Rose v. Penn & Seaborn, LLC

         Certiorari Denied September 13, 2019.

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         Appeal from Pike Circuit Court (CV-13-900051).

         Christopher E. Rose, Troy, pro se.

          Charles Hudson of Penn & Seaborn, LLC, Montgomery; and Christina D. Crow of Jinks, Crow & Dickson, P.C., Union Springs, for appellees.

         THOMPSON, Presiding Judge.

         Christopher E. Rose, appearing pro se, appeals from a judgment of the Pike Circuit Court ("the trial court") ordering him to pay an attorney fee to Penn & Seaborn, LLC ("P& S"); Cervera, Ralph, Reeves, Baker & Hastings, LLC ("CRRB& H"); and Joel Gregg (P& S, CRRB& H, and Gregg are hereinafter referred to collectively as "the attorneys").

         The record indicates the following. Rose retained Shane Seaborn of P& S and Grady Reeves and Clifton Hastings of CRRB& H to represent him in connection with claims he was pursuing against corporate defendants pertaining to gasoline that had leaked from underground fuel-storage tanks into the soil on his property. Seaborn associated Gregg as counsel because Gregg has experience in underground-tank litigation. Rose signed a contingent-fee employment contract ("the fee agreement") in which he agreed to pay the attorneys 45% "solely from the proceeds" of the net amount recovered, "whether by settlement, trial, or otherwise."

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          In March 2013, Seaborn, Reeves, and Hastings filed on behalf of Rose a complaint against the corporate defendants in connection with the leaked gasoline. In the complaint, Rose asserted a number of tort claims and sought monetary damages against the corporate defendants. On January 30, 2015, the parties mediated the claims and agreed to settle the case for $100,000, and Rose executed a settlement agreement ("the first settlement agreement").

         On August 13, 2015, the corporate defendants filed a motion to enforce the first settlement agreement, asserting that Rose had refused to present the agreement and a release discharging the corporate defendants from liability on the claims ("the release") to the individual who held the mortgage on the property at issue for his consent and approval as required by the first settlement agreement. On September 9, 2015, the trial court entered a summary judgment enforcing the first settlement agreement.

         On September 14, 2015, Rose sent an e-mail to Seaborn informing him that Rose was "terminating our agreement." Rose wrote that he was meeting another attorney to "make plans" to appeal the September 9, 2015, judgment, adding that Seaborn was "ordered to refrain from any further interaction with the [defendants] or the judge in this matter on my behalf" and to "withdraw, remove, or prevent subordinate attorneys retained by you to assist in this case" from taking any further action. Rose explicitly stated that he "fully and completely rescind[ed] any agreement that gives you any authority to represent or bind me in any agreements." Rose then said: "This email is intended as an emergency stop work order to provide reasonable review of the facts and to investigate charges of ethics violation, case tampering and negligence." On September 16, 2015, the attorneys filed a notice of an attorney's lien in the trial court. They also filed a motion to withdraw from their representation of Rose.

         Rose, acting pro se, proceeded with an appeal of the September 9, 2015, judgment. On April 29, 2016, this court reversed that judgment on the ground that a genuine issue of material fact existed as to why the mortgage holder, Rose's father-in-law, Glen Bracewell, had not signed the release and no legal argument had been made by any party as to the legal effect of Bracewell's failure to fulfill that requirement specified in the first settlement agreement. Rose v. Interstate Oil Co., 208 So.3d 26, 29 (Ala.Civ.App. 2016). The cause was remanded for further proceedings. Id.

         It is undisputed that, after the case was remanded, the parties, including Bracewell, who had been added as a party to the action on March 13, 2018, reached a new agreement to settle the matter for $125,000 ("the second settlement agreement"). On May 7, 2018, Rose, still appearing pro se, filed in the trial court a "memorandum in opposition to [the] fee" that the attorneys sought for their work in this matter and requested a release of the attorney's lien. Bracewell, who was represented by counsel, filed a response to Rose's memorandum in opposition to the fee, referencing "the $125,000 settlement proceeds" set out in the second settlement agreement and arguing that he was entitled to "the entire principal sum of $100,000 plus all accumulated and accrued interest." On May 23, 2018, the attorneys filed a response to Rose's memorandum, attaching the fee agreement and correspondence from Rose, including the e-mail in which Rose terminated their representation.

         On October 24, 2018, the trial court held an ore tenus hearing on the attorney-fee issue. At ...