Daugherty v. Baker, [Ms. SC-2024-0142, Nov. 8, 2024] __ So. 3d __ (Ala. 2024). The Court (Mendheim, J.; Parker, C.J., and Wise, Bryan, Sellers, Stewart, and Cook, JJ., concur; Mitchell, J., concurs in part and concurs in the result; Shaw, J., concurs in the result) affirms the Jefferson Circuit Court’s judgment dismissing Attorney John A. Daugherty’s complaint seeking to enforce a contingent fee agreement.
The Court first determines that the order dismissing Daugherty’s complaint is a final judgment. Even though the judgment did not address Molly Baker’s counterclaims, the dismissal of Daugherty’s complaint effectively granted relief on the first counterclaim seeking a declaration that the contingency contract was void. Molly’s “ALAA [Alabama Litigation Accountability Act] claims were implicitly denied by the circuit court. Because of that, the February 15, 2024, order was a final judgment because it disposed of all the claims of all the parties.” Ms. *25.
The trial court voided the contingency fee agreement in reliance on “Rule 1.5(d)(1), Ala. R. Prof. Cond., which prohibits attorneys from arranging for, charging, or collecting a contingency fee ‘upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof ….’” Ms. *26. Relying on formal opinion RO-96-01, Daugherty argued in the trial court that “the contingency-fee arrangement in the contract was proper because it concerned the collection of alimony arrearage after a completed divorce ....” Ms. *27. While noting that an opinion of the General Counsel of the Alabama State Bar is not binding, the Court rejects Daugherty’s reliance on opinion RO-96-01because he “also willingly represented Molly with respect to [her former spouse] Christopher’s petition to modify his monthly alimony payments.” Ms. *28.
Citing Poole v. Prince, 61 So. 3d 258 (Ala. 2010), the Court reiterates “a court should not declare void an agreement between parties based on the violation of a Rule of Professional Conduct because those rules are intended for the discipline of attorneys, not for civil liability or defense.” Ms. *30. However, the Court declines to reverse on this basis because “Daugherty did not cite Poole or the principles it contains in the circuit court or in his appellate briefs. ‘It is well settled that an appellate court may not hold a trial court in error in regard to theories or issues not presented to that court.’ Allsopp v. Bolding, 86 So. 3d 952, 962 (Ala. 2011).” Ms. *31.
Citing Harlow v. Sloss Indus. Corp., 813 So. 2d 879 (Ala. Civ. App. 2001), the Court notes Daugherty’s “claim had another inherent weakness” because “[t]he contract did not contain a provision stating that Daugherty was entitled to compensation in the event Molly and Christopher reached a settlement of their differences.” Ms. **31-32.
Finally, the Court rejects Daugherty’s unpled quantum meruit claim and explains “even if Daugherty had properly pleaded his quantum meruit claim, and even if it could have been permitted in the alternative to his breach-of-contract claim, the claim would have been much more limited than what was claimed in his postjudgment motion.” Ms. *37.