Hand Arendall, LLC v. Joiner
Filing
67
MEMORANDUM AND OPINION AND ORDER. The Court finds in favor of Hand Arendall on Count One of its complaint for breach of contract. The Court is unable to determine the total fees. Hand Arendall has until 9/7/12 to amend their request for damages, with explanation, to conform to the Court's factual findings. Signed by Judge Kristi K. DuBose on 8/31/2012. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
HAND ARENDALL, LLC,
Plaintiff,
v.
MURRAY E. JOINER, JR., M.D.,
Defendant.
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CIVIL ACTION NO. 11-0150-KD-C
MEMORANDUM OPINION AND ORDER
This action came before the Court for a non-jury trial held July 16 and 17, 2012. Upon
consideration of the testimony and exhibits presented at trial, post-trial briefs, and all other
relevant portions of the record, the Court makes the following findings of fact and conclusions of
law1:
I. Procedural Background
On February 28, 2011, Plaintiff Hand Arendall, LLC (“Hand Arendall”) initiated this fee
dispute action against Defendant Dr. Murray E. Joiner, Jr. (“Dr. Joiner”) in the Circuit Court of
Mobile County, Alabama (CV-2011-900465.00) for payment of $113,501.63 for legal services it
allegedly performed for him throughout 2009 with regard to an attempted acquisition of Our
Southern Home (an assisted living facility located in Mobile, Alabama). Dr. Joiner removed the
action to this Court. After discovery concluded, Dr. Joiner filed a motion for summary judgment,
which was denied.
1
Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, “[i]n an action tried on
the facts without a jury or with an advisory jury, the court must find the facts specially and state
its conclusions of law separately. The findings and conclusions may be stated on the record after
the close of the evidence or may appear in an opinion or a memorandum of decision filed by the
court. Judgment must be entered under Rule 58.” Fed. R. Civ. P. 52(a).
The non-jury trial was held on July 16 and 17, 2012. Before trial began, Hand Arendall
clarified that its claim against Dr. Joiner was for breach of contract and not pursuant to the
equitable theory of quantum meruit.
II.
Findings of Fact2
At
some
time
in
2008,
Dr.
Murray
Joiner
met
Terry
Hester,
an
Alabama
businessman
who
arranged
financing
for
the
purchase
of
investment
properties.
Hester
and
Dr.
Joiner
discussed
investing
in
nursing
homes
and
assisted
living
facilities
in
the
southeast.
Hester
told
Dr.
Joiner
about
Our
Southern
Home,
Inc.,
an
Alabama
corporation
that
owned
an
assisted
living
facility
in
Mobile,
Alabama.
The
owner
and
sole
shareholder
of
the
corporation,
Lynn
Weiss,
had
filed
personal
bankruptcy
and
the
assets
were
being
sold
through
the
bankruptcy
proceedings.
Hester
and
Dr.
Joiner
discussed
purchasing
this
facility
as
the
first
one
in
their
investment
plan.
(Joiner
trial
testimony,
Joiner
deposition,
doc.
44-‐1,
p.
8-‐18).
They
agreed
that
Hester
would
assist
in
obtaining
financing
and
Dr.
Joiner
would
form
Our
Southern
Home,
LLC,
to
purchase
the
assets
of
Our
Southern
Home,
Inc.
It
was
also
agreed
that
after
closing
the
purchase,
Dr.
Joiner
would
transfer
40%
ownership
to
Hester
and
they
would
be
partners
in
the
venture.
(Hand
Arendall
Exhibit
7,
Agreement;
Exhibit
10,
Letter
of
Intent
to
purchase).
Thereafter,
Dr.
Joiner
decided
against
forming
Our
Southern
Home,
LLC,
to
purchase
the
assets
of
Our
Southern
Home,
Inc.
Instead
he
decided
to
use
Spreading
Oak
Development
III,
LLC,
(“Spreading
Oak”)
an
existing
limited
liability
company
organized
under
the
laws
of
Virginia,
as
the
acquisition
2
Unless stated otherwise, the findings of fact are taken from the testimony at trial, the
post-trial briefs, and the documentary evidence submitted at trial.
2
entity.
Spreading
Oak
was
an
entity
without
any
assets.
(Leatherbury
trial
testimony;
Marshal
deposition/trial
testimony).
Dr.
Joiner
was
represented
by
his
long-‐standing
attorney
Heman
Marshall,
a
partner
at
the
Virginia
law
firm
of
Woods
Rogers,
PLC.
Dr.
Joiner
hired
Marshall
to
assist
him
with
the
acquisition
of
the
facility.
Nicole
Ingle
and
Nick
Conte,
attorneys
with
Woods
Rogers,
also
worked
on
the
acquisition
with
Marshall.
