Surette v. Brantley

• Decision Date: 07 February 1986
• Citation: 484 So.2d 435
• Parties: Agnes W. SURETTE v. Enoch L. BRANTLEY. 84-763.
• Court: Alabama Supreme Court

Page 435

484 So.2d 435

Agnes W. SURETTE v. Enoch L. BRANTLEY.

84-763.

Supreme Court of Alabama.

Feb. 7, 1986.

Charles H. Durham III of Alexander & Knizley, and Donald A. Friedlander, Mobile, for appellant.

Donald C. Partridge of Noojin & McNair, Mobile, for appellee.

HOUSTON, Justice.

The sole issue in this case is whether