NORTH MONTGOMERY MATERIALS v. Federal Ins. Co.

• Court: Alabama Court of Civil Appeals
• Writing for the Court: PITTMAN.
• Citation: NORTH MONTGOMERY MATERIALS v. Federal Ins. Co., 843 So.2d 201 (Ala. Civ. App. 2002)
• Decision Date: 30 August 2002
• Parties: NORTH MONTGOMERY MATERIALS, L.L.C. v. FEDERAL INSURANCE COMPANY and Jinright Construction & Landscaping, Inc. Jinright Construction & Landscaping, Inc. v. North Montgomery Materials, L.L.C.

843 So.2d 201

NORTH MONTGOMERY MATERIALS, L.L.C. v. FEDERAL INSURANCE COMPANY and Jinright Construction & Landscaping, Inc.

Jinright Construction & Landscaping, Inc. v. North Montgomery Materials, L.L.C.

2010154.

Court of Civil Appeals of Alabama.

August 30, 2002.

Joseph W. Warren of Capouano, Smith, Warren & Klinner, P.C., Montgomery, for appellant/cross-appellee North Montgomery Materials, L.L.C.

John Scott Hooper, Montgomery, for appellee/cross-appellant Jinright Construction & Landscaping, Inc.

R. Brooke Lawson III of Capell & Howard, P.C., Montgomery, for appellee Federal Insurance Company.

PITTMAN, Judge.

These appeals are from the trial court's summary judgment for both the defendant and a third-party defendant.

On November 21, 2000, North Montgomery Materials, L.L.C. (hereinafter "North Montgomery"), sued Federal Insurance Company (hereinafter "Federal"), seeking to recover as a supplier of materials under a payment bond issued by Federal involving a public-works project in Montgomery. On January 5, 2001, Federal answered the complaint generally denying the allegations of the complaint and setting forth certain affirmative defenses.

On January 16, 2001, Federal filed a third-party complaint against third-party defendant Jinright Construction & Landscaping, Inc. (hereinafter "Jinright"), asserting a right of indemnity against Jinright for any sums Federal was forced to pay North Montgomery. On February 5, 2001, Jinright filed an answer denying liability to Federal on Federal's third-party complaint, a counterclaim against North Montgomery alleging a violation of the Alabama Litigation Accountability Act, § 12-19-270, Ala.Code 1975, and a motion for a summary judgment. North Montgomery filed an answer to Jinright's counterclaim and a response to Jinright's motion for a summary judgment. On February 28, 2001, the trial court granted Jinright's summary-judgment motion.

On March 1, 2001, Federal filed a motion to dismiss, or, in the alternative, for a summary judgment. North Montgomery filed a response to Federal's motion, and on March 26, 2001, the trial court granted Federal's motion and entered a summary judgment. On April 2, 2001, North Montgomery filed a motion to alter, amend, or vacate judgment as to each summary judgment. On April 10, 2001, the trial court denied both motions. On August 21, 2001, the trial court dismissed Jinright's counterclaim with prejudice for failure to appear. Jinright filed a motion to reconsider on August 31, 2001, and the trial court denied the motion on October 5, 2001.

North Montgomery filed its notice of appeal on November 13, 2001, and on November 19, 2001, Jinright filed a cross-appeal from the trial court's denial of Jinright's motion to reconsider the dismissal of the counterclaim.

I.

Before we address the main arguments of the parties, we must dispose of two matters. First, Federal contends that North Montgomery's appeal was not timely.

Federal contends that North Montgomery did not file its notice of appeal within the 42 day period provided by Rule 4(a), Ala. R.App. P. Federal argues that Jinright's August 31, 2001, "motion to reconsider" should be characterized as a Rule 60(b), Ala. R. Civ. P., motion for relief from a judgment or an order. If it were considered to be such a motion, Federal argues, then it would not have tolled the time for appeal from the trial court's order dismissing Jinright's counterclaim, which would be a final judgment. Ingram v. WAAY Television, 394 So.2d 65, 66 (Ala. Civ.App.1981).

