John A. Daugherty v. Molly Chew Baker (Appeal from Jefferson Circuit Court: CV-22-900749).

Rel: November 8, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025

_________________________

SC-2024-0142
_________________________

John A. Daugherty

v.

Molly Chew Baker

Appeal from Jefferson Circuit Court
(CV-22-900749)

MENDHEIM, Justice.

Attorney John A. Daugherty appeals pro se from the Jefferson

Circuit Court's judgment dismissing of his complaint asserting a breach-
SC-2024-0142

of-contract claim against his former client, Molly Chew Baker ("Molly").

We affirm.

I. Facts

Daugherty and Molly had been friends for some time when Molly

came to Daugherty and told him that her former husband, Christopher

Allan Baker ("Christopher"), had not been complying with an "Agreement

of the Parties" that had been adopted as part of a consent divorce

judgment that had been made final on August 19, 2014, in the Domestic

Relations Division of the Jefferson Circuit Court, case number DR-2014-

900024 ("the domestic-relations case"). Specifically, Molly told Daugherty

that Christopher had not been paying the agreed-upon amount of

monthly alimony, which had resulted in Molly's struggling to meet daily

financial needs. Molly informed Daugherty that her current attorney was

having a difficult time serving Christopher with a petition for a rule nisi

that sought to hold Christopher in contempt for his failure to abide by

the divorce judgment. Molly believed that the domestic-relations court

might dismiss the petition for a rule nisi based on a failure of service and

that, if that happened, she wanted to hire Daugherty to see if he could

have better success. According to Molly, Daugherty told her that he had

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no experience in family law but that he did have experience in collecting

money judgments and that he would help her in the collection of the

alimony arrears.

Eventually the petition for a rule nisi was dismissed. According to

Daugherty, Molly informed him that her previous attorney had been

charging her $400 per hour and that she could not afford to compensate

Daugherty anywhere close to that amount. Therefore, Daugherty told

Molly that he was willing to take the case on a contingency-fee basis.

Daugherty asserted that Molly "loved the idea of not being required to

make any payments regarding the Petition for Rule Nisi until Daugherty

collected from [Christopher]."

On August 12, 2019, Daugherty and Molly executed an attorney-

client contract ("the contract") that was drafted by Daugherty. In

pertinent part, the contract provided:

"[Molly] does hereby employ [Daugherty] as [Molly's]
attorney, and further does hereby contract for legal services
to be provided for [Molly] in the representation of [Molly] in
regard to: collect on Chris Baker's default with regard to his
divorce agreement with [Molly].

"The fee for such services shall be a contingency of: 1/4
of any and all recovery of amounts Chris Baker agreed to give
Molly with regard to divorce settlement of Jefferson County

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divorce case #: DR-2014-900024 after all expenses have been
reimbursed.

"If applicable, court costs, deposition costs, duplicating
costs, filing fees, accountant's fees, appraiser's fees,
consultant's fees, investigator's fees, title insurance, land
surveyors and other professional fees incurred on [Molly's]
behalf, and other disbursements will be paid directly by
[Molly], or when advanced by [Daugherty], will be borne by
and paid for by [Molly].

"….

"ARBITRATION: Any disagreement, difference or
controversy between [Molly] and [Daugherty] involving
[Daugherty's] representation of [Molly's] case may be
submitted to arbitration at the discretion of [Daugherty]. The
arbitration shall comply and be governed by the provisions of
the State of Alabama and all applicable Federal law. The
arbitration shall be arbitrated by an arbitrator panel
composed of three arbitrators.

"….

"This Agreement embodies the entire Agreement of the
parties hereto with respect to the matters herein contained,
and it is agreed that the terms, conditions, and stipulations
hereof shall not be modified or revoked unless by written
agreement signed by both parties and attached hereto and
made a part hereof.

"….

"[Molly] agrees to pay a reasonable attorney fee and the
costs of collection in the event this debt has to be collected due
to the default of [Molly] as a result of [her] failure to pay any
monies due under this contract."

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On September 12, 2019, Daugherty filed on Molly's behalf a

"Petition for Rule Nisi" against Christopher in the domestic-relations

case. On May 12, 2020, Daugherty filed on Molly's behalf a summary-

judgment motion in that case. On June 29, 2020, the domestic-relations

court denied that motion. On July 3, 2020, Daugherty filed on Molly's

behalf a "First Amendment to Petition for Rule Nisi" against

Christopher. According to Daugherty, he paid all the expenses with

regard to those filings. Daugherty also asserted that he "obtained all the

needed discovery in order to present the case, pre-marked all exhibits for

trial and submitted those eleven (11) exhibits to the [domestic-relations]

court and to [Christopher's] attorney, Marcus Jones."

On September 24, 2020, Christopher filed a separate petition to

modify his monthly alimony payments. On May 11, 2021, the two matters

-- Molly's petition for a rule nisi and Christopher's petition to modify his

monthly alimony -- were consolidated into a single action, and they were

set for a trial to be held on August 17, 2021. According to Daugherty, on

April 13, 2021, he filed a motion to continue the trial

"in order to give Molly additional time to find another
attorney to help her to defend only against [Christopher's]
9/24/2020 Petition to Modify Alimony … since I only was
willing to represent Molly on her Complaint for Rule Nisi to
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collect deficiencies regarding [Christopher's] failure to pay all
that was due …, and the Court granted the said motion to
continue."

On June 29, 2021, Molly filed a motion to have separate trials for

the two petitions. The domestic-relations court denied the motion on the

same day. On July 10, 2021, Molly filed a second motion for separate

trials. On July 14, 2021, the domestic-relations court denied the second

motion for separate trials. Daugherty then agreed to represent Molly

with respect to both petitions. As he stated in response to a request for

admissions from Molly, he

"reluctantly agreed to represent Molly with regard to the
counterclaim to Petition to Modify Alimony and even went so
far as to recommend that we file a Petition to Modify Child
Support in the event Molly sincerely could not arrange for
another attorney to represent her with any other aspects of
her case other than the subject matter of the Rule Nisi I filed
in which we each agreed as set out in our 8/12/2019
Attorney/Client contract."

