Cisney v. Johnson (CONSENT)

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ERIC CISNEY, et al., }

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Plaintiffs, }

}

v. } Case No.: 2:18-cv-01148-MHH

}

ROBERT GREY JOHNSON, JR., }

}

Defendant. }

MEMORANDUM OPINION AND ORDER

Mr. Johnson has asked the Court to reconsider several rulings related to the

parties’ motions for summary judgment. (Doc. 119; see also Docs. 105, 107, 118).

Mr. Johnson would like the Court to limit the judgment regarding his legal right to

file a lien for attorney fees to the State of Alabama; to hold that the Cisneys’

voluntary dismissal of their amended complaint eliminated Kerri Cisney’s claims

for outrage and contractual interference; to “strike, amend, alter, or vacate the

determination made regarding ‘responsible parties’ in the Contingency Fee

Agreement;” and to “strike, amend, alter, or vacate the determination regarding

choice of law issues related to the interpretation of the Contingency Fee Agreement.”

(Doc. 119, pp. 1-2). This order identifies the standard that the Court must use to

examine these issues and then addresses the issues.

I.

Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, when an action

involves multiple claims or multiple parties, “the court may direct entry of a final

judgment as to one or more, but fewer than all, claims or parties only if the court

expressly determines that there is no just reason for delay.” FED. R. CIV. P. 54(b).

If a court does not certify a partial final judgment under Rule 54(b), “any order or

other decision” which “adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties . . . may be revised at any time before the entry

of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”

FED. R. CIV. P. 54(b). In other words, “an interlocutory order is subject to

reconsideration at any time prior to entry of final judgment,” Covenant Christian

Ministries, Inc. v. City of Marietta, 654 F.3d 1231, 1242 (11th Cir. 2011) (citing

Harper v. Lawrence Cty., 592 F.3d 1227, 1231 (11th Cir. 2010)); a motion to revise

an interlocutory order “is not subject to the limitations of Rule 59,” Toole v. Baxter

Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000) (quoting Gallimore v. Mo.

Pac. R.R. Co., 635 F.2d 1165, 1171 (5th Cir. Unit A. Feb. 1981)). The Eleventh

Circuit reviews a district court’s revision of an interlocutory order for abuse of

discretion. See Harper, 592 F.3d at 1231-32 (citing Lanier Constr., Inc. v. Carbone

Props. of Mobile, LLC, 253 Fed. Appx. 861, 863 (11th Cir. 2007)); see also Region

8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 805-06 (11th

Cir. 1993).

The Advisory Committee Notes to Rule 60 of the Federal Rules of Civil

Procedure, the rule that governs relief from final orders and judgments, distinguishes

the standard under Rule 60 from the standard under Rule 54(b): “The addition of

the qualifying word ‘final’ emphasizes the character of the judgements, orders or

proceedings from which Rule 60(b) affords relief; and hence interlocutory

judgments are not brought within the restrictions of the rule, but rather they are left

subject to the complete power of the court rendering them to afford such relief from

them as justice requires.” FED. R. CIV. P. 60 Advisory Committee Notes, 1946

Amendment, Subdivision (b); see also Six Dimensions, Inc. v. Perficient, Inc., 969

F.3d 219, 227 (5th Cir. 2020) (“Under Rule 54(b), the trial court is free to reconsider

and reverse its decision for any reason it deems sufficient, even in the absence of

new evidence or an intervening change in or clarification of the substantive law.”)

(quoting Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017)); Cobell v.

Jewell, 802 F.3d 12, 25 (D.C. Cir. 2015) (“In contrast [to Rule 59(e)], Rule 54(b)’s

approach to the interlocutory presentation of new arguments as the case evolves can

be more flexible, reflecting the ‘inherent power of the rendering district court to

afford such relief from interlocutory judgments as justice requires.’”) (quoting

Greene v. Union Mut. Life. Ins. Co. of Am., 764 F.2d 19, 22 (1st Cir. 1985)).

II.

The Court considers Mr. Johnson’s arguments in reverse order, beginning

with his choice of law argument.

