Ingram v. Pollock

• Decision Date: 17 November 1989
• Citation: 557 So.2d 1199
• Parties: Forrest INGRAM v. Sam POLLOCK. 88-1147.
• Court: Alabama Supreme Court

Page 1199

557 So.2d 1199

Forrest INGRAM v. Sam POLLOCK.

88-1147.

Supreme Court of Alabama.

Nov. 17, 1989.

Rehearing Denied Jan. 26, 1990.

Finis E. St. John of St. John & St. John, Cullman, for appellant.

Jack W. Torbert of Torbert and Torbert, Gadsden, for appellee.

JONES, Justice.

This appeal from the denial of a Rule 60(b), A.R.Civ.P., motion for relief from judgment presents two issues. Because we resolve the procedural issue, involving the propriety of a Rule 60(b) motion, in favor of the appellant, we must also address the substantive issue involving the enforcement of a settlement agreement.

Forrest Ingram sued Sam Pollock on October 14, 1987, alleging fraud. During the pendency of the suit, counsel for the parties corresponded regarding the terms and conditions of a possible settlement agreement. A dispute arose over whether the proposed but unexecuted document was a valid and enforceable settlement agreement. This dispute resulted in Pollock's filing a motion to enforce the terms of the settlement agreement on March 29, 1988, which motion was granted in the trial court's "judgment" on May 16, 1988.

On May 23, 1988, Ingram filed a Rule 59(e), A.R.Civ.P., motion to alter, amend, or vacate the trial court's judgment of May 16, and a hearing on this motion was set for June 30, 1988. The hearing was twice reset, once due to the hospitalization of the trial judge and once due to schedule conflicts on the part of Pollock's lawyer, but it was finally held on September 21, 1988, at which time the trial court denied Ingram's Rule 59 motion.

On October 20, 1988, Ingram appealed the judgment and the denial of his post-judgment motion, and Pollock filed a motion to dismiss the appeal on February 15, 1989. This Court refused to dismiss the appeal, but remanded the cause to the trial court on March 30, 1989, for entry of an appealable final order. However, before the trial court could act upon the March 30 order, this Court reconsidered its ruling and held that the order appealed from was final and that the time for filing a post-judgment motion or an appeal ran from May 16, 1988. Holding that Ingram's notice of appeal was untimely filed, we granted Pollock's motion to dismiss the appeal on April 24, 1989, but stated that the dismissal was "without prejudice to [Ingram] to file a motion in the trial court for relief from judgment pursuant to Rule 60, A.R.Civ.P., or any other appropriate post-judgment motion."

On May 8, 1989, Ingram filed a motion for relief from judgment pursuant to A.R.Civ.P. 60(b)(1) ("mistake, inadvertence, surprise, or excusable neglect") and 60(b)(6) ("any other reason justifying relief from the operation of the judgment"). This motion was denied by the trial court on May 15, 1989, and Ingram appeals from that order.

The trial court, in its judgment of May 16, 1988, stated that the parties to this fraud action "have agreed to submit to the court for its decision the question of whether or not [Pollock] is entitled to have his motion to enforce a settlement agreement granted," and that the parties agreed to submit this question to the court "on affidavits and memos to the court." The court then held that the parties had reached a valid settlement agreement, that Pollock was entitled to the enforcement of the agreement, and that, upon notice to the trial court "that the settlement has been consumated, ... the court [would] then dismiss this case with prejudice."

As grounds for his Rule 59(e) motion to alter, amend, or vacate this judgment ordering enforcement of the settlement agreement, Ingram argued that the judgment was "contrary to established law in Alabama, in particular Ala.Code 1975, § 34-3-21," and that Pollock had not cited any law contrary to Ingram's contentions. The hearing on Ingram's Rule 59(e) motion was twice continued, once because of the hospitalization of the trial judge and once at the instant of Pollock's counsel, but the parties did not make an express consent to these delays a part of the trial court record; therefore, Ingram's Rule 59(e) moti...