Yarbrough v. Eversole

• Decision Date: 27 January 2017
• Docket Number: 1150400.
• Parties: Myron Timothy YARBROUGH v. Steven D. EVERSOLE et al.
• Court: Alabama Supreme Court

227 So.3d 1192

Myron Timothy YARBROUGH

v.Steven D. EVERSOLE et al.

1150400.

Supreme Court of Alabama.

January 27, 2017

Roger C. Appell, Birmingham, for appellant.

Steven Eversole of Eversole Law, LLC, Birmingham; and Richard Perry, Pelham, for appellees.

MURDOCK, Justice.

Myron Timothy Yarbrough appeals from a judgment entered against him by the Shelby Circuit Court in his action alleging legal malpractice against Steven D. Eversole, Richard C. Perry, Jr., and Eversole Law, LLC ("the firm"). We affirm in part, reverse in part, and remand.

I. Facts

In 2006, Yarbrough was convicted of one count of rape in the first degree and two counts of sodomy in the first degree. The trial court sentenced him to life imprisonment for each conviction and ordered that the sentences were to run concurrently. Yarbrough appealed to the Court of Criminal Appeals, which affirmed his convictions and sentences in an unpublished memorandum on February 16, 2007.

At the time of the events giving rise to Yarbrough's cause of action, the firm employed both Eversole and Perry. In March 2012, Yarbrough retained the firm to explore the possibility of filing a Rule 32, Ala. R. Crim. P., petition on Yarbrough's behalf. In his complaint, Yarbrough alleges that Eversole and Perry represented to Yarbrough that "there was a basis in fact and law to file a Rule 32 petition." Yarbrough asserts, however, that the two attorneys "knew that there was no ‘newly discovered’ evidence as defined by Alabama case law and that the statute of limitations would be a complete bar to all claims of newly discovered evidence and for the claim of ineffective assistance of trial counsel and appellate counsel." Yarbrough alleges that he believed the attorneys' representations and that, on that basis, he paid the firm $10,000 to file a Rule 32 petition on his behalf.

On December 12, 2012, Eversole and Perry filed a Rule 32 petition on Yarbrough's behalf in the St. Clair Circuit Court in which they alleged the existence of newly discovered evidence and ineffective assistance of trial and appellate counsel. On January 16, 2013, the State filed an answer to the petition in which it asserted that Yarbrough's claims were time-barred under Alabama law. According to Yarbrough, on March 6, 2013, the St. Clair Circuit Court denied the Rule 32 petition, concluding that the claims were time-barred.

Yarbrough states that on July 2, 2013, more than 42 days after his petition had been denied, the firm filed a notice of appeal from the denial of his Rule 32 petition. The Court of Criminal Appeals sent notices to Eversole and Perry informing them that the appeal was untimely and requesting an explanation, but, according to Yarbrough, Eversole and Perry failed to provide one, and the appeal was dismissed on August 5, 2013.

Yarbrough alleges that Eversole and Perry never informed him that the reason his appeal had been dismissed was that it was not timely filed. He states in his complaint that they represented to him that "for an additional $15,000.00 they could file other legal proceedings in order to have [Yarbrough's] appeal reinstated." Yarbrough alleges that Eversole and Perry knew those representations were false and knew that, in fact, another appellate filing at that point would be fruitless. Yarbrough asserts that he believed the attorneys' representations and that he paid the firm $15,000 for additional appellate work related to his Rule 32 petition. Yarbrough states that the firm then filed a petition for a writ of mandamus with the Court of Criminal Appeals on his behalf. The Court of Criminal Appeals summarily denied the petition without an opinion on November 1, 2013. Finally, in November 2013, the firm also filed a motion for an out-of-time appeal in the St. Clair Circuit Court, which, Yarbrough asserts, "had no basis in law or fact" because, he said, the circuit court "had no jurisdiction to grant said motion."

For their part, the two attorneys assert that they told Yarbrough at the outset that any postjudgment relief from his conviction would be "a long shot" but that he told them to submit filings anyway.

On January 14, 2015, Yarbrough filed a complaint against the firm, Eversole, and Perry in the Jefferson Circuit Court, alleging legal malpractice and seeking recovery of the $25,000 in legal fees he paid as "a result of the Defendants' negligent and/or wanton legal malpractice" and punitive damages for the alleged fraud perpetrated by Eversole and Perry. On May 22, 2015, Eversole and the firm filed a motion to transfer the case to the Shelby Circuit Court and a motion to dismiss the case, asserting that Yarbrough had failed to state a claim upon which relief could be granted. The motion to transfer was unopposed. On May 26, 2015, the case was transferred to the Shelby Circuit Court. On June 1, 2015, Perry filed an answer to the complaint in which he denied Yarbrough's substantive allegations. On June 5, 2015, the circuit court denied the motion to dismiss filed by the firm and Eversole. On June 6, 2015, the firm and Eversole filed an answer to the complaint in which they likewise denied Yarbrough's substantive allegations.

