author: WILSON, J„

text:
    Denise L. INGE, Appellant v. Evie INGE, Appellee
    NO. 2016-CA-01276-COA
    Court of Appeals of Mississippi.
    10/03/2017

      ATTORNEY FOR APPELLANT: JAY HOWARD HURDLE
    ATTORNEY FOR APPELLEE: TAMEKIA R. GOLIDAY
    BEFORE IRVING, P.J., WILSON AND WESTBROOKS, JJ. .
   WILSON, J„

FOR THE COURT:

¶ 1. Denise Inge filed for divorce in 2001 after twenty-five years of marriage to her husband, Evie. Evie thereafter moved out of the marital home. The case languished on the docket for over fourteen years until the parties consented to an irreconcilable differences divorce. They submitted the equitable division and distribution of the marital estate to the chancellor for determination. Following a hearing, the chancellor awarded each party his/her respective retirement account and awarded Denise the marital home upon payment of $45,000-to Evie for his interest in the home. On appeal, Denise argues that the chancellor ordered her to pay Evie too much and that the reasoning of the final judgment contains factual and legal errors. We find no reversible error and affirm.

PACTS AND PROCEDURAL HISTORY

¶2. Evie and Denise were married in June 1976. They had two children, who were born in 1979 and 1982. Around June 2000, Evie moved out . of the marital bedroom and into a separate bedroom. In September 2001, Denise filed for divorce, and Evie moved out of the marital home shortly thereafter. He lived with his brother for' about three years and then purchased a home of his own.

¶ 3. During the marriage, both parties worked. Evie was a driver at UPS, and Denise was a welder at Babcock and Wilcox. Evie continued to work at UPS until he retired in 2007 at age fifty-eight. Evie now receives $3,050 per month in retirement from UPS and $1,875 per month from Social Security. Because of carpal tunnel syndrome, Denise had to stop working in 2001 at age forty-seven. She subsequently applied for and was awarded Social Security disability and receives disability payments of $1,528 per month. At age sixty-five (beginning July 1, 2019), Denise will be eligible to receive, monthly retirement payments of approximately $957.33 from her former employer.

¶ 4. No temporary order of support was ever entered after Evie moved out of the marital home. However, for six years, Evie continued to make monthly mortgage payments on the marital home of $1,330.55 until the mortgage was paid off in October 2007. Denise has continued to pay taxes and insurance on the home. Evie also testified that, after he moved out, he cashed out a 401(k) account and gave Denise $16,000, which he says was to assist with their second child’s college education. Denise testified, “I think it was [$10,000],” which she said she needed for bills.

¶5. The marital home appraised for $170,000 in 2015, and neither party disputes the accuracy of the appraisal. Denise testified that she made improvements to the home in 2002 and again in 2013. The 2002 improvements consisted of painting and repairs to the interior and exterior of the home and remodeling in the kitchen and bathrooms. Denise testified that she paid her brother, a contractor, $21,110 for the work. The 2013 improvements consisted of an enclosed garage, a sunroom, and new siding. Denise testified that she paid her brother $19,650 for the work. Denise presented pictures and one-page summaries of the work performed but no receipts or copies of checks.

¶ 6. After Denise filed for divorce in 2001, the case languished on the docket for over fourteen years with long periods of inactivity. Finally, in December 2015, the parties filed a consent to an irreconcilable differences divorce and agreed to submit one issue to the court: “The determination and an equitable division and distribution of the marital estate, including but not limited to real estate and the parties’ retirement .... ”

¶7. A hearing was held in December 2015 and April 2016, and the chancellor entered a final judgment dividing the marital estate in July 2016. In the final judgment, the chancellor conducted a Ferguson analysis, awarded each party his/her respective retirement account, and awarded Denise the marital home upon payment to Evie of $45,000 for his equity in the home, The judgment provides that if Denise opts not to buy out Evie, the home shall be listed for sale, and Evie will be entitled to $45,000 of the sale proceeds. Denise Sled a timely notice of appeal from the final judgment.

