Burt W. Newsome & Newsome Law, LLC v. Cooper

333 So.3d 940

Burt W. NEWSOME and Newsome Law, LLC

v.Clark A. COOPER et al.

Burt W. Newsome and Newsome Law, LLC

v.Balch & Bingham, LLP, et al.

1180252

1180302

Supreme Court of Alabama.

December 18, 2020

Rehearing Applications Denied February 19, 2021

Burt W. Newsome of Newsome Law, LLC, Birmingham, for appellants.

Andrew P. Campbell and Cason M. Kirby of Campbell Partners, LLC, Birmingham; and S. Allen Baker and Ed R. Haden of Balch & Bingham, LLP, Birmingham, for appellees Clark A. Cooper and Balch & Bingham, LLP.

Robert M. Ronnlund of Scott, Sullivan, Streetman & Fox, P.C., Birmingham, for appellee Claiborne P. Seier.

Candace B. Crenshaw of Hill, Gossett, Kemp & Hufford, P.C., Moody, for appellee John W. Bullock.

PER CURIAM.

Attorney Burt W. Newsome and his law practice Newsome Law, LLC (hereinafter referred to collectively as "the Newsome plaintiffs"), sued attorney Clark A. Cooper; Cooper's former law firm Balch & Bingham, LLP ("Balch"); John W. Bullock; Claiborne Seier ("Seier"); and Don Gottier (hereinafter referred to collectively as "the defendants") in the Jefferson Circuit Court, alleging that the defendants combined to have Newsome arrested on a false charge with the intent of damaging his reputation and law practice. The trial court ultimately entered judgments in favor of the defendants, while reserving jurisdiction to make a later award of attorney fees and costs under the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala. Code 1975 ("the ALAA"). After the Newsome plaintiffs appealed the initial judgments against them, the trial court awarded Balch, Bullock, Seier, and Gottier attorney fees and costs under the ALAA. The Newsome plaintiffs then filed another appeal seeking the reversal of those awards. We now affirm the judgments challenged by the Newsome plaintiffs in both appeals.

Facts and Procedural History

On December 19, 2012, Bullock went to his dentist's office in Birmingham to have a crown reset. The dentist's office shared a parking lot with Newsome Law, and Bullock parked his vehicle in a parking space near Newsome's vehicle. As Bullock got out of his vehicle to go in for his appointment, Newsome was leaving his office and approaching his own vehicle.

Approximately 11 months earlier, Newsome had similarly been leaving his office when Alfred Seier ("Alfred") exited a vehicle parked near his and confronted Newsome about collection efforts Newsome was taking against Alfred's wife, who owed money to a bank that Newsome represented. During that confrontation, Alfred produced a handgun, but Newsome was able to escape to his office unharmed. Newsome later filed a criminal complaint against Alfred for menacing, a violation of § 13A-6-23, Ala. Code 1975.¹ Alfred's brother Seier, an attorney, later contacted Newsome and attempted to convince him to drop the menacing charge against Alfred, who had cancer and was in poor health, but Newsome declined to do so.

Newsome states that Bullock's parking and the manner in which Bullock exited his vehicle on December 19 was reminiscent of the incident with Alfred earlier that year. Feeling threatened, Newsome pulled out a handgun as he approached Bullock and their vehicles and ordered Bullock to return to his vehicle until Newsome entered his vehicle and left. Bullock did so. Bullock later contacted law enforcement and swore out a warrant against Newsome for menacing.

On May 2, 2013, Newsome was stopped by the police for speeding. After the police officer discovered that Newsome had an outstanding warrant for his arrest, Newsome was taken into custody and was transported to the Shelby County jail. Newsome was released later that day.

Two days later, Cooper learned about Newsome's arrest. Like Newsome, Cooper was an attorney who represented banks in creditors’ rights actions. Cooper and Newsome, in fact, had several of the same banks as clients, representing them in different matters, depending on the nature and scope of the action. As part of his practice, Cooper periodically e-mailed his banking clients when he learned that another attorney had filed an action on their behalf to ask if there was anything he could do to get more business referred to Balch; Cooper had sent these e-mails to some of his clients after learning of actions that Newsome had filed. Upon learning of Newsome's arrest, Cooper forwarded Newsome's mug shot to a friend who was an executive at IberiaBank, which periodically referred legal matters to both Cooper and Newsome, with a note wondering how Newsome's arrest would affect his law license. That IberiaBank executive subsequently testified that he did not refer any cases to Newsome for the next three weeks until they met and Newsome assured him that the menacing charge would have no effect on his ability to practice law. IberiaBank thereafter resumed referring cases to Newsome.

