Summary
holding that party's failure to appear at trial due to lack of notice did not warrant dismissal of action when party's other actions indicated intent to prosecute action
Summary of this case from Johnson v. PirtleOpinion
2180088
03-08-2019
Kenneth W. POORE v. Molly B. POORE
Lana K. Hawkins of The Hawkins Law Firm, Guntersville. Submitted on appellant's brief only.
Lana K. Hawkins of The Hawkins Law Firm, Guntersville.
Submitted on appellant's brief only.
MOORE, Judge.
Kenneth W. Poore ("the father") appeals from a judgment entered by the Madison Circuit Court ("the trial court") dismissing his action seeking to terminate his child-support obligation to Molly B. Poore ("the mother"). We reverse the trial court's judgment.
Procedural History
On March 30, 2009, the parties were divorced by a judgment entered by the trial court in case no. DR-08-106. That judgment ordered the father to pay child support to the mother in the amount of $1,850 per month "until the [parties'] youngest child [reaches] the age of majority according to the State of Alabama...." The father's monthly child-support obligation was ordered to be paid through an income-withholding order.
On September 8, 2017, the father filed an "Affidavit for Termination of Withholding Order for Support" alleging, among other things, that all the children subject to the income-withholding order have or would reach the age of majority as of September 10, 2017, and that no arrearage was owed on the support order.
On September 25, 2017, the mother filed in case no. DR-08-106 a motion requesting a hearing and alleging that the father had not paid the child support as ordered in the divorce judgment.
Section 30-3-62(i), Ala. Code 1975, provides, in pertinent part:
"A withholding order issued under this section or Section 30-3-61[, Ala. Code 1975,] shall be terminated without the necessity of a hearing when the obligor files with the clerk of the court that issued the withholding order a sworn affidavit stating that all children subject to the order have reached the age of majority and that no arrearage is owed on the withholding order or a spousal support order or stating other conditions of termination as specified in subsection (h) of this section. Upon filing of the affidavit and the payment of the docket fee prescribed by Section 12-19-75[, Ala. Code 1975,] for the filing of a garnishment proceeding, a copy of the affidavit shall be served by first class mail upon the obligee and upon the [State] [D]epartment when the case is a IV-D case[, in which there is an assignment of support rights to the state]. An order terminating income withholding shall be issued by the court unless the obligee or the department requests a hearing within 20 days of service of the affidavit. If the obligee or the department requests a hearing, the hearing shall be held and a decision rendered within 45 days of the date of service of the affidavit upon the obligee and the department, as appropriate, unless the obligor requests a continuation of the case to a later date or the court, on its own motion and for good cause shown, continues the case to a later date. The termination of the income withholding issued pursuant to this section may be issued without the need for a hearing except as specified in this section...."
--------
On April 9, 2018, the trial court entered a judgment stating:
"This case came on for trial on April 9, 2018 pursuant to the duly published and distributed docket of this Court. [The father] failed to appear. [The mother] appeared. This case is DISMISSED for lack of prosecution."
On April 9, 2018, the father filed a motion asserting:
"1. [The father's] counsel resides in Arab, Alabama, and had an unexpected family emergency to arise prior to leaving for Court for the hearing set in this case.
"2. Counsel's paralegal left a telephone message with the office of the Judge at approximately 8:40 AM, informing the Judge that counsel would be approximately twenty (20) minutes late for the hearing as a result of the emergency.
"3. Counsel's paralegal attempted to make another phone call in the hope of reaching someone in the Judge's office at approximately 8:57 A.M., but had to leave another message.
"4. Counsel arrived in the courtroom at approximately 9:30 AM while the docket[ ] was being called.
"5. At approximately 9:14 A.M., the Court entered the order of dismissal.
"6. The Judge informed counsel that the messages from her office had not been received and that she would set the case for hearing on Wednesday, April 11, 2018 upon counsel furnishing the Judge with a telephone number for the [mother], which the Court did not have.
"7. The [father] has located the telephone number of the [mother].... Counsel for [the father] has left a message for the [mother] at this telephone number relaying the information obtained from the Judge and informing the [mother] that the hearing would be scheduled for 9:00 AM on Wednesday, April 11, 2018 at the Madison County Courthouse before the Honorable Donna Pate, Circuit Court Judge.
