Levorn Davis and Levern Davis v. Darryl Hamilton, as personal representative of the Estate of Henry Brim ( 2023 )

Rel: March 24, 2023
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, 2022-2023
_________________________
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_________________________
Levorn Davis and Levern Davis
v.
Darryl Hamilton, as personal representative of the Estate of
Henry Brim, deceased
Appeal from Etowah Circuit Court
(CV-17-900448)
WISE, Justice.
The defendants below, Levorn Davis and Levern Davis, appeal from
the Etowah Circuit Court's judgment entered in favor of the plaintiff
below, Darryl Hamilton, as personal representative of the estate of Henry
Brim, deceased. We reverse and remand.
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Facts and Procedural History
On November 3, 2006, Brim sold property located on West
Tomahawk Trail in Gadsden ("the property") to Levern Davis. On that
same date, Levern executed a promissory note and a mortgage in favor of
Brim. The promissory note and the mortgage provided that the principal
amount of the note was $56,000; that the interest rate was 7% per
annum; that principal and interest payments were "due and payable in
465 equal consecutive monthly installments of $350.00, on the first day
of each month, beginning December 1, 2006"; and that the final
installment would be due on August 1, 2045. On April 16, 2015, Levern
executed a quitclaim deed in which he transferred his interest in the
property to his brother, Levorn Davis.
On June 1, 2017, Brim filed a complaint against the defendants in
the Etowah Circuit Court. Brim alleged that the defendants were in
default under the terms of the promissory note and the mortgage; that
the defendants disputed that they were in default; and that the parties
also disputed the balance owed on the note. Brim further alleged that he
was seeking to foreclose on the property under terms of the mortgage but
that, "until it is determined the defendants have defaulted under the
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payment of the note and mortgage securing the same, foreclosure is not
available." Thus, Brim asked the trial court to enter a judgment
declaring that the defendants were in default; determining the amount
still owed on the promissory note; and authorizing Brim to foreclose the
mortgage.
On October 24, 2018, the trial court conducted a bench trial. At the
conclusion of the trial, the trial court gave the parties time to file briefs
and to submit additional financial documents. However, the parties did
not do so.
On May 8, 2019, Jack Floyd ("former counsel") filed a suggestion of
death, stating that Brim had died on May 1, 2019. On June 18, 2021,
John Floyd ("current counsel") filed a notice of appearance as counsel for
"the plaintiff." On December 3, 2021, current counsel filed a motion to
substitute Hamilton, as personal representative of Brim's estate, as the
plaintiff. The motion stated that Hamilton had been appointed as the
personal representative of Brim's estate on February 26, 2020. The trial
court entered an order substituting Hamilton as the plaintiff on that
same day.
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On December 6, 2021, the defendants filed a "Motion to
Reconsider," in which they asked the trial court to reconsider its order
substituting Hamilton as the plaintiff and to dismiss the action pursuant
to Rule 25(a)(1), Ala. R. Civ. P. After being directed to do so by the trial
court, Hamilton filed a response to the motion to reconsider on December
16, 2021. In his response, Hamilton asserted:
"1. That the attorney for [Brim], Jack Floyd[,] filed a
Suggestion of Death on May 8, 2019. That following the death
of [Brim], the family member and caretaker of [Brim], Darryl
Hamilton[,] came to the attorney for [Brim] to probate the
Last Will and Testament of Henry Brim ….
"2. That [Brim] had numerous children/heirs-at-law
that resulted in extensive time spent attempting to locate and
provide service on the said heirs-at-law. Due to said delays,
the Letters of Testamentary were not issued until February
26, 2020.
"3. That prior to the letters being issued, Jack Floyd …
filed a Motion to Continue on January 29, 2020[,] stating that
the Estate of Henry Brim was presented to Probate and that
a hearing to appoint a personal representative for the estate
was scheduled for February 26, 2020, which provides evidence
of intent by the attorney to file the Motion for Substitution
once the Letters of Testamentary were issued. …
"4. That the Letters of Testamentary were received from
the Probate Court by the attorney in March of 2020[,] after
being processed. Simultaneously, due to the outbreak of
Covid-19, an Administrative Order was entered by the
Presiding Circuit Judge for the 16th Judicial Circuit of the
State of Alabama on March 13, 2020, and an amended Order
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on March 16, 2020. An Order of April 3, 2020[,] was issued as
a result of said Administrative Order suspending the Civil
Non-Jury Docket of April 13, 2020[,] that the case was set on
….
