Gary Womble and Sheila Womble v. Collie Moore III ( 2023 )

Rel: May 19, 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
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
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_________________________
Gary Womble and Sheila Womble
v.
Collie Moore III
Appeal from Jefferson Circuit Court
(CV-20-900884)
STEWART, Justice.
Gary Womble and Sheila Womble, a married couple, appeal from
an order of the Jefferson Circuit Court ("the trial court") denying their
motion filed pursuant to Rule 60(b)(1), Ala. R. Civ. P., seeking to set aside
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a judgment that dismissed, with prejudice, their action against Collie
Moore III. The Wombles have not demonstrated that the trial court
exceeded its discretion in denying their Rule 60(b)(1) motion; therefore,
we affirm the trial court's order denying their motion.
Facts and Procedural History
On March 3, 2020, the Wombles sued Moore alleging claims of
negligence, wantonness, and loss of consortium in connection with an
automobile accident that had occurred March 28, 2018, in which Moore's
automobile collided with the rear of the Wombles' automobile. The
Wombles attached to their complaint interrogatories and requests for
production of documents.
Moore was personally served by a private investigator in July 2020
with the complaint, the interrogatories, and the requests for production.
Moore filed an answer and asserted various affirmative defenses, and he
responded to the Wombles' discovery requests. Likewise, Moore served
the Wombles with interrogatories and requests for production. On
August 13, 2020, the trial court entered an order setting a teleconference
for August 24, 2020.
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On August 26, 2020, the trial court entered a scheduling order
setting a jury trial for September 13, 2021, with a pretrial conference
scheduled for the Friday preceding the trial. In that order, the trial court
also stated:
"The case shall be DISPOSED of on or before the trial date,
unless the Court grants a properly and timely filed Motion for
Continuance. Such a Motion shall be granted only for good
cause shown. The parties are advised that the following or
other such reasons will NOT be considered 'good cause': 'that
mediation failed'; 'that the trial setting is a first setting'; 'that
the parties have agreed to a continuance'; and/or 'that
discovery has not been completed.' "
(Capitalization in original.) The trial court also entered a separate order
requiring the parties to mediate the case.
On November 30, 2020, the Wombles' attorney filed a notice of
attorney's lien and a motion to withdraw. The trial court granted the
motion to withdraw and directed the clerk to forward all notices to the
Wombles at their home address.
On January 25, 2021, Moore filed a motion requesting a status
conference in which he alleged that the Wombles had not responded to
discovery requests or communicated with Moore since their attorney had
withdrawn. A status conference was scheduled to be held by
teleconference on February 16, 2021; however, that conference was
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canceled due to inclement weather. On March 30, 2021, Moore filed
another request for a status conference. The trial court set a
teleconference for April 29, 2021. It is not clear from the record whether
that teleconference occurred. The trial court also later held a
teleconference on June 24, 2021. There is no dispute that the Wombles
participated in all teleconferences that were held. On August 23, 2021,
Moore's attorney filed a conflict notice for the jury week of September 13,
2021, but he stated that he would be prepared for trial and proceed at the
direction of the trial court.
On September 13, 2021, the scheduled trial date, the trial court
entered a judgment dismissing the action, with prejudice, based on the
Wombles' failure to prosecute the action. In the judgment, the trial court
stated that the Wombles had failed to appear on the trial date and that
Moore had orally moved to dismiss the action.
On October 12, 2021, the Wombles, through a new attorney, filed a
motion to set aside the judgment. The Wombles relied on Rule 60(b)(1),
Ala. R. Civ. P., and cited excusable neglect as the basis for their motion.
The Wombles attached to their motion an affidavit of Gary Womble in
which he testified, in part:
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"2. I have always intended to pursue the present lawsuit to its
conclusion. Toward that end I have participated in
teleconferences with the Judge and opposing counsel.
"3. Had I known my presence was required at the September
13, 2021 court setting I would have been in Court. The
confusion stemmed from a prior understanding or
misunderstanding that the case would be continued if we
needed additional time.
"4. This past summer my wife, Plaintiff Sheila Womble, and I
traveled to the Birmingham area to have lunch with the
Defendant's attorney, John Lawes, to discuss the case. At
that lunch the Defendant's attorney stated to us that he had
lost contact with his client, the Defendant, and could not
locate him. We expressed with certainty our desire to resolve
the case. Mr. Lawes requested we provide him medical
documentation and he would make an effort to negotiate with
us. It was then said by the Defendant's attorney that he did
not feel comfortable going to Court with us unrepresented.