Daugherty also admitted in another filing that he "agreed to represent

[Molly] on all the matters with no change in the said Attorney Fees

Contract between Daugherty and [Molly]."

On August 9, 2021, Molly emailed Daugherty and demanded that

he withdraw from representing her. Daugherty emailed a response in

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which he stated that he was willing to represent Molly with respect to

both petitions but that,

"[a]lternatively, I am willing to file the Motion to
Withdraw as to representing you, but I will need a little time
to compute the fees I am due. I am not willing to give you any
of the documents I have in my possession until you pay me my
entire attorney fees which I will need a little time to compute.
As you can see by my attachment that the Alabama Rules of
Professional Conduct authorize[] me to retain your papers
until my fees are paid. If this is the route you want to take,
then I'll file a Motion to Intervene in your case against
[Christopher] so I can enforce the collection of my attorney
fees."

On August 11, 2021, Daugherty filed a motion to withdraw from

representing Molly in the domestic-relations case. On August 16, 2021,

the motion to withdraw was granted. Also on August 16, 2021, Molly and

Christopher filed a joint motion to dismiss the domestic-relations case.

On August 17, 2021, the domestic-relations court entered an order

granting Christopher and Molly's joint motion to dismiss, specifically

dismissing both Molly's petition for a rule nisi and Christopher's petition

to modify his alimony payments.

On August 17, 2021, Daugherty filed a motion to intervene in the

domestic-relations case in order to protect his interest in the attorney

fees he believed that he was owed by Molly, and he filed a petition to

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claim and secure attorney fees based on the contract. On the same date,

the domestic-relations court denied Daugherty's motion to intervene.

On September 9, 2021, Daugherty filed a "Motion to Stay

Proceedings and Motion to Refer Dispute to Arbitration" in which

Daugherty attempted to invoke the arbitration provision in the contract

for determining the issue of "what amount of attorney fees should be

awarded to Daugherty as a result of [Molly's] having instructed

Daugherty that she no longer is willing for Daugherty to represent her in

regard to" the domestic-relations case. On September 10, 2021, the

domestic-relations court dismissed Daugherty's motion seeking to invoke

arbitration because "[t]his case was dismissed by agreement of [Molly]

and [Christopher]. Therefore, there is no longer a case pending and[,]

thus, there is no case in which to intervene by the former attorney for

[Molly], let alone one in which this Court could compel arbitration on a

contract issue."

On March 16, 2022, Daugherty commenced the present action by

filing a pro se complaint in the Jefferson Circuit Court alleging that Molly

had breached the contract; Daugherty sought to have the contract

"enforced as written." Daugherty asserted that he was entitled to, "at a

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minimum, … one fourth (1/4) of the sum of the accumulated alimony

deficiency of $4,000.00/month from April 2016 until August 2021 plus

judicial interest, (2) a reasonable attorney fee[,] and (3) the total expenses

Daugherty has paid for this case." Daugherty attached as exhibits to his

complaint copies of: (1) the contract; (2) the "Final Judgment of Divorce"

entered by the domestic-relations court on August 19, 2014; (3) the July

31, 2014, "Agreement of the Parties" between Christopher and Molly; and

(4) the August 9, 2021, email in which Molly demanded that Daugherty

withdraw as her counsel in the domestic-relations case.

On May 11, 2022, Molly filed a motion to dismiss Daugherty's

complaint, arguing that Daugherty's action was barred by the doctrine of

res judicata because Daugherty had previously sought to enforce the

contract in the domestic-relations case, but the domestic-relations court

had "denied [Daugherty's] petition for fees." On the same date, Molly filed

an "Answer and Counterclaim" in response to Daugherty's complaint.

Molly's counterclaim asserted five counts against Daugherty: four counts

of "Legal Malpractice" pursuant to the Alabama Litigation

Accountability Act ("the ALAA"), Ala. Code 1975, § 12-19-270 et seq., and

one count seeking a judgment declaring that the contract was void

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because it contained "an ethically prohibited arbitration term" and

because it allowed a contingency fee in a domestic-relations matter,

which, she contended, violated Rule 1.5 of the Alabama Rules of

Professional Conduct. Molly attached as exhibits to her answer and

counterclaim copies of: (1) email correspondence between Daugherty and

Molly concerning her decision to terminate the attorney-client

relationship and (2) the Formal Opinion of the General Counsel of the

Alabama State Bar, RO-02-04, that addressed the appropriateness of an

arbitration provision in an attorney-client contract. Molly sought an

unspecified amount of compensatory and punitive damages in her

counterclaim.

On May 17, 2022, Daugherty filed a response in opposition to

Molly's motion to dismiss his complaint. In his response, Daugherty

noted that the domestic-relations court had stated in its September 10,

2021, order that "this is not the proper Court to seek the contractual relief

that the former attorney for [Molly] is seeking." Thus, Daugherty argued,

the domestic-relations court had not substantively decided that

Daugherty could not seek compensation for legal fees allegedly due under

the contract, and so, he said, the doctrine of res judicata did not apply.

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Daugherty attached as an exhibit to his response a copy of the domestic-

relations court's September 10, 2021, order dismissing Daugherty's

motion to invoke arbitration.