"5. That court conflicts by the attorney for [Brim]
resulted in continuances and due to a major health crisis of a
brain bleed experienced by Jack Floyd in May of 2021, an
entry of appearance was filed by John Floyd on June 21, 2021.
"6. That John Floyd assisted in taking care of his father
and law partner, Jack Floyd[,] after he had to undergo two
surgeries to repair a brain bleed and remove a blood clot in
June of 2021.
"7. That Jack Floyd, [John Floyd's] father and law
partner[,] contracted Covid-19 in August of 2021 and passed
away on August 24, 2021.
"8. That due to the disruption resulting from the
outbreak of Covid-19 and [Jack Floyd's] subsequently
experiencing a major brain bleed that resulted in
deteriorating health before his death from Covid-19, the
failure to file the Motion for Substitution was made in error.
"WHEREFORE, premises considered [Hamilton] prays
that your Honor will find that the failure to file a Motion for
Substitution was made in error and that premises stated show
that said error was made in excusable neglect."
On that same day, the trial court entered an order denying the motion to
reconsider.
On June 28, 2022, the trial court entered a final judgment in the
case. The trial court held that the defendants had failed to timely make
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all payments pursuant to the promissory note and the mortgage; that the
defendants were in default; that the amount owed on the note was
$26,125.50; and that Hamilton could proceed with foreclosure
proceedings. This appeal followed.
Discussion
The defendants argue that the trial court erroneously denied their
motion to reconsider the order substituting Hamilton as the plaintiff and
to dismiss the action pursuant to Rule 25(a)(1), Ala. R. Civ. P., because
the motion for substitution was not filed until nearly 31 months after the
filing of the suggestion of death.
Rule 25(a)(1) provides:
"If a party dies and the claim is not thereby extinguished, the
court may order substitution of the proper parties. The
motion for substitution may be made by any party or by the
successors or representatives of the deceased party and,
together with the notice of hearing, shall be served on the
parties as provided in Rule 5[, Ala. R. Civ. P.,] and upon
persons not parties in the manner provided in Rule 4[, Ala. R.
Civ. P.,] for the service of a summons, and may be served in
any county. Unless the motion for substitution is made not
later than six months after the death is suggested upon the
record by service of a statement of the fact of the death as
provided herein for the service of the motion, the action shall
in the absence of a showing of excusable neglect be dismissed
as to the deceased party."
(Emphasis added.) Rule 6(b), Ala. R. Civ. P., provides, in pertinent part:
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"When by these rules or by a notice given thereunder or by
order of court an act is required or allowed to be done at or
within a specified time, the court for cause shown may at any
time in its discretion … (2) upon motion made after the
expiration of the specified period permit the act to be done
where the failure to act was the result of excusable neglect;
but it may not extend the time for taking any action under
Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b), [Ala. R. Civ.
P.,] except to the extent and under the conditions stated in
them."
In Hayes v. Brookwood Hospital, 572 So. 2d 1251, 1254 (Ala. 1990),
this Court held that "the six-month provision of Rule 25(a)(1)[, Ala. R.