In
late
December
2008,
Hester
and
Xan
Carvan,
another
person
involved
in
the
investment,
contacted
Gregory
L.
Leatherbury
an
attorney
with
Hand
Arendall
and
told
Leatherbury
that
Dr.
Joiner
and
Hester
intended
to
buy
multiple
nursing
home
facilities
starting
with
Our
Southern
Home,
Inc.
Hester
engaged
Hand
Arendall
to
perform
transactional
work
for
the
purchase.
Leatherbury
confirmed
this
relationship
in
an
email
to
Hester
dated
December
29,
2008
(“This
will
confirm
that
you
have
retained
my
firm
on
behalf
of
Regency
Worldwide
Development,
Inc.,
a
Delaware
crop.
(Regency)
in
connection
with
the
proposed
acquisition
of
the
assets
of
Our
Southern
Home,
Inc.,
and
Lynn
Weiss.”)
(Hand
Arendall
Exhibit
1).
When
Hand
Arendall
opened
the
client
account
–
Terry
Hester
was
named
as
the
client
and
the
“contact
name”
was
“Regency
Worldwide
Partners”.
(Hand
Arendall
Exhibit
2).
In
the
morning
of
January
8,
2009,
at
10:10
a.m.,
Hester
emailed
Dr.
Joiner
to
provide
the
name
and
address
for
Leatherbury
at
Hand
Arendall.
Hester
explained
that
Leatherbury
was
the
attorney
“we
are
using
for
contract
and
as
closing
attorney”.
(Hand
Arendall
Exhibit
3).
Dr.
Joiner
forwarded
the
email
to
Marshall
at
10:40
a.m.,
stating
Please
contact
the
attorney
to
make
sure
he
knows
your
are
(sic)
in
charge
even
though
he
is
helping
us
with
my
Alabama
projects.
I
want
to
make
sure
3
he
knows
he
works
for
me.
Also,
he
is
preparing
an
agreement
between
Hester
and
myself.
Once
we
close
we
will
become
partners
in
these
ventures.
.
.
.
(Hand
Arendall
Exhibit
3).
Marshall
responded
at
11:11
a.m.
and
explained
that
Hand
Arendall
was
the
firm
he
recommended3
and
asked
whether
Hester
or
Joiner
had
spoken
with
Leatherbury.
Marshall
wrote:
“If
so,
I
will
call
him
immediately
and
we
will
proceed.”
(Id.)
Dr.
Joiner
responded
at
12:06
p.m.,
(Id.)
[Hester]
did
speak
with
him.
We
will
make
this
a
one
time
task
situation.
Of
(sic)
you
check
him
out
and
he
meets
your
standards
and
you
like
him
we
can
make
this
a
long
term
relationship.
It
will
be
your
call.
.
.
.
Later
that
day,
Marshall
called
Leatherbury
to
discuss
the
rates
to
charge
Dr.
Joiner
(Leatherbury
trial
testimony).
Then
at
5:38
p.m.
that
afternoon,
Marshall
confirmed
that
conversation
in
an
email
to
Dr.
Joiner,
explaining
that
I
spoke
with
Greg
Leatherbury
this
afternoon.
Apparently
Terry
has
been
speaking
with
him
extensively
over
the
last
few
days.
He
advised
that
he
was
unsure
exactly
who
his
client
was,
but
that
he
had
sent
Terry
a
representation
letter
covering
Terry
personally.
That
has
not
yet
been
returned
to
him.
However,
he
is
agreeable
to
handling
it
however
you
and
Terry
agree.
I
had
initially
understood
that
he
would
be
working
for
you,
under
our
supervision,
so
this
is
an
issue
we
will
want
to
sort
out
quickly.
.
.
.
He
indicated
that
Terry
had
asked
him
to
also
draft
an
agreement
between
you
and
Terry
regarding
the
shared
investment.
In
his
words,
you
would
be
“50/50
owners
and
co-‐managers
with
equal
powers.”
I
advised
that
my
understanding
was
60/40
your
way.
This
of
course
highlights
the
fact
that
there
could
be
some
issue
to
be
worked
out
between
you
and
Terry
before
going
on
with
the
main
agreements
on
the
purchase.
Perhaps
Greg
can
act
3
Marshall testified that he had found Hand Arendall in Martindale-Hubbell and left a
message with the Birmingham Office. Coincidentally, Hester had contacted Leatherbury at the
Mobile Office. (Marshall deposition, p. 40-41)
4
as
Terry’s
counsel
on
the
first
step
and
we
can
represent
your
interests.
Once
you
and
Terry
have
your
deal
drawn.
Greg
would
then
act
as
local
counsel
for
the
purchasing
entity
which
would
then
be
owned
by
you
and
Terry.
We
can
continue
to
work
with
Greg
and
his
firm
in
a
joint
effort.
(Joiner’s
Exhibit
57).