On October 3, 2022, the circuit court entered an order setting

Molly's motion to dismiss for a hearing on October 25, 2022. On October

20, 2022, Molly filed a reply to Daugherty's response to her motion to

dismiss in which she again asserted that Daugherty's complaint should

be precluded by the doctrine of res judicata. Molly attached as exhibits to

her reply copies of: (1) the domestic-relations court's August 17, 2021,

order dismissing Molly's petition for a rule nisi and Christopher's petition

to modify his alimony payments; (2) Daugherty's motion to intervene in

the domestic-relations case; (3) Daugherty's petition to claim and secure

attorney fees based on the contract; (4) the domestic-relations court's

August 17, 2021, order denying Daugherty's motion to intervene; (5)

Daugherty's motion to stay and to refer the dispute to arbitration; and

(6) the domestic-relations court's September 10, 2021, order dismissing

Daugherty's motion to invoke arbitration.

On October 21, 2022, Daugherty filed a summary-judgment motion

in which he contended that he was entitled to a judgment as a matter of

11
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law based on the contract. In that motion, Daugherty provided a

breakdown of the amount he believed he was due under the contract

based on the premise that he would have sought $455,009.08 from

Christopher under the petition for a rule nisi, that Daugherty paid

$727.83 in expenses during his work for Molly in seeking a rule nisi, and

that one-fourth of the amount sought plus expenses was $114,480.10. In

support of his summary-judgment motion, Daugherty attached as

exhibits: (1) an affidavit from himself; (2) a copy of the July 31, 2014,

"Agreement of the Parties" between Christopher and Molly; (3) the

August 19, 2014, "Final Judgment of Divorce" between Christopher and

Molly; (4) a copy of the contract between himself and Molly; and (5) a copy

of the "Trial Brief" Daugherty had prepared to be filed in the domestic-

relations case on Molly's behalf but that was not filed because the case

had been dismissed by the agreement of Christopher and Molly.

On October 28, 2022, Daugherty filed a "Memorandum" in which he

stated that he sought to provide the circuit court with "some law which

applies to the case." Daugherty argued that contingency fees are

protected under the law even when an attorney is not retained through

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the conclusion of a case, and he repeated that he believed that he was

entitled to $114,480.10 under the contract.

On November 3, 2022, Molly filed a motion to strike Daugherty's

"Memorandum," contending that Daugherty's filing was "inappropriate"

because the circuit court had instructed the parties "not to file additional

briefs" following the October 25, 2022, hearing concerning Molly's motion

to dismiss. On July 10, 2023, Molly filed a "Motion for Ruling on

Defendant's Pending Motion to Dismiss" because no ruling had yet been

entered by the circuit court concerning Molly's motion to dismiss

Daugherty's complaint.

On February 15, 2024, the circuit court entered an order granting

Molly's motion to dismiss. In that order, the circuit court specifically

noted it was "tak[ing] judicial notice of the herein court file and a

corresponding court file representing a Domestic Relations Case, DR-

2014-900024, … Molly Chew Baker v. Christopher Alan Baker." The

circuit court first rejected Molly's contention that Daugherty's claims

were barred by the doctrine of res judicata because, it reasoned, "[t]he

prior judgment was not rendered on the merits, but was dismissed per

joint agreement by the parties, therein." However, the circuit court then

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highlighted Rule 1.5(d)(1) of the Alabama Rules of Professional Conduct,

which provides:

"(d) A lawyer shall not enter into an arrangement for,
charge, or collect:

"(1) any fee in a domestic relations matter,
the payment or amount of which is contingent
upon the securing of a divorce or upon the amount
of alimony or support, or property settlement in
lieu thereof …."

The circuit court concluded:

"The Court FINDS that [Daugherty's] Complaint, in
seeking a 1/4 contingency amount of the sum of the
accumulated alimony deficiency due to [Molly], which is
designed to help the receiving spouse through rehabilitative
measures to become financially independent and to support
that party's reasonable needs, plus the judicial interest, is
contrary to the Alabama Rules of Professional Conduct -- and
the Client-Lawyer Relationship, is unconscionable and is
against public policy."

(Emphasis and capitalization in original.) Thus, the circuit court granted

Molly's motion to dismiss Daugherty's complaint because it determined

that the contract was against public policy under Rule 1.5(d), Ala. R. Prof.

Cond. On the same date, February 15, 2024, the circuit court entered a

separate order dismissing as moot Daugherty's summary-judgment

motion and Molly's motion to strike Daugherty's post-hearing

memorandum.
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On February 16, 2024, Molly filed a motion seeking to set a trial

date "for a bench trial on [Molly's] counterclaims against [Daugherty]."

On February 23, 2024, Daugherty filed a postjudgment motion to

alter, amend, or vacate the circuit court's February 15, 2024, order. In

that motion, Daugherty contended that the contingency fee contained in

the contract fit within an exception to the prohibition on contingency-fee

agreements by attorneys in domestic-relations cases. In support of that

contention, Daugherty cited to and attached to his motion copies of two

formal opinions from the General Counsel of the Alabama State Bar.

Specifically, Daugherty argued that an exception applied in domestic-

relations cases seeking the collection of child support or alimony after a

completed divorce. Additionally, Daugherty presented a new argument

contending that, even if the contract was void for being against public

policy due to the contingency-fee arrangement, he was still entitled to

compensation based on the theory of quantum meruit because of the

services he had rendered to Molly. Daugherty asserted that if the

contract fits within the exception to the prohibition on contingency fees

in the Alabama Rules of Professional Conduct, he was entitled to

$113,752.27 for services rendered in the domestic-relations case, plus

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$23,265.04 based on quantum meruit for the expenses he had allegedly

incurred in prosecuting the present action. Thus, Daugherty claimed that

the total amount owed to him by Molly was $137,017.31. Daugherty

asserted that if the circuit court affirmed its conclusion that the

contract's contingency-fee arrangement was contrary to public policy,

then, under the theory of quantum meruit, he was entitled to $70,930 for

services rendered in the domestic-relations case and $23,265.04 for the

expenses he had allegedly incurred in prosecuting the present action.

Thus, Daugherty claimed that the total amount owed to him by Molly

under quantum meruit was $94,195.04.