Newsome's menacing charge was set for a November 12, 2013, trial in the Shelby District Court. During a pretrial conference that morning, the State, with Bullock's consent, offered to continue the trial until April 1, 2014, and to then dismiss the charge at that time if Newsome had no further arrests and paid the required court costs. The "Dismissal and Release" order ("the D&R order") memorializing the terms of their agreement further provided:

"[Newsome] does hereby grant a full, complete and absolute Release of all civil and criminal claims stemming directly or indirectly from this case to the State of Alabama ... [and] to any other complainants, witnesses, associations, corporations, groups, organizations or persons in any way related to this matter .... [Newsome] freely makes this release knowingly and voluntarily. In exchange for this release, this case will be either dismissed immediately, or pursuant to conditions noted above."

(Emphasis in original.) The D&R order was signed by Bullock, the assistant district attorney, Newsome, and Newsome's attorney. On April 4, 2014, the district court dismissed the case against Newsome.

On January 14, 2015, the Newsome plaintiffs sued Cooper, Balch, Bullock, and Seier, alleging, as later amended, malicious prosecution, abuse of process, false imprisonment, the tort of outrage, defamation, invasion of privacy, and multiple counts of conspiracy and intentional interference with a business relationship. The gist of their complaint was that Cooper and Seier conspired with Bullock to stage a confrontation and to set Newsome up to be arrested so that Cooper could then take Newsome's clients on behalf of Balch and Seier could get revenge upon Newsome for filing a menacing charge against Alfred.²

On February 13, 2015, Seier moved the trial court to dismiss the Newsome plaintiffs’ claims asserted against him, arguing that they had no factual basis and that, in any event, the claims were barred by the release clause in the D&R order because the claims were related to Newsome's menacing case. Six days later, Newsome petitioned the Shelby Circuit Court to expunge the records relating to his menacing charge under § 15-27-1, Ala. Code 1975. Both the State and Bullock filed objections, and, following a hearing, Newsome's petition was denied. Newsome moved the court to reconsider, however, and, on September 10, 2015, the court granted his motion and entered an order ("the expungement order") expunging the records relating to his menacing charge.

While Newsome was pursuing expungement in the Shelby Circuit Court, the Jefferson Circuit Court granted motions to dismiss filed by Seier and Bullock and a summary-judgment motion filed by Cooper and Balch. But after the expungement order was entered by the Shelby Circuit Court, the Newsome plaintiffs moved the Jefferson Circuit Court to reconsider, arguing, among other things, that because the records of Newsome's criminal case had been expunged, nothing from that case -- including the D&R order containing the release clause -- could be produced or relied upon in the Newsome plaintiffs’ civil case. See § 15-27-16(a), Ala. Code 1975 (explaining that the contents of an expunged file generally cannot be revealed, used, or disclosed by an individual who knows an expungement order has been issued). In December 2015, the Jefferson Circuit Court granted the Newsome plaintiffs’ motion and vacated its judgments in favor of Cooper, Balch, Bullock, and Seier. The Newsome plaintiffs then continued to conduct discovery trying to uncover a link between Cooper, Bullock, and Seier, all of whom denied that a conspiracy existed or that they even knew each other.

Meanwhile, back in the Shelby Circuit Court, Bullock and Seier filed requests to have the expungement order reversed based on Newsome's breach of the release clause in the D&R order. On June 8, 2016, the Shelby Circuit Court granted their requests and reversed the expungement order under § 15-27-17, Ala. Code 1975, explaining that Newsome had obtained the expungement order under false pretenses because he had not, in fact, fulfilled all the terms of the D&R order at the time he sought expungement (this order is hereinafter referred to as "the expungement-reversal order").³ The Shelby Circuit Court further explained:

"The movants are further free to utilize all records related to [Newsome's] prosecution, plea and the case's disposition as they may find appropriate and necessary. The expungement statute was enacted to provide a ‘shield’ to first-time and nonviolent offenders. It was not intended to be a ‘sword’ for those engaged in civil litigation over the same transaction made the basis of their criminal offense, and the court will not construe the statute as such."

Newsome then petitioned the Court of Criminal Appeals to set aside the expungement-reversal order, but, in a four-page order, the Court of Criminal Appeals unanimously denied his request, stating: "We find no abuse of discretion in the trial court's finding that the petition for expungement was filed under false pretenses in contravention of the agreement signed between the parties." (No....