Choice of Law

In its summary judgment opinion, the Court applied Alabama’s choice of law

rules to identify the law governing interpretation and enforcement of the contingency

fee agreement at issue because in a diversity action like this one, choice of law

analysis begins with forum law. (Doc. 118, p. 12); see also Shapiro v. Associated

Int’l Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990) (citing Erie R.R. v. Tompkins,

304 U.S. 64 (1938)). The Court explained that Alabama follows the lex loci

contractus rule and stated:

The contingency fee agreement between Mr. Johnson and Mr. Cisney

does not contain a choice of law provision. (Doc. 110, pp. 9-12; Doc.

72). Mr. Cisney signed the contingency fee agreement—and, therefore,

accepted Mr. Johnson’s offer to represent him—in Huntsville,

Alabama. (Doc. 110, p. 12; Doc. 112, p. 53, ¶ 7). At that point, all

elements of a valid contract were satisfied, and the contract for

representation was formed. Thus, Alabama law governs the

interpretation of the contingency fee agreement.

(Doc. 118, p. 13) (internal footnote omitted); see also Industrial Chemical &

Fiberglass Corp. v. North River Ins. Co., 908 F.2d 825, 829 n.3 (11th Cir. 1990)

(“Alabama’s choice of law rule provides that the law of the state wherein the contract

was executed shall govern interpretation of the contract.”); American Nonwovens,

Inc. v. Non Wovens Engineering, S.R.L., 648 So. 2d 565, 567 (Ala. 1994) (“[T]he

choice of law rule followed by Alabama provides that the law of the state wherein

the contract was executed governs questions regarding the validity and interpretation

of the contract.”).

Mr. Johnson contends that California law should govern the interpretation and

enforcement of the contingency fee agreement because “[t]he parties agreed in this

case that the [fee agreement] was a California contract, thereby eliminating any

choice of law dispute before this Court regarding the interpretation of the [fee

agreement].” (Doc. 119, p. 5). In its summary judgment opinion, the Court noted

that “[i]n his interrogatory responses, Mr. Cisney describe[d] the contingency fee

agreement as a California agreement.” (Doc. 118, p. 13 n.3) (citing Doc. 112, p. 61,

¶ 5). In his discovery responses, Mr. Cisney also stated that he “never met with”

Mr. Johnson, that the two men corresponded by telephone and by email, and that he

signed the contingency fee agreement at his home in Huntsville, Alabama, where it

appears Mr. Cisney received the proposed contract from Mr. Johnson by email.

(Doc. 112, pp. 60-61; see also Doc. 112, p. 53, ¶ 7). Under Alabama’s choice of law

rules, Alabama law governs questions regarding the interpretation of the contract

because Mr. Cisney accepted the agreement and executed it in Alabama. The Court

does not know what Mr. Cisney meant when he described the fee agreement as a

“California contract;” he could have meant that it was a contract that Mr. Johnson

was to perform in California. This much is certain: the fee agreement between Mr.

Cisney and Mr. Johnson does not contain a choice of law provision. (See Doc. 118,

p. 13 n.3). A party’s post hoc description of the contract is not tantamount to a

choice of law provision to which the parties agreed when they entered the contract.

Mr. Johnson also argues that, under Alabama choice of law rules, California

substantive law applies because the contingency fee agreement is a unilateral

contract which formed when Mr. Johnson, in California, “accepted the signed

agreement and undertook to perform services on behalf of [Mr.] Cisney.” (Doc. 119,

pp. 5, 6). Mr. Johnson cites SouthTrust Bank v. Williams, 775 So. 2d 184 (Ala.

2000), (Doc. 119, p. 5) and Shapiro, (Doc. 119, p. 6), for this proposition. Shapiro

is of little help because the Eleventh Circuit applied Florida’s choice of law rules in

that case to decide what law to apply to the interpretation of an insurance contract.

Shapiro, 899 F.2d at 1117.

Williams does not help Mr. Johnson either. In Williams, the Alabama

Supreme Court held that “[a]mendments to the conditions of unilateral-contract

relationships with notice of the changed conditions are not inconsistent with the

general law of contracts.” Williams, 775 So. 2d at 190-91. The Court found that the

defendants in Williams implicitly agreed to be bound by a unilateral revision to a

contract because the defendants had notice of the revision and remained silent.