On February 26, 2024, the circuit court entered an order denying

Daugherty's postjudgment motion without providing further explanation

for its decision.

On March 1, 2024, Daugherty filed a notice of appeal in the circuit

court. (See Rec. vol. II, C. 366-70.) On March 3, 2024, Molly filed in the

circuit court a motion to strike Daugherty's notice of appeal on the ground

that the circuit court's February 15, 2024, order granting her motion to

dismiss Daugherty's complaint was not a final judgment because her

counterclaims remained pending in the circuit court. On March 5, 2024,

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the circuit court entered an order denying Molly's motion to strike

Daugherty's notice of appeal. In that order, the circuit court reiterated

that it had concluded in its February 15, 2024, order that the

contingency-fee arrangement in the contract was "contrary to the

Alabama Rules of Professional Conduct -- and the Client-Lawyer

Relationship, [and] is unconscionable and is against public policy." The

circuit court then concluded: "The Court FINDS that the Court's Order

Granting [Molly's] Motion to Dismiss is this Court's FINAL JUDGMENT

on [Daugherty's] Claim for Breach of Contract against [Molly].

Accordingly, [Molly's] Motion to Strike [Daugherty's] Notice of Appeal is

DENIED." (Emphasis and capitalization in original.) On March 7, 2024,

Daugherty's notice of appeal was filed in this Court.

II. Standard of Review

The circuit court clearly considered materials outside the pleadings;

the circuit court even stated in its order granting Molly's motion to

dismiss that it had taken judicial notice of the court file in the domestic-

relations case. 1 However, that fact does not require converting the motion

1Although ordinarily " '[c]ircuit courts do not take judicial notice of

the records of another court,' " neither party objected to the circuit court's
taking judicial notice of filings in the domestic-relations case; indeed,
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to dismiss to a motion for summary judgment because "[a] trial court does

not treat a Rule 12(b)(6)[, Ala. R. Civ. P.,] motion as a summary-judgment

motion by considering authenticated documents that are attached to the

motion to dismiss if ' " 'the document[s are] referred to in the complaint

and [are] central to the plaintiff[s'] claim[s].' " ' " Newson v. Protective

Indus. Ins. Co. of Alabama, 890 So. 2d 81, 86 (Ala. 2003) (quoting

Donoghue v. American Nat'l Ins. Co., 838 So. 2d 1032, 1035 (Ala. 2002),

quoting in turn Wilson v. First Union Nat'l Bank of Georgia, 716 So. 2d

722, 726 (Ala. Civ. App. 1998), quoting in turn GFF Corp. v. Associated

Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)). The

contract, which was attached to Daugherty's complaint, was the basis of

Daugherty's breach-of-contract claim. Moreover, filings in the domestic-

relations case, which were attached to Daugherty's response to the

motion to dismiss and to Molly's reply thereto, were central to Molly's

arguments for dismissal, which were provided in both her motion and in

her counterclaim.

both parties attached the relevant filings from that case as exhibits to
their filings in the present case. Municipal Workers Comp. Fund, Inc. v.
Morgan Keegan & Co., 190 So. 3d 895, 911 (Ala. 2015) (quoting Charles
W. Gamble & Robert J. Goodwin, McElroy's Alabama Evidence §
484.02(2) (6th ed. 2010)).
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" ' " The standard of review of the grant of a motion to dismiss
... was set out in Nance v. Matthews, 622 So. 2d 297, 299 (Ala.
1993):

" ' " ' On appeal, a dismissal is not
entitled to a presumption of
correctness. The appropriate standard
of review ... is whether, when the
allegations of the complaint are viewed
most strongly in the pleader's favor, it
appears that the pleader could prove
any set of circumstances that would
entitle [him] to relief. In making this
determination, this Court does not
consider whether the plaintiff will
ultimately prevail, but only whether
[he] may possibly prevail. We note that
a ... dismissal is proper only when it
appears beyond doubt that the plaintiff
can prove no set of facts in support of
the claim that would entitle the
plaintiff to relief. ' " ' "

Waterworks & Sewer Bd. of Selma v. Allen, 3 So. 3d 846, 848 (Ala. 2008)

(quoting Helms v. Barbour Cnty., 914 So. 2d 825, 828 (Ala. 2005), quoting

in turn Jacks v. Madison Cnty., 741 So. 2d 429, 430 (Ala. Civ. App. 1999)).

III. Analysis

A. Jurisdiction of the Appeal

Before we evaluate the merits of Daugherty's appeal, it must be

determined whether we have jurisdiction over his appeal because

"jurisdictional matters are of such magnitude that we take notice of them
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at any time and do so even ex mero motu." Nunn v. Baker, 518 So. 2d

711, 712 (Ala. 1987).

In his brief's "Statement of Jurisdiction," Daugherty asserts that

this Court has jurisdiction of his appeal because the circuit court's

February 15, 2024, order "constituted a final judgment against all claims

and against all parties." Daugherty's brief, p. 1. In her brief's "Statement

of Jurisdiction," Molly proclaims that she "adopts [Daugherty's]

statement of jurisdiction to the extent this Honorable Court finds the

trial court's order final under Rule 54(b), Ala. R. Civ. P.,[2] as [Molly's]

counterclaim for legal malpractice remains pending." Molly's brief, p. 1.