"8. The [father] will also have the [mother] personally served with the [father's] Answer and Motions previously filed, together with this Motion to Set Aside and any subsequent orders entered by this Court.
"9. The [father] respectfully requests this Court to schedule the hearing for Wednesday, April 11, 2018, in that the [father] is paying substantial child support that he is not obligated to pay for an adult child and cannot afford.
"WHEREFORE, the [father] respectfully requests the court to set aside the dismissal referred to herein and to set the hearing for Wednesday, April 11, at 9:00 AM."
On April 10, 2018, the trial court entered an order stating: "The motion to set aside dismissal filed by counsel for [the father] is GRANTED. However, the Court will not be able to schedule trial for April 11, 2018; trial will be reset on the next available docket."
On June 18, 2018, the trial court entered a judgment stating: "This case came on for trial on June 18, 2018. [The father] failed to appear. [The mother] appeared. This case is dismissed for failure of prosecution." On June 18, 2018, the father filed a motion to set aside the dismissal order, asserting:
"1. Neither the undersigned attorney nor the [father] received any notice of a hearing scheduled for June 18, 2018.
"2. After receiving the Order of Dismissal, the undersigned attorney checked AlaCourt and discovered that a hearing had been set, but that no order scheduling a hearing had been issued by the Court.
"3. The [father] has been waiting patiently for an order scheduling a hearing in this matter in view of the fact that he is paying child support for an adult child, and has been for sometime. The [father] has no intention of failing to prosecute this matter.
"4. The [father] is entitled to prior notice of hearings scheduled and respectfully requests the Court to set aside the Order of dismissal and schedule this matter for hearing at the earliest date available.
"5. The [father] has incurred attorney fees in filing this motion.
"WHEREFORE, the [father] respectfully requests the court to set aside the Order of dismissal, to reschedule this hearing and for all other relief deemed appropriate by this Court."
On July 4, 2018, the father filed a renewed motion to set aside that was identical to the June 18, 2018, motion to set aside. The father's motion to set aside was denied by operation of law on September 17, 2018. See Rule 59.1, Ala. R. Civ. P.; and Rule 6, Ala. R. Civ. P. See also Richburg v. Cromwell, 428 So.2d 621, 622 (1983) (noting, like in this case, that the 90th day to rule on the postjudgment motion was a Sunday and, thus, "the motion would have been carried over" until the 91st day). On October 17, 2018, the father filed his notice of appeal.
Discussion
On appeal, the father argues that the trial court erred in dismissing his action based on the father's failure to prosecute.
We first note that the trial court did not state in its June 18, 2018, judgment that it was dismissing the father's case "with prejudice."
"However, this court has previously held that ‘[a] dismissal for want of prosecution is clearly "with prejudice." ’ S.C.G. v. J.G.Y., 794 So.2d 399, 404 (Ala. Civ. App. 2000). ‘ "[T]he failure of the trial court to address the preclusive effect of an order of dismissal for want of prosecution compels a determination that it operates as an adjudication on the merits." ’ S.C.G. v. J.G.Y., 794 So.2d at 404 (quoting Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated 723 (3d ed. 1996) )."
Blake v. Stinson, 5 So.3d 615, 617 (Ala. Civ. App. 2008). We, thus, determine that the trial court's judgment dismissing the father's action for failure to prosecute is a dismissal with prejudice capable of supporting the father's appeal. See Double B Country Store, LLC v. Alabama Dep't of Transp., 171 So.3d 28, 30 n.1 (Ala. Civ. App. 2015) (noting that "an action dismissed without prejudice will not support an appeal ....").
" ‘Rule 41(b), Ala. R. Civ. P., provides, in pertinent part: "For failure of the plaintiff to prosecute or to comply with [the Alabama Rules of Civil Procedure] or any order of [the] court, a defendant may move for dismissal of an action or of any claim against the defendant." It is well settled that the decision whether to enter a Rule 41(b) dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala. 1990) ; Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala. 1987) ; State ex rel. S.M. v. A.H., 832 So.2d 79, 80 (Ala. Civ. App. 2002) ; and Coulter v. Stewart, 726 So.2d 726, 728 (Ala. Civ. App. 1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala. 1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court's dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record.