Based
on
Leatherbury’s
understanding
that
he
represented
Hester,
Leatherbury
and
Robert
Riccio,
another
Hand
Arendall
attorney,
began
to
prepare
documents
relative
to
the
purchase
of
the
facility
including
a
Letter
of
Intent.
(Leatherbury
trial
testimony;
Joiner
Exhibit
66,
email
dated
January
10,
2009,
from
Leatherbury
to
Marshall).
However,
on
or
near
January
14,
2009,
during
a
conference
call
with
Marshall
and
Ingle
of
Woods
Rogers
and
Hand
Arendall
attorneys
Leatherbury,
Chris
Gill
and
Riccio
regarding
the
documents
prepared
by
Riccio,
the
subject
arose
of
preparing
a
new
limited
liability
company
and
operating
agreement.
(Id.)4
Leatherbury
perceived
the
course
of
this
conversation
to
indicate
that
Marshall
and
Ingle
“were
looking
to
[Hand
Arendall]
to
represent
Dr.
Joiner”.
(Id.)
Leatherbury
then
told
Marshall
and
the
other
attorneys
that
he
had
to
have
clarification
regarding
whom
he
was
representing
in
this
transaction
and
asked
whether
he
represented
Dr.
Joiner
or
Hester.
Leatherbury
testified,
“they
said
you
are
representing
Dr.
Joiner.”
(Id.)
4
Dr. Joiner asserts that only Riccio and Gill participated in the conference call and that
Leatherbury spoke to Marshall later by telephone. (Doc 66, Joiner’s post-trial brief).
Regardless of whether Leatherbury sought clarification as to the identity of his client at the
conference call or later in a separate conference with Marshall, Leatherbury’s testimony that he
left the conversation with the belief that Dr. Joiner individually was his client is credible. This is
particularly true in light of the fact that it is highly unlikely that the firm would agree to
represent, without a retainer, an asset-free entity without some assurance of payment from
another source.
5
On
January
14,
2009,
Leatherbury
called
Marshall
to
discuss
the
fee
to
charge
Dr.
Joiner,
explaining
that
he
did
not
want
to
charge
more
than
Marshall.
(Id.)
Also,
that
day,
at
5:59
p.m.,
Marshal
emailed
Conte
and
Ingle
to
explain
that
he
had
spoken
with
Leatherbury
and
that
“[h]e
spoke
with
Terry
Hester
who
is
fine
with
his
firm
representing
the
acquiring
entity.
Leatherbury
is
preparing
an
engagement
agreement
addressed
to
both
Murray
and
Terry
setting
this
out.”
(Joiner’s
Exhibit
58).
Marshall
also
emailed
Dr.
Joiner,
at
6:07
p.m.
on
January
14,
2009,
as
follows:
I
really
need
about
30
to
45
minutes
with
you
on
the
phone
to
sort
out
all
the
issues
in
the
Southern
Home
arrangement.
I
spoke
today
with
Greg
Leatherbury,
the
partner
on
the
file
at
Hand,
Arendall
in
Mobile
and
I
have
gotten
his
representation
straightened
out.
We
also
had
a
conference
call
with
the
other
lawyers
at
Hand
Arendall
who
are
preparing
documents.
However,
I
want
to
go
over
all
of
the
details
of
how
you
see
this
unfolding,
.
.
.
(Hand
Arendall
Exhibit
11).
Marshall
stated
that
he
understood
that
“Hand
Arendall
was
representing
Terry
Hester’s
interests
and
that
we
were
jointly
cooperating
on
the
representation
of
the
acquisition
entity”
which
was
Spreading
Oak.
(Marshall
trial
testimony
by
deposition,
Marshall
deposition
p.
47).
Marshall
stated
that
Hand
Arendall
represented
the
interest
of
Dr.
Joiner
“[i]ndirectly
though
the
-‐
-‐
through
our
joint
efforts
for
the
acquisition
entity”
but
not
personally.
(Marshall
trial
testimony,
Marshall
deposition
p.
54).
From
January
14,
2009
until
the
purchase
fell
through
in
September
2009,5
Hand
Arendall
continued
to
perform
work
on
the
acquisition
with
consultation
and
communication
between
Leatherbury,
Riccio
and
Gill
and
Marshall,
Ingle
and
Conte.
5
Ultimately, Dr. Joiner and Marshall as well as Leatherbury and Riccio, determined that
the facility could not generate the cash flow anticipated and the purchase was never completed.
(Leatherbury, Riccio, Joiner, Marshall trial testimony).
6
Leatherbury
and
Riccio
also
communicated
directly
with
Joiner
during
this
time
period.
Numerous
documents
and
emails
were
generated
and
many
identified
Dr.
Joiner
individually
as
Hand
Arendall’s
client
without
identifying
him
as
the
member
or
manager
of
Spreading
Oak.