"5. Right after that my wife and I began assembling our
records and notebooks in order to hire an attorney. I began to
research various attorneys.
"6. Two to three weeks ago we met and engaged our current
attorney and that is how we discovered the September 13,
2021 court date and dismissal."
Moore filed a response in opposition to the Rule 60(b)(1) motion in
which he made numerous factual statements and asserted, among other
things, that the Wombles had failed to respond to discovery requests or
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otherwise prepare the case for trial. 1 The trial court set a videoconference
hearing for November 10, 2021, and, subsequently, a second
videoconference hearing for December 9, 2021. There is no transcript
from either of those hearings in the record.
On January 12, 2022, the Wombles filed a notice of appeal to this
Court. On August 12, 2022, this Court issued an opinion dismissing the
appeal as being from a nonfinal judgment because the trial court had not
yet ruled on the Rule 60(b)(1) motion and dismissing the appeal insofar
as it challenged the judgment dismissing their action because the appeal
had not been filed within 42 days of the entry of that judgment. Womble
v. Moore, [Ms. 1210222, Aug. 12, 2022] ___ So. 3d ___ (Ala. 2022).
On October 18, 2022, the Wombles filed a motion in the trial court
seeking to ascertain the status of their Rule 60(b)(1) motion. Moore filed
a supplemental response in opposition to the Rule 60(b)(1) motion. On
October 27, 2022, the trial court entered an order denying the Rule
60(b)(1) motion "[p]ursuant to the August 12, 2022 opinion of the
1We acknowledge that " [m]otions, statements in motions, and
arguments of counsel are not evidence. Westwind Techs., Inc. v. Jones,
925 So. 2d 166, 171 (Ala. 2005)." Ex parte Merrill, 264 So. 3d 855, 860 n.4
(Ala. 2018).
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Supreme Court of Alabama and upon due consideration of [the Rule
60(b)(1) motion]." On November 28, 2022, the Wombles timely filed a
notice of appeal from that order.
Standard of Review
"An appeal from the denial of a Rule 60(b) motion does not bring up
for review the correctness of the judgment which the movant seeks to set
aside, but is limited to deciding" whether the trial court exceeded its
discretion in denying the motion. Menefee v. Veal, 484 So. 2d 437, 438
(Ala. 1986) (citing Raine v. First Western Bank, 362 So. 2d 846 (Ala.
1978)).
"It is well established that the decision to grant or to
deny relief pursuant to a Rule 60(b) motion is discretionary
with the trial court. In reviewing the trial court's ruling on
such a motion, we cannot disturb the trial court's decision
unless the trial court [exceeded] that discretion in denying the
motion."
DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1089 (Ala. 1990) (citations
omitted). Furthermore, "[i]n order for a movant to obtain relief under
Rule 60(b)(1), he or she must allege and prove one of the grounds set out
therein." Menefee, 484 So. 2d at 438.
Discussion
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The Wombles primarily argue that their Rule 60(b)(1) motion was
due to be granted based on the presumption that cases should be disposed
of on the merits and on the premise that dismissal is a drastic sanction
that should be reserved for extreme circumstances when the plaintiff has
engaged in willful conduct. They assert that, to sustain the dismissal of
their action, their conduct must have been "willful or contumacious." See
Gill v. Cobern, 36 So. 3d 31, 33-34 (Ala. 2009). In addition to Gill, the
Wombles rely on Goodley v. Standard Furniture Manufacturing Co., 716
So. 2d 226 (Ala. Civ. App. 1998), Poore v. Poore, 285 So. 3d 852 (Ala. Civ.
App. 2019), and Ash v. Washington, 349 So. 3d 1284 (Ala. Civ. App. 2021),
in asserting that there is no evidence of willful or contumacious conduct
to support the dismissal of their action. Those cases, however, are
inapposite. The Wombles did not appeal from the judgment dismissing
their action. Rather, they have appealed from the trial court's order
denying their Rule 60(b)(1) motion. Therefore, the propriety of the trial
court's dismissal judgment is not before us for review. This Court is
tasked with determining only whether the Wombles presented sufficient
grounds under Rule 60(b)(1) and, as a result, whether the trial court
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exceeded its discretion in denying the Wombles' motion. See Menefee, 484
So. 2d at 438.
