Opinion
CIVIL ACTION NO. 98-1142-P-C.
June 5, 2000.
JUDGMENT
In accordance with court's Order entered this date, having overruled plaintiff's objections to the court's Order dated January 26, 2000, it is hereby ORDERED, ADJUDGED, and DECREED that defendant United Way of Southwest Alabama, Inc.'s motion for summary judgment be and is hereby GRANTED and that plaintiff Cleo L. Andrews' action be and is hereby DISMISSED with prejudice. Costs are taxed against plaintiff.
DONE this 5th day of June, 2000.
ORDER
Plaintiff, appearing pro se, is before this court on a Motion To Set Aside Summary Judgment in his action brought under Title I of the Americans With Disabilities Act of 1990, as amended by 42 U.S.C. § 12101, et seq. ("the ADA"), and the Civil Rights Act of 1991 (doc. 62). Since Judgment has not been entered in this action, and plaintiff's Motion was filed within the objection period, the Motion is construed as plaintiff's objection to this court's January 26, 2000 Order granting summary judgment in defendant's favor.
On November 30, 1999, plaintiff with his counsel Marion E. Wynne of Wilkins, Bankester, Biles Wynne, P.A., and defendant's counsel appeared before this court for oral argument on defendant's motion for summary judgment. Following the hearing, the court orally granted defendant's motion. The court advised that a written order would be issued and thereafter, plaintiff would be afforded an additional twenty days beyond the usual ten- day period within which to file objections.
On December 13, 1999, plaintiff's counsel filed a motion to withdraw his representation citing as grounds: "Mr. Andrews has decided not to follow the advice of his attorneys and has a different analysis of the case. . ." (doc. 56).
On January 26, 2000, the court entered its written Order memorializing the summary judgment ruling in favor of defendant/and noted that any objections thereto were due on or before March 1, 2000. Mr. Wynne was ordered to hand deliver a copy of the Order to plaintiff and to advise plaintiff of the period of time within which he had to file any objections, to obtain new counsel, if he so chose, and of the adverse consequences should he fail to do either. On January 28, 2000, Mr. Wynne filed a Notice of Compliance. Mr. Wynne's motion to withdraw was granted on February 2, 2000.
Plaintiff objects contending that throughout this litigation he was "inadequately represented" in that counsel took no depositions, made no requests for the production of documents, and posed no interrogatories on his behalf. Plaintiff contends that his counsel failed to contact any member of the finance committee and that the response to defendant's motion for summary judgment "was filled with inaccuracies and untruths" (doc. 62). Plaintiff also contends that on February 25, 2000, his wife spoke with a committee member who had attended the August 15, 1997 finance committee meeting and who's recollection of that meeting differed from the Findings of Fact as determined by this court. Plaintiff has provided his wife's affidavit and an exhibit in support of his objections. This court finds that plaintiff's objections are due to be overruled.
Mr. Wynne initiated this action on plaintiff's behalf on October 2, 1998, against defendant in the Circuit Court of Baldwin County, Alabama, (CV-98-905, Cleo L. Andrews v. United Way of Southwest Alabama. Inc.). Defendant removed the action to this court on November 12, 1998. Mr. Wynne maintained plaintiff's representation throughout this litigation. The case was set for trial November 30, 1999. The parties had informed the court they were ready for trial. The court had encouraged settlement but, was advised at the last minute, efforts had failed. The court had previously informed counsel that it would hear oral argument and rule on defendant's motion for summary judgment before proceeding to trial.
There was no indication of plaintiffs displeasure with his counsel's performance until November 30, 1999, when plaintiff accompanied his counsel for trial and the hearing on defendant's motion for summary judgment. At that time, it was counsel who advised the court of his intention to withdraw when it became apparent that the court was going to grant defendant's motion for summary judgment. At no previous time did plaintiff express to the court any dissatisfaction with his counsel, nor did he state a desire to end their professional relationship.
In fact, as noted, it was Mr. Wynne who withdrew his representation. Approximately two weeks after the court ruled on defendant's motion for summary, on December 13, 1999, Mr. Wynne filed his motion to withdraw. The motion was not granted until February 2, 2000 ( see footnote number 1).
Plaintiff could have dismissed Mr. Wynne as counsel at any time during this litigation, but did not do so. This court finds that plaintiff's expression of dissatisfaction with counsel's performance, at this late date, comes with the advantage of hindsight in an attempt to project blame for the outcome.
Plaintiff's contention, supported only by hearsay proffer regarding the August 15, 1997 finance committee meeting concerns only one evidentiary aspect of the factual circumstances upon which this court made its determination in defendant's favor. The overwhelming evidence presented in this action established that plaintiff failed to persuade the court to reverse its ruling.
Plaintiff's objections are overruled. Accordingly, after due and proper consideration of plaintiff's objections to this court's Order dated January 26, 2000, granting summary judgment in favor of defendant, it is ORDERED that plaintiff's objections be and are hereby OVERRULED.
DONE this 5TH day of June, 2000.