Civ. P.,] is subject to the general language of Rule 6(b)[, Ala. R. Civ. P.,]
allowing the extension of a specified time period upon a determination of
excusable neglect." This Court went on to state:
"This holding requires the trial court to exercise
discretion in determining, pursuant to Rule 6(b), whether
there was excusable neglect warranting an extension of the
time period in Rule 25(a)(1). The determination of excusable
neglect will rest on the facts of each case. For example, in
Wagner v. Frazier, 712 S.W.2d 109 (Tenn. App. 1986), the
plaintiff died while awaiting a decision from the trial court on
a question of damages. One of the defendants filed a
suggestion of death, but no other action was taken within the
90-day substitution period. The defendants moved for
dismissal under Tennessee Rule of Civil Procedure 25.01, a
rule similar to Alabama's except for the time period. The
deceased plaintiff's administratrix filed a motion seeking
substitution 8 days after the 90-day period had expired; she
asserted that letters testamentary had been issued, and she
sought an extension of time beyond the 90-day period set in
Rule 25.01. The defendants argued that the rule was
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mandatory and that there was no showing or reason for the
extension.
"The trial court in Wagner, however, allowed the late
substitution, finding '(1) [that] the time lapse was not an
unreasonable one, and (2) [that] the case had been heard in
its entirety, and (3) [holding] [that] as a matter within the
court's discretion only "dire" circumstances would compel
dismissal.' 712 S.W.2d at 113. The appellate court stated:
" 'As is generally true, the kind of excuse that will
satisfy this [excusable neglect] requirement is a
function of the length of time that has passed and
the possible harm to the opposite party. In this
case where the suit had been fully tried and the
parties were awaiting a decision from the court
and the motion was made eight days after the
ninety day period had run, we think the mere
oversight of the plaintiff is excusable.'
"Id. See also Garcia v. Title Ins. Co. of Minn., 712 P.2d 1114(Colo. App. 1985) (waiting for estate to be opened is not to be
considered excusable neglect where the issue of excusable
neglect was raised only by a passing reference in the plaintiff's
brief opposing the defendant's motion to dismiss); Doherty v.
Straughn, 407 A.2d 207 (Del. 1979) (ignorance of the rule does
not constitute excusable neglect); Markan v. Sawchyn, 36
Ohio App. 3d 136, 521 N.E.2d 824 (1987) (excusable neglect
existed where administrator of estate, appointed 99 days after
suggestion of death, filed a motion for substitution 2 days
after appointment); Miller v. Ladd, 140 Vt. 293, 437 A.2d 1105(1981) (excusable neglect requires some reasonable basis for
noncompliance within the stated period)."
Hayes, 572 So. 2d at 1254.
"Rule 6(b) gives the court a very broad discretion to
enlarge time periods, but such enlargement is to be only for
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cause shown. ... If … the application for extra time comes
after the period has run, notice of the motion must be given to
the other parties, and the only cause for which extra time can
be allowed is 'excusable neglect.' As to the meaning of
'excusable neglect,' see 4 Wright & Miller, Federal Practice
and Procedure, Civil, § 1165 (1969)."
Committee Comments on 1973 Adoption of Rule 6, Ala. R. Civ. P.
According to the most recent edition of Federal Practice and Procedure,
"[e]xcusable neglect seems to require a demonstration of good faith on the
part of the party seeking an extension of time and some reasonable basis
for noncompliance within the time specified in the rules." 4B Charles
Alan Wright et al., Federal Practice and Procedure § 1165, at 644 (4th
ed. 2015).
In this case, former counsel filed the suggestion of death on May 8,
2019. The motion for substitution includes an assertion that Hamilton
was appointed as the personal representative of Brim's estate on
February 26, 2020. However, the motion for substitution was not filed
until December 3, 2021. Hamilton did not file a motion for enlargement
of time pursuant to Rule 6(b), Ala. R. Civ. P., or assert that the delay in
filing the motion for substitution was the result of excusable neglect.
Rather, he first addressed the issue of excusable neglect in his response
to the motion to reconsider.
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In that response, Hamilton asserted that, after Brim's death, he
had contacted former counsel about probating Brim's will; that Brim "had
numerous children/heirs-at-law that resulted in extensive time spent
attempting to locate and provide service on the said heirs-at-law"; that,
as a result of the delays, letters testamentary were not issued until
February 26, 2020; and that "the Letters of Testamentary were received
from the Probate Court by the attorney in March of 2020 after being
processed." Hamilton also attached to the response a copy of a motion to
continue that former counsel had filed in the trial court on January 29,
2020, in which it was asserted that the probate court had set a date of
February 26, 2020, to appoint a personal representative of the estate.
