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Blevins v. Thomas R. Boller, P.C.

Alabama Court of Civil Appeals

January 6, 2017

Jerry M. Blevins
v.
Thomas R. Boller, P.C. Ex parte Jerry M. Blevins In re: Thomas R. Boller, P.C.
v.
Veronica Elena Brogan

         Appellate Proceedings from Baldwin Circuit Court (CV-15-901217)

          PETITION FOR WRIT OF PROHIBITION

          DONALDSON, Judge.

         Jerry M. Blevins petitioned this court for a writ of mandamus directing the Baldwin Circuit Court ("the trial court") to vacate its orders requiring him to transfer funds to the Baldwin Circuit Clerk. As explained in more detail below, we construe that portion of Blevins's petition as an appeal from interlocutory orders issuing and continuing an injunction. However, because it was untimely filed, we dismiss the appeal. Blevins also asserts in his petition that the trial court lacked personal jurisdiction over him and lacked subject-matter jurisdiction over contempt proceedings against him. We construe that portion of the petition as a petition for a writ of prohibition. Because Blevins did not allow the trial court an opportunity to consider his jurisdictional arguments before he resorted to filing his petition in this court, we deny the petition for a writ of prohibition regarding the contempt proceedings.[1]

         Background

         On October 2, 2015, Thomas R. Boller, P.C. ("the law firm"), filed a complaint against Veronica Elena Brogan in the trial court. In its complaint against Brogan, the law firm alleged that Brogan owed it $22, 979.11 plus interest for legal services rendered on an open account or, alternatively, on an account stated. At that time, the law firm's attorneys were representing Brogan in a divorce action. On October 7, 2015, a judgment divorcing Brogan and her husband was entered, and that judgment apparently included a provision ordering the marital residence to be sold, with the proceeds to be divided between Brogan and her husband.[2] On October 27, 2015, upon their motions, the law firm's attorneys were permitted to withdraw from further representation of Brogan in the divorce action.

         Blevins represented Brogan as her legal counsel in the law firm's action against her. Through Blevins, Brogan filed an answer denying the law firm's allegations. In November 2015, a sales contract was entered for the sale of the marital residence. On December 1, 2015, one of the law firm's attorneys filed a claim in the Baldwin Probate Court, asserting an attorney's lien arising from the law firm's representation of Brogan, against Brogan's ownership interest in the marital residence. In an e-mail to the closing agent for the sale of the marital residence, Blevins stated that there was an agreement to hold the proceeds due Brogan from the sale "in trust until such time as the lien filed by [the law firm] is resolved." The proceeds due Brogan from the sale, $8, 290.25 ("the funds"), were remitted to Blevins.

         On December 23, 2015, Brogan, through Blevins, filed counterclaims alleging slander of title and conversion against the law firm. Brogan alleged, among other things, that the law firm had falsely claimed that Brogan owed a debt to the law firm and that it was entitled to an attorney's lien. Brogan also alleged that the law firm had wrongfully interfered with the sale of the marital residence.

         On June 13, 2016, the trial court granted a motion filed by Blevins to withdraw from further representation of Brogan. Later that day, the law firm filed a "Motion for Order of Interpleader" requesting an order directing Blevins "to immediately interplead the funds in the amount of $8, 290.25 into the [circuit clerk's office] ...." On June 24, 2016, the trial court granted the law firm's motion. In a letter to one of the law firm's attorneys, dated July 8, 2016, Blevins stated that he was in receipt of the law firm's "Motion for Order of Interpleader" and that his and Brogan's position had been that the law firm's attorney's lien was never properly perfected. Blevins also stated in the letter that he had asserted an attorney's lien on the funds and that his attorney's lien had priority over any claim by the law firm.

         On July 11, 2016, the law firm filed a motion to compel Blevins to comply with the June 24, 2016, order and to interplead the funds to the circuit clerk's office. The July 11, 2016, motion contains a certificate of service certifying that the motion was filed with the circuit clerk using the AlaFile electronic-filing system, indicating that notification of the filing would be sent electronically to Blevins and Brogan. In a letter to one of the law firm's attorneys, dated July 19, 2016, Blevins stated that, unless the law firm commenced within 14 days a declaratory-judgment action regarding the funds, he was going to assume the law firm did not intend to dispute his claim to the funds. On July 29, 2016, the trial court entered an order granting the law firm's motion to compel. The trial court ordered Blevins to turn over the funds to the circuit clerk within 10 days, and it directed the circuit clerk to forward a copy of the order to Blevins.

         On August 8, 2016, Blevins filed a motion in the trial court to vacate the June 24, 2016, and July 29, 2016, orders. Blevins stated in the August 8, 2016, motion that he had received the July 29, 2016, order granting the motion to compel. Blevins argued that the orders were void for lack of subject-matter jurisdiction and for lack of personal jurisdiction and that the orders were entered in a manner inconsistent with his rights to due process. Blevins asserted that he had not been served with the June 24, 2016, order granting the law firm's interpleader motion or the law firm's July 11, 2016, motion to compel him to comply with the June 24, 2016, order.

         On August 19, 2016, the law firm filed a motion seeking a finding of contempt against Blevins for his failure to comply with the July 29, 2016, order. The certificate of service on the motion included Blevins as a person to be notified of the filing. On August 29, 2016, notices were sent to Blevins regarding a hearing to be held on October 4, 2016, on the contempt motion and on his motion to vacate.

         On September 9, 2016, Blevins filed a petition for a writ of mandamus in this court. Blevins also filed a motion to stay the proceedings in the trial court, and this court granted a stay pending our decision on Blevins's petition. On October 25, 2016, Blevins filed a notice informing this court that Brogan had filed for bankruptcy on October 18, 2016. This court directed Blevins and the law firm to provide letter briefs regarding the effect, if any, of the bankruptcy filing on the proceedings in this court. In its letter brief, the law firm argued that the automatic stay, effective pursuant to 11 U.S.C. § 362, applied to stay the proceedings brought by Blevins in this court. In his letter brief, Blevins argued that the automatic stay did not apply because, he asserted, his petition did not concern property belonging to Brogan.

         Discussion

         Before determining the effect of Brogan's bankruptcy filing on the proceedings before us, we must first address whether this court acquired jurisdiction over this case. "[J]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987). "The timely filing of the notice of appeal is a jurisdictional act." Thompson v. Keith, 365 So.2d 971, 972 (Ala. 1978). Both orders that form the basis of Blevins's petition are nonfinal, interlocutory orders and were entered in a case that remains pending in the trial court. As explained below, we construe Blevins's petition for a writ of mandamus in regard to the June 24, 2016, order and the July 29, 2016, order to be an appeal from interlocutory orders issuing and continuing an injunction. Rule 4(a)(1)(A), Ala. R. App. P., provides that a notice of appeal challenging such ...


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