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Harwell v. Zimmerman6/10/2005
Fannie Harwell appeals from a summary judgment entered in favor of David Zimmerman ("the attorney") on her claims filed pursuant to the Alabama Legal Services Liability Act, ยง 6-5-570 et seq., Ala. Code 1975. Specifically, Harwell complains that the trial court improperly entered a summary judgment in favor of the attorney on the legal-malpractice count in her complaint, which incorporated claims of fraud, libel, and slander. We affirm in part and reverse in part.
On or about February 2, 2001, the attorney drafted the articles of organization for Only's Sports Bar and Grill, L.L.C. (Hereinafter "the L.L.C." or "the business"). Kimyatta Moss and Harwell were the sole members listed in the articles of organization for the L.L.C. It is undisputed that the attorney did not prepare an operations agreement for the L.L.C. In actuality, there were two other individuals with an ownership interest in the L.L.C.: Jerome Morris ("Romeo"), Moss's boyfriend or common-law husband, and Donald Jiskoot. Additionally, it is undisputed that Moss prepared a document that the attorney typed that set forth each of the four owners' interests in the L.L.C. According to the document, Moss owned 29%, Romeo owned 28%, Harwell owned 28%, and Jiskoot owned 15% of the L.L.C.
It is undisputed that, after the L.L.C. was established, Harwell and the attorney spoke regarding a copy machine that the attorney was going to give to the L.L.C. Harwell also claims that the attorney inquired as to whether the L.L.C. was screening and investigating its employees. The attorney testified upon deposition that he did not recall that conversation taking place.
Harwell testified that she assumed that the attorney was the attorney for the L.L.C. because he had incorporated the entity. Additionally, she testified that she assumed that the attorney represented Moss and her individually as well. She admitted that she knew that the attorney had represented Moss and Romeo previously regarding unrelated matters.
The record reflects that there was a falling out among the owners of the L.L.C. in May 2001. It is undisputed that Harwell stopped participating in the daily operations of the business. Harwell did not work at all in June 2001. Harwell also admitted that she had voluntarily left the business in May 2001 and that the attorney could not have prevented the business from failing.
It is undisputed that in July 2001 the attorney wrote a letter to the Alcohol Beverage Control Board ("the ABC Board"). The letter, written on behalf of the L.L.C., Moss, and Romeo, stated that Harwell was under investigation for conversion. The attorney based this letter on a police report filed by Moss alleging that Harwell had forged Moss's signature on several checks.
In November 2001 Harwell and Jiskoot filed an action against Moss and Romeo. The complaint contained 37 counts including, among other things, claims alleging breach of contract, conversion, fraud, and civil conspiracy. Essentially, the complaint sought damages for the failure of the business. Moss and Romeo failed to appear or answer. Harwell obtained a default judgment against Moss and Romeo.
On January 21, 2003, Harwell filed a complaint containing eight counts against the attorney. The first three counts alleged fraud; the fourth count alleged libel; the fifth alleged slander; the sixth alleged legal malpractice; the seventh alleged civil conspiracy; and the eighth alleged the tort of outrage. The trial court dismissed all the counts of the complaint except Count 6, which specifically alleged legal malpractice. The sixth count, as set out in Harwell's complaint, reads, in part, as follows:
"COUNT 6
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