Kendrick v. Earl's Inc.

• Decision Date: 14 December 2007
• Docket Number: 2060719.
• Citation: 987 So.2d 589
• Parties: Arluster W. KENDRICK v. EARL'S, INCORPORATED et al.
• Court: Alabama Court of Civil Appeals

987 So.2d 589

Arluster W. KENDRICK v.EARL'S, INCORPORATED et al.

2060719.

Court of Civil Appeals of Alabama.

December 14, 2007.

Charles H. Volz III, Montgomery, for appellant.

Glenn D. Zimmerman, Montgomery, for appellees.

THOMAS, Judge.

This is the second time this action has been before the court for resolution.SeeKendrick v. Earl's Incorporated,963 So.2d 676(Ala.Civ.App.2007)("Kendrick I").As we explained in Kendrick I:

"Arluster W. Kendrick('the employee') sued¹Earl's Incorporated('the employer'), Earl H. Singleton, Robin E. Singleton, and Lynn Bush, seeking workers' compensation benefits from the employer; alleging retaliatory discharge by the employer, Earl H. Singleton, and Robin E. Singleton; and alleging that the employer, Robin E. Singleton, and Lynn Bush had deceived and defrauded him by making certain misrepresentations regarding the employer's liability for workers' compensation benefits and by promising that the employer would pay for his medical expenses in order to induce him to enter a settlement with the employer.

"The employer moved to dismiss the employee's action; it appended certain exhibits to its motion.On September 26, 2005, the trial court entered an order indicating that it intended to treat the motion as a motion for a summary judgment, seeRule 12(b), Ala. R. Civ. P., and allowing the parties 21 days to conduct discovery and 6 weeks to submit additional matters to be considered with the motion.On October 5, 2005, the employer filed a motion for a summary judgment with additional materials.The trial court then entered an order setting the summary-judgment motion for a hearing on October 25, 2005.The employee requested a continuance of the October 25 hearing, noting that the trial court had originally permitted the parties until November 7, 2005, to submit additional materials in support of or in opposition to the motion for a summary judgment, without the necessity of a hearing.The trial court then entered an order indicating that the employee's requested continuance was granted and that the motion for a summary judgment would be submitted `on the pleadings' on November 7, 2005.The employee moved for the trial judge to recuse himself on November 4, 2005.The employee submitted his response in opposition to the summary-judgment motion and evidentiary materials on November 7, 2005.

"Although the trial court had indicated that it would submit the motion for a summary judgment`on the pleadings' on November 7, 2005, the case-action-summary sheet indicates that the trial court held some sort of hearing on that date.The entry on November 7, 2005, indicates that the employer (and perhaps the other defendants) were in court with counsel, that the employee and his counsel were not present, and that the employee filed additional materials.On November 15, 2005, the trial judge granted the employee's motion to recuse, and the case was reassigned to another judge.

"On November 28, 2005, the employer moved for a dismissal for failure to prosecute, pursuant to Rule 41(b), Ala. R. Civ. P., arguing that the employee's alleged failure to appear at the summary-judgment hearing and his alleged failure to timely respond to the summary-judgment motion entitled the employer to a dismissal of the case.The trial court set the motion for a hearing on February 15, 2006.When the employee and his counsel failed to appear on that date, the trial court dismissed the action; however, on the employee's motion, the trial court reinstated the action and reset the hearing on the pending summary-judgment motion and motion to dismiss for lack of prosecution on April 20, 2006.After the hearing, the trial court granted the motion to dismiss by `the defendant' and entered a judgment on the pleadings in favor of `the defendant.'"

Kendrick I,963 So.2d at 677-78.

In Kendrick I,we dismissed the appeal from the entry of the "judgment on the pleadings"² and the dismissal in favor of Earl's Incorporated("the employer") because the claims against Earl H. Singleton, Robin E. Singleton, and Lynn Bush("the individual defendants") were still unresolved.Id. at 678.On April 10, 2007, after the release of our opinion in Kendrick I on March 16, 2007, and after the certificate of judgment had issued on April 4, 2007, the individual defendants filed a motion to dismiss for lack of prosecution, alleging, like the employer, that Arluster W. Kendrick("the employee") had failed to appear at the summary-judgment hearing held on the employer's motion on November 7, 2005,³ and that he had failed to timely answer the summary-judgment motion filed by the employer.As an additional ground for the motion, the individual defendants asserted that the employee had

"filed no motion or other pleadings in this matter since the dismissal of his appeal.This, in addition, to [the other reasons mentioned above], shows a lack of due diligence and prosecution in this matter."