Specifically,
in
February
2009,
when
disclosing
certain
conflicts
of
interest
related
to
Hand
Arendall’s
representation
of
two
banks
which
held
loans
secured
by
assets
of
Weiss
and
Our
Southern
Home,
Inc.
and
were
creditors
in
Weiss’
personal
bankruptcy,
the
conflict
of
interest
waivers
sent
to
Dr.
Joiner
by
way
of
Marshall
and
Leatherbury
identified
Dr.
Joiner
in
his
individual
capacity
without
designation
as
Spreading
Oak’s
manager
or
member
(Hand
Arendall
Exhibit
15).
Marshall
discussed
these
conflict
of
interest
waivers
with
Dr.
Joiner.
(Marshal
deposition
p.
82).
The
conflict
of
interest
waivers
were
never
signed
or
returned
to
Hand
Arendall.
Also,
Leatherbury
emailed
Dr.
Joiner
in
May
2009
to
confirm
their
conversation
of
that
date.
(Hand
Arendall
Exhibit
55).
Therein,
after
addressing
the
status
of
the
potential
“bid
off”
to
purchase
the
assets
of
the
facility
in
the
bankruptcy
court,
Leatherbury
concluded
with
“We
are
all
trying
to
protect
your
interest
and
make
sure
that
you
do
buy
this
facility
.
.
.
and
do
everything
in
our
power
to
be
sure
you
buy
this
facility
on
commercially
reasonable
terms
.
.
.
Our
goal
is
to
get
this
deal
done,
period.”
(Id.)
Moreover,
emails
from
May
to
September
2009,
on
which
Dr.
Joiner
was
copied
or
addressed,
indicated
that
Hand
Arendall
believed
their
client
to
be
Dr.
Joiner.
A
May
2009
email
addressed
to
Travis
Bedsole,
Bankruptcy
Court
Administrator,
clearly
stated,
“[w]e
represent
Spreading
Oak
Development
III,
LLC
(and
Dr.
Joiner,
one
of
its
principal[sic])
(Pl.
Exh.
52).
Another
May
2009
email
to
Dr.
Joiner
stated,
“I
don’t
disagree
at
all
with
your
7
thoughts,
and
you
are
the
client.”
(Pl.
Exh.
58).
In
a
September
2009
email
to
attorney
Jeffrey
Hartley,
Hand
Arendall
again
stated
that
they
represented
Dr.
Joiner.
In
late
July
2009,
Hand
Arendall
first
invoiced
Dr.
Joiner
individually,
in
the
amount
of
$91,610.37.
In
early
August
2009,
Dr.
Joiner
met
with
Hand
Arendall
attorney
Robert
Riccio
to
discuss
the
financial
status
of
the
facility.
They
met
with
the
accountant
for
the
corporation
and
the
manager
of
the
facility.
At
this
meeting,
Dr.
Joiner
and
Riccio
learned
that
the
financial
status
of
the
facility
likely
would
not
generate
the
cash
flow
necessary
to
make
this
investment
profitable.
In
a
private
meeting
that
same
day,
Riccio
advised
Dr.
Joiner
as
to
the
viability
of
the
facility
and
whether
Dr.
Joiner
should
move
forward
with
the
purchase.
Dr.
Joiner
expressed
concern
over
the
amount
of
money
invested
to
date,
including
attorney’s
fees
due
to
Hand
Arendall
and
Woods
Rogers.
Dr.
Joiner
told
Riccio
that
he
would
pay
Hand
Arendall’s
attorneys
fees
as
well
as
the
fees
of
Woods
Rogers.
(Riccio
trial
testimony).
The
amount
due
increased
to
$104,547.95
by
late
August
and
increased
to
$116,783.63
by
late
September
2009.
In
early
October
2009,
Weiss’s
attorney
contacted
Leatherbury
about
refunding
Dr.
Joiner’s
$5,000
earnest
money
deposit
held
in
trust.
At
Dr.
Joiner’s
direction,
the
attorney
issued
a
check
payable
to
Leatherbury
which
he
then
endorsed
payable
to
Hand
Arendall.
The
money
was
credited
to
Dr.
Joiner’s
account.
(Hand
Arendall
Exhibit
22,
Leatherbury
trial
testimony).
Leatherbury
wrote
a
note
to
Dr.
Joiner:
10-‐5-‐09
Murray,
Per
our
discussions
and
as
stated
above
by
Rick,
we
are
applying
the
attached
check
as
a
payment
on
your
account.
Greg
8
(Hand
Arendall
Exhibit
22).
Numerous
emails
among
Dr.
Joiner,
Leatherbury
and
Marshal
were
sent
during
the
next
few
months.
