Townsend v. Hogan

• Decision Date: 10 June 2011
• Docket Number: 2100303.
• Citation: 73 So.3d 702
• Parties: Tyrone TOWNSEND v. Cameron L. HOGAN, as guardian ad litem for Alysha McCall, a minor.
• Court: Alabama Court of Civil Appeals

73 So.3d 702

Tyrone TOWNSEND
v.
Cameron L. HOGAN, as guardian ad litem for Alysha McCall, a minor.

2100303.

Court of Civil Appeals of Alabama.

June 10, 2011.

[73 So.3d 703]

Tyrone Townsend, Birmingham, for appellant.

Cameron L. Hogan of Lloyd & Hogan, Birmingham, for appellee.

PER CURIAM.

In February 2009, Alysha McCall, a minor, was injured while in the care of Sunrise Child Care (“Sunrise”), a day-care center. In July 2010, McCall, by and through her legal guardian, Demetria Billings, sued Sunrise, seeking damages in the amount of $11,000 as a result of McCall's injuries. Billings hired Tyrone Townsend to represent McCall in the action against Sunrise.

Sunrise and McCall settled the action for $11,000. Sunrise requested that the trial court appoint a guardian ad litem for McCall, as is required in pro ami actions. See Pate v. Perry's Pride, Inc., 348 So.2d 1038, 1040 (Ala.1977) (citing Citizens Walgreen Drug Agency, Inc. v. Gulf Ins. Co., 282 Ala. 648, 213 So.2d 814 (1968)) (“It is the function of the trial court in pro ami suits to see that the injured infant receives a fair hearing and that the next friend or guardian ad litem is present and acting in the infant's behalf.”). Sunrise agreed to assume responsibility for the guardian ad litem fee. The trial court appointed Cameron Hogan as McCall's guardian ad litem. After Hogan submitted his recommendation, the trial court approved the pro ami settlement. In the August 31, 2010, judgment approving the settlement, the trial

[73 So.3d 704]

court set out the disbursements required to be made from the $11,000, including $500 in out-of-pocket expenses to Billings, $1,857.07 to discharge a Medicaid lien, $20 to pay off a medical bill, and $3,666.67 as an attorney fee for Townsend. After those disbursements from the settlement funds, McCall was to receive $4,956.26, which was to be held by the circuit clerk pending McCall's reaching the age of majority.

On September 30, 2010, Townsend filed a Rule 59, Ala. R. Civ. P., motion to amend the August 31, 2010, judgment approving the pro ami settlement. In that motion, Townsend informed the court that he had learned that Medicaid had corrected and reduced its lien to $846.86, an amount $1,010.21 less than the amount the trial court had ordered disbursed to Medicaid in the August 31, 2010, judgment approving the pro ami settlement. Townsend sought a correction of the August 31, 2010, judgment to reflect the correct amount of the Medicaid lien. He further sought an award to himself of $333.36 as an additional attorney fee. On September 30, 2010, the trial court amended its August 31, 2010, judgment as requested by Townsend.

On October 4, 2010, Hogan filed a Rule 59 motion to amend the September 30, 2010, amended judgment. Hogan objected only to the redistribution of the settlement funds to award Townsend an additional attorney fee of $333.36. According to Hogan, Townsend had initially received a fee equal to one-third of the entire $11,000 settlement, which, Hogan argued, had been based on the contract that Townsend had entered into with Billings.¹ Hogan contended that Townsend was due no further fee.

After a hearing on the motion, by an order dated October 28, 2010, the trial court “sustained” Hogan's objection to the redistribution of the settlement funds to award Townsend an additional attorney fee. In that order, the trial court concluded that Townsend's attorney fee should be limited to the $3,666.67 that he had been awarded in the August 31, 2010, judgment approving the pro ami settlement and ordered that Townsend repay the additional $333.36 attorney fee he had been awarded in the September 30, 2010, amended judgment to the circuit clerk to be held for McCall. The trial court further ordered that Townsend be responsible for payment of a guardian ad litem fee for Hogan's legal services to McCall rendered during the postjudgment proceedings, which, at that time, had not yet been determined.

On November 21, 2010, Townsend filed a postjudgment motion seeking to alter or amend the October 28, 2010, order denying him an additional attorney fee of $333.36. Townsend argued that his due diligence in filing a motion to correct the amount of the Medicaid lien had created a common fund of $1,010.21 and that, as a result, he was due a portion of that amount as an attorney fee. Townsend also objected to the trial court's order insofar as it required him to be responsible for Hogan's guardian ad litem fee; Townsend argued that the only party liable for Hogan's guardian ad litem fee under the settlement was Sunrise, the defendant.² Townsend further

[73 So.3d 705]

requested yet another additional attorney fee of $1,000 for the time he had spent responding to Hogan's postjudgment motion, which Townsend described as “meritless.”

The trial court entered an order on November 23, 2010, in which it denied Townsend's postjudgment motion. The trial court explained that it had concluded that the common-fund doctrine did not apply and that Townsend had been awarded his $3,666.67 fee based upon the entire settlement of $11,000 and was due no additional fee. The order further set Hogan's guardian ad litem fee at $250 and taxed it as costs against Townsend. From that order, Townsend appeals, arguing, as he did in his postjudgment motion, that the trial court erred in failing to award him an additional attorney fee and in ordering him to be responsible for Hogan's guardian ad litem fee.

We will first address whether the trial court erred by failing to award Townsend an additional attorney fee of $333.36 after the Medicaid lien was reduced by $1,010.21. As Townsend points out, “Alabama follows the ‘American rule,’ whereby attorney fees may be recovered if they are provided for by statute or by contract or if they are called for by special equity, such as in proceedings where the attorney's efforts create a ‘common fund’ out of which fees may be paid.” Battle v. City of Birmingham, 656 So.2d 344, 347 (Ala.1995). Generally, the decision whether to award an attorney fee is within the...