On April 11, 2007, the trial court granted the individual defendants' motion to dismiss without comment.The employee again appealed, arguing that the trial court had erred in entering a "judgment on the pleadings" in favor of the employer on his workers' compensation and retaliatory-discharge claims, in granting the employer's motion to dismiss for lack of prosecution, and in granting the individual defendants' motion to dismiss for lack of prosecution.

The Dismissals for Lack of Prosecution

First, we will review the dismissal judgments entered in favor of the employer and the individual defendants on the basis of the employee's alleged failure to prosecute the case.As noted above, in its motion, which was filed on November 28, 2005, the employer argued that the employee had failed to prosecute his case by allegedly failing to attend the summary-judgment hearing held on November 7, 2005, and by allegedly failing to timely respond to that summary-judgment motion.The individual defendants made the same allegations in their motion to dismiss for lack of prosecution, adding only the allegation that the employee had failed to take any action in the case since the dismissal of the appeal in Kendrick I on March 16, 2007.

Rule 41(b), Ala. R. Civ. P., permits a trial court to dismiss an action when a plaintiff fails to prosecute that action or fails to comply with the Rules of Civil Procedure or orders of the court.Although the trial court in the present case did not specifically indicate that its dismissal of the employee's action against both the employer and the individual defendants was "with prejudice," the practical effect of the dismissal judgments in this case is the same as if the trial court had entered a dismissal with prejudice because the statute of limitations on each of the employee's claims had expired by the time of the entry of the April 2006 and the April 2007 dismissal judgments.SeeRiddlesprigger v. Ervin,519 So.2d 486, 487(Ala.1987).Typically, an appellate court will review a dismissal pursuant to Rule 41(b) to determine only whether the trial court abused its discretion.Riddlesprigger,519 So.2d at 487.

"However, since dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations," and "appellate courts will carefully scrutinize such orders and occasionally will find it necessary to set them aside."Smith v. Wilcox County Bd. of Educ.,365 So.2d 659, 661(Ala.1978)(citing, among other things, 9 Wright & Miller, Federal Practice & Procedure§ 2370, p. 203, n. 1).Our supreme court has explained that "the plaintiff's conduct must mandate the dismissal," and it has further reiterated the rule espoused by the United States Court of Appeals for the Fifth Circuit that a trial court"may dismiss with prejudice an action `only in the face of a clear record of delay or contumacious conduct by the plaintiff.'"Smith,365 So.2d at 661(quotingDurham v. Florida East Coast Ry. Co.,385 F.2d 366, 368(5th Cir.1967)).Our supreme court further explained that "even where there has been a period of inactivity, present diligence has barred dismissal."Smith,365 So.2d at 661.

The employee argued below and argues now on appeal that the trial court abused its discretion by entering the requested dismissals because, he asserts, he did not fail to timely respond to the summary-judgment motion or fail to appear at the summary-judgment hearing.⁴As explained by the employee in both his response to the motions to dismiss and in his appellate brief, the trial court's September 26, 2005, entry on the case-action-summary sheet clearly establishes that the employee had until November 7, 2005, to present a response and supporting materials in opposition to the employer's summary-judgment motion.The entry reads: "Parties allowed 21 days in which to provide discovery.Counsel allowed 6 weeks in which to submit any add'tl pleadings re: Deft's Mot for S/J after which the motion will be deemed to be submitted."November 7, 2005, was exactly six weeks from September 26, 2005.In addition, a review of the orders entered in the case indicates that the trial court continued the October 25, 2005, setting of the summary-judgment hearing on the employee's motion and ordered that "[t]he case will be submitted on [the] pleadings November 7, 2005."Thus, based on our reading of the orders entered by the trial court, we conclude that no hearing was actually set for November 7, 2005, and that the employee complied with the trial court's orders by timely filing his response in opposition to the summary-judgment motion and supporting materials by November 7, 2005.We further conclude that the individual defendants' allegation regarding the employee's inactivity in the period between the issuance of our opinion in Kendrick I on March 16, 2007, and the filing of the individual defendants' motion on April 10, 2007, is an insufficient allegation upon which to base a dismissal of the employee's action, especially because the trial...