The
emails
addressed
Weiss’
bankruptcy
proceedings
and
the
facility’s
sale
in
bankruptcy
at
a
substantially
lower
price
than
originally
offered
by
Dr.
Joiner
as
well
as
payment
of
fees
incurred
by
both
Marshall
and
Leatherbury.
Hand
Arendall
sent
another
invoice
in
December
2009.
In
October
2010,
the
last
invoice
before
the
complaint
was
filed
showed
a
balance
due
of
$113,501.63.
III.
Conclusions
of
Law
A.
Venue,
Jurisdiction
and
Choice
of
Law
This
Court
has
personal
jurisdiction
over
the
parties
and
the
Southern
District
of
Alabama
is
a
proper
venue.
This
action
was
removed
on
basis
of
diversity
jurisdiction
pursuant
to
28
U.S.C.
§1332(a)(1)
(doc.
1).
“[A]
federal
court
in
a
diversity
case
is
required
to
apply
the
laws,
including
principles
of
conflict
of
laws,
of
the
state
in
which
the
federal
court
sits.”
Manuel
v.
Convergys
Corp.,
430
F.3d
1132,
1139
(11th
Cir.
2005)
(citing
Klaxon
Co.
v.
Stentor
Elec.
Mfg.
Co.,
313
U.S.
487,
496
(1941)).
Therefore,
the
Court
must
decide
which
state’s
law
governs
this
action
between
Hand
Arendall,
a
citizen
of
Alabama
and
Joiner,
a
citizen
of
Virginia.
“Alabama
law
follows
the
traditional
conflict-‐of-‐law
principles
of
lex
loci
contractus
and
lex
loci
delicti.”
Lifestar
Response
of
Ala.,
Inc.
v.
Admiral
Ins.
Co.,
17
So.
3d
200
(Ala.
2009).
Thus,
contract
claims
are
governed
by
the
laws
of
the
state
where
the
contract
was
made,
unless
the
contracting
“parties
have
legally
contracted
with
reference
to
the
laws
of
another
jurisdiction”.
Cherry,
Bekaert
&
Holland
v.
Brown,
582
So.
2d
502,
506
(Ala.
1991);
Kruger
Commodities,
Inc.
v.
U.S.
Fid.
and
Guar.,
923
F.Supp.
1474,
1477
(M.D.Ala.1996)
(“The
9
general
choice-‐of-‐law
rule
in
Alabama
is
lex
loci
contractus,
which
provides
that
‘a
contract
is
governed
as
to
its
nature,
obligation,
and
validity
by
the
law
of
the
place
where
it
was
made.’”)
(citation
omitted).
This
breach
of
contract
action
is
governed
by
the
laws
of
the
State
of
Alabama
because
the
parties
have
not
contracted
otherwise.
B.
Evidentiary
Rulings
At
trial,
the
Court
took
under
submission
the
admissibility
of
Hand
Arendall’s
Exhibits
19
and
21.
Exhibit
19
is
an
email
dated
September
21,
2009,
from
Dr.
Joiner
to
Marshall
with
an
email
from
Leatherbury
attached.
In
the
attachment
Leatherbury
asks
Dr.
Joiner
for
permission
to
have
Weiss’
bankruptcy
attorney
transfer
the
deposit
to
Hand
Arendall
to
apply
as
a
payment
on
the
balance
due.
Dr.
Joiner
asks
Marshall
for
advice
on
how
to
word
his
response
to
Leatherbury.
Exhibit
21
is
an
email
dated
September
28,
2009,
from
Dr.
Joiner
to
Marshall
wherein
Dr.
Joiner
offers
a
solution
to
payment
of
the
amount
owed
to
Woods
Rogers,
discusses
payment
of
Hand
Arendall’s
fees,
states
his
displeasure
with
certain
aspects
of
its
representation,
and
expresses
his
opinion
that
Hester
should
also
be
responsible
for
payment
of
attorney’s
fees
and
costs
incurred
in
their
failed
business
venture.
Hand
Arendall
sought
admission
of
these
exhibits
as
evidence
of
mutual
assent
to
the
formation
of
a
contract
between
Hand
Arendall
and
Dr.
Joiner
individually.
Specifically,
it
points
to
Dr.
Joiner’s
statement:
“I
want
to
make
everyone
whole”
and
Dr.
Joiner’s
statement:
“I
will
get
everyone
taken
care
of.”
Hand
Arendall
argued
that
the
emails
at
issue
do
not
involve
legal
advice
since
there
was
no
litigation
at
that
time
and
other
similar
emails
have
been
found
not
to
be
subject
to
the
attorney-‐client
privilege.
Rule
501
of
the
Federal
Rules
of
Evidence
addresses
privilege
in
general
and
states,
10
in
relevant
part,
that
“in
a
civil
case,
state
law
governs
privilege
regarding
a
claim
or
defense
for
which
state
law
supplies
the
rule
of
decision.”6
In
this
diversity
action,
the
law
of
the
State
of
Alabama
supplies
the
rule
of
decision.
