Burdeshaw v. White

• Decision Date: 26 July 1991
• Citation: Burdeshaw v. White, 585 So.2d 842 (Ala. 1991)
• Parties: Roy BURDESHAW v. James WHITE, et al. 1900615.
• Court: Alabama Supreme Court

Page 842

585 So.2d 842

Roy BURDESHAW v. James WHITE, et al.

1900615.

Supreme Court of Alabama.

July 26, 1991.

C. Knox McLaney III and J. Doyle Fuller, Montgomery, and William J. Baxley, Birmingham, for plaintiff.

Gary C. Sherrer and John Maddox of Carter, Hall & Sherrer, Dothan, for defendants.

HOUSTON, Justice.

The plaintiff, Roy Burdeshaw, individually and as the representative of a class composed of rural landowners in Houston County, Alabama, appeals from a summary judgment for the defendants, James Sizemore, in his official capacity as commissioner of revenue for the State of Alabama; John L. Napier, in his official capacity as revenue commissioner for Houston County; and Robert Crowder, in his official capacity as chairman of the Houston County Commission, in this action challenging the method used to determine the current use valuation of land for ad valorem tax purposes as being contrary to Act No. 135 of the Second Special Session of the Alabama Legislature of 1978, and further seeking a refund of excess taxes collected in the years 1979, 1980, and 1981. We affirm in part, reverse in part, and remand.

Burdeshaw filed his complaint in the Houston Circuit Court on June 22, 1989. On October 2, 1989, Burdeshaw filed a motion for a summary judgment, supported by the deposition of defendant Napier, and on October 3, 1989, the trial court scheduled that motion for a hearing on October 24, 1989. On October 18, 1989, the defendants filed a motion for a summary judgment, a motion to consolidate both summary judgment motions for disposition, and a motion to schedule a later hearing date to allow for additional discovery. The trial court granted the defendants' motion on October 19, 1989, rescheduling the hearing for December 4, 1989. On November 22, 1989, the defendants filed a copy of the record in Hollis v. White, CV-84-5061, in support of their summary judgment motion. In Hollis, another rural landowner in Houston County had filed an action in Houston Circuit Court, substantially similar to the present one, on behalf of himself and seeking to represent a class composed of other rural landowners similarly situated. Two of the attorneys representing Burdeshaw in the present action also represented the plaintiff in Hollis. Hollis, which the parties stipulate in their respective briefs was never certified as a class action, resulted in the plaintiff's complaint being dismissed with prejudice under Rule 25(a), A.R.Civ.P. No appeal was taken from that dismissal.

Burdeshaw's attorneys, after receiving proper notice, did not appear at the December 4, 1989, hearing, and no further action was taken in this case until September 20, 1990, when Burdeshaw filed a motion to schedule another hearing date. On September 28, 1990, the trial court entered separate orders certifying this action as a class action, denying Burdeshaw's motion for a summary judgment, and entering a summary judgment for the defendants. In its order granting the defendants' motion for a summary judgment, the trial court stated as follows:

"This matter having come before this Court on the Motions of Defendants, ... the Court makes the following findings:

"1. That the above referenced Defendants filed properly supported Motions for Summary Judgment in this cause.

"2. That on December 4, 1989, a hearing was held on said Motions in open Court pursuant to Order of this Court filed October 19, 1989, with notices given or mailed to the parties that same date.

"3. That Plaintiffs' counsel, after notice, was not present at said hearing. Prior to the hearing, the Court received a phone call from one of Plaintiffs' counsel, informing the Court that Plaintiffs' counsel would not be present for the hearing.

"4. That since the filing of said Motions by said Defendants and since the hearing on December 4, 1989, some nine (9) to ten (10) months have elapsed and Plaintiffs have not filed anything in opposition to the Motions for Summary Judgment as filed by said Defendants.

"5. That Plaintiffs have had ample opportunity to file anything they might have had in opposition to Defendants' Motions and have not done so.

"6. That this Court, upon review and consideration of the things and matters presented by said Defendants in support of their Motions for Summary Judgment, and after considering all oral arguments presented at the hearing regarding same, is of the opinion that there is no genuine issue as to any material fact and that said Summary Judgment Motions are due to be granted with judgment to be entered in favor of said Defendants and against the named Plaintiff and the Plaintiff class determined by the Court to be composed of all landowners who own rural land in Houston County, Alabama, composed of cropland, pastureland and timberland which qualify for 'current use' valuation and upon which he/she is assessed for tax purposes by and incurs tax liability in said county."