Nash v. Cosby, 597 So.2d 209, 210 (Ala. 1992) ; Atkins v. Shirley, 561 So.2d at 1077 ; and Riddlesprigger v. Ervin, 519 So.2d at 487.
" ‘ " ‘In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Smith v. Wilcox County Board of Education, 365 So.2d [659] at 661 [ (Ala. 1978) ]. See, e.g., Boazman v. Economics Laboratory, Inc., 537 F.2d 210 (5th Cir. 1976) ; Pond v. Braniff Airways[, Inc. ], 453 F.2d 347 (5th Cir. 1972). Willful default or conduct is a conscious or intentional failure to act. Welsh v. Automatic Poultry Feeder Co., 439 F.2d 95 (8th Cir. 1971). "Willful" is used in contradistinction to accidental or involuntary noncompliance. No wrongful motive or intent is necessary to show willful conduct.’
" ‘ " Selby v. Money, 403 So.2d 218, 220–21 (Ala. 1981) ; see also Burton v. Allen, 628 So.2d 814, 815 (Ala. Civ. App. 1993)."
" ‘ HICA Educ. Loan Corp. v. Fielding, 953 So.2d 1261, 1263 (Ala. Civ. App. 2006).’
" Blake v. Stinson, 5 So.3d 615, 617–18 (Ala. Civ. App. 2008). ‘Because the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a reviewing court.’ Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d 332, 341 (Ala. 1991)."
Cartee v. Community Spirit Bank, 214 So.3d 362, 365-66 (Ala. Civ. App. 2015) ; see also Progressive Ins. Co. v. Brown, 195 So.3d 1007, 1010 (Ala. Civ. App. 2015) (" ‘A trial court has the discretion and inherent power to dismiss claims for various reasons, including failure to prosecute and failure to attend a hearing, but " ‘since dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations.’ " ’ " (quoting Hosey v. Lowery, 911 So.2d 15, 18 (Ala. Civ. App. 2005), quoting in turn other cases) ).
In Progressive, this court reasoned:
"In the present case, Progressive had last filed a document in the trial court within one month of the trial court's dismissal of its claims against Brown. Thus, there had been affirmative action by Progressive such that there was no indication that it did not intend to prosecute its action. See Atkins v. Shirley, 561 So.2d 1075, 1078 (Ala. 1990). Like in both Gill [v. Cobern, 36 So.3d 31 (Ala. 2009),] and Musick[ v. Davis, 80 So.3d 946 (Ala. Civ. App. 2011) ], Progressive alleged in its May 22, 2015, postjudgment motion that its counsel's failure to appear had been the result of a calendaring error and had not been intentional. Also like in Gill, there is no indication in the record that Progressive's counsel had been engaged in willful delay or contumacious conduct. Additionally, there is no indication in the record that Progressive had deliberately delayed the proceedings or that the trial court had warned Progressive that its failure to appear might result in dismissal, see, e.g., Selby v. Money, 403 So.2d 218, 221 (Ala. 1981). Because the circumstances in this case are not so extreme as to warrant the harsh sanction of a dismissal with prejudice, we reverse the trial court's judgment dismissing Progressive's claims against Brown, and we remand the case to the trial court for
reinstatement of the case to the trial court's active docket."
Similarly, in the present case, the record indicates that, just two months before the dismissal of the case, the father had filed a motion indicating his intention to prosecute his action and requesting a hearing. Although the father failed to appear at scheduled trials on two separate occasions, the father alleged that his counsel had been late for the first trial because of a family emergency and that his counsel had not received notice of the second trial setting. Also, "there is no indication in the record that [the father] had deliberately delayed the proceedings or that the trial court had warned [him] that [his] failure to appear might result in dismissal." Progressive, 195 So.3d at 1012. Because, like in Progressive, "the circumstances in this case are not so extreme as to warrant the harsh sanction of a dismissal with prejudice, we reverse the trial court's judgment dismissing [the father's action], and we remand the case to the trial court for reinstatement of the case to the trial court's active docket." Id.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.