DISCUSSION

¶ 8. “When reviewing a decision of a chancellor, this Court applies a limited abuse of discretion standard of review.” Mabus v. Mabus, 890 So.2d 806, 810 (¶ 14) (Miss. 2003). “This Court will not disturb the chancellor’s opinion when supported by substantial evidence unless the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.” Id. at 819 (¶ 53). “When this Court reviews a chancellor’s judgment of property division we ‘are to review the judgment to ensure that the chancellor followed the appropriate standards and did not abuse his discretion.’ ” McKnight v. McKnight, 951 So.2d 594, 596 (¶ 6) (Miss. Ct. App. 2007) (quoting Wells v. Wells, 800 So.2d 1239, 1243 (¶ 8) (Miss. Ct. App. 2001)).

¶9. “[A]n equitable division of property does not necessarily mean an equal division of property.” Chamblee v. Chamblee, 637 So.2d 850, 863-64 (Miss. 1994). “[T]he goals of equitable distribution are a fair division of marital property based on the facts of each case and termination of the legal relationship in a manner which each party may realize self-sufficiency.” Seymour v. Seymour, 960 So.2d 513, 519 (¶ 15) (Miss. Ct. App. 2006). In Ferguson, the Supreme Court instructed chancellors to consider the following factors in the equitable division of marital property:

1.Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
3. The market value and the emotional value of the assets subject to distribution.
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
8. Any other factor which in equity should be considered.

Ferguson, 689 So.2d at 928.

¶ 10. The chancellor’s final judgment in this case specifically addressed Ferguson factors 1 through 6, and for the most part Denise takes no issue with the chancellor’s findings. The chancellor’s Ferguson analysis fairly and appropriately considered that both parties worked during the marriage and contributed equally to the acquisition of marital property; that Evie left the marital home and refused Denise’s request to go to marital counseling; that both parties had contributed to the value of the home; “that Denise has an emotional attachment to the home”; and that Evie has his own home, valued at $74,500, which is his separate property and is not subject to equitable division.

¶ 11. However, Denise argues that the chancellor’s equitable division should be reversed because the chancellor failed to discuss factor 7, erred in her discussion of factor 2, and failed to properly value or account for the parties’ retirement accounts. She argues that the errors resulted in her being required to pay Evie too much for his equity in the marital home. We address these arguments in turn.

¶ 12. Denise first argues that the chancellor failed to consider Ferguson factor 7: “[t]he needs of the parties for financial security with due regard to the combination of assets, income and earning capacity.” Id. It is true that the chancellor’s opinion omits specific discussion of this factor; however, the chancellor did address factor 6, which is closely related: “[t]he extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties.” Id. The need for alimony arises only “[i]f the equitable division of property leaves” one spouse with insufficient “resources and assets to meet his or her needs and living expenses.” Jackson v. Jackson, 114 So.3d 768, 777 (¶ 22) (Miss. Ct. App. 2013). Therefore, factor 6 necessarily implicates the parties’ needs for financial security and is closely related to factor 7.

¶ 13. “Moreover, this Court has held that failure to make an explicit factor-by-factor analysis does not necessarily require reversal where we are satisfied that the chancellor considered the relevant facts.” Seghini v. Seghini, 42 So.3d 635, 641 (¶ 21) (Miss. Ct. App. 2010) (citing Palmer v. Palmer, 841 So.2d 185, 190 (¶ 18) (Miss. Ct. App. 2003)). Here, we are satisfied that the chancellor considered the relevant factors and both parties’ needs in equitably dividing the marital property. Denise argues that she has limited income compared to Evie and cannot afford to pay him for his interest in the home. However, the chancellor’s ruling took the parties’ relative financial positions into account by requiring Denise to pay Evie less than twenty-seven percent of the home’s $170,000 value.

¶ 14. In addition, in Everett v. Everett, 919 So.2d 242 (Miss. Ct. App. 2005), this Court recognized that when the marital home is unencumbered by a mortgage, the equity in the home may provide a means for one party to buy out the other’s interest in the home. In Everett, the chancellor awarded the husband the marital home, with a value of $140,250, but ordered him to pay the wife $49,293.50 for her equity. Id. at 245 (¶¶ 8-9). On appeal, the wife argued that she should have been awarded the home because the husband lacked the income or other resources to pay her that amount. Id. at 246 (¶ 13). However, this Court found that the chancellor did not abuse his discretion given the husband’s “strong emotional attachment to the home” and desire to remain there. Id. at "246 (¶ 14). This Court also reasoned that “[t]he marital domicile [was] free of any mortgages,” . so the husband could “mortgage the property, if necessary, to comply with the chancellor’s order.” Id. at 246 (¶ 15).