Molly's observation highlights the potential problem: What is the

status of Molly's counterclaims? We first observe that the sequence of

events that followed the filing of Daugherty's notice of appeal on March

1, 2024 -- the filing of Molly's motion to strike Daugherty's notice of

2Rule 54(b), Ala. R. Civ. P., provides, in pertinent part:

"When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but fewer
than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon
an express direction for the entry of judgment."
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appeal and the circuit court's entry of the March 5, 2024, order denying

Molly's motion to strike, concluding that its February 15, 2024, order was

a "final judgment on [Daugherty's] claim for breach of contract against

Molly" -- is immaterial to answering that question. (Emphasis and

capitalization omitted.) That is because "[t]he timely filing of a notice of

appeal invokes the jurisdiction of an appellate court and divests the trial

court of jurisdiction to act except in matters entirely collateral to the

appeal." Harden v. Laney, 118 So. 3d 186, 187 (Ala. 2013). The subject of

Molly's motion to strike and the circuit court's March 5, 2024, order --

whether the circuit court's February 15, 2024, order was a final judgment

-- was not a matter collateral to the appeal, and, thus, the circuit court

lacked jurisdiction to entertain and to rule on Molly's motion to strike

because the circuit court was divested of jurisdiction in the case on March

1, 2024, when Daugherty filed his notice of appeal.

Of course, we have authority to maintain jurisdiction of

Daugherty's appeal if the appeal stemmed from a final judgment or from

a judgment properly certified as final for purposes of appeal under Rule

54(b), Ala. R. Civ. P. See, e.g., Bean v. Craig, 557 So. 2d 1249, 1253 (Ala.

1990) (noting that "[a]n appeal ordinarily will lie only from a final

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judgment -- i.e., one that conclusively determines the issues before the

court and ascertains and declares the rights of the parties involved");

First Commercial Bank of Huntsville v. Nowlin, 122 So. 3d 829, 831 (Ala.

2013) (observing that "Rule 54(b), Ala. R. Civ. P., establishes an exception

to the general rule").

The circuit court's February 15, 2024, order was not a Rule 54(b)

order. It did not cite Rule 54(b), and it did not "use the 'no just reason for

delay' language from that rule this Court has previously recognized as

sufficient to indicate an intent to certify an order as a final order under

Rule 54(b)." Elkins v. Carroll, 220 So. 3d 290, 297 (Ala. 2016). See also

Grimmer v. Williams, 389 So. 3d 1154, 1157-58 (Ala. 2023) (observing

that "to properly certify an order as final under Rule 54(b), a trial court

must determine (1) that the action involves more than one claim, (2) that

the order completely adjudicates at least one claim, and (3) that 'no just

reason for delay' exists").

However, the circuit court's February 15, 2024, order also did not

address Molly's counterclaims against Daugherty in any way. " 'A ruling

that disposes of fewer than all claims or relates to fewer than all parties

in an action is generally not final as to any of the parties or any of the

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claims. ' " Elkins, 220 So. 3d at 296 (quoting Wilson v. Wilson, 736 So. 2d

633, 634 (Ala. Civ. App. 1999)). Thus, ordinarily we would not consider

the circuit court's February 15, 2024, order to be a final judgment.

However, this is not an ordinary circumstance because of the nature

of Molly's counterclaims. As we recounted in the rendition of the facts,

Molly's counterclaim asserted five counts against Daugherty. The first of

those counts sought a judgment declaring that the contract was void -- in

part on the basis that the contract inappropriately contained a

contingency-fee arrangement in a domestic-relations matter. The circuit

court effectively granted that portion of Molly's counterclaim in its

February 15, 2024, order by concluding that the contract was

unconscionable and against public policy because of the contingency-fee

arrangement that concerned the recovery of alimony payments. 3 The

other four counts in Molly's counterclaim asserted claims under the

ALAA. The Court of Civil Appeals addressed a similar situation in Keller

Construction Co. of Northwest Florida, Inc. v. Hartford Fire Insurance

3Indeed, Molly's counterclaim was her only filing in the circuit court

that posited that the contract was void because it contained a
contingency-fee arrangement in a domestic-relations matter. Molly's
motion to dismiss focused solely on the doctrine of res judicata.
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Co., 279 So. 3d 579 (Ala. Civ. App. 2018). It noted that, "[o]rdinarily, the

failure to adjudicate a pending claim would render a judgment nonfinal

and, therefore, nonappealable." Id. at 583. But the Court of Civil Appeals

determined that the counterclaim at issue "was, in essence, a claim under

the ALAA." Id. It then observed:

" '[W]hen a trial court enters an otherwise final judgment on
the merits of a case but fails to address a pending ALAA claim
or to reserve jurisdiction to later consider that claim, the
ALAA claim is implicitly denied by the judgment on the
merits.' Klinger v. Ros, 33 So. 3d 1258, 1260 (Ala. Civ. App.
2009)."

Id. See, e.g., Gonzalez, LLC v. DiVincenti, 844 So. 2d 1196, 1201-02 (Ala.

2002) ( " 'As interpreted by the supreme court, the ALAA … provides for

the trial court to consider the outcome of the proceedings in determining

whether a party's action was without substantial justification. For this

reason, it is within the court's discretion to hold a separate hearing on an

ALAA petition after the entry of final judgment on the merits, provided

that the court retained jurisdiction to do so. Meek [v. Diversified Prods.

Corp., 575 So. 2d 1100 (Ala. 1991)]. Otherwise, a final judgment puts an

end to all controversies litigated or which ought to have been litigated

within the particular controversy. Vacalis v. [Lowry], 279 Ala. 264, 184

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So. 2d 345 (1966). ' " (quoting Baker v. Williams Bros., 601 So. 2d 110, 112

(Ala. Civ. App. 1992))). The Court of Civil Appeals has further explained:

"To prevent the implied denial of an ALAA claim, a party may
timely file a postjudgment motion directed to the judgment on
the merits seeking the reservation of jurisdiction to hear the
ALAA claim; if that motion is granted and the trial court
reserves jurisdiction over the ALAA claim pursuant to the
amended judgment, the claim survives."

Klinger v. Ros, 33 So. 3d 1258, 1261 (Ala. Civ. App. 2009).

In its February 15, 2024, order, the circuit court did not address

Molly's ALAA claims, and Molly did not file a postjudgment motion

seeking to have the circuit court reserve jurisdiction to hear her ALAA

claims. Therefore, Molly's ALAA 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.