North Montgomery argues that Jinright's "motion to reconsider" should be considered a Rule 59(e), Ala. R. Civ. P., motion to vacate the trial court's judgment dismissing Jinright's counterclaim. If it were so considered, North Montgomery argues, then, assuming the Rule 59(e) motion was filed within 30 days of the entry of the judgment sought to be vacated, the running of the time for filing a notice of appeal under Rule 4, Ala. R.App. P., would be suspended.

The Alabama Supreme Court has previously held that the substance of a motion, and not its style, determines the type or kind of motion it is. See Cannon v. State Farm Mut. Auto. Ins. Co., 590 So.2d 191 (Ala.1991). While the Alabama Rules of Civil Procedure do not speak of a "motion to reconsider," our supreme court has repeatedly construed motions so styled, when they have been filed within 30 days after the entry of a final judgment, to be Rule 59(e) motions. See Waters v. J.I. Case Co., 548 So.2d 454 (Ala.1989); McAlister v. Deatherage, 523 So.2d 387 (Ala. 1988); Papastefan v. B & L Constr. Co., 356 So.2d 158 (Ala.1978).

Jinright filed its "motion to reconsider" within 30 days after the trial court dismissed its counterclaim. The trial court denied the motion to reconsider on October 5, 2001. North Montgomery appealed within 42 days of that denial. The appeal was timely.

The next matter is the fact that Jinright filed a notice of appeal from the trial court's denial of its "motion to reconsider." However, in the brief Jinright has submitted on appeal, it argues that the trial court was correct in granting both its and Federal's motions for a summary judgment. No other party to this appeal has filed a motion to dismiss Jinright's appeal based on this incongruity. Additionally, none of the parties have been prejudiced by this error. All are aware of the issues presented. In a similar case our supreme court noted:

"[T]he spirit of the rules is reflected in Rule 3(c), [Ala.] R.App. P.: `Such designation of judgment or order [i.e., the designation in the notice of appeal of the "judgment ... appealed from"] shall not, however, limit the scope of appellate review'; and in Rule 4(a)(1): `On an appeal from a judgment or order a party shall be entitled to a review of any judgment, order, or ruling of the trial court.'"

Curtis v. Bill Byrd Auto., Inc., 579 So.2d 590, 592 (Ala.1990). The notice of appeal from the trial court's denial of Jinright's motion to reconsider is not supported by any argument in Jinright's brief. Therefore, we will not address that issue. However, based on the above, we will entertain the arguments of Jinright as to the summary judgment for Jinright and for Federal.

II.

North Montgomery contends that the trial court erred when it entered a summary judgment for Jinright and for Federal. We will address each summary judgment in the order in which it was filed and decided by the trial court.

In its motion for a summary judgment, Jinright argued that any action by North Montgomery was barred by the doctrine of collateral estoppel. Jinright further contended that because North Montgomery had sued Jinright in district court North Montgomery was collaterally estopped from asserting the present claim against them in circuit court. Collateral estoppel is an affirmative defense. The standard for reviewing a defendant's motion for a summary judgment based on an affirmative defense is well-established:

"Where, as in this case, the defendant moves for a summary judgment based on an affirmative defense, this Court applies the following standard of review:

"`When there is no genuine issue of material fact as to any element of an affirmative defense, ... and it is shown that the defendant is entitled to a judgment as a matter of law, summary judgment is proper. If there is a genuine issue of material fact as to any element of the affirmative defense, summary judgment is inappropriate. Rule 56(c), Ala. R. Civ. P. In determining whether there is a genuine issue of material fact as to each element of an affirmative defense, this Court must review the record in a light most favorable to the plaintiff (the nonmoving party) and must resolve all reasonable doubts against the defendant (the movant).'"

Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 444-45 (Ala.1999)(quoting Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052,...