- ¶ 15. Likewise in this case,- the property is free of any mortgage. Indeed, the property is unencumbered precisely because Evie continued to pay the mortgage for six years even after he moved out of the marital home. Therefore, as in Everett, Denise may mortgage the home if necessary to comply with the chancellor’s order, At trial, Denise acknowledged that Evie “has. an interest” in the home because “[h]e paid for it,” She also acknowledged that, as recently as two years prior to trial, she was able'to pay $19,650 for additions and improvements to the home. Under the circumstances, the chancellor sufficiently considered Denise’s financial situation by requiring - Denise to pay Evie less than twenty-seven percent of the home’s value. We find no abuse of discretion on this issue.

¶ 16. Denise next argues that the chancellor erred under Ferguson factor 2 in finding as follows: “Both parties withdrew lump sums from their retirement accounts while separated and chose to receive the balance in monthly payments. Denise withdrew $23,000.00 while -Evie withdrew $41,000.00,” As to Evie, the chancellor’s statement was accurate. Evie liquidated a retirement ■ account and gave either • $10,000 (according to Denise) or $16,000 (according to Evie) of the funds to Denise. However, Denise testified that the $23,000 “lump sum” that she received was not from a retirement account but for disability payments she was owed upon her disability determination. And although the record is less than clear on this point, Evie concedes that the chancellor did mischar-acterize this payment.

¶17.- Nonetheless; we agree with Evie that the error does not require reversal. Due to the number of years this case lingered on the docket, the error relates entirely to a sum that Denise received more than a decade prior to trial. The issue does not affect the parties’- present financial situations, the chancellor attributed no particular weight to the payment, and there is no indication that this issue impacted her ultimate decision. In short, this mistake was harmless. See Hill v. Johnson, 27 So.3d 426, 430 n.2 (Miss. Ct. App. 2009) (concluding that errors in the chancellor’s findings of fact were “harmless error as they ha[d] no bearing on the ultimate disposition of the case”).

¶18. Finally, ’ Denise argues that the chancellor erred by not making on-the-record findings of fact concerning the valúe of the parties’ respective vested retirement benefits. However, we disagree that any additional findings were necessary; The chancellor recognized that the parties’ retirement benefits were marital assets. And although Evie was awarded the full value of .his relatively larger retirement benefits, Denise was awarded more of the value of the marital home. ‘-‘[I]n cases of equitable distribution, we do not look-at the division of one asset in isolation, but rather, whether the marital assets as a whole were divided equitably.” Dogan v. Dogan, 98 So.3d 1115,1124 (¶ 20) (Miss. Ct. App. 2012). In the present case, the chancellor did not abuse her discretion in specifically finding that the division of assets as a whole was fair and equitable.

¶ 19. Moreover, to the extent that Denise’s complaint is that the chancellor failed to make findings as to present values of the parties’ respective future benefits, we simply note' that Denise failed to present such evidence or calculations. The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. See Pruitt v. Pruitt, 144 So.3d 1249, 1252-53 (¶ 11) (Miss. Ct. App. 2014). The chancellor received evidence of the future payments that each party could expect to receive under their respective retirement plans and concluded that it was fair and equitable for each party to keep his/her own benefits. Again, we cannot say that the chancellor abused her discretion. The division of assets, as a whole, was fair and equitable. Dogan, 98 So.3d at 1124 (¶ 20).

¶20. In summary, we find no abuse of discretion or reversible error in the chancellor’s equitable distribution of the marital assets.

¶ 21. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . In the alternative, she was eligible to begin receiving monthly payments of $711.68 at age sixty-two (beginning July 1, 2016).

      . Ferguson v. Ferguson, 639 So.2d 921 (Miss. 1994).

      . Denise notes that paragraph 10 of the final judgment inaccurately states that the marital home was "the parties' sole asset.” However, in paragraph 12 on the same page, the chancellor specifically, found "that the marital home and the parties' retirement accounts are martial assets.”, (Emphasis, added). Moreover, the judgment concluded as follows: "[T]he Court finds the following division of marital assets is fair and equitable: ... (b) Both parties are awarded their respective retirement accounts.” (Emphasis added).


source: Caselaw Access Project

author: MURDOCK, Justice.

license: Public Domain

text:
    Myron Timothy YARBROUGH v. Steven D. EVERSOLE et al.
    1150400
    Supreme Court of Alabama.
    January 27, 2017

      Roger C. Appell, Birmingham, for appellant.
    Steven Eversole of Eversole Law, LLC, Birmingham; and Richard Perry, Pelham, for appellees.
   MURDOCK, Justice.