Accordingly, we have jurisdiction of Daugherty's appeal. 4

4The Court of Civil Appeals does not have jurisdiction of this appeal

because the amount involved exceeds $50,000 and this is not an appeal
from a domestic-relations case. See § 12-3-10, Ala. Code 1975. It is true
that Daugherty's claim asserting entitlement to unpaid attorney fees
stems from services he rendered in a domestic-relations case, but, as we
recounted in the rendition of facts, that case was dismissed, and
Daugherty commenced a separate action in his effort to recover what he
believes he is owed from Molly. The gravamen of the current action -- the
alleged breach of an attorney-client contract -- does not fall within the
exclusive jurisdiction of the Court of Civil Appeals.
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B. The Merits of Daugherty's Appeal

As we recounted in the rendition of the facts, the circuit court

determined that the contract was void as against public policy because it

contained a contingency-fee arrangement in a domestic-relations matter.

To reach its conclusion, the circuit court relied 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 …."

Daugherty contends that the circuit court erred because "[t]he facts

of this case … fit comfortably within the exception to Rule 1.5(d) of the

Alabama Rules of Professional Conduct …." Daugherty's brief, p. 15.

Daugherty quotes from the "Preamble" of the "Discussion" section of a

Formal Ethics Opinion of the General Counsel of the Alabama State Bar,

RO-96-01, to support his argument:

"The Disciplinary Commission of the Alabama State
Bar, in formal opinion RO-88-l03, concluded that a lawyer
could represent a spouse on a contingent fee basis in an action
for breach of an antenuptial contract, said action seeking
money damages. The Commission, deciding the matter
pursuant to DR 5-103(A) and EC 2-20 of the former Code of
Professional Responsibility, acknowledged the pending
adoption of Rule 1.5(d), Alabama Rules of Professional
Conduct, and its direct prohibition of contingent fees in
domestic relations matters. The Commission noted a prior
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opinion (RO-83-22) which had listed the only approval of a
contingent fee contract in a domestic relations matter, that
being collection of child support or alimony arrearage in a
completed divorce."

J. Anthony McLain, Opinions of the General Counsel, 57 Ala. Law. 151

(May 1996) (emphasis added).

Based on the emphasized language in the foregoing portion of

formal opinion RO-96-01, Daugherty argues that the contingency-fee

arrangement in the contract was proper because it concerned the

collection of alimony arrearage after a completed divorce, the terms of

which were memorialized in the August 19, 2014, divorce settlement

agreement between Christopher and Molly. Of course, an opinion of the

General Counsel of the Alabama State Bar is not binding on the Alabama

courts, and Daugherty does not provide any other Alabama authority in

support of his position. Instead, Daugherty cites and quotes from Davis

v. Taylor, 81 N.C. App. 42, 344 S.E.2d 19 (1986), but the exceptions Davis

discussed are not directly on point with the situation presented here. See

Davis, 81 N.C. App. at 47, 344 S.E.2d at 22 (stating that "contingent-fee

arrangements generally are permitted in actions by one spouse to recover

separate property from another or to settle property rights among them").

Therefore, Daugherty provided insufficient legal authority to warrant a
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reversal of the circuit court's judgment. See Rule 28(a)(10), Ala. R. App.

P.

But even if Daugherty had provided sufficient legal authority for

his position, the exception upon which he relies would not apply in this

instance. As Molly observes, Daugherty did not just represent her with

respect to her petition for a rule nisi; he also willingly represented Molly

with respect to Christopher's petition to modify his monthly alimony

payments. Despite that change in the status of his representation,

Daugherty did not change the terms of the contract with Molly.

Consequently, Daugherty had contracted for a contingency fee not just

with respect to the collection of an alimony arrearage, but also with

respect to "the amount of alimony" due to Molly on an ongoing basis. Rule

1.5(d)(1), Ala. R. Prof. Cond. In other words, the exception to Rule

1.5(d)(1) upon which Daugherty relies did not apply to his situation.5

5In his reply brief, Daugherty cursorily argues that although he

offered to represent Molly with respect to Christopher's petition to modify
his alimony payments, Molly "elected to terminate Appellant Attorney
Daugherty before Appellant Attorney Daugherty and [Molly] could
extend the attorney/client contract to include the additional legal
services." Daugherty's reply brief, p. 2. However, as we recounted in the
rendition of facts, that argument is directly contrary to the facts in the
record. In his responses to requests for admissions, Daugherty openly
admitted that he had agreed to represent Molly with regard to all aspects
28
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Therefore, based on the argument Daugherty has presented, the circuit

court did not err in concluding that the contingency-fee arrangement in

the contract was against public policy.

We take this opportunity to note, however, that Daugherty

apparently failed to notice the following admonition this Court provided

in Poole v. Prince, 61 So. 3d 258, 280-82 (Ala. 2010):

"The Scope to the Rules of Professional Conduct states, in
part:

" 'Violation of a Rule should not give rise to a
cause of action nor should it create any
presumption that a legal duty has been breached.
The Rules are designed to provide guidance to
lawyers and to provide a structure for regulating
conduct through disciplinary agencies. They are
not designed to be a basis for civil liability.
Furthermore, the purpose of the Rules can be
subverted when they are invoked by opposing
parties as procedural weapons. The fact that a
Rule is a just basis for a lawyer's self-assessment,
or for sanctioning a lawyer under the
administration of a disciplinary authority, does
not imply that an antagonist in a collateral
proceeding or transaction has standing to seek
enforcement of the Rule. Accordingly, nothing in
the Rules should be deemed to augment any
substantive legal duty of lawyers or the extra-
disciplinary consequences of violating such a duty.'

of the domestic-relations case and that he had done so without modifying
the terms of his representation.
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"… The power to declare a contract void based on a violation
of public policy ' "is a very delicate and undefined power and,
like the power to declare a statute unconstitutional, should be
exercised only in cases free from doubt. " ' Milton Constr. Co.
v. State Highway Dep't, 568 So. 2d 784, 788 (Ala. 1990)
(quoting 17 Am Jur.2d Contracts § 178 (1964)). ' "The courts
are averse to holding contracts unenforceable on the ground
of public policy unless their illegality is clear and certain....
[T]he courts will not declare an agreement void on the ground
of public policy unless it clearly appears to be in violation of
the public policy of the state. " ' Id. (emphasis omitted).