In
that
regard,
Rule
502
of
the
Alabama
Rules
of
Evidence
governs
the
attorney-‐client
privilege
in
Alabama.
The
Rule
states
in
pertinent
part
as
follows:
(b)
General
Rule
of
Privilege.
A
client
has
a
privilege
to
refuse
to
disclose
and
to
prevent
any
other
person
from
disclosing
a
confidential
communication
made
for
the
purpose
of
facilitating
the
rendition
of
professional
legal
services
to
the
client,
(1)
between
the
client
or
a
representative
of
the
client
and
the
client's
attorney
or
a
representative
of
the
attorney,
or
(2)
between
the
attorney
and
a
representative
of
the
attorney,
(3)
by
the
client
or
a
representative
of
the
client
or
the
client's
attorney
or
a
representative
of
the
attorney
to
an
attorney
or
a
representative
of
an
attorney
representing
another
party
concerning
a
matter
of
common
interest,
(4)
between
representatives
of
the
client
and
between
the
client
and
a
representative
of
the
client
resulting
from
the
specific
request
of,
or
at
the
express
direction
of,
an
attorney,
or
(5)
among
attorneys
and
their
representatives
representing
the
same
client.
Ala.
R.
Evid.
502(b).
Under
Alabama
law,
the
existence
of
a
privileged
communication
“is
a
question
of
fact
to
be
determined
by
the
trial
court
from
the
evidence
presented.”
Exxon
Corporation
v.
Department
of
Conservation
and
Natural
Resources,
859
So.
2d
1096,
1103(Ala.
2003)
(citation
omitted).
Dr.
Joiner,
as
the
“party
asserting
the
attorney-‐client
privilege
bears
the
burden
of
establishing
that
the
privilege
attaches
to
the
documents
requested.”
Ex
parte
6
The email communications appear to have been sent between Dr. Joiner and Marshall
in Virginia. However, as Rule 501 explains Alabama law supplies the rule of decision and
therefore, also governs privilege. Dr. Joiner raised his objection under Alabama law. (doc. 55,
joint pretrial document, p. 12). In opposing the objection, Hand Arendall argued pursuant to
Alabama law. (doc. 65, post-trial brief). However, the same result would obtain under Virginia
law. SNC-Lavalin America, Inc. v. Alliant Techsystems, Inc.. 2011 WL 4716225, 1 (W.D.Va.
Oct. 6, 2011) (“Accordingly, ‘[t]he attorney-client privilege does not attach to a document
merely because a client delivers it to his attorney.’ . . . Instead, the communication must be for
the purpose of procuring or providing legal advice.”) (citation omitted).
11
Tucker,
66
So.3d
750,
753
(Ala.
2011)
(citation
omitted).
“The
general
rule
is
that
an
attorney
cannot
disclose
the
advice
he
gave
to
his
client
about
matters
concerning
which
he
was
consulted
professionally,
nor
can
the
client
be
required
to
divulge
the
advice
that
his
attorney
gave
him.”
Ex
parte
Meadowbrook
Ins.
Group,
Inc.,
987
So.2d
540,
550
(Ala.
2007)
(citation
omitted).
However,
“[t]he
attorney-‐client
privilege
generally
does
not
exempt
the
attorney
from
testifying
to
the
fact
of
the
attorney's
employment,
the
name
of
the
person
so
employing
and
the
terms
of
the
employment.
This
general
rule
includes
disclosure
of
the
fee
arrangement.”
Ex
parte
Tucker,
66
So.3d
at
753
(quoting
2
Charles
W.
Gamble,
McElroy's
Alabama
Evidence
§
392.02
(6th
ed.
2009))
(footnotes
omitted).
Also,
“information
regarding
a
fee
arrangement
and
the
identity
of
the
person
paying
the
fee
falls
outside
the
protection
of
the
attorney-‐client
privilege.”
Id.,
(quoting
In
re
Grand
Jury
Proceedings
in
re
Freeman,
708
F.2d
1571,
1575
(11th
Cir.1983))
The
burden
is
on
Dr.
Joiner
to
establish
that
the
information
contained
in
the
emails
constituted
legal
advice
from
his
attorney
Marshall
instead
of
a
disclosure
of
the
fee
arrangement
with
Marshall
or
Hand
Arendall.
At
trial,
Dr.
Joiner
argued
that
the
attorney-‐
client
privilege
applied
to
these
exhibits
because
he
was
seeking
legal
advice
from
Marshall
as
to
how
to
handle
the
dispute
about
attorney’s
fees
after
the
transaction
failed;
he
was
not
seeking
legal
advice
pertaining
to
the
acquisition
of
the
facility
(the
subject
of
joint
representation).
