Hales v. First Nat. Bank of Mobile
| Court | Supreme Court of Alabama |
| Writing for the Court | PER CURIAM; TORBERT |
| Citation | 380 So.2d 797 |
| Decision Date | 22 February 1980 |
| Parties | Philip HALES et al. v. FIRST NATIONAL BANK OF MOBILE. 78-673. |
Page 797
v.
FIRST NATIONAL BANK OF MOBILE.
Roger Killian, Fort Payne, for appellants.
F. Michael Haney, of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
PER CURIAM.
This action was initiated by plaintiff First National Bank of Mobile (the Bank) filing a two count complaint alleging a deficiency arising from a foreclosure sale and the right to possession of certain personal property under a security agreement. Defendants Philip and Dorothy Hales appeal from the grant of summary judgment in
Page 798
favor of the Bank on their amended counterclaim which alleged, inter alia, fraud, misrepresentation, and breach of fiduciary duty by the Bank. We reverse.Issue
Whether the trial court erred to reversal in converting, sua sponte, the Bank's motion to dismiss pursuant to Rule 12(b)(6), ARCP, to a motion for summary judgment when the trial court gave no notice of the changed status of the motion to the Haleses prior to entry of summary judgment.
Facts
As mentioned earlier, this suit was initiated by the Bank. When it filed its complaint, the Bank also filed a motion for writ of seizure of certain equipment; the motion was granted after a hearing at which testimony and other evidence was taken. The only evidence contained in the record resulted from this hearing. At the hearing, the evidence was limited to the issue of whether the writ should be granted.
On 9 January 1979 the Haleses filed an answer and counterclaim to the Bank's complaint. The Bank filed a Rule 12(b)(6), ARCP, motion to dismiss the counterclaim which was apparently granted. On 4 April 1979 the Haleses filed an amended counterclaim that alleged: (1) false representations were made by the Bank to the Haleses on 5 April 1978; (2) the Bank breached an agreement entered into on 5 April 1978 with the Haleses by permitting certain assigned contract rights to go in default; and (3) a breach of fiduciary duty owed by the Bank to the Haleses. The Bank filed a second motion to dismiss this amended counterclaim alleging Rule 12(b)(6) grounds together with the ground that the subject of the counterclaim was res judicata. 1
On 29 May 1979 a hearing was held concerning the Bank's motion to dismiss the Haleses' amended counterclaim. A notation dated 29 May 1979 was made by the trial court on the Bank's motion which stated:
"May 29, 1979
Motion granted.
Counterclaim is dismissed.
W. G. Hawkins
Judge"
On 5 June 1979, without prior notice to the Haleses, a judgment was entered which reads as follows:
"This cause coming on to be heard on motion to dismiss filed by Plaintiff as to the counterclaim filed by the defendants, and same having been considered and treated by the Court as a motion for summary judgment in accordance with the Alabama Rules of Civil Procedure, and after due consideration of the pleadings, oral argument of counsel, documented evidence submitted by the parties, and the hearing in this cause on May 29, 1979, it is the opinion of this Court that the motion is due to be granted.
"WHEREFORE, it is ORDERED, ADJUDGED AND DECREED that the motion to dismiss and treated by the Court as a motion for summary judgment of Plaintiff, First National Bank of Mobile, a national banking association, as to the counterclaim of Defendants, Philip Hales and wife, Dorothy Hales, be, and same is hereby granted. There appearing no just reason or cause for delay in the entry of such order, it is further ORDERED that final summary judgment be, and hereby is, granted in favor of the Plaintiff, First National Bank of Mobile, a national banking association, and against the counterclaim of Defendants, Philip Hales and wife, Dorothy Hales, and the aforesaid Plaintiff be, and it is hereby finally dismissed from the said...
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EX PARTE ALABAMA DEPT. OF YOUTH SERVICES
...802 So.2d 200 (Ala.2001); Garris v. Federal Land Bank of Jackson, 584 So.2d 791 (Ala.1991); Hales v. First Nat'l Bank of Mobile, 380 So.2d 797 "`Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) ......
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D.A.R. v. R.E.L., 1151080
...the pleadings should never be considered in deciding whether to grant a [Rule] 12(b)(6) motion.’ Hales v. First Nat'l Bank of Mobile, 380 So.2d 797, 800 (Ala. 1980)."802 So.2d at 203.In any event, it is well settled that arguments made for the first time in a reply brief are "waived, and wi......
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Petrey v. Simon, No. 82-270
...courts of last resort have construed similar provisions as requiring notice. See, e.g., Hales v. First Natl. Bank of Mobile (Ala.1980), 380 So.2d 797, 799; Bernay v. Sales (D.C.App.1981), 435 A.2d 398, 402, at fn. 4; Nadeau v. State (Me.1978), 395 A.2d 107, 115; White v. Peabody Constr. Co.......
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Graveman v. Wind Drift Owners' Ass'n, Inc.
...Rule 12(b), A.R.Civ.P. The requirements of Rule 56 apply to a converted Rule 12(b)(6) motion. Hales v. First Nat'l Bank of Mobile, 380 So.2d 797, 799 (Ala.1980). Together, Rules 12 and 56 require that the nonmovant receive (1) adequate notice that the trial court intends to treat the motion......
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EX PARTE ALABAMA DEPT. OF YOUTH SERVICES
...802 So.2d 200 (Ala.2001); Garris v. Federal Land Bank of Jackson, 584 So.2d 791 (Ala.1991); Hales v. First Nat'l Bank of Mobile, 380 So.2d 797 "`Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) ......
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D.A.R. v. R.E.L., 1151080
...the pleadings should never be considered in deciding whether to grant a [Rule] 12(b)(6) motion.’ Hales v. First Nat'l Bank of Mobile, 380 So.2d 797, 800 (Ala. 1980)."802 So.2d at 203.In any event, it is well settled that arguments made for the first time in a reply brief are "waived, and wi......
-
Petrey v. Simon, No. 82-270
...courts of last resort have construed similar provisions as requiring notice. See, e.g., Hales v. First Natl. Bank of Mobile (Ala.1980), 380 So.2d 797, 799; Bernay v. Sales (D.C.App.1981), 435 A.2d 398, 402, at fn. 4; Nadeau v. State (Me.1978), 395 A.2d 107, 115; White v. Peabody Constr. Co.......
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Graveman v. Wind Drift Owners' Ass'n, Inc.
...Rule 12(b), A.R.Civ.P. The requirements of Rule 56 apply to a converted Rule 12(b)(6) motion. Hales v. First Nat'l Bank of Mobile, 380 So.2d 797, 799 (Ala.1980). Together, Rules 12 and 56 require that the nonmovant receive (1) adequate notice that the trial court intends to treat the motion......