Williams, 775 So. 2d at 191. Here, the contract that Mr. Johnson prepared identified

California as the place of execution. (Doc. 110, p. 12). Mr. Cisney struck through

“California,” initialed the revision, and identified “Huntsville, AL” as the place of

execution. (Doc. 110, p. 12). Mr. Johnson did not change or supplement Mr.

Cisney’s revision. Therefore, like the defendants in Williams, Mr. Johnson

“implicitly assented to be bound by” Mr. Cisney’s revision, declaring Huntsville,

Alabama as the place of execution. Williams, 775 So. 2d at 191.

The parties anticipated that Mr. Johnson’s work on behalf of Mr. Cisney

would require Mr. Johnson to provide services in California to pursue worker’s

compensation benefits from Mr. Cisney’s former California employer and damages

from the tortfeasor who caused the accident in California in which Mr. Cisney was

injured. (Doc. 112, pp. 60, 61; see also Doc. 112, p. 54, ¶ 12). But under Alabama’s

choice of law rules, the locus of the services to be performed is not a factor in a

choice of law analysis concerning contract interpretation; the law of the place where

the contract was executed governs. Thus, the Court will not revise its opinion on

this point; Alabama law governs contract interpretation in this case.1

1 Mr. Johnson also argues that the Court’s “determin[ation] that the [fee agreement] was formed

in Alabama in spite of the parties’ agreement that the [fee agreement] was a California contract”

is an improper sua sponte determination. (Doc. 122, p. 5). However, the Cisneys “request[ed] a

declaratory judgment holding that the lien asserted by Defendants is subject to Alabama law.”

(Doc. 1-1, p. 5). Both parties cross-moved for summary judgment on the Cisney’s declaratory

action. (Docs. 105, 107). Therefore, the choice of law issue was properly before the Court at the

summary judgment stage.

“Responsible Parties” Determination

“Mr. Johnson has asserted a right to a portion of the Metlife settlement fund

under several theories, one of which is breach of the terms of his contingency fee

agreement with Mr. Cisney.” (Doc. 118, pp. 13-14). The contingency fee agreement

provides, in relevant part:

Attorney shall be compensated for his services by means of a

Contingency Agreement, whereby he is to be paid Thirty-Three and

One-Third Percent (33%) of the gross monies recovered by settlement,

arbitration, or judgment in his representation of Client’s claim against

the responsible parties.

(Doc. 110, p. 9). The Court held that “under the plain and unambiguous language

of the contingency fee agreement between Mr. Cisney and Mr. Johnson, Mr. Johnson

is not entitled to a fee lien against the Cisneys’ settlement with Metlife, and the

Cisneys have no obligation to pay Mr. Johnson fees under the contingency fee

contract between Mr. Cisney and Mr. Johnson” from the MetLife settlement. (Doc.

118, p. 15). In reaching that conclusion, the Court addressed the meaning of the

term “responsible parties:”

Though this provision does not specifically identify the responsible

parties against whom (or which) Mr. Johnson would bring a claim on

Mr. Cisney’s behalf, the phrase “responsible parties” is not ambiguous.

Nestor Rosales was the party who was responsible for Mr. Cisney’s

July 17, 2015 accident. Metlife may have had a contractual obligation

to Mr. Cisney in the event of an accident with an uninsured motorist,

but Metlife does not qualify as a party responsible for the collision in

California in which Mr. Cisney was injured.

(Doc. 118, p. 15).

Mr. Johnson challenges the Court’s holding, arguing that the term

“responsible parties” includes Metlife. (Doc. 119, pp. 4-5). Mr. Johnson asserts:

A claim for UIM benefits is a contractual claim that is included under

the term “responsible party.” The definition of a “responsible” party

not only includes one who is legally liable or accountable, but also one

having the ability or obligation to pay money owed. (See Black’s Law

Dictionary). In the context of contract law, the term “responsible party”

applies to anyone who is contractually bound to perform a duty,

including compensate a party for goods or services, perform an act, or

discharge a debt. In the instant case, the CFA between the parties does

not limit Johnson’s representation of Eric Cisney to a tort action against

the at-fault driver. Rather, the CFA authorizes Johnson to pursue any

and all claims arising out of the subject accident against the responsible

parties. Met, as the UIM carrier for Eric Cisney, is absolutely a

responsible party under the language of the CFA. If it were not, then

the Cisneys would not have been entitled to assert a claim for UIM

benefits, as that right arose out of the underlying motor vehicle

accident.

