Tuesday, October 20, 2020

Alabama Judge Tamara Harris Johnson dismisses $75-million lawsuit against Balch Bingham -- but did she get it right and will it hold up on appeal?

David Roberson and family

An Alabama judge, who failed to rule for more than a year on motions in a $75-million lawsuit involving a former Drummond Company executive and his wife, has finally taken action in the case. After all that time, you might expect that Jefferson County Circuit Judge Tamara Harris Johnson surely would get her rulings correct. But she wound up getting it wrong on one of the most basic and straightforward principles of Alabama law -- the standard for reviewing a Motion to Dismiss under Rule 12(b)(6) of the Alabama Rules of Civil Procedure.

To top it off, Johnson still hasn't completed her backlog of work on the case. Drummond has had a Motion to Dismiss on file since April 2018, but Johnson is yet to rule on that. Plaintiffs have filed a Motion to Compel with the Alabama Supreme Court, seeking a ruling that would force Johnson to do her job.

In their complaint, David and Anna Roberson allege Mr. Roberson relied on false or incomplete information from two lawyers -- Joel Gilbert, of Balch Bingham, and Blake Andrews, in-house counsel for Drummond -- essentially making him the fall guy and leading to his conviction in the North Birmingham Superfund bribery scandal. As a result, David Roberson lost his job, and the Robersons lost their house and many of their possessions. The Roberson conviction currently is under appeal.

During a recent hearing via telephone conference, lawyers for defendants Balch and Drummond argued that Roberson received legal advice from Gilbert and Andrews, meaning the lawsuit is governed by the Alabama Legal Services Liability Act (ALSLA), Code of Alabama 6-5-572, and its tight (and confusing) two-year statute of limitations. Under the ALSLA, Balch and Drummond argued, the Robersons filed their claim too late, meaning it was time--barred per the defendants' Rule 12(b)(6) motions. Judge Johnson apparently bought that argument and granted Balch's Motions to Dismiss. A Notice of Appeal has been filed with the Alabama Supreme Court, and it's unclear when Johnson might rule on Drummond's motion.

Burt Newsome, attorney for the Robersons, argued that David Roberson's interactions with Gilbert and Andrews did not involve legal advice or the provision of legal services, meaning their complaint should not fall under the ALSLA and is not time-barred.

At oral argument, Balch attorney Andy Campbell urged Johnson to strictly follow the statutory language of the ALSLA. Here are some of its key definitions and provisions:

(1) LEGAL SERVICE LIABILITY ACTION.  Any action against a legal service provider in which it is alleged that some injury or damage was caused in whole or in part by the legal service provider's violation of the standard of care applicable to a legal service provider.  A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.

(2) LEGAL SERVICE PROVIDER.  Anyone licensed to practice law by the State of Alabama or engaged in the practice of law in the State of Alabama. The term legal service provider includes professional corporations, associations, and partnerships and the members of such professional corporations, associations, and partnerships and the persons, firms, or corporations either employed by or performing work or services for the benefit of such professional corporations, associations, and partnerships including, without limitation, law clerks, legal assistants, legal secretaries, investigators, paralegals, and couriers.

Burt Newsome
As licensed attorneys, Campbell argued, Gilbert and Andrews meet the definition of "legal service provider," and  the lawsuit over their alleged wrongs constitute a "legal service liability action," invoking the ALSLA and its statute of limitations, which could stick a dagger in the Robersons' claims.

Newsome, on the Robersons' behalf, argued that this is "an ordinary fraud case," not a legal-malpractice case -- and the dissemination of false, deceptive, or incomplete information does not constitute the provision of legal services.

We already know how most of this played out in the trial court, after a long delay. But how should it have played out, as a matter of law, and how should it play out on appeal?

(To be continued)

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