On October 8, 2015, the firm and Eversole filed a motion for a judgment on the pleadings. In that motion, they asserted that Yarbrough's "burden of pleadings and proof in this civil case for legal malpractice is insurmountable as a matter of law" because, they said, Yarbrough could not demonstrate that "the results would have been different or that he was guaranteed a reversal of his conviction" but for the alleged legal malpractice.

On October 12, 2015, Perry filed a motion for a summary judgment. In that motion, Perry asserted:

"[Yarbrough] was convicted of a felony in part based upon [Yarbrough's] confession. [Yarbrough] has a life sentence. [Yarbrough] wanted to try anything to obtain relief. Perry knew that a Rule 32 Petition and out of time appeals were filed on [Yarbrough's] behalf. Mr. Perry worked on some of them. Everything that [Yarbrough] wanted or told was to be filed based upon what Mr. Perry knows, it was filed."

The summary-judgment motion also stated: "Rule 32 Petitions and out of time appeals are standard requests in such a situation. They are always long shots." In support of the motion, Perry filed an affidavit in which he denied being personally paid $25,000 by Yarbrough for legal work. He stated that the money was paid to the firm. Perry also expressly denied that he lied to Yarbrough or that he made any false representations to Yarbrough. Yarbrough filed no response to Perry's summary-judgment motion.

On October 13, 2015, Yarbrough filed a response to the firm and to Eversole's motion for a judgment on the pleadings. In the response, Yarbrough argued, among other things, that

"[w]hat [the firm and Eversole] simply refuse to acknowledge and are trying to hide is that their negligence and fraud has damaged [Yarbrough] in the amount of payment of legal fees for work that from the moment [the firm and Eversole] took on their representation had no basis in fact or law and could never [have] succeeded."

On December 10, 2015, the circuit court entered an order granting the firm and Eversole's motion for a judgment on the pleadings and Perry's motion for a summary judgment. The circuit court's reasoning is well summarized in the following paragraph from its order:

"Two underlying legal premises belie [Yarbrough's] insurmountable burden. In the first instance, an attorney does not guarantee the success of his representations, nor is a lawyer ‘expected to achieve impossible results for a client.’ Pickard v. Turner, 592 So.2d 1016, 1029 (Ala. 1992). Secondarily and even more fundamentally, the Legal Services Liability Act [, § 6–5–570 et seq., Ala. Code 1975,] mandates allegations and proof that, ‘but for’ the negligence of the legal service provider, the underlying case would have been different. Hall v. Thomas, 564 So.2d 936 (Ala. 1990). In his Complaint, [Yarbrough] pled no[ ] ‘but for’ allegations and in his pleadings filed in opposition to both dispositive motions, [Yarbrough] does not dispute the holding of either case. Instead, he argues that a Rule 32 petition should never have been filed in the first instance. This argument, however, overlooks the underlying premise for which Defendants were hired by [Yarbrough] in the first place; namely, to develop some legal basis to overcome the daunting task of reversing the jury's guilty verdict. In the judgment of the Court, even [Yarbrough's] well pled complaint, which contains no ‘but for’ causation allegations, cannot overcome his burden of proof, regardless of the evidence that he may develop in discovery."

Yarbrough filed a timely notice of appeal.

II. Standard of Review

Our standard of review in this case is de novo, even though the circuit court dismissed Yarbrough's claims against the defendants in response to two different motions, i.e., a motion for a judgment on the pleadings and a motion for a summary judgment.

" ‘When a motion for judgment on the pleadings is made by a party, "the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law." B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala. 1992). See also Deaton, Inc. v. Monroe, 762 So.2d 840 (Ala. 2000). A judgment on the pleadings is subject to a de novo review. Harden v. Ritter, 710 So.2d 1254, 1255 (Ala. Civ. App. 1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255–56. If matters outside the pleadings are presented to and considered by the trial court, then the motion for a judgment on the pleadings must be treated as a motion for a summary judgment. See Rule 12(c), Ala. R. Civ. P. Otherwise, in deciding a motion for a

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