Additionally, Hamilton asserted that former counsel had experienced a
brain bleed in May 2021; that, in June 2021, former counsel underwent
two surgeries to repair the brain bleed and to remove a blood clot; that,
in August 2021, former counsel contracted COVID-19; and that former
counsel died on August 24, 2021. Hamilton also asserted that current
counsel was former counsel's son and law partner; that current counsel
filed a notice of appearance on June 21, 2021; and that current counsel
had assisted in taking care of his father after his June 2021 surgeries.
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Assuming, without deciding, that Hamilton set forth facts from which the
trial court could have concluded that any delay between the filing of the
suggestion of death and the appointment of the personal representative
of Brim's estate and any delay that occurred after former counsel
experienced the brain bleed were the result of excusable neglect,
Hamilton has not set forth sufficient facts to support the conclusion that
the approximately 15-month delay between the time Hamilton was
appointed personal representative of Brim's estate and when former
counsel experienced the brain bleed was the result of excusable neglect.
The only reasons Hamilton provided for the delay during that 15-
month period were "the disruption resulting from the outbreak of Covid-
19"; the trial court's April 3, 2020, order suspending the civil nonjury
docket that was scheduled for April 13, 2020; and the fact that "court
conflicts by the attorney for the Plaintiff resulted in continuances."
Although the trial court suspended the April 13, 2020, civil nonjury
docket, the case-action-summary sheet includes notations that the trial
court entered orders setting the matter for a bench trial and continuing
the matter on several different occasions between April 2020 and May
2021 and that the notices of those settings and continuances were sent to
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former counsel. Additionally, Hamilton has not explained why any of
former counsel's "court conflicts" that resulted in continuances would
justify or excuse his failure to file the motion for substitution during the
15-month period. Finally, Hamilton's response did not include any
factual assertions or explanation as to why the disruptions caused by
COVID-19 would justify the lengthy delay at issue here. Without more,
the general allegations included in Hamilton's response did not explain
why the failure to file a motion for substitution during the 15-month
period was actually the result of excusable neglect. Compare Cobb v.
Fisher, 20 So. 3d 1253 (Ala. 2009)(holding that the circumstances did not
warrant a finding of excusable neglect). Accordingly, the trial court
exceeded its discretion when it denied the defendants' motion to
reconsider and to dismiss the action.
Conclusion
Based on the foregoing, the trial court exceeded its discretion when
it denied the defendants' motion to reconsider and to dismiss the action
pursuant to Rule 25(a)(1), Ala. R. Civ. P. Accordingly, we reverse the
trial court's judgment and remand this case for the trial court to set aside
its December 3, 2021, order substituting Hamilton as the plaintiff, to set
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aside the judgment it entered on June 28, 2022, and to enter a judgment
dismissing the action pursuant to Rule 25(a)(1), Ala. R. Civ. P.1
REVERSED AND REMANDED.
Parker, C.J., and Shaw, Bryan, Mitchell, and Cook, JJ., concur.
Sellers, J., dissents, with opinion, which Mendheim and Stewart,
JJ., join.
1Based on our disposition of the issue addressed in this opinion, we
pretermit discussion of the remaining issue raised by the defendants.
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SELLERS, Justice (dissenting).
I respectfully dissent from the decision to reverse the trial court's
judgment in favor of Darryl Hamilton, as personal representative of the
estate of Henry Brim, deceased. In my view, the trial court did not exceed
its substantial discretion in allowing the substitution of Hamilton as the
plaintiff in this matter after Brim, the original plaintiff, died.
In June 2017, Brim commenced an action seeking a judgment
declaring that a loan secured by a mortgage on land Brim had sold to
Levern Davis in November 2006 was in default, declaring the
outstanding amount due on the loan, and declaring that Brim could
foreclose on the mortgage. A nonjury trial was held in October 2018, but,
in May 2019, before a final judgment was entered, Brim died. His
counsel, whom the main opinion refers to as "former counsel," filed a
suggestion of death approximately one week later. In December 2021,
Darryl Hamilton, as the personal representative of Brim's estate, filed a
motion requesting that he be substituted as the plaintiff in this action.