Rule 60(b)(1) permits a trial court to "relieve a party or a party's
legal representative from a final judgment, order, or proceeding for …
mistake, inadvertence, surprise, or excusable neglect." "Excusable
neglect" has been defined as:
"A failure -- which the law will excuse -- to take some proper
step at the proper time … not because of the party's own
carelessness, inattention, or willful disregard of the court's
process, but because of some unexpected or unavoidable
hindrance or accident or because of reliance on the care and
vigilance of the party's counsel or on a promise made by the
adverse party."
Black's Law Dictionary 1244 (11th ed. 2019). Similarly, this Court has
described "excusable neglect" as follows:
" 'If a judgment be entered against a party in his
absence, before he can be relieved of the judgment he must
show that it was the result of a mistake or inadvertence which
reasonable care could not have avoided, a surprise which
reasonable precaution could not have prevented, or a
negligence which reasonable prudence could not have
anticipated.' "
DaLee, 561 So. 2d at 1091 (quoting McDavid v. United Mercantile
Agencies, Inc., 248 Ala 297, 301, 27 So. 2d 499, 503 (1946)).
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Here, the Wombles assert that they were, in fact, pursuing their
case -- they had participated in all teleconferences, and they had stayed
in communication with Moore's attorney. As stated in Gary Womble's
affidavit, the Wombles further contend that their failure to attend the
trial was based on a "misunderstanding that the case would be continued
if [they] needed additional time." Therefore, the Wombles argue, their
failure to appear at the trial was inadvertent and, therefore, the
judgment should be set aside on the basis of excusable neglect.
Moore contends that this case is akin to Penn v. Irby, 496 So. 2d
751 (Ala. 1986), a case in which this Court affirmed a trial court's order
denying a plaintiff's Rule 60(b)(1) motion seeking relief from a judgment
of dismissal for lack of prosecution. The pro se plaintiff in Penn failed to
attend numerous trial settings, and although the plaintiff denied
knowledge of the last trial setting, the record indicated that he had been
given notice of that setting multiple times. This Court concluded that the
record did not establish that the trial court had exceeded its discretion in
denying the Rule 60(b)(1) motion. Id. at 752.
Moore also notes that "the fact that a party was acting pro se
typically does not qualify as the kind of 'mistake, inadvertence, … or
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excusable neglect' countenanced by [Rule 60(b)(1)]," Ex parte Branson
Mach., LLC, 78 So. 3d 950, 955 (Ala. 2011), and that a party acting pro
se is charged with the duty of taking the appropriate legal steps to protect
that party's interests and cannot rely on the lack of counsel as a valid
ground under Rule 60(b)(1) to set aside a judgment. Id. (quoting Ex parte
Spriggs Enters., 879 So. 2d 587, 591-92 (Ala. Civ. App. 2003)).
Here, based on the record before us, we cannot say that the trial
court erred in concluding that the Wombles' failure to appear for trial
was not " 'the result of a mistake or inadvertence which reasonable care
could not have avoided, a surprise which reasonable precaution could not
have prevented, or a negligence which reasonable prudence could not
have anticipated.' " DaLee, 561 So. 2d at 1091. The Wombles were
indisputably aware of the trial setting. The Wombles' sole excuse for
their failure to appear at trial was that they were under a
"misunderstanding that the case would be continued if [they] needed
additional time." The Wombles do not identify on what information their
misunderstanding was based, nor do they assert that they communicated
a need for additional time. Moreover, the Wombles had been warned by
the trial court that no continuance would be granted absent a motion
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establishing "good cause," which the Wombles did not file. Moreover, the
Wombles' claim that they had intended to prosecute the matter was
belied by their failure to respond to discovery, to disclose potential
witnesses, to retain new counsel before the trial setting, or to otherwise
prepare their case for trial. Accordingly, based on the limited evidence
presented to the trial court in support of the Wombles' Rule 60(b)(1)
motion, the Wombles have not demonstrated that the trial court exceeded
its discretion in denying that motion.
AFFIRMED.
Parker, C.J., and Wise, Sellers, and Cook, JJ., concur.
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