Monday, November 2, 2020

Judge Tamara Harris Johnson denies chunks of Drummond's Motion to Dismiss, meaning $75-million lawsuit from former exec David Roberson is alive

Tamara Harris Johnson

Drummond Company's Motion to Dismiss in a $75-million lawsuit involving former executive David Roberson has been granted in part and denied in part. That means the case will move forward to summary judgment, and perhaps, trial. Likely of most importance for the plaintiffs (Roberson and his wife, Anna), a stay on discovery has been lifted, meaning their attorney, Burt Newsome, can begin to collect evidence designed to prove their case. 

The mixed result for Drummond came from Tamara Harris Johnson, the same Jefferson County circuit judge who granted a full dismissal for co-defendant Balch Bingham law firm -- and in the process, came under heavy criticism here last week for failing to abide by Alabama law on the handling of a Motion to Dismiss.  

Johnson's order on Drummond reads like a different judge wrote it. The document appears to be well-reasoned and within the boundaries of Alabama law. Why Johnson reached such a wildly different result on two motions that are governed by the same straightforward law remains a mystery. But it means the Robersons' case is very much alive -- and the Balch appeal is under appeal to the Alabama Supreme Court, and it should be reversed, meaning the law firm is not out of the woods yet.

The Drummond order was electronically filed at 4:04 p.m. last Friday (10/30/20), the same day news broke that Balch partner and general counsel Schuyler Allen Baker Jr. had died. 

Early in the Drummond order, Johnson states:

This Court, in deciding the herein Defendant Drummond's Motion to Dismiss, has accepted as true all well-pleaded factual allegations contained within the Plaintiff's Third Amended Complaint. The Court acknowledges that Plaintiffs, in the aforementioned Complaint, have alleged factual allegations and conclusory statements; however, the Court will accept as true all well-pleaded factual allegations and view them in a light most favorable to the non-moving Parties, the herein Plaintiffs.

That is a correct statement of Alabama law, and Johnson appears to follow it throughout the Drummond ruling, listing 25 allegations she accepts as true -- as required at the Motion-to-Dismiss stage.

Here is a breakdown of Johnson's order on the various counts in Drummond's Motion to Dismiss:

Count I: Indemnification --  Roberson alleged Drummond owed a duty to indemnify him for all losses and damages suffered from performing duties assigned to him by Drummond and General Counsel Blake Andrews. Johnson found no such duty. Dismissal granted.

Count II (Misrepresentation) and Count III (Concealment) -- Roberson alleged Andrews made a number of misrepresentations regarding processing of legal bills from the company's outside counsel (Balch). Roberson further alleged Andrews claimed to be "confused" by Balch's invoices, so Roberson processed them, leading to his indictment and conviction. Johnson found Andrews was not providing legal services and Drummond was not a legal services provider, so the counts did not fall under the Alabama Legal Services Liability Act (ALSLA) and were not time-barred. Dismissal denied

Count IV, Conversion -- Roberson alleged Drummond took and removed from his office several items of personal property after his termination. Johnson could not find beyond a doubt that Drummond did not engage in an unauthorized wrongful taking of Roberson's property. Dismissal denied.

Count XI, Concealment by Drummond [and Balch] -- Roberson alleged that Drummond concealed it had hired a lobbyist via a contract with Balch, forming an agency relationship and making Drummond vicariously liable. Johnson found Drummond was not liable under an agency theory. Dismissal granted.

Count XI, Concealment by Drummond -- Roberson alleged Drummond had a duty to notify him that certain payments were being made to lobby the Alabama Department of Environmental Management (ADEM) to oppose the EPA listing a North Birmingham site on its National Priorities List. Johnson could not find beyond a doubt that Roberson could not prove he was owed this duty. Dismissal denied.  

Count XII, Promissory Fraud -- The Robersons alleged they relied on a representation by CEO Mike Tracy regarding David Roberson's employment, and Drummond never intended to perform the act promised. Johnson could not find beyond a doubt that Roberson could not prove all the elements of promissory Fraud. Dismissal denied.

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