Christopher E. Rose
v.
Penn & Seaborn, LLC; Cervera, Ralph, Reeves, Baker & Hastings, LLC; and Joel Gregg
Appeal
from Pike Circuit Court (CV-13-900051)
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."
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 that hearing, Rose testified
that, while they were representing him, the attorneys did
their jobs and that Seaborn was a "skilled, competent
attorney." However, Rose said, he did not believe that
the attorneys were entitled to compensation in this matter
because he questioned their ethics and he believed that they
had tried to "defraud" Bracewell. Rose testified
that he had hired Seaborn, that Seaborn was his employee, and
that, as Seaborn's employer, it was Rose's
"responsibility to hold him to an account." He also
said that "it is not unreasonable to be stern or strong
with an employee." Rose made unsupported speculative or
conjectural statements, but he presented no evidence of any
wrongdoing or misconduct by any of the attorneys.
Seaborn,
Reeves, Hastings, and Gregg testified regarding their
experience, their billing rates, and the estimated amount of
time each had put into this case before Rose discharged them.
Seaborn testified that he had associated Gregg on the matter
because, he said, Gregg had an expertise in underground-tank
litigation. Seaborn said that, among other things, he had
both propounded discovery and worked with Rose to respond to
discovery. Seaborn had also taken depositions. That discovery
was used in reaching both settlements in this action. Based
on the testimony the attorneys presented, it appears that, if
Rose were billed by the hour, he would owe the attorneys a
total of more than $63, 310. The attorneys' expenses were
$3, 411.50. Other attorneys testified regarding the
reasonable amount of an attorney fee for the work performed.
On
November 7, 2019, the trial court entered an order awarding
the attorneys a fee equaling 45% of $96, 588.50, which
represents the amount of the first settlement
agreement--$100, 000--less expenses of $3, 411.50; the
attorney fee was calculated to be $43, 464.83. Adding
expenses of $3, 411.50, the trial court entered a total award
to the attorneys in the amount of $46, 876.33. In determining
the award, the trial court explained:
"In making the foregoing award of fees and expenses, the
Court, of course, considered the contingency fee employment
contract, as well as the numerous hours expended by counsel
in handling the case, their time records reflecting the
nature of the services performed and the amount of time it
consumed, the reasonableness of the services performed, the
fees customarily charged in the locality of Pike County for
similar services undertaken on a contingent fee basis, and
perhaps most importantly, that their efforts were the
procuring cause of the first $100, 000.00 of the achieved
final settlement."
Rose
filed a timely notice of appeal to this court, which
transferred the appeal to our supreme court for lack of
subject-matter jurisdiction. The supreme court then
transferred the case ...