Opinion
1900508.
June 28, 1991.
Appeal from the Jefferson Circuit Court, No. CV-88-6173, Ingram Beasley, J.
John P. Carlton of Carlton, Vann Stichweh, Birmingham, for appellant.
Edgar M. Elliott IV of Rives Peterson, Birmingham, for appellee.
This is an appeal from a summary judgment against the plaintiff based upon the failure of the plaintiff's attorney to timely substitute the personal representative of a deceased defendant in an automobile accident case. We reverse and remand.
Although the trial court entered what it called a "summary judgment" for Sherry Garner, we understand that order to be a dismissal. See Rule 25(a)(1), A.R.Civ.P.
The plaintiff, Kevin Moore, filed a complaint in Jefferson County, Alabama, on October 3, 1988, against Sherry Garner and her husband Wayne Garner, in which he alleged that he had sustained personal injuries, medical expenses, and other damage or loss as a result of Mrs. Garner's alleged negligence in operating an automobile owned by her husband. The complaint also alleged that Mr. Garner had negligently entrusted the automobile to his wife and that she was operating the automobile as his agent.
Sherry Garner died on October 17, 1988. On April 17, 1989, the Garners' attorney filed a "suggestion of death" in the circuit court, stating that Wayne Garner had been the duly appointed administrator of her estate on April 17, 1989. Apparently, the plaintiff's attorney received a copy of the suggestion of death on April 18, 1989. The plaintiff's attorney failed to file a motion to substitute Wayne Garner as administrator of the estate of Sherry Garner within six months after the suggestion of death was filed, as required by Rule 25(a)(1), A.R.Civ.P.
The defendants moved for summary judgment, based upon the fact that the plaintiff had failed to timely substitute the proper party for the deceased defendant, Sherry Garner. The trial court entered a summary judgment for the defendants on November 6, 1990. The plaintiff appeals.
On December 14, 1990, this Court decided Hayes v. Brookwood Hospital, 572 So.2d 1251 (Ala. 1990), which overruled Henderson v. Briarcliff Nursing Home, 451 So.2d 282 (Ala. 1984); Brown v. Wheeler, 437 So.2d 521 (Ala. 1983); and Starr v. Doctors Hospital, 426 So.2d 826 (Ala. 1983). In Hayes, we held that the 6-month time limit of Rule 25(a)(1) was not mandatory, but could be enlarged under Rule 6(b) when the delay was the result of "excusable neglect." We stated that the trial court has "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)." 572 So.2d at 1254.
On the authority of Hayes v. Brookwood Hospital, 572 So.2d 1251 (Ala. 1990), we reverse this judgment and remand this case in order for the trial court to determine whether there was excusable neglect in this case.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON, STEAGALL and INGRAM, JJ., dissent.
I respectfully dissent from the opinion of the majority, because I believe that the facts of this case would not support a finding of excusable neglect sufficient to allow the enlargement of the time for filing the motion for substitution. Even though granting an enlargement of time under Rule 6(b)(2), A.R.Civ.P., is within the discretion of the trial court, I feel that such a grant would amount to an abuse of discretion under the facts as presented by the appellant.
The facts as reflected in the record are as follows:
1. October 17, 1988 — Sherry Garner died.
2. April 17, 1989 — Suggestion of death filed in the Circuit Court of Jefferson County.
3. April 18, 1989 — Suggestion of death received in the office of Moore's attorney.
4. October 17, 1989 — Deadline for filing motion to substitute under A.R.Civ.P. 25(a).
5. January 17, 1990 — Moore's attorney, in open court, stated that he had discovered the suggestion of death and "informed the court and counsel for defendants [of] his discomfiture in having failed to file the motion for substitution."
6. May 18, 1990 — Motion for summary judgment filed by the attorney who had represented Sherry Garner.
7. June 6, 1990 — Motion for summary judgment argued. Motion continued for the filing of briefs by the parties.
8. July 10, 1990 — Motion for extension of time under Rule 6(b); motion to substitute; and brief in response to motion for summary judgment filed by Moore.
9. November 6, 1990 — Summary judgment (which the Court understands to be a dismissal) entered in favor of Sherry Garner.
In his motion for extension of time and in his brief to this Court, Moore argues that he is entitled to an enlargement under Rule 6(b)(2), A.R.Civ.P., on the grounds that his failure to comply with the deadline provided in Rule 25 was due to excusable neglect. Moore claims that his attorney was unaware that the suggestion of death had been filed, because of a clerical error in the attorney's office and because the attorney had his arms in casts and was therefore unable to handle papers at the time the suggestion of death was received. Moore's attorney stated that had he but known of the suggestion of death, "a simple motion for substitution would have been filed immediately, although it is our sincere conviction that it is not necessary in this case."
Moore, on appeal, argues that the motion for summary judgment should not have been granted because Wayne Garner, the administrator of Sherry Garner's estate, was already a party to the action. However, this argument fails to recognize the important distinction between the alleged liability of Wayne Garner, individually, based upon his ownership of the automobile, and the alleged liability of Sherry Garner's estate. Wayne Garner, individually, was not the proper party to be sued for the alleged negligence of Sherry Garner. In order for liability to continue against Sherry Garner after her death, the legal entity that represents her — her estate — must be substituted. Moore's argument that Wayne Garner, individually, was already a defendant does not excuse his failure to properly substitute Wayne Garner, as administrator of Sherry Garner's estate, for the deceased Sherry Garner.
Rule 6(b)(2) requires a showing of "excusable neglect" before an enlargement of time may be granted:
"When by these rules or by 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. . . ."
A.R.Civ.P. 6(b)(2) (emphasis added).
"Rule 6(b) gives the court a very broad discretion to enlarge time periods, but such enlargement is to be only for cause shown. . . . If, however, 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)."
Id., committee comments.
According to Wright Miller, "[e]xcusable neglect seems to require a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules." 4A C. Wright and A. Miller, Federal Practice and Procedure § 1165, at 480 (1987).
Moore's attorney argues that the "excusable neglect" was his inability to discover the suggestion of death in time to file a timely motion for substitution. This "excuse," however, does not address the delay between January 17, 1990, the date he admitted he had "discovered" the suggestion of death, and July 10, 1990, the date he filed the motion to substitute and the motion for extension of time. For this span of approximately six months, no excusable neglect is offered.
In his own words, Moore's attorney stated that the filing of a motion to substitute is a simple matter, one that he would have dealt with immediately had he but known that the suggestion of death had been filed. Because he admits that he could have filed the motion to substitute, had he known the suggestion of death had been filed, and because he admitted in open court before the trial judge in January that he had, by that time, discovered the suggestion of death, I believe that the trial court would have been committing reversible error in granting the enlargement of time under Rule 6(b). Therefore, I would affirm the summary judgment.
MADDOX, HOUSTON and STEAGALL, JJ., concur.