Brenda Darlene, Inc. v. Bon Secour Fisheries, Inc.

• Decision Date: 10 August 2012
• Docket Number: 2110687.
• Citation: 101 So.3d 1242
• Parties: BRENDA DARLENE, INC., and Apalachee Girl, Inc. v. BON SECOUR FISHERIES, INC.
• Court: Alabama Court of Civil Appeals

101 So.3d 1242

BRENDA DARLENE, INC., and Apalachee Girl, Inc.
v.
BON SECOUR FISHERIES, INC.

2110687.

Court of Civil Appeals of Alabama.

Aug. 10, 2012.

[101 So.3d 1244]

James G. Curenton, Jr., Fairhope, for appellants.

Mary E. Murchison and James P. Coleman of Murchison & Howard, L.L.C., Foley, for appellee.

THOMAS, Judge.

In August 2008, two shrimp boats, the Brenda Darlene and the Apalachee Girl, returned from a shrimping trip to Texas. As was typical of both boats, they docked and sold their catch to Bon Secour Fisheries, Inc. (“BSF”), a seafood packing company. Two years later, in August 2010, Brenda Darlene, Inc., and Apalachee Girl, Inc. (“the shrimp-boat companies”), sued BSF, alleging breach of contract, fraudulent misrepresentation, fraudulent suppression, unjust enrichment, and conversion. The shrimp-boat companies alleged in their complaint that BSF, through its president and agent John A. Nelson, had

[101 So.3d 1245]

entered into an oral agreement to purchase the shrimp boats' catch for a greater price than it actually paid to the shrimp-boat companies; that BSF, through John, had fraudulently misrepresented the price BSF intended to pay for the shrimp boats' catch; that BSF suppressed certain information during the negotiation of the purchase of the shrimp boats' catch; that BSF had been unjustly enriched by the purchase of the catch at a lower price than promised; and that BSF had converted the shrimp boats' catch.

BSF answered the complaint, and this action was consolidated with a similar action involving BSF and another shrimp boat, the Erica Lynn. BSF moved for a summary judgment in its favor against the shrimp-boat companies. In its motion, BSF argued that the shrimp-boat companies had based their claims on an oral contract that was void under Ala.Code 1975, § 7–2–201, the Statute of Frauds contained in the Uniform Commercial Code; that it had not fraudulently misrepresented or suppressed any material facts; that it was not unjustly enriched by its purchase of the shrimp boats' catch at a lower price; and that it had not converted the shrimp boats' catch. In its motion for a summary judgment, BSF included a request for attorney fees pursuant to the Alabama Litigation Accountability Act (“the ALAA”), codified at Ala.Code 1975, § 12–19–270 et seq., arguing that the shrimp-boat companies' claims were brought without substantial justification and were frivolous.

The trial court set BSF's motion for a summary judgment for a hearing to be held on Tuesday, February 14, 2012, at 9:00 a.m. The shrimp-boat companies filed a response in opposition to BSF's summary-judgment motion on Friday, February 10, 2012. BSF moved to strike the shrimp-boat companies' response in opposition because, BSF contended, it had been filed less than two days before the hearing. The trial court granted BSF's motion and struck the shrimp-boat companies' response.

The trial court also entered a summary judgment in favor of BSF and granted its motion seeking attorney fees under the ALAA. The judgment does not state the trial court's reasoning for the entry of the summary judgment or for the award of attorney fees pursuant to the ALAA. At the request of the parties, because the consolidated case remained pending, the trial court certified the summary judgment as final, pursuant to Rule 54(b), Ala. R. Civ. P. The shrimp-boat companies timely appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12–2–7(6).

The shrimp-boat companies first argue that the trial court erred when it struck their response as being untimely filed. Rule 56(c)(2), Ala. R. Civ. P., requires that a statement or affidavit filed in opposition to a motion for a summary judgment be served two days before the date of the summary-judgment hearing. The shrimp-boat companies argue that the filing of their response on Friday, February 10, 2012, met that requirement. The shrimp-boat companies argue that because Sunday, February 12, 2012, was two days before the date of the hearing, their response was due to be filed on that date; thus, they reason, their response was actually filed early.