Myron Timothy Yarbrough appeals from a judgment entered against him by the Shelby Circuit Court in his action alleging legal malpractice against Steven D. Ever-sole, Richard C. Perry, Jr., and Eversole Law, LLC (“the firm”). We affirm in part, reverse in part, and remand.

I. Facts

In 2006, Yarbrough was convicted of one count of rape in the first degree and two counts of sodomy in the first degree. The trial court sentenced him to life imprisonment for each conviction and ordered that the sentences were to run concurrently. Yarbrough appealed to the Court of Criminal Appeals, which affirmed his convictions and sentences in an unpublished memorandum on February 16, 2007.

At the time of the events giving rise to Yarbrough’s cause of action, the firm employed both Eversole and Perry. In March 2012, Yarbrough retained the firm to explore the possibility of filing a Rule 32, Ala. R. Crim. P., petition on Yarbrough’s behalf. In his complaint, Yarbrough alleges that Eversole and Perry represented to Yarbrough that “there was a basis in fact and law to file a Rule 32 petition.” Yar-brough asserts, however, that the two attorneys “knew that there was no ‘newly discovered’ evidence as defined by Alabama case law and that the statute of limitations would be a complete bar to all claims of newly discovered evidence and for the claim of ineffective assistance of trial counsel and appellate counsel.” Yar-brough alleges that he believed the attorneys’ representations and that, on that basis, he paid the firm $10,000 to file a Rule 32 petition on his behalf.

On December 12, 2012, Eversole and Perry filed a Rule 32 petition on Yar-brough’s behalf in the St. Clair Circuit Court in which they alleged the existence of newly discovered evidence and ineffective assistance of trial and appellate counsel. On January 16, 2013, the State filed an answer to the petition in which it asserted that Yarbrough’s claims were time-barred under Alabama law. According to Yar-brough, on March 6, 2013, the St. Clair Circuit Court denied the Rule 32 petition, concluding that the claims were time-barred.

Yarbrough states that oh July 2, 2013, more than 42 days after his petition had been denied, the firm filed a notice of appeal from the denial of his Rule 32 petition. The Court of Criminal Appeals sent notices to Eversole and Perry informing them that the appeal was Untimely and requesting an explanation, but,- according to Yarbrough, Eversole and Perry failed to provide one, and the appeal was dismissed on August 5, 2013. .

Yarbrough alleges that Eversole and Perry never informed him that the reason his appeal had been dismissed was that it was not timely filed. He states in his complaint that they represented to him that “for an additional $15,000.00 they cóuld'flle other legal proceedings in order to have [Yarbrough’s] appeal reinstated.” Yar-brough alleges that Eversole and Perry knew those representations.were false and knew that, in fact, another appellate filing at that point would be fruitless, Yarbrough asserts that he believed the attorneys’ representations and that he paid the firm $15,000 for additional appellate work related to his Rule 32 petition. Yarbrough states that the firm then filed a petition for a writ of ■ mandamus with. the Court of Criminal Appeals on his behalf.. The Court of Criminal Appeals summarily denied the petition without an opinion on November 1, 2013. Finally, in November 2013, the firm also filed a motion for an out-of-time appeal- in the St. Clair Circuit Court, which, Yarbrough asserts, “had no basis in law or fact” because, he said, the circuit court “had no jurisdiction to grant said motion.” .

For their part, the two attorneys assert that they told Yarbrough at the outset that any, postjudgment relief from his conviction would be “a long shot” but that he told them to submit filings anyway.

On January 14, 2015, Yarbrough filed a complaint against the firm, Eversole, and Perry in the Jefferson Circuit Court, alleging legal malpractice and seeking recovery of the $25,000 in legal fees he paid as “a result of the Defendants’ negligent and/or wanton .legal malpractice” and punitive damages for the alleged fraud perpetrated by Eversole and Perry. On May 22, 2015, Eversole and the firm- filed a motion to transfer the case to the -Shelby- Circuit Court and a motion to dismiss the case, asserting that Yarbrough had failed to state a .claim upon which relief could be granted. The motion to transfer was unopposed, On May 26, 2015, the case was transferred to the Shelby Circuit Court. On June 1, 2015, Perry filed an answer to the complaint in. which he denied Yar-brough’s substantive allegations. On June 5, 2015, the circuit court denied the motion to dismiss filed by the firm and Eversole. On June 6, 2015, the firm and Eversole filed an,answer to the complaint in which they likewise denied Yarbrough’s substantive allegations.

On October 8, 2015, the firm and Ever-sole filed a motion for a judgment on the pleadings. In that motion, they asserted that Yarbrough’s “burden of pleadings and proof in this civil case for legal malpractice is insurmountable as a matter of law” because, they said, Yarbrough could not demonstrate that “the results would have been different or that he was guaranteed a reversal of his conviction” but for the alleged legal malpractice.

On October 12, 2015, Perry filed a motion for a summary judgment. In that motion, Perry asserted;

“[Yarbrough] was convicted of a felony in part based upon [Yarbrough’s] confession. [Yarbrough] has a life sentence. [Yarbrough] wanted to try any-, thing to obtain relief. Perry knew that a Rule 32 Petition and out of time- appeals were filed on [Yarbrough’s] behalf. Mr. Perry worked on some of them. Everything that [Yarbrough] wanted or told was to be filed based upon what Mr, Perry knows, it was filed.”

The summary-judgment motion also stated: “Rule 32 Petitions and out of time appeals are, standard requests in such a situation. They are always long shots.” In support of the motion, Perry filed an affidavit in which he denied being personally paid $25,000 by Yarbrough for legal work. He stated that the money was paid to the firm. Perry also expressly denied that he lied to Yarbrough or that he made any false representations to Yarbrough. Yar-brough filed no response to Perry’s summary-judgment motion.

On October 13, 2015, Yarbrough filed a response to the firm and. to Eversole’s motion for a judgment on the pleadings, In the response, Yarbrough argued, among other things, that

“[w]hat [the firm and Eversole] simply refuse to acknowledge and are trying to hide is that their negligence and fraud has damaged'[Yarbrough] in the amount of payment of legal fees for work that from the moment [the firm and Ever-sole] took on their representation had no basis in fact or law and could never [have] succeeded.”

On December 10, 2015, the circuit court entered an order granting the firm and Eversole’s motion for a judgment on the pleadings and Perry’s motion for a summary judgment. The circuit court’s reasoning is well summarized in the following paragraph from its order:

“Two underlying legal premises belie [Yarbrough’s] insurmountable burden. In the first instance, an attorney does not guarantee the success of his representations, nor is a lawyer ‘expected to achieve impossible results for a client.’ Pickard v. Turner, 592 So.2d 1016, 1029 (Ala. 1992). Secondarily and even more 'fundamentally, the Legal Services Liability Act[, § 6-5-570 et seq., Ala. Code 1975,] mandates allegations and proof that, ‘but for’ the negligence of the legal service provider, the underlying case would have been different. Hall v. Thomas, 564 So.2d 936 (Ala. 1990). In his Complaint, [Yarbrough] pled no[] ‘but for’ allegations and in his pleadings- filed in opposition to both dispositive motions, [Yarbrough] does not dispute the holding of either case. Instead, -he argues that a Rule 32 petition should never have been filed in the first instance. This argument; however, overlooks the underlying premise for which Defendants were hired by-[Yarbrough] in the first place; namely, to develop some legal basis to overcome the daunting task of reversing the jury’s guilty verdict. In the judgment of the Court, even [Yar-brough’s] well pled, complaint, which contains no..‘but for’., causation allegations, cannot overcome his burden of proof, regardless of .the evidence that he may develop in discovery.” . „

Yarbrough filed a timely notice of appeal.

II, Standard of Review

Our standard of review in this case is de novo, even though the circuit court dismissed Yarbrough’s claims against the defendants in response to two different motions, i.e., a motion for a, judgment on the pleadings and a motion for a summary judgment.-

“ “When ■ a motion for judgment on the pleadings is made by a party, “the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.” B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala. 1992). See also Deaton, Inc. v. Monroe, 762 So.2d 840 (Ala. 2000). A judgment on the pleadings is subject to a de novo review. Harden v. Ritter, 710 So.2d 1254, 1255 (Ala. Civ. App. 1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255-56. If matters outside the pleadings are presented to and considered by the trial court, then the motion for a judgment on the pleadings must be treated as a motion for a summary judgment. See Rule 12(c), Ala. R. Civ. P. Otherwise, in deciding a motion for a judgment on the pleadings, the trial court is bound by the pleadings. See Stockman v. Echlin, Inc., 604 So.2d 393, 394 (Ala. 1992).’ ”

Medlock v. Safeway Ins. Co. of Alabama, 15 So.3d 501, 507 (Ala. 2009) (quoting Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82-83 (Ala. 2000)).

“We review the trial court’s grant or denial of a summary-judgment motion de novo, and we use the same standard used by the trial court to determine whether the evidence presented to the trial court presents a genuine issue of material fact. Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala. 2006). Once the summary-judgment movant shows there is no genuine issue of material fact, the nonmovant must then present substantial evidence creating a genuine issue of material fact. Id. We review the evidence in a light most favorable to the nonmovant.’ 943 So.2d at 795. We review questions of law de novo. Davis v. Hanson Aggregates Southeast, Inc., 952 So.2d 330 (Ala. 2006).”

Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006).

III. Analysis

Yarbrough’s legal-malpractice claims are subsumed under the Aabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975 (“the ALSLA”). “There shall be only one form and cause of action against legal service providers in courts in the State of Aabama and it shall be known as the legal service liability action ....”§ 6-5-573, Aa. Code 1975.

“A legal services liability action embraces any form of action in which a litigant may seek legal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Aabama now or in the future.”

§ 6-5-572(1), Aa. Code 1975. This includes Yarbrough’s claims alleging fraud. See, e.g., Cockrell v. Pruitt, 214 So.3d 324, 334 (Aa. 2016) (stating that “[t]his Court has held that the ALSLA ‘applies to a legal malpractice action based upon fraud’ ”).

Despite the fact that we apply the same de novo standard of review to the circuit court’s rulings on both motions, our disposition of Yarbrough’s claims against the firm and Eversolé, on the one hand, and Perry, on the other, diverges because of the different procedural posture of their respective motions.

Perry filed a motion for a summary judgment that he supported with an affidavit in which he testified that he did not make any misrepresentations to Yar-brough. Yarbrough filed nothing in response to Perry’s submission. Because Perry submitted evidence in support of his motion, Yarbrough could not simply rely on the averments in his complaint. See, e.g., Ex parte General Motors Corp., 769 So.2d 903, 909 (Aa. 1999). Accordingly, we affirm the summary judgment in favor of Perry.

The same analysis, however, does not apply to Yarbrough’s claims against the firm and Eversole because the firm and Eversole filed a motion for a judgment on the pleadings and they did not submit any other documents for the circuit court to consider. According to the complaint submitted by Yarbrough, Eversole and/or the firm misled Yarbrough into believing that a Rule 32 petition asserting newly discovered evidence and alleging ineffective assistance of counsel would not be precluded by the applicable statute of limitations. The firm and Eversole contend, however, that, even if this allegation is accepted as true, Yarbrough cannot meet his burden of proving that, but for the alleged tortious actions of the defendants, Yarbrough’s Rule 32 petition would have succeeded.

The firm and Eversole note that this Court has stated:

“To prevail in a legal-malpractice action, the plaintiff must prove that, but for the attorney’s negligence, the legal matter concerning which the attorney is alleged to have been negligent would have been resolved more favorably to the plaintiff. Pickard v. Turner, 592 So.2d 1016, 1019 (Ala. 1992). To meet this burden, the plaintiff must prove (1) that, in the absence of the alleged malpractice, the plaintiff would have been entitled to a more favorable result in the legal matter concerning which the attorney is alleged to have been negligent, and (2) that the attorney’s negligence in fact caused the outcome of the legal matter to be less favorable to the plaintiff than the outcome would have been in the absence of the alleged malpractice. Pickard, 592 So.2d at 1020 (‘“Generally, actionable [legal] malpractice cannot be established in the absence of a showing that the attorney’s wrongful conduct has deprived the client of something to which he would otherwise have been entitled.” [7A C.J.S. Attorney and Client § 255 at 462 (1980).] A lawyer cannot be expected to achieve impossible results for a client.’); Hall v. Thomas, 456 So.2d 67, 68 (Ala. 1984) (‘A claim for malpractice requires a showing that in the absence of the alleged negligence the outcome of the case would have been different.’ (citing Mylar v. Wilkinson, 435 So.2d 1237 (Ala. 1983))).”

Bonner v. Lyons, Pipes & Cook, P.C., 26 So.3d 1115, 1120 (Ala. 2009) (emphasis added). They argue that Yarbrough clearly cannot meet his burden because, if they had not done what Yarbrough faults them for—filing a Rule 32 petition on his behalf and filing an appeal and a petition for a writ of mandamus in the Court of Criminal Appeals following the denial of the Rule 32 petition—the result for Yarbrough would have been no different than the circuit court’s denial of his Rule 32 petition that actually occurred.

As Yarbrough observes, however, this case is different than the usual legal-malpractice action alleging a failure of counsel to exercise due care in the handling of an underlying action. As he states:

“It is true that [Yarbrough] cannot prove that the underlying Rule 32 petition and the subsequent pleadings would have been different. They would not have been different because they should never have been filed in the first instance because there was no basis in law or fact to file them let alone charge legal fees to do so. [Yarbrough] in great detail in his complaint described the merits of the motion filed by the [defendants]. They had no merit and the [defendants] knew or should have known such,”

In other words, the alleged wrongdoing has nothing to do with the negligent or omissive provision of legal services; the alleged wrongdoing is that the firm and Eversole convinced Yarbrough that something could be done in the first place when, in fact, it could not, and they accepted his payments for what they knew would be futile legal services. Yarbrough argues that the Rule 32 petition and the subsequent appellate filings never should have been filed because, he says, they lacked any basis in fact or law. He does not claim that, if the defendants had presented a different argument in the Rule 32 petition or if they had filed a timely appeal the outcome would have been different. Under such circumstances, it makes no sense to require the plaintiff to demonstrate that, but for counsel’s improper conduct, the outcome of the Rule 32 proceeding would have been different.

Yarbrough’s claim is analogous to a claim presented in Bryant v. Robledo, 938 So.2d 413 (Alá. Civ. App. 2005). In Bryant, an attorney allegedly fraudulently induced the daughter and son-in-láw of the attorney’s client to pay for legal services for the client that could never be performed, because, at the. time the attorney accepted money from the daughter and son-in-law, the attorney knew that the client was incompetent and could not contract for legal services; thus, the attorney knew or should have known that he would be unable to perform any legal services for the client. The Court of Civil Appeals concluded that the daughter and son-in-law had a viable claim against the attorney:

“Even if no direct contract between James Bryant [the' attorney] and the Robledos [the daughter and son-in-law] existed, the Robledos also argued that James Bryant knew at the time that he requested payment of the $15,000 by the Robledos that Nave [the client] was incompetent and could not contract for legal representation. If the Robledos could produce evidence to support that contention, then a claim of fraudulent inducement would be shown and would preclude dismissal, of the Robledos’ claim of fraud.”.

938 So.2d at 419.

.As in this case, the allegation against the attorney in Bryant was not that he failed to meet the applicable standard of care in the course of his representation but that he never should have accepted payment for representation in the first, place because the client legally could not contract with the attorney for legal services. No allegation that the outcome of the client’s case would have been different with better legal representation was made because that was not the gravamen of the legal-malpractice claim, and the Court of Civil Appeals did not suggest that any such allegation or evidence in that regard was required.

Moreover, although there appears to be a dearth of similar legal-malpractice cases in Alabama,' they are commonplace throughout the country, even though the “but for” test applied by the circuit court in this case is also a mainstay of legal-malpractice actions nationwide. See, e.g., Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573, 574 (Iowa Ct. App. 1987); Wahl v. Foreman, 398 F.Supp. 526 (S.D. N.Y. 1975); Coastal Orthopaedic Inst., P.C. v. Bongiorno, 61 Mass.App.Ct. 55, 807 N.E.2d 187 (2004); Polin v. Wisehart & Koch, No. 00 CIV. 9624 (DLC), Sept. 2, 2004 (S.D. N.Y. 2004) (not selected for publication in F. Supp. 2d).

Accordingly, the circuit court erred in concluding that Yarbrough’s legal-malpractice action against the firm and Eversole failed as a matter of law. There exists a plain dispute.of fact as to what Eversole told Yarbrough about the prospects of a Rule 32 petition and the subsequent appellate filings. Therefore, a judgment on the pleadings in favor of the firm and Eversole was not warranted.

IV. Conclusion

The summary judgment in favor of Perry is affirmed. The judgment on the pleadings in favor of the firm and Eversole is reversed, and the cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Parker, Main, and Bryan, JJ., concur.

Bolin, J., concurs in the result. •

      . We note that Yarbrough at no point sought an extension of time pursuant to Rule 56(f), Ala. R. Civ. P., in which to seek evidence in opposition to Perry’s summary-judgment motion.


text:
    ALABAMA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES v. Jason KELLAR
    1150654
    Supreme Court of Alabama.
    January 27, 2017
    Luther Strange, atty. gen., and Andrew L. Brasher and James W. Davis, deputy attys. gen., and Laura E. Howell, asst, atty. gen., for appellant.
    Gerald R. Paulk of' Paulk Law Firm, P.C., Scottsboro, for appellee.
   MURDOCK, Justice.

The Aabama Department of Conservation and Natural Resources (“the Department”) appeals from a judgment declaring that,§ 9-ll-88(b), Aa..Code 1975, is void because it is a local law and was not properly advertised as such. We dismiss the appeal based on the trial court’s lack of jurisdiction.

Jason Kellar is a licensed commercial fisherman and a resident of Madison County. He regularly engages in. commercial fishing in the waters of the Tennessee River and its tributaries situated within the boundaries of Jackson County. Before the events giving rise to this action, Kellar used gill -or trammel nets in his fishing enterprises in the Tennessee River. In December 2012, Kellar received information that the Department would begin enforcing a ban on gill and trammel net fishing pursuant to § 9-ll-88(b).

On August 24, 2015, Kellar sued the Department in the Jackson Circuit Court seeking a judgment declaring that § 9—11— 88(b) was unconstitutional because the act proposing it was a local law that was not properly advertised as a local law pursuant to Art. IV, § 106, Ala. Const. 1901. As required when the constitutionality of a statute is challenged, a copy of the complaint was served on the attorney general. The Department answered the complaint; among its affirmative defenses, the Department pleaded that “[t]his action is barred by Article I, § 14 of the Alabama Constitution (1901).” The parties stipulated to the relevant facts, and the trial court held a final hearing on the merits on February 2, 2016.

On February 18, 2016, the trial court entered a final order in which it concluded that § 9-ll-88(b) was a “local law” and that, as such, it had not been properly advertised. The trial court accordingly concluded that § 9-ll-88(b) was “unconstitutional, null, and void.”

The attorney general appeared as counsel for the Department and filed a timely notice of appeal from the trial court’s judgment.

We pretermit any discussion of the merits, i.e., the constitutionality of § 9—11— 88(b). We must address'instead the threshold issue of jurisdiction.

Kellar filed this action solely against the Department, an agency of the State.

“Article I, § 14, Alabama Const, of 1901, provides generally that the State of Alabama is immune from suit: ‘[T]he State of Alabama shall never be made a defendant in any court of law or equity.’ This constitutional provision ‘has been described as a “nearly impregnable” and “almost invincible” “wall” that provides the State an unwaivable, absolute immunity from suit in any court.’ Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala. 2006). Section 14 ‘specifically prohibits the State from being made a party defendant in any suit at law or in equity.’ Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Additionally, under § 14, State agencies are ‘absolutely immune from suit.’ Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala. 2003).”

Alabama Dep’t of Transp. v. Harbert Int’l, Inc., 990 So.2d 831, 839 (Ala. 2008) (emphasis added). In Harbert, also a declaratory-judgment action, this Court held: “[Ojnly State officers named in their official capacity—and not State agencies— may be defendants in such proceedings.” 990 So.2d at 841.

In Ex parte Alabama Department of Finance, 991 So.2d 1254, 1257 (Ala. 2008), this Court noted the six general categories of actions that do not come within the prohibition of § 14, one of which is “actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation,” and stated that those “exceptions” “apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies.” (Emphasis added.)

The Department admits that it did not argue § 14 immunity in the hearing before the trial court, but, even if a defendant “raises this argument for the first time on appeal, ‘[t]he assertion of State immunity challenges the subject-matter jurisdiction of the court; therefore, it may be raised at any time by the parties or by a court ex mero motu.’” Health Care Auth. for Baptist Health v. Davis, 158 So.3d 397, 402 (Ala. 2013) (quoting Atkinson v. State, 986 So.2d 408, 411 (Ala. 2007)).

For the reasons discussed, the judgment of the trial court against the Department is void. A void judgment will not support an appeal, and, therefore, the appeal is dismissed.

APPEAL DISMISSED.

Bolin, Parker, Main, and Bryan, JJ., concur.