McConico v. Culliver , 955 So. 2d 447 ( 2006 )

955 So. 2d 447 (2006)

James McCONICO Jr.
v.
Grant CULLIVER et al.
Chalmus Wright
v.
Grant Culliver et al.

2050404 and 2050459.

Court of Civil Appeals of Alabama.

October 6, 2006.

Chalmus Wright, pro se.

Kim T. Thomas, gen. counsel, and Greg Biggs, asst. gen. counsel, Department of Corrections, for appellee.

CRAWLEY, Presiding Judge.

James McConico, Jr., and Chalmus Wright sued Warden Grant Culliver, Lieutenant John Crow, Correctional Officer Jason Shufford, and Correctional Officer Eugene Edwards (hereinafter referred to collectively as "the defendants"), alleging tort claims under state law and claims under 42 U.S.C. § 1983, including allegations that the defendants did not protect them from assault by other inmates, that they were improperly placed in segregation, and that they were not provided meaningful access to the courts while in segregation. The defendants moved for a dismissal or, in the alternative, for a summary judgment; the certificate of service on the motion did not reflect that the defendants served McConico with the motion. The trial court set the motion for a hearing on January 17, 2006. On January 16, 2006, before the hearing, the trial court granted the defendant's motion for a summary judgment. McConico appealed, and Wright filed a timely postjudgment motion. Wright then appealed while his postjudgment motion was still pending before the trial court; both appeals were held in abeyance until the trial court denied Wright's motion. See Rule 4(a)(5), Ala. R.App. P.

On appeal, Wright and McConico argue principally that the trial court erred by failing to allow them to be heard on the motion for a summary judgment by granting that motion before they had filed responses and before conducting the hearing set on the motion. The defendants have filed a stipulation with this court, conceding that the trial court's grant of the motion for a summary judgment before the date set for the hearing without notice to McConico and Wright requires reversal of the judgment. See Van Knight v. Smoker, 778 So. 2d 801, 805 (Ala.2000) (holding that once a trial court has set a date for a summary-judgment hearing, the court must allow the nonmoving party an opportunity to be heard); and Tharp v. Union State Bank, 364 So. 2d 335, 338 (Ala.Civ. App.1978). Accordingly, we reverse the summary judgment entered in favor of the defendants and remand the cause for proceedings consistent with this opinion.

2050404—REVERSED AND REMANDED.

2050459—REVERSED AND REMANDED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.