BSF, however, argues that the shrimp-boat companies have failed to properly apply Rule 6(a), Ala. R. Civ. P., to the computation of the time for the filing of the response to the summary-judgment motion. BSF correctly points out that, according to Rule 6(a), when a period under the rules is less than 11 days, the intermediate weekends and holidays are not included

[101 So.3d 1246]

in the computation of the elapsed days. Thus, BSF contends, the shrimp-boat companies' response was due not on Sunday, February 12, but on Friday, February 10, by 9:00 a.m., so as to have been served 2 days, or more specifically, a full 48 hours, before the hearing. Because the shrimp-boat companies filed their response on Friday, February 10, at 4:50 p.m., BSF contends that the trial court properly struck the shrimp-boat companies' response.

Neither party is entirely correct. The shrimp-boat companies are incorrect in arguing that Sunday, February 12, 2012, was the actual due date for their response; as BSF correctly points out, application of Rule 6(a) excludes the weekend in the computation of time. See Bank of Brewton, Inc. v. International Fid. Ins. Co., 827 So.2d 747 (Ala.2002) (applying Rule 6(a) to determine that a motion for a summary judgment had been filed too late when a party filed the motion only nine calendar days before the pretrial-motion hearing). However, the Rules of Civil Procedure do not require that an act that must be performed under the rules, such as service or filing, be completed at a particular time on the date upon which it is due, just that it be completed on that date. SeeRule 6(a) (explaining that, if the last day of the period prescribed by the rules ends on a weekend or a holiday, the period then runs until the end of the next day that is not a weekend or holiday); Rule 5, Ala. R. Civ. P. (stating that, when service is required under the rules, service may be effected by mail, delivery, or by the electronic-filing system); see alsoRule 77(a), Ala. R. Civ. P. (stating that the clerk's office “shall be deemed always open for the purpose of filing any pleading or other proper paper....”). Thus, the trial court erred when it struck the shrimp-boat companies' response to BSF's motion for a summary judgment as being untimely.

We now turn to whether the trial court erred in entering a summary judgment in favor of BSF on all the shrimp-boat companies' claims. Because we have determined that the trial court erred in striking the shrimp-boat companies' response, we will consider that submission in our review of the summary judgment. See Holden v. Edwards Specialties, Inc., 62 So.3d 1029, 1034 (Ala.Civ.App.2009) (determining that the trial court had erred in striking an affidavit filed in opposition to a motion for a summary judgment and considering that affidavit in its analysis of the propriety of the summary judgment). We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant's prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); seeAla.Code 1975, § 12–21–12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a

[101 So.3d 1247]

jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll–Rand Co., 591 So.2d 486, 487 (Ala.1991).

In support of its summary-judgment motion, BSF submitted the affidavits of David Nelson and John A. Nelson. David Nelson is the office manager and head of the purchase and sales office at BSF. John A. Nelson is BSF's president and is responsible for the unloading of shrimp boats at BSF's docks. In addition, BSF submitted several documents that, it said, evidenced in writing a contract with the shrimp-boat companies to purchase their catch at the lower market price.

In his affidavit, David explained that one of his duties is to set the price of shrimp; according to David, he must evaluate the pricing of shrimp along the Gulf Coast in order to determine the price that BSF should pay for shrimp. David asserts in his affidavit that the price for shrimp fluctuates often and may be affected by many factors; a good season, David says, may cause a drop in prices. David testified in his affidavit that he was on vacation between August 11, 2008, and August 15, 2008, but that he was still aware of the market at the time. David said that he evaluated the various factors and set the price on August 15, 2008; he noted that the price he set was substantially lower than the previous price because, he explained, shrimping had been “quite good” in Texas, where the shrimp boats had been shrimping.

According to David, “[s]hrimpers know who to come to, to find out what [BSF is] paying for shrimp.” He explained that shrimp-boat operators always prepare an “estimate sheet” in order to...