hinde's motion for sanctions as to the payment of fees for the preparation and taking by the defendant of the second deposition of the plaintiff's experts should be granted. Counsel for the defendant, Mr. Smith, was directed to submit to the trial court his statement of the fees so incurred, and the attorney did so by filing an affidavit to the effect that such fees consisted of an attorney's fee of $1,256.25, an accountant's fee of $120, and a court reporter's fee of $211.50, all of which total $1,587.75. On December 18, 1985 two separate judgments were entered in the case, the first (final judgment) being upon the merits of the case whereby a final judgment was entered for the plaintiff and against the defendant in the amount of $137,900 pursuant to a prior verdict of the trial jury. The second judgment (sanctions judgment) of that date was an award to "counsel for the Defendant" of $1,587.75 as a sanction for expenses incurred in having to prepare for the second depositions of the experts of the plaintiff.

As to the final judgment, the defendant filed a motion for a new trial. Thereafter, on January 29, 1986, Mr. Smith obtained permission from the trial court to withdraw as the defendant's attorney since the defendant refused to pay his attorney's fee for representing him throughout the litigation and since the defendant threatened to bankrupt against it. Subsequently, the plaintiff and the defendant settled and satisfied the final judgment by a written accord and satisfaction agreement which was filed in the case on March 31, 1986. Included in that written agreement was a provision that the defendant waived any and all claims which he might have as to the sanctions judgment.

As to the sanctions judgment, no motion of any nature has ever been filed by anyone under either Rule 59 or Rule 60, Alabama Rules of Civil Procedure, for relief. Neither has an appeal ever been taken from that judgment.

On July 18, 1986 Mr. Smith, the attorney who represented the defendant in the case until he withdrew in January 1986, caused a writ of garnishment to be issued in Mr. Smith's name against the plaintiff's employer in an effort to collect the sanctions judgment. The plaintiff sought to quash the garnishment upon the primary ground that the defendant by means of the accord and satisfaction agreement had waived any claim which he had as to the sanctions judgment. The trial court overruled the plaintiff's motion to quash the garnishment and the plaintiff duly appealed.

In Carlton v. Owens, 443 So.2d 1227 (Ala.1983), Attorney Jacob had successfully represented the Jones estate in a Mississippi case where a judgment for $87,064 was...