The
Court
finds
that
Dr.
Joiner
has
met
his
burden
to
establish
that
these
emails
are
subject
to
the
attorney-‐client
privilege.
Specifically,
the
Court
finds
that
the
emails
address
different
legal
issues
than
the
purchase
of
the
facility
and
the
joint
representation.
Dr.
Joiner
seeks
advice
from
Marshall
regarding
the
debt
owed
to
Hand
Arendall.
Therefore,
12
the
objection
is
sustained.
C.
Alabama
Law
on
Contracts
“The
“elements
of
a
breach-‐of-‐contract
claim
under
Alabama
law
are
(1)
a
valid
contract
binding
the
parties;
(2)
the
plaintiffs'
performance
under
the
contract;
(3)
the
defendant's
nonperformance;
and
(4)
resulting
damages.”
Allen
v.
Baker,
-‐
-‐
-‐
So.
3d
-‐
-‐
-‐
,
2012
WL
2161629,
5
(Ala.
Civ.
App.
June
15,
2012)
(citing
Shaffer
v.
Regions
Fin.
Corp.,
29
So.3d
872,
880
(Ala.
2009)
(quoting
Reynolds
Metals
Co.
v.
Hill,
825
So.2d
100,
105
(Ala.2002)).
“The
elements
of
a
valid
contract
include:
an
offer
and
an
acceptance,
consideration,
and
mutual
assent
to
terms
essential
to
the
formation
of
a
contract.”
Ex
parte
Jackson
County
Bd.
of
Educ.,
4
So.3d
1099,
1103-‐1104
(Ala.
2008),
(citing
Ex
parte
Grant,
711
So.2d
464,
465
(Ala.1997)
(quoting
Strength
v.
Alabama
Dep't
of
Fin.,
Div.
of
Risk
Mgmt.,
622
So.2d
1283,
1289
(Ala.1993)).
“The
purpose
of
a
signature
on
a
contract
is
to
show
mutual
assent[.]”
I.C.E.
Contractors,
Inc.
v.
Martin
&
Cobey
Const.
Co.,
58
So.
3d
723,
725
(Ala.
2010)
(quoting
Bowen
v.
Security
Pest
Control,
Inc.,
879
So.2d
1139,
1142
(Ala.2003)
(quoting
Ex
parte
Rush,
730
So.2d
1175,
1177–78
(Ala.1999))
(internal
citations
omitted).
“[H]owever,
the
existence
of
a
contract
may
also
be
inferred
from
other
external
and
objective
manifestations
of
mutual
assent.
Unless
a
contract
is
required
by
a
statute
to
be
signed
.
.
.
or
by
the
Statute
of
Frauds
to
be
in
writing
.
.
.
or
unless
the
parties
agree
that
a
contract
is
not
binding
until
it
is
signed
by
both
of
them
.
.
.
it
need
not
be
signed
by
the
party
against
whom
enforcement
is
sought,
provided
it
is
accepted
and
acted
upon.”
Id.,
at
725-‐726.
“A
contract
implied
in
fact
requires
the
same
elements
as
an
express
contract,
and
differs
only
in
the
‘method
of
expressing
mutual
assent.’
Implied
contracts
normally
arise
in
13
situations
where
there
is
a
bargained-‐for
exchange
contemplated
by
the
parties,
but
no
overt
expression
of
agreement.”
Ex
parte
Jackson
County
Bd.
of
Educ.,
4
So.3d
1099,
1103
-‐
1104
(Ala.
2008)
(quoting
Ellis
v.
City
of
Birmingham,
576
So.2d
156,
157
(Ala.1991)
(quoting
Berry
v.
Druid
City
Hosp.
Bd.,
333
So.2d
796,
799
(Ala.1976)).
“Conduct
of
one
party
from
which
the
other
may
reasonably
draw
the
inference
of
assent
to
an
agreement
is
effective
as
acceptance.”
Ex
parte
Rush
at
1178.
D.
Analysis
There
is
no
dispute
that
Hand
Arendall
provided
legal
services,
that
Joiner
has
refused
to
pay
the
balance
due
for
those
services,
or
that
Hand
Arendall
has
been
damaged
by
the
failure
to
pay.
The
issue
is
whether
a
contract
was
formed
between
Hand
Arendall
and
Dr.
Joiner,
individually,
or
only
as
to
Dr.
Joiner
as
the
manager
of
Spreading
Oak.7
The
Court
has
considered
the
evidence
presented
and
finds
that
the
preponderance
of
the
evidence
shows
that
Dr.
Joiner
in
his
individual
capacity,
personally
and
by
way
of
his
attorney’s
communications
with
Hand
Arendall,
assented
to
the
formation
of
a
contract
for
legal
representation
by
Hand
Arendall.