After Brim died, Hamilton retained former counsel to assist in
having Hamilton designated as personal representative of Brim's estate
and in probating Brim's will. Although Brim died in May 2019, because
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of delays associated with locating Brim's heirs, Hamilton was not
appointed personal representative of Brim's estate until February 2020.
Former counsel received notice of the appointment of Hamilton as
personal representative in March 2020.
By that point, the COVID-19 pandemic had started to cause delays
in court systems across the country. And, because of scheduling conflicts
and health problems, former counsel received multiple continuances in
this action. Eventually, former counsel experienced a brain bleed in May
2021, which required two surgeries in June 2021. That same month,
former counsel's son and law partner, whom the main opinion refers to
as "current counsel," entered an appearance on behalf of "the plaintiff."
Former counsel died unexpectedly in August 2021. On December 3, 2021,
current counsel moved to substitute Hamilton as the plaintiff in this
action.2
Although Rule 25(a)(1), Ala. R. Civ. P., generally requires a motion
for substitution after the death of a party to be filed not later than six
2It does not appear that the defendants below, either in the trial
court or in this Court, have disputed the above-stated facts that Hamilton
has alleged in attempting to excuse his delay in seeking to have himself
substituted as the plaintiff in this action.
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months after the death is suggested on the record, an action should not
be dismissed for failure to meet that deadline if there is a showing of
excusable neglect for the delay. And, as the main opinion notes, Rule
6(b), Ala. R. Civ. P., gives trial courts broad discretion in determining
whether there has been excusable neglect. See Gilland v. Schuman, 582
So. 2d 1096, 1097 (Ala. 1991) (noting that trial courts have discretion in
determining whether there has been excusable neglect and that
resolution of that issue depends on the specific facts of each case);
Committee Comments to 1973 Adoption of Rule 6, Ala. R. Civ P. ("Rule
6(b) gives the court a very broad discretion to enlarge time periods ….").
As the main opinion notes, a leading treatise discussing the
analogous Federal Rule of Civil Procedure states that "[e]xcusable
neglect seems to require a demonstration of good faith on the part of the
party seeking an extension of time and some reasonable basis for
noncompliance within the time specified in the rules." 4B Charles Alan
Wright et al., Federal Practice and Procedure § 1165, at 644 (4th ed.
2015). In the present case, the parties had already tried this action when
Hamilton sought to be substituted as the plaintiff. The only remaining
step was the entry of a final judgment. The delay in substituting
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Hamilton resulted from difficulties in locating the heirs of Brim's estate,
the COVID-19 pandemic, and the health problems and unexpected death
of former counsel, who was current counsel's father.
In Edwards v. Allied Home Mortgage Capital Corp., 962 So. 2d 194,
213 (Ala. 2007), this Court described when a trial court exceeds its
discretion as follows:
"A court exceeds its discretion when its ruling is based on an
erroneous conclusion of law or when it has acted arbitrarily
without employing conscientious judgment, has exceeded the
bounds of reason in view of all circumstances, or has so far
ignored recognized principles of law or practice as to cause
substantial injustice."
Viewed together, the facts in this particular case are sufficient to justify
the conclusion that excusable neglect existed and to justify the trial
court's exercising its discretion to allow the substitution of Hamilton as
the plaintiff, albeit more than two and one-half years after Brim's death.
I simply cannot conclude that the trial court "acted arbitrarily without
employing conscientious judgment," "exceeded the bounds of reason in
view of all circumstances," or "so far ignored recognized principles of law
or practice as to cause substantial injustice." Id. Accordingly, I
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respectfully dissent from the Court's decision to reverse the trial court's
judgment.3
Mendheim and Stewart, JJ., concur.
3Ialso am not persuaded by the alternative argument for reversal,
namely, that the evidence does not support the trial court's ruling
regarding the unpaid balance on the loan secured by the mortgage.
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