The following issues were presented for our review:

1. Whether the summary judgment was proper based on the affirmative defense of res judicata;

2. Whether the summary judgment was proper based on the affirmative defense of the applicable statute of limitations; and,

3. Whether the summary judgment was proper under Rule 41(b), A.R.Civ.P., for want of prosecution.

With regard to the first issue, the defendants contend that the previous dismissal of Hollis barred the present action under the doctrine of res judicata. Burdeshaw contends, however, that the doctrine of res judicata was not applicable. He argues that because Hollis was never certified as a class action, the "identity of parties" criterion of res judicata was not satisfied. We agree.

In Whisman v. Alabama Power Co., 512 So.2d 78, 80-82 (Ala.1987), this Court discussed in-depth the identity of parties criterion of res judicata:

"A valid, final judgment on the merits of an issue extinguishes that issue and operates as an absolute bar in a subsequent suit between the same parties on any issue which was or could have been litigated. Lesley v. City of Montgomery, 485 So.2d 1088 (Ala.1986); Educators' Investment Corp. of Alabama, Inc. v. Autrey, 383 So.2d 536 (Ala.1980); Ozley v. Guthrie, 372 So.2d 860 (Ala.1979); Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978); McGruder v. B & L Construction, Inc., 331 So.2d 257 (Ala.1976); A.B.C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 25 So.2d 511 (1946).

"....

"The traditional res judicata case (frequently referred to as a claim preclusion) involves prior litigation between a plaintiff and a defendant, which is decided on the merits by a court of competent jurisdiction, and then a subsequent attempt by the prior plaintiff to relitigate the same cause of action against the same defendant, or perhaps to relitigate a different claim not previously litigated but which arises out of the same evidence. Alabama law is well settled that this will not be allowed. A valid, final judgment on the merits of the claim extinguishes the claim. If the plaintiff won, the claim is merged into the judgment; if the defendant won, the plaintiff is barred from relitigating any matter which could have been litigated in the prior action. Lesley v. City of Montgomery, supra; Ozley v. Guthrie, supra; Wheeler v. First Alabama Bank of Birmingham, supra; McGruder v. B & L Construction, Inc., supra.

"....

"The party identity criterion of res judicata does not require complete identity, but only that the party against whom res judicata is asserted was either a party or in privity with a party to the prior action (Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1200 (Ala.1978), or that the non-party's interests were adequately represented by a party in the prior suit, and the relationship between the party and non-party is not so attenuated as to violate due process. Century 21 Preferred Properties, Inc. v. Alabama Real Estate Commission, 401 So.2d 764, 770 (Ala.1981).

"In Century 21 there was a state court lawsuit brought by certain real estate franchisees, challenging the advertising regulations of the Alabama Real Estate Commission. Prior to the state case being filed, other Century 21 franchisees had filed a federal action seeking essentially the same relief. They were unsuccessful and the defendant in the state case sought to use the federal judgment as a bar, even though the parties in the state case were not identical to the parties in the federal action. We rejected appellants' contention that the lack of identical parties made the plea of res judicata ineffective. Justice Jones, writing for this Court, stated:

" 'Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Res judicata applies where the parties to both suits are "substantially identical." Wheeler v. First Alabama Bank of Birmingham, [364 So.2d 1190 (Ala.1978) ]; Astron Industrial Associates, Inc. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir.1968).

" 'Judgments can bind persons not party (or privy) to the litigation in question where the nonparties' interests were represented adequately by a party in the original suit. Southwest Airlines Co. v. Texas International Airlines, 546 F.2d 84, 94-95 (5th Cir.1977). A person may be bound by a judgment even though not a party to a suit if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative. Aerojet-General Corporation v. Askew, 511 F.2d 710, 719 (5th Cir.1975). Moreover, if a party has a "sufficient 'laboring oar' in the conduct" of the litigation, then the principle of res judicata can be actuated. Montana v. United States, 440 U.S. 147, 155, 99 S.Ct. 970, 974, 59 L.Ed.2d 210 (1979).'

"401 So.2d at 770."

Burdeshaw was not a party in Hollis, and there is no evidence suggesting that he participated in any way in the prosecution...