This
representation
began
on
January
14,
2009.
There
was
no
written
expression
of
assent
from
Dr.
Joiner.
Thus,
the
Court
looks
to
the
actions
of
each
party
to
determine
whether
there
was
mutual
assent
to
an
arrangement
wherein
Hand
Arendall
would
represent
Dr.
Joiner
in
his
individual
capacity.
The
first
evidence
of
assent
comes
from
the
testimony
that
on
January
14,
2009,
a
telephone
conference
was
held
wherein
it
was
conclusively
agreed
between
Dr.
Joiner’s
agent,
Heman
Marshall,
and
Hand
Arendall
that
Hand
Arendall
would
represent
Dr.
Joiner.
7
There is no credible evidence to support the argument that Hester was the only client
represented by Hand Arendall.
14
Next,
and
most
convincing,
is
the
way
the
conflict
of
interest
waivers
were
prepared
and
handled.
The
conflict
of
interest
waivers
clearly
show
Dr.
Joiner
as
the
client.
In
February
2009,
Dr.
Joiner
received
and
reviewed
with
Marshall
the
conflict
of
interest
waivers,
which
were
prepared
for
his
signature
in
his
individual
capacity.8
Thus,
Dr.
Joiner
was
clearly
on
notice
that
Hand
Arendall
believed
its
clients
to
be
Dr.
Joiner
and
Hester
in
their
individual
capacities.
Although
Dr.
Joiner
did
not
return
the
waivers,
he
also
did
not
disabuse
Hand
Arendall
of
its
alleged
misconception
that
Hand
Arendall
represented
him
on
an
individual
basis.
This
is
certainly
conduct
of
Dr.
Joiner
from
which
Hand
Arendall
could,
and
did,
reasonably
draw
the
inference
of
assent
to
an
agreement.
Also,
a
reasonable
inference
of
assent
is
drawn
from
the
silence
of
Dr.
Joiner
between
May
and
September
2009,
when
Hand
Arendall
represented
to
the
Bankruptcy
Administrator,
to
attorney
Jeffrey
Hartley,
and
to
Dr.
Joiner,
that
it
represented
Dr.
Joiner
in
the
transaction.
Mutual
assent
is
also
seen
in
Dr.
Joiner’s
interactions
with
Hand
Arendall
attorneys.
Dr.
Joiner
personally
communicated
with
Hand
Arendall
attorneys
to
give
them
specific
directions
about
proceeding
on
his
behalf
to
purchase
the
facility.
This
includes
continuing
to
seek
legal
advice
even
after
receiving
Hand
Arendall’s
bill,
which
indicated
that
Dr.
Joiner
was
the
client
being
held
responsible
for
the
legal
bills.
In
sum,
the
totality
of
the
evidence
weighs
in
favor
of
a
finding
that
Dr.
Joiner
assented
to
Hand
Arendall
representing
him
on
an
individual
basis
in
purchasing
the
facility.
8
After five months, the Asset Purchase Agreement for the failed venture was signed by
Dr. Joiner as the manager of Spreading Oak on April 29, 2009 and submitted to the Bankruptcy
Court on May 14, 2009 (Joiner Exhibit 5).
15
E.
Damages
Under
Alabama
law,
damages
for
breach
of
contract
“should
return
the
injured
party
to
the
position
he
would
have
been
in
had
the
contract
been
fully
performed.”
Hill
v.
Premier
Builders,
56
So.
3d
669,
678
(Ala.
Civ.
App.
2010).
The
parties
presented
no
dispute
as
to
the
accuracy
of
the
attorney’s
fees
or
the
reasonableness.
Hand
Arendall
has
provided
the
affidavit
of
Harwell
E.
Coale,
Jr.,
as
evidentiary
support
for
the
reasonableness
of
the
hourly
rate
and
the
time
incurred
(Hand
Arendall
Exhibit
24).
Accordingly,
the
Court
finds
that
the
fees
are
reasonable.
However,
the
Court
is
unable
to
determine
from
the
evidence
submitted
what
the
total
of
the
fees
are
starting
on
January
14,
2009,
as
the
requested
damages
appear
to
begin
with
services
rendered
before
January
14,
2009.
Hand
Arendall
has
until
September
7,
2012,
to
amend
their
request
for
damages,
with
explanation,
to
conform
to
the
court’s
factual
findings.
IV.
Conclusion
For
the
reasons
set
forth
herein,
it
is
ORDERED
that
the
Court
finds
in
favor
of
Hand
Arendall
on
Count
One
of
its
complaint
for
breach
of
contract.
DONE
and
ORDERED
this
the
31st
day
of
August,
2012.
/s/
Kristi
K.
DuBose
KRISTI
K.
DuBOSE
UNITED
STATES DISTRICT JUDGE
16
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