Appeal from Mobile Circuit Court. (CV-93-805)
Rehearing Overruled October 21, 1994, . As Amended.
Wright, Robertson, Thigpen, Yates
The opinion of the court was delivered by: Wright
WRIGHT, Retired Appellate Judge
In March 1991 Roselynn Presley of Lafayette, Louisiana, and Jane Vincent of Hattiesburg, Mississippi, were involved in an automobile accident in Baldwin County, Alabama. Andrew Schnatz was the operator of the other automobile involved in the accident.
Presley and Vincent retained the Glenn Armentor Law Corporation, a Louisiana professional law corporation, to represent their interests. The parties agreed that the firm would be entitled to a 33 1/3% contingent fee. Marshall Stockstill, a member of the firm, was primary counsel.
On March 14, 1993, Stockstill telephoned Braxton Counts, an attorney in Mobile, Alabama, for the purpose of associating him as local counsel in the Presley and Vincent case. The association was necessitated because Stockstill was not a member of the Alabama Bar. During their conversation, Stockstill informed Counts that his duties would include filing the complaint, assisting in discovery, and serving as local counsel. Stockstill further stated that he (Stockstill) would be in charge of the case, would handle all discovery, and would pay all costs. Stockstill informed Counts that a settlement offer in the Presley case was on the table, but further negotiations were needed. Counts was directed to prepare and file complaints in Mobile County immediately because the statute of limitations was about to run. Stockstill and Counts agreed that Counts would be entitled to 40% of Stockstill's contingent fee. On the following day, Counts received a letter from Stockstill reiterating their previously discussed agreement.
Counts filed the complaint on March 16, 1993, one day before the statute of limitations was to expire.
Sometime between March 15, and March 23, 1993, Presley's claim against Schnatz was settled by Stockstill for $55,000. Counts received notice of the settlement on March 29, 1993.
Counts subsequently requested that he be paid 40% of Stockstill's contingent agreement share of the Presley settlement. Stockstill refused to do so, suggesting that Counts was only entitled to fees based on quantum meruit because the matter had been settled without discovery or trial.
On August 17, 1993, Counts filed a "Notice of Attorney's Lien," pursuant to § 34-3-61, Code 1975, in the Circuit Court of Mobile County, Alabama. Counts requested that the court award to him 40% of any monies recovered as attorney's fees. Following a hearing on the matter, the court granted Counts's request and awarded him $7,333.33. The judgment was entered against Stockstill and the Glenn Armentor Law Corporation. Stockstill and Glenn Armentor appeal. (For purposes of this appeal, we will refer to the appellants collectively as Stockstill.)
Stockstill initially asserts that the trial court erred in entering a judgment against him, individually, because he was not named in the title of any action or in the title of any complaint, as required by Rule 10(a), A.R. Civ. P.
Stockstill did not raise this issue in a pre-trial motion or in a post-trial motion. He defended the complaint on the merits. He cannot now complain on appeal. Barnes v. Kent, 292 Ala. 508, 296 So. 2d 881 (1974); Jack Cole Co. v. Hays, 281 Ala. 118, 199 So. 2d 659 (1967).
Stockstill asserts, for various reasons, that the attorney's lien statute is not applicable to the instant circumstances. We agree, but ...