Penick v. Roberts

203 So. 3d 1224
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 18, 2015
Docket2140467 and 2140581
StatusPublished

This text of 203 So. 3d 1224 (Penick v. Roberts) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Penick v. Roberts, 203 So. 3d 1224 (Ala. Ct. App. 2015).

Opinion

DONALDSON, Judge.

At issue in the cases giving rise to these appeals is a dispute over a purported attorney’s lien among Henry L. Penick, an attorney licensed to practice law in Alabama; Lynn Roberts (“Mr. Roberts”), Penick’s former client; and the Birmingham Airport Authority (“the BAA”) concerning $36,915.10 (“the funds”) previously held by the Jefferson Circuit Clerk (“the circuit clerk”). Penick appeals from an [1226]*1226order of the Civil Division of the Jefferson Circuit Court (“the circuit court”) denying his motion to intervene in case no. CV-13-902962 (“the civil case”). Penick also appeals from an order of the Domestic Relations Division of the Jefferson Circuit Court (“the divorce court”) in case no. DR-10-566 (“the divorce case”) declining to exercise jurisdiction over Penick’s efforts to claim the funds. For the reasons explained below, we dismiss Penick’s appeal from the civil case, and we affirm the order of the divorce court in the divorce case.

Facts and Procedural History

Mr. Roberts owned a home in Jefferson County that he and his wife, Cheryl Roberts (“Mrs. Roberts”) used as their marital residence. On May 1, 2009, Mr. Roberts filed a petition for relief under Chapter 13 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Alabama (“the bankruptcy court”). On March 10, 2010, the Robertses sold the marital residence to the City of Birmingham for $165,000. The mortgage on the marital residence was paid in full, and the remaining sum of $65,000 from the proceeds of the sale was paid to the bankruptcy trustee to be applied to Mr. Roberts’s bankruptcy estate. On April 10, 2010, Mrs. Roberts filed a complaint for a divorce against Mr. Roberts in the divorce court. Mrs. Roberts was represented in the divorce case by Charity M. Davis. On May 7, 2010, Mr. Roberts, through Penick, filed an answer and a counterclaim for a divorce. On April 27, 2010, the divorce court entered a temporary restraining order restraining Mr. Roberts from transferring property “belonging to the parties whether jointly or separately.”

On July 25, 2011, the bankruptcy court entered an order directing the bankruptcy trustee to pay the remaining funds from the sale of the1 marital residence from the bankruptcy estate to the circuit clerk, stating, in part, as follows:

“Based on arguments of counsel and the pleadings, the Trustee is directed to remit $36,915.10 from his escrow account to the [circuit clerk], until the [divorce court] orders otherwise in case number DR2010-000566[ ] (Cheryl Roberts v. Lynn Roberts).
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“It is further Ordered, the automatic stay provided under Section 362 of the Bankruptcy Code is terminated in all aspects to allow the parties to proceed with the litigation • pending before the [divorce] court without any interference from the bankruptcy court.”

Pursuant to the' order of the bankruptcy court, the bankruptcy trustee paid' the funds to the circuit clerk on August 11, 2011.

On February 28, 2013, Mrs. Roberts died. At the time of her death, the divorce court had not entered a final judgment of divorce.1 On March 7, 20l3, Mr.' Roberts filed a motion to dismiss the divorce case and requested an order from the divorce court directing the circuit clerk to pay the funds being held in the divorce case to him. On March 8, 2013,- Davis filed a motion in opposition to Mr. Roberts’s motion to dismiss, arguing primarily that Mr. Roberts was not entitled to the funds and that Mrs. Roberts’s heirs had an equitable interest in the funds. Davis stated in the [1227]*1227motion that she was seeking the requested relief on behalf of the surviving heirs of Mrs. Roberts.

The surviving heirs of Mrs. Roberts petitioned to establish a probate estate for Mrs. Roberts in the Jefferson County Probate Court (“the probate court”). The proceedings initiated in the probate court by the surviving heirs of Mrs. Roberts are hereinafter referred to as “the probate case.” On April 27, 2018, Davis, purportedly on behalf of her deceased client, filed a motion requesting that the divorce court enter an order directing the circuit clerk to transfer the funds from the divorce court to the probate court, where the funds could be administered as part of the probate case. On May 1, 2013, the divorce court entered an order dismissing the divorce case.without prejudice and entered another order granting the motion to transfer the funds to the probate court.

On May 9, 2013, Mr. Roberts filed a motion to alter, amend, or vacate the divorce court’s May 1, 2013, order to transfer the funds. Mr. Roberts argued that the divorce court did not have jurisdiction to enter an order transferring the funds to the probate court because the divorce case had abated upon Mrs. Roberts’s death. He further argued that the “surviving heirs” of Mrs. Roberts did not have “standing” to file a pleading in the divorce case.

On June 25, 2013, the divorce court granted Mr. Roberts’s motion to alter, amend, or vacate the order transferring the funds. Mr. Roberts then filed a motion to condemn the funds, which the divorce court denied. The funds remained on deposit with the circuit, clerk in the divorce case.

Latonya Adams, as personal representative of the estate of Mrs. Roberts, who was also represented by Davis,- then filed a complaint for a declaratory judgment and injunctive relief against Mr. Roberts in the circuit court, thereby commencing the civil case. In the complaint, Adams requested that the circuit court enter an order awarding the funds held by the circuit clerk in the divorce case to Mrs. Roberts’s estate, to transfer those funds to the probate court, to enter a restraining order to prevent Mr. Roberts from receiving the funds, and to enjoin the circuit clerk from releasing the funds to Mr. Roberts. Mr. Roberts, represented by Penick, filed a motion in the circuit court to dismiss the civil case, arguing, in part, that the circuit court lacked subject-matter jurisdiction over the funds because the funds were being held in the divorce case and, accordingly, that the divorce court had jurisdiction over the funds. Nevertheless, Mr. Roberts filed a motion requesting that the circuit court enter an order disbursing the funds to him.

On April 10, 2014, the circuit court entered an order setting a hearing on June 26, 2014, on all pending motions in the civil ease. Also on April 10, 2014, Davis filed a motion to withdraw from representing Adams in the civil case. Penick filed a motion to withdraw from representing Mr. Roberts in the civil case on April 15, 2014. The circuit court granted , both motions to withdraw on April 24, 2014.

On April 24, 2014, the BAA filed a motion to' intervene in the civil ease, pursuant to Rule 24(a), Ala. R. Civ. P., along with a complaint in intervention. The BAA contended that it- “claim[ed] an interest relating to [the funds] which [are] the subject of the instant case [and. that] is so situated that the disposition of the action may as a practical matter impair or impede, the [BAA’s] ability to protect its interest.” The BAA alleged that it had obtained a judgment in the amount of $10,000, plus $457.04 in court costs, against Mr. Roberts in case no. CV-13-902224,. which ■ had [1228]*1228been commenced in the Jefferson Circuit Court. The BAA.

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Bluebook (online)
203 So. 3d 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penick-v-roberts-alacivapp-2015.