"….

"We conclude that the trial court erred to the extent that
it determined the parties' agreement to be unenforceable as
violative of Rule 1.5(e), Ala. R. Prof. Cond.[6] As discussed in
the Scope of the Alabama Rules of Professional Conduct and
in the above-cited authorities, the sole remedy for a violation
of Rule 1.5(e) is disciplinary in nature; therefore, the trial
court lacked the authority to declare the parties' agreement
unenforceable as violative of Rule 1.5(e)."

(Some emphasis in original; some emphasis added.)

Although the facts in Poole involved the application of Rule 1.5(e),

rather than Rule 1.5(d), its rationale dictates that 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. But, as we have

6Rule 1.5(e), Ala. R. Prof. Cond., addresses the division of a fee
between lawyers who are not in the same law firm.
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noted, 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). Accordingly, we will not reverse the circuit court's judgment based

on the principles enunciated in Poole. We simply reiterate them to

remind courts to be careful how they employ the Alabama Rules of

Professional Conduct.

Even if Daugherty had correctly refuted the circuit court's basis for

the dismissal of his breach-of-contract claim, his claim had another

inherent weakness. "[O]ur caselaw provides that where the written

attorney-fee agreement contemplates compensation for the attorney in

the event of a settlement of the litigation involving his clients, the terms

of that attorney-fee agreement control to determine the amount of the

attorney's lien available under § 34-3-61, Ala. Code 1975." 7 Harlow v.

7Section 34-3-61, Ala. Code 1975, is the attorney lien-statute. This

Court has stated that "the purpose of the attorney's lien statute, § 34-3-
61, Code of Ala. 1975, is to protect the attorney from loss of his
investment in time, effort, and learning, and the loss of funds used in
serving the interest of the client." Triplett v. Elliott, 590 So. 2d 908, 910
(Ala. 1991). It is apparent from Daugherty's filings below that his breach-
of-contract claim was based on § 34-3-61.
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Sloss Indus. Corp., 813 So. 2d 879, 889 (Ala. Civ. App. 2001) (emphasis

added). The 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. The contract specifically provided: "The

fee for such services shall be a contingency of: 1/4 of any and all recovery

of amounts Chris Baker agreed to give Molly with regard to divorce

settlement of Jefferson County divorce case #: DR-2014-900024 after all

expenses have been reimbursed." (Emphasis added.) Molly did not

recover any amount from Christopher in the domestic-relations case. The

only provision of the contract that could be said to support a recovery is

the second to last paragraph of the contract, which stated: "[Molly] agrees

to pay a reasonable attorney fee and the costs of collection in the event

this debt has to be collected due to the default of [Molly] as a result of

[her] failure to pay any monies due under this contract." (Emphasis

added.) But because there was no "recovery of amounts Chris Baker

agreed to give Molly with regard to" the August 19, 2014, divorce

judgment, the only money that could be said to be "due under this

contract" would be legal expenses. That is because of another contract

provision that stated that "court costs, … duplicating costs, filing fees,

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[and] investigator's fees … incurred on [Molly's] behalf, … when

advanced by [Daugherty], will be borne by and paid for by [Molly]," and

Daugherty alleged in his complaint that Molly "ha[d] contributed no

money to pay any expenses regarding the filing of [the petition for a rule

nisi in the domestic-relations case], obtaining service on [Christopher] or

any other expense which has come due with regard to that case." In his

postjudgment motion, Daugherty estimated that his litigation expenses

totaled $727.83, a far cry from the $113,752.27 in total damages

Daugherty sought for his breach-of-contract claim in the same motion.

Daugherty argues that even if the contract "is not enforceable on a

contingency basis, Attorney Daugherty should be entitled to his legal fees

based on quantum meruit." Daugherty's brief, p. 16. Daugherty cites and

quotes several legal authorities for the proposition that an attorney

whose services are terminated before the conclusion of litigation and who

was due to be compensated on a contingency-fee basis is entitled to

payment for services rendered. For example, in Triplett v. Elliott, 590 So.

2d 908, 910 (Ala. 1991), this Court stated:

"It is well established in Alabama that upon an
attorney's discharge, the prior part performance of a contract
entitles the attorney to recover for those services rendered. As
the Court of Civil Appeals pointed out in Gaines[, Gaines &
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Gaines, P.C. v. Hare, Wynn, Newell & Newton, 554 So. 2d 445
(Ala. Civ. App. 1989)]:

" ' "The rule in Alabama is that an attorney
discharged without cause, or otherwise prevented
from full performance, is entitled to be reasonably
compensated only for services rendered before
such discharge. Hall v. Gunter, 157 Ala. 375, 47
So. 155 [(1908)]. This appears to be the prevailing
rule where the contract, as here, called for a
contingent fee. 6 C.J. p. 724, § 293." Owens v. Bolt,
218 Ala. 344, 348, 118 So. 590 (1928).'

"554 So. 2d at 448."

There are at least three problems with Daugherty's quantum

meruit argument. First and foremost, as Molly observes, Daugherty

never pleaded quantum meruit as an alternative basis for the recovery of

attorney fees: Daugherty's complaint solely asserted a claim of breach of

contract based on the terms of the contract. Daugherty first asserted a

right to recovery based on quantum meruit in his postjudgment motion.

