Dismissal of lawsuit involving former Drummond executive is based on attorney-client relationship, but David Roberson alleges in complaint that he did not have one, and that must be taken as true, by law

David Roberson and family

An Alabama judge botched the dismissal of a $75-million lawsuit involving a former Drummond Company executive by failing to follow state law that requires her, at the motion-to-dismiss stage, to accept the plaintiff's' factual allegations as true. But that's not the only time Jefferson County Circuit Judge Tamara Harris Johnson went off the rails in David and Anna Roberson's lawsuit against Drummond and the Balch Bingham law firm. In fact, it's not the only time Johnson unlawfully failed to take the facts in the Robersons' complaint as true. 

Johnson granted a Motion to Dismiss from Balch, but she still has not ruled on a similar motion (also known as a Rule 12(b)(6) motion) from Drummond, even though she failed to take action on a variety of matters for some 14 months.

The Balch dismissal was based on Johnson's finding that the Robersons' complaint falls under the Alabama Legal Services Liability Act (ALSLA) and its tight (with several qualifiers) two-year statute of limitations. Johnson found, as Balch attorney Andy Campbell urged her to do at oral argument, that the Robersons' claims were time barred because they filed their complaint too late.

Campbell and Johnson, however, got it wrong. Case law holds that a claim falls under the ALSLA only when there is an attorney-client relationship. The Robersons' complaint plainly states that David Roberson had no such relationship with Balch's Joel Gilbert or Drummond in-house counsel Blake Andrews, the two lawyers who allegedly gave him false or incomplete information, 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.

Per Ex parte Austal USA (2017), Johnson was obligated to take the Robersons' allegations as true; she di not. She also was obligated to find, as a matter of law at this early stage in the litigation, that the Robersons' claims did not fall under the ALSLA, and thus were not time-barred; she did not. That means her finding has almost no chance of holding up on an appeal, notice of which already has been filed. 

What has the Alabama Supreme Court said about the importance of an attorney-client relationship for a claim to fall under the ALSLA? That is found in Brackin v. Trimmier Law Firm, 897 So. 2d 207 (Ala: Supreme Court, 2004). In Brackin, the law firm argued it had no attorney-client relationship with Brackin, and therefore owed him no duty. In Roberson, Balch argues that it did provide legal services to David Roberson, making his claim fall under he ALSLA and its tight statute of limitations. The facts in Brackin essentially are the reverse of those in Roberson, but the central legal finding of Alabama's high court still holds:

An attorney-client relationship is an essential element of a claim under the Legal Services Liability Act, and in support of its motion for a summary judgment, the Trimmier Law Firm submitted undisputed evidence that it had never entered into an attorney-client relationship with Brackin. See Sessions v. Espy, 854 So.2d 515 (Ala.2002) (recognizing that claims against a lawyer that are alleged to have arisen out of the attorney-client relationship are all subsumed under the Alabama Legal Services Liability Act); Peterson v. Anderson, 719 So.2d 216 (Ala.Civ.App.1997) (because the plaintiffs were not clients of the testator's attorney, the plaintiffs lacked standing to pursue an action against the attorney under the Alabama Legal Services Liability Act).

What if the assertions in the Roberson complaint prove to be false? What if it's shown he did have an attorney-client relationship with Gilbert and Andrews? That certainly would be a factor at trial and at summary judgment. But it is not a factor on a Motion to Dismiss. As the Alabama Supreme Court found in Ex parte Austal:  

Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So. 3d 544, 546 (Ala. 2016); we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”' Daniel v. Moye, [Ms. 1140819, November 10, 2016] ___ So. 3d ___, ___ (Ala. 2016) (quoting Newman v. Savas, 878 So. 2d 1147, 1149 (Ala. 2003) (emphasis added)); and “[w]e construe all doubts regarding the sufficiency of the complaint in favor of the plaintiff.” Daniel, ___ So. 3d at ___.

Due to Johnson's delays and unlawful rulings, the Robersons have been denied the right to conduct discovery for 14 months, with a pending appeal sure to cause more delay. But under Alabama law, Johnson's dismissal must ultimately be reversed, with the Robersons given the opportunity to collect evidence designed to prove their case.