Bowman v. May
| Decision Date | 26 April 1996 |
| Parties | Anthony King BOWMAN v. Valencia Lenora MAY. 2950517. |
| Court | Alabama Court of Civil Appeals |
Earl C. Bloom, Jr., Birmingham, for appellant.
Michael K. Beard of Starnes & Atchison, Birmingham, for appellee.
Anthony King Bowman sued Valencia Lenora May on June 27, 1991, requesting damages for injuries he said he had received in a July 4, 1989, automobile accident. On September 28, 1995, after Bowman had failed to prosecute the case and after attempts by the defendant and the court to have Bowman comply with discovery or to make himself available for discovery had failed, the trial court dismissed the action with prejudice. Bowman appealed to the Alabama Supreme Court, which deflected the case to this court pursuant to § 12-2-7(6), Ala.Code 1975.
Bowman contends that the trial court erred in dismissing his action while he was serving in the United States Navy, stationed in Okinawa, Japan. Specifically, Bowman argues, under the Soldiers' and Sailors' Civil Relief Act (SSCRA), 50 U.S.C.App. § 521, et seq. (1990), the trial court could not properly dismiss his action because he was serving in the Navy and was stationed overseas.
The SSCRA provides a means for a plaintiff or defendant serving in the military to seek a stay at any stage of that party's civil proceeding. 50 U.S.C.App. § 521. Whether to grant such a stay is within the discretion of the trial court. Boone v. Lightner, 319 U.S. 561, 63 S.Ct. 1223, 87 L.Ed. 1587 (1943); Riley v. State ex rel. White, 563 So.2d 1039 (Ala.Civ.App.1990). That discretion is to be "exercised cautiously, with the object in mind of giving effect to the obvious purpose of the act, which is to protect the civil rights of a person who, on account of his service in the armed forces, cannot be present at a trial or proceeding." Palo v. Palo, 299 N.W.2d 577, 579 (S.D.1980) (quoting State ex rel Stenstrom v. Wilson, 234 Minn. 570, 48 N.W.2d 513, 514-15 (1951)). The trial court's ruling granting or denying a stay will not be disturbed on appeal absent an abuse of discretion. Riley, 563 So.2d 1039.
The Alabama Supreme Court set forth the general rule regarding the application of the SSCRA in Brown Service Insurance Co. v. King, 247 Ala. 311, 24 So.2d 219 (1945):
Several jurisdictions have held that to invoke the protection of the SSCRA, the movant must make a showing of his actual unavailability and that his rights would be adversely affected because of his absence from the trial. Tabor v. Miller, 389 F.2d 645 (3d Cir.1968), cert. denied, 391 U.S. 915, 88 S.Ct. 1810, 20 L.Ed.2d 654 (1968); Hackman v. Postel, 675 F.Supp. 1132 (N.D.Ill.1988); Underhill v. Barnes, 161 Ga.App. 776, 288 S.E.2d 905 (Ga.1982); Palo v. Palo, 299 N.W.2d 577 (S.D.1980); Norris v. Superior Court of Mohave County, 14 Ariz.App. 183, 481 P.2d 553, 555 (1971). Those courts have held that "mere contentions of unavailability, without affirmative representations that leave to attend the trial was sought by the serviceman and refused, are insufficient to warrant the imposition of [relief under the SSCRA]." Hackman, 675 F.Supp. at 1134.
The record shows that in August 1992, Bowman's counsel advised the defendant's attorney that Bowman would be in Japan for about a year. In May 1993, Bowman's attorney said that Bowman would be returning stateside in June or August of 1994. In January 1995, the defendant's counsel noticed the deposition of Bowman for February 16, 1995, but was told that Bowman would not be appearing. According to the case action summary sheet, on May 5, 1995, the trial court entered an order stating that if Bowman did not make himself available for deposition within 90 days, the action would be dismissed on motion of the defendant. On August 4, 1995, the defendant's counsel was advised that Bowman would not be available for a...
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