Drummond Company tries to go over Circuit Judge Tamara Harris Johnson's head, even though her denial of interlocutory certification clearly was correct

Drummond Coal

 

Drummond Company today filed a petition for a writ of mandamus, asking the Alabama Supreme Court to overrule Circuit Judge Tamara Harris Johnson's refusal to certify the company's motion for an interlocutory appeal in David Roberson's $75-million fraud lawsuit. The mandamus petition comes even though Johnson's refusal to certify clearly was correct under the law. Drummond also filed an emergency motion to stay discovery in the trial court. That raises this question: Is the Drummond petition simply another stalling tactic in a case that already has been delayed for more than 14 months? (The full mandamus petition is embedded at the end of this post.)

What was the standard that guided Johnson's consideration of Drummond's request for certification? Here's how the judge correctly stated it in her order:

The prerequisites of such an Order, as is requested by the Defendant Drummond, requires a certification by this Court that, in this Court's opinion, the requested interlocutory order involves a controlling question of law as to which there is substantial ground of difference of opinion, that an immediate appeal from the Order, as is requested by the Defendant Drummond from the Court's order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation.This Court cannot certify that it shares the necessary opinion to further the herein request for an interlocutory appeal.

Why did Johnson find that she could not share the necessary opinion for certification? Again, she correctly explained that in her order. From our earlier post:

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

        The Alabama Supreme Court already has answered that question in a case styled Alabama Educ.             Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA                 under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by          one of the association's in-house lawyers. That appears to be analogous to Roberson's claims                 related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek                     protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson lawsuit time-barred.

        But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which,  like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should  be sent to the dead letter office. Here is the key finding in Nelson:

            We note that throughout the ALSLA, the language used by the Legislature indicate   that the                    Act  was intended to apply to lawyers and law firms.

Drummond seemingly struggles to accept the fact that it is not a law firm, meaning Roberson's claims cannot be time-barred under the ALSLA. The issue could not be more well-settled under the law, but Drummond continues to argue it in yesterday's filing. 

Perhaps realizing the ALSLA argument is a loser, Drummond focuses heavily in today's filing on the so-called Hinkle rule. From he petition:

The law does not permit Roberson to collaterally attack his criminal conviction. “Where the court trying the case has jurisdiction of the subject-matter and the parties, as here, the judgment, although irregular in form, or erroneous, is conclusive, so long as unreversed, and cannot be attacked collaterally. . . . 

This Court is in accord: “A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party.” Hinkle v. Ry. Express Agency, 6 So. 2d 417, 421 (Ala. 1942). This settled rule “derives principally not from consideration for the defendant, but from a desire to see that those who transgress the moral or criminal code shall not receive aid from the judicial branch of government.

Johnson did not address Hinkle in her certification denial, and that's probably because Drummond acknowledges the rule applies to only three counts in the Roberson complaint.  Let's briefly revisit the standard that governs certification for an interlocutory appeal:

The prerequisites of such an Order, as is requested by the Defendant Drummond, requires a certification by this Court that, in this Court's opinion, the requested interlocutory order involves a controlling question of law as to which there is substantial ground of difference of opinion, that an immediate appeal from the Order, as is requested by the Defendant Drummond from the Court's order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation.

 Even if the Hinkle-related issues were found in Drummond's favor, other issues would remain, so an interlocutory appeal would not advance ultimate termination of the litigation, and it would not avoid protracted and expensive litigation.

Again, Johnson got it right across the board, so why did Drummond file its petition today?