But Daugherty cannot have it both ways: either Daugherty's

postjudgment motion was, in substance, a motion to amend his

complaint, following the circuit court's dismissal of his original

complaint, or Daugherty's postjudgment motion was, as it was labeled, a

postjudgment motion seeking reconsideration of the basis on which his

breach-of-contract claim was dismissed. See, e.g., Morris v. Merchants
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Nat'l Bank of Mobile, 359 So. 2d 371, 373 (Ala. 1978) (concluding that a

postjudgment motion following the entry of a summary judgment was, in

substance, a motion to amend the complaint rather than a motion to

seeking to have the trial court reexamine the evidence). Viewed as a

whole, Daugherty's postjudgment motion was clearly asking the circuit

court to reexamine its basis for dismissal by citing to an exception to the

Alabama Rules of Professional Conduct's general prohibition on

contingency-fee arrangements by attorneys in domestic-relations cases.

In other words, Daugherty was not seeking permission from the circuit

court to amend his complaint, and the circuit court cannot be faulted for

not viewing his postjudgment motion as seeking such permission when it

denied Daugherty's motion. Because Daugherty never properly amended

his complaint to include a claim for recovery based on quantum meruit,

we will not reverse the circuit court's judgment on that basis.

Second, Daugherty's new claim for recovery under the theory of

quantum meruit contradicts his argument that he has an attorney lien

based on the contract.

"Pursuant to § 34-3-61, Ala. Code 1975, and its
predecessors, an attorney may establish his right to an
attorney-fee lien either through contract or on the theory of
quantum meruit. Carnes v. Shores, 55 Ala. App. 608, 318 So.
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2d 305 (Ala. Civ. App. 1975). See also Triplett v. Elliott, [590
So. 2d 908 (Ala. 1991)]; Gaines, Gaines & Gaines, P.C. v. Hare,
Wynn, Newell & Newton, 554 So. 2d 445 (Ala. Civ. App. 1989).
Harlow has claimed an attorney-fee lien pursuant to his
contract with the clients; therefore, he has not argued the
theory of quantum meruit before the trial court or before this
court. An express contract between the parties generally
precludes the existence of an implied agreement relative to
the same subject matter. Betts v. McDonald's Corp., 567 So.
2d 1252 (Ala. 1990)."

Harlow, 813 So. 2d at 887 (emphasis added). The foregoing rule perhaps

explains why Daugherty did not initially plead quantum meruit as a

basis for recovery.

Third, Daugherty's claim for recovery based on quantum meruit

ignores the limitations on such a claim. " 'The rule in Alabama is that an

attorney discharged without cause, or otherwise prevented from full

performance, is entitled to be reasonably compensated only for services

rendered before such discharge. ' " Gaines, Gaines & Gaines, P.C. v. Hare,

Wynn, Newell & Newton, 554 So. 2d 445, 448 (Ala. Civ. App. 1989)

(quoting Owens v. Bolt, 218 Ala. 344, 348, 118 So. 590, 594 (1928))

(emphasis added). Daugherty's calculations of damages are based on

what he claimed was "a minimum [Molly] would be entitled to [in] a

judgment if tried as set out and described in detail on the 'Trial Brief'

Daugherty prepared to argue and submit on 8/17/2021." Daugherty's
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brief, p. 12. In other words, Daugherty sought damages based on what

Molly might have recovered from Christopher if the petition for a rule

nisi had gone to trial -- something that never occurred because Molly and

Christopher moved for and received a joint dismissal of their respective

petitions. Thus, Daugherty's new quantum meruit claim -- and his

original breach-of-contract claim for that matter -- did not solely seek

compensation for services rendered before discharge but, rather, sought

damages for what might have been recovered in the event of successful

litigation at trial. Consequently, 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.

IV. Conclusion

The circuit court dismissed Daugherty's breach-of-contract claim

against Molly on the basis that the contract was void for public policy

because the contract contained a contingency-fee arrangement in a

prohibited domestic-relations context. Daugherty did not present to the

circuit court or to this Court sufficient Alabama authority that refuted

the application of that prohibition, particularly given that the exception

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to the contingency-fee prohibition upon which Daugherty relied did not

apply to his situation once he had agreed to represent Molly with respect

to Christopher's petition to modify his alimony payments. Daugherty

never pleaded his alternative quantum meruit claim, and thus that is not

a proper legal basis for reversing the circuit court's judgment.

Accordingly, the circuit court's judgment is due to be affirmed.

AFFIRMED.

Parker, C.J., and Wise, Bryan, Sellers, Stewart, and Cook, JJ.,

concur.

Mitchell, J., concurs in part and concurs in the result, with opinion.

Shaw, J., concurs in the result.

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MITCHELL, Justice (concurring in part and concurring in the result).

The Jefferson Circuit Court held that attorney John A. Daugherty's

contract with Molly Chew Baker "was void as against public policy

because it contained a contingency-fee arrangement in a domestic-

relations matter." ___ So. 3d at ___. While there is some authority

indicating that "a court should not declare void an agreement between

parties based on the violation of a Rule of Professional Conduct," ___ So.

3d at ___ (citing Poole v. Prince, 61 So. 3d 258, 280-82 (Ala. 2010),

Daugherty failed to cite that authority to the trial court. And because it

is the appellant's duty to show that the trial court erred, see Arthur v.

Bolen, 41 So. 3d 745, 750 (Ala. 2010), and because we will not "hold a

trial court in error in regard to theories or issues not presented to [it],"

Allsopp v. Bolding, 86 So. 3d 952, 962 (Ala. 2011), Daugherty has failed

to meet his burden of demonstrating error below. Accordingly, we must

affirm the trial court's judgment.

I concur in the result only as to the other matters discussed in the

majority opinion -- specifically, whether the Rules permit Daugherty's

contingency-fee arrangement, what he would be owed under that

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arrangement, or the merits of his forfeited quantum meruit claim --

because those matters are not necessary to decide this appeal.

40