Edwards v. Hanger
Decision Date | 13 November 2015 |
Docket Number | 2140846. |
Citation | 197 So.3d 993 |
Parties | Nathan EDWARDS v. Chad Wallis HANGER. |
Court | Alabama Court of Civil Appeals |
Matthew T. Ellis of Parnell & Crum, P.A., Montgomery, for appellant.
Submitted on appellant's brief only.
Nathan Edwards appeals the judgment of the Montgomery Circuit Court (“the trial court”) dismissing an action he had commenced for lack of prosecution. We hold that the circumstances of this case do not show such an unreasonable delay as to warrant a dismissal of Edwards's action against Chad Wallis Hanger, the only defendant who has been served with process. The other defendants were never served with process, and Edwards does not challenge the judgment insofar as it dismisses his claims against them. We therefore reverse the judgment insofar as it dismissed Edwards's claim against Hanger.
On September 8, 2014, Edwards filed a complaint in the trial court against Hanger, Erica Christian, and three fictitiously named defendants, seeking damages resulting from an automobile collision. According to the complaint, on or about September 23, 2012, Hanger operated the motor vehicle that struck the motor vehicle that Edwards was operating. Edwards alleged that the collision was the result of Hanger's negligence and wantonness and that, as the owner of the motor vehicle operated by Hanger, Christian negligently or wantonly allowed Hanger to use her motor vehicle. Edwards never amended the complaint to identify the fictitiously named defendants.
According to the record, service of process on Hanger and Christian was attempted, but, on October 15, 2014, a return of nonservice was filed with regard to Hanger and Christian. On February 6, 2015, the trial court entered an order stating that “[Edwards] is given 30 days to effect service of process or the case will be dismissed without prejudice.” On February 26, 2015, Edwards filed a motion to extend the time to complete service of process. In the motion, Edwards asserted that he had hired a special process server to perfect service on Hanger and Christian but that he was uncertain whether service would be perfected by the deadline imposed by the trial court. On February 26, 2015, the trial court denied Edwards's motion to extend the time to complete service of process.
According to the record, service of process was perfected on Hanger on March 6, 2015. There is no indication in the record that service of process was ever perfected on Christian.
On May 28, 2015, the trial court entered a judgment stating as follows: “This action is dismissed without prejudice for want of prosecution.” There is no indication that the action had been called for trial, nor were there any other orders entered by the trial court between the denial of Edwards's request to extend the time to perfect service and the entry of the judgment dismissing the action. On May 29, 2015, Edwards filed a motion to reconsider, alter, amend, or vacate the judgment insofar as it dismissed the action as to Hanger, pointing out that Hanger had been served on March 6, 2015. On that same day, Edwards filed a motion for the entry of a default judgment against Hanger based on Hanger's failure to enter an appearance. Edwards requested a judgment in the amount of $12,841 in damages for the cost of repairs to his motor vehicle.
On June 1, 2015, the trial court denied Edwards's motion to reconsider, alter, amend, or vacate the judgment and his motion for the entry of a default judgment. On July 7, 2015, Edwards filed a notice of appeal to the Supreme Court of Alabama, which transferred the appeal to this court pursuant to § 12–2–7, Ala.Code 1975.
The judgment stated that the action was “dismissed without prejudice for want of prosecution.” See Rule 41(b), Ala. R. Civ. P. ( ). The dismissal of an action without prejudice ordinarily lacks sufficient finality to support an appeal. Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). We note, however, that “when the applicable statute of limitations would bar a subsequent action, the dismissal becomes, in effect, a dismissal with prejudice.” Guthrie v. Alabama Dep't of Labor, 160 So.3d 815, 816–17 n. 2 (Ala.Civ.App.2014) (citing Boone v. Bill's Dollar Stores, Inc., 828 So.2d 320, 322 (Ala.Civ.App.2002) ). After the trial court's dismissal of the action on May 28, 2015, the applicable statute of limitations in this case, § 6–2–38(l ), Ala.Code 1975, would bar a subsequent action if a defendant asserted it. See Davison v. Pogue, 735 So.2d 1240, 1242 (Ala.Civ.App.1999) (). Therefore, the judgment is final for purposes of appellate review.
We review the judgment to determine whether the circumstances of the case warranted a dismissal for lack of prosecution.
Coulter v. Stewart, 726 So.2d 726, 728 (Ala.Civ.App.1999).
Edwards concedes that the trial court properly dismissed the action as to Christian, and he makes no arguments regarding the dismissal insofar as it applies to the fictitiously named ...
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