(Doc. 119, pp. 4-5). Notably, the only authority Mr. Johnson cites for his position

is Black’s Law Dictionary.

Mr. Johnson’s argument suggests a latent ambiguity in the term “responsible

parties” in the contingency fee agreement. “A latent ambiguity [] exists when the

writing appears clear and unambiguous on its face, but there is some collateral matter

which makes the meaning uncertain.” Dupree v. PeoplesSouth Bank, 308 So. 3d

484, 490 (Ala. 2020) (internal quotation marks and citations omitted). Here, the

collateral matter would be the Black’s Law Dictionary definition of the term

“responsible parties.” If the term “responsible parties” is ambiguous, then “the court

should construe the word or phrase according to the meaning a person of ordinary

intelligence would reasonably give it.” Safeway Ins. Co. of Alabama, Inc. v.

Herrera, 912 So. 2d 1140, 1143 (Ala. 2005). In addition, when a court “determines

that a latent ambiguity exists, the court may then consider and rely upon extrinsic

evidence to determine the true intentions of the parties to the contract.” Dupree, 308

So. 3d at 490.

Here, Mr. Cisney stated in discovery responses that he hired Mr. Johnson “to

represent [him] for the workers comp and 3rd party tortfeasor matters.” (Doc. 112,

p. 60). Mr. Cisney also stated that he did not “contract[] with [Mr.] Johnson to

represent [him] on a UIM claim in Alabama,” (Doc. 112, p. 61), and that there was

“No UIM in California,” (Doc. 112, p. 54, ¶ 17). (See also Doc. 112, p. 55, ¶ 22).2

Mr. Johnson has not placed evidence in the record to rebut Mr. Cisney’s assertion

that the parties intended the contingency fee agreement to cover only claims for

workers compensation benefits and damages against the tortfeasor.

Additionally, “if all other rules of contract construction fail to resolve the

ambiguity, then, under the rule of contra proferentem, any ambiguity must be

construed against the drafter of the contract.” Homes of Legend, Inc. v. McCollough,

776 So. 2d 741, 746 (Ala. 2000). Here, Mr. Johnson prepared the contingency fee

2 Similarly, in discovery responses, Ms. Cisney stated that she “never entered into a contract” with

Mr. Johnson for representation, and any representation that Mr. Johnson provided with respect to

UIM benefits “was without express or implied permission.” (Doc. 112, p. 58, ¶¶ 5-7).

agreement. Therefore, under Alabama law, the Court must construe ambiguous

terms in the agreement against Mr. Johnson.

As noted, Mr. Johnson cites only the Black’s Law Dictionary’s definition of

“responsible” for the proposition that ‘“responsible’ party not only includes one who

is legally liable or accountable, but also one having the ability or obligation to pay

money owed.” (Doc. 119, p. 4). Black’s Law Dictionary provides, in pertinent part:

responsible adj. (17c) 1. Morally or legally answerable for the

discharge of a duty, trust, debt, service, or other obligation; specif.,

marked by accountability to some higher authority for the execution of

certain duties <the CEO is responsible to the board>.

Responsible, BLACK’S LAW DICTIONARY (11th ed. 2019). But a court must “construe

the word or phrase according to the meaning a person of ordinary intelligence would

reasonably give it,” see Herrera, 912 So. 2d at 1143, not the technical definition

from a legal dictionary. Thus, under Alabama’s rules of contract interpretation, the

term “responsible parties” does not include Metlife, the company that insured Mr.

Cisney.3

3 It appears that California’s insurance code is consistent with this result. See Scottsdale Indem.

Co. v. Arnold, 2004 WL 2809992, at **1-2 (Cal. Ct. App. 5th Dist. Dec. 7, 2004) (interpreting

underinsured motorist provision concerning sums paid “by or for anyone who is legally

responsible” to mean “the underinsured motorist or the employer through workers’ compensation”

where the employer is “‘legally responsible’ for [an employee’s] work-related injuries”) (citing

CALIFORNIA INSURANCE CODE § 11580.2(p)(4)). The Arnold opinion is not published, so the Court

does not rely on the opinion for a substantive holding in this case.

Accordingly, the Court enters judgment for the Cisneys on Mr. Johnson’s

claim for breach of contract.4

Claims for Outrage and Contractual Interference

In its summary judgment opinion, the Court did not address the Cisneys’

outrage claim and Ms. Cisney’s intentional interference with a business or

contractual relationship claim because Mr. Johnson did not move for summary

judgment on those claims. (Doc. 118, p. 10) (citing Doc. 47-2, pp. 8-9, ¶¶ 41-54).

The two claims first appeared in the Cisneys’ amended complaint. (Doc. 47-2, pp.

8-10). Less than two weeks after the Cisneys amended their complaint, they filed a

motion to strike the amended pleading. (Doc. 55). Mr. Johnson contends that when

the Cisneys moved to strike their amended complaint, the initial complaint again

became the operative complaint in this action. According to Mr. Johnson, by moving

4 Mr. Johnson argues that the Court’s determination of the meaning of the term “responsible

parties” is an improper sua sponte determination. (Doc. 122, p. 5). The Court disagrees. As part

of their declaratory action, the Cisneys requested “a declaratory judgment holding that the lien

asserted by Defendants . . . is unenforceable.” (Doc. 1-1, p. 5). Both parties cross-moved for

summary judgment on the Cisney’s request for declaratory relief. (Docs. 105, 107). In support of

his motion for summary judgment – and in arguing that he is entitled to the disputed Metlife funds

– Mr. Johnson placed the contingency fee agreement in the record. (Doc. 110, pp. 9-12). To

determine whether “the lien . . . is subject to Alabama law and is unenforceable,” (Doc. 1-1, p. 5),

the Court needed to determine whether the contingency fee agreement was enforceable against Mr.

Cisney. And to determine whether the agreement was enforceable against Mr. Cisney, the Court

needed to determine the meaning of the term “responsible parties.” Therefore, the Court examined

the meaning of the term “responsible parties” in the contingency fee agreement between Mr.

Cisney and Mr. Johnson. Interpretation of that term was a question of law for the Court.

to strike their amended complaint, the Cisneys voluntarily dismissed all claims that

did not appear in the initial complaint. (Doc. 119, pp. 3-4).

The Court’s initial ruling regarding the Cisneys’ amended complaint was

complicated by the fact that, before they filed their motion to strike, the Cisneys

moved to dismiss their claims against the new defendant who they named in their

amended complaint, their attorney Jerry Blevins. (Doc. 51). In their motion to

dismiss, the Cisneys recognized that if they maintained claims against Mr. Blevins

in this action, they would divest the Court of subject matter jurisdiction because the

parties no longer would be completely diverse. (Doc. 51, p. 1).

Because the Cisneys’ motion to dismiss preceded their motion to strike, the

Court resolved the motion to dismiss first. After dismissing the Cisneys’ claims

against Mr. Blevins and eliminating him as a defendant, the Court terminated the

Cisneys’ motion to strike their amended complaint as moot. (Doc. 70). Mr. Johnson

contends that the Cisneys’ motion to strike their amended complaint was self-

executing, such that when the Cisneys filed the motion to strike, they eliminated

their amended complaint from the record.

In support of his argument, Mr. Johnson relies on Federal Rule of Civil

Procedure 41(a)(1)(A)(i), which states: “Subject to Rules 23(e), 23.1(c), 23.2, and

66 and any applicable federal statute, the plaintiff may dismiss an action without a

court order by filing a notice of dismissal before the opposing party serves either an

answer or a motion for summary judgment.” FED. R. CIV. P. 41(a)(1)(A)(i). Rule

41(a)(1)(A)(i) does not govern the Cisneys’ motion to strike because, by its terms,

the rule applies to notices of dismissal, not motions to strike. The Cisneys

strategically chose the vehicles they used to try to unravel the procedural tangle they

created when they filed their amended complaint and attempted to add Mr. Blevins

as a defendant. They did not file a Rule 41(a)(1)(A)(i) notice of voluntary dismissal.

Had they done so, they would have dismissed their entire action, and the Cisneys

stated affirmatively in their motion to dismiss their intent to maintain their claims

against Mr. Johnson. (See Doc. 51, p. 1) (“Plaintiff does maintain all claims against

the Defendant Robert Grey Johnson, Jr. as stated in the amended complaint.”). See

PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1307 (11th Cir. 2016) (“The text is

also clear in still another way: Rule 41 speaks of voluntary dismissal of an action,

not a claim.”) (internal quotation marks and citation omitted); see also Absolute

Activist Value Master Fund Ltd. v. Devine, 998 F.3d 1258, 1264-65 (11th Cir. 2021)

(“The Rule’s text plainly grants a plaintiff the right to dismiss—without court

order—’an action’” and the Eleventh Circuit “has made abundantly clear that a Rule

41(a)(1) voluntary dismissal disposes of the entire action, not just some of the

plaintiff’s claims.”) (quoting FED. R. CIV. P. 41(a)(1)(A)) (emphasis in Devine).5

5 Mr. Johnson correctly notes that the Court cited to Rule 41(a)(1)(A)(i) in its order granting the

Cisneys’ motion to dismiss Mr. Blevins as a defendant for lack of subject matter jurisdiction. (Doc.

Still, the Court erred when it found that dismissal of Mr. Blevins as a

defendant mooted the Cisneys’ motion to strike. The motion to strike is broader than

the motion to dismiss. In the motion to strike, the Cisneys stated that they “filed an

amended complaint . . . to join as a defendant Jerry M. Blevins;” that joinder of Mr.

Blevins “is impermissible as the court lacks jurisdiction to join” him as a defendant;

and that they requested “an Order striking the amended complaint filed on February

5, 2019.” (Doc. 55, p. 1). Because the relief the Cisneys requested in their motion

to strike is broader than the relief requested in their motion to dismiss, the Court

should have considered the motions in tandem and eliminated the amended

complaint entirely. In their response brief, the Cisneys do not argue that their claims

for outrage and contractual interference should remain in the case. (Doc. 121).

Therefore, the Court strikes the language from Doc. 70 deeming Doc. 55 moot and

grants the Cisneys’ motion to strike. The original complaint in this action, (Doc. 1-

1), is the operative complaint.

Mr. Johnson’s Right to Enforce an Attorney Lien

In its memorandum opinion and order, the Court “declare[d] that Mr. Johnson

may not enforce an attorney lien against the Metlife settlement fund.” (Doc. 118, p.

70). The citation is incorrect; the Court should not have issued the order pursuant to Rule

41(a)(1)(A)(i).

16). Mr. Johnson asks the Court to amend its holding to state that Mr. Johnson may

not enforce an attorney lien “in Alabama.” (Doc. 119, p. 2).

The Court summarizes its holdings on this issue as follows: under Alabama

law, in failing to pay Mr. Johnson a contingency fee for the UIM settlement that Mr.

Johnson pursued in Alabama on behalf of Mr. Cisney, Mr. Cisney did not breach his

contingency fee agreement with Mr. Johnson, so Mr. Johnson may not recover fees

from Mr. Cisney under a breach of contract theory, and Mr. Johnson may not enforce

an attorney lien against the Metlife settlement fund under Alabama’s attorney lien

statute, ALA. CODE § 34-3-61(b), or under the lien provision in the contingency fee

agreement.

III.

For the reasons discussed above, the Cisneys’ outrage claim and Ms. Cisney’s

intentional interference with a business or contractual relationship claim are not

viable claims, so the Court revises its summary judgment opinion in that respect.

Otherwise, the Court does not revise its summary judgment opinion. The remaining

claims in this case shall proceed to trial on November 14, 2022.

DONE and ORDERED this July 7, 2022.

adit Sl avila _

Mails

UNITED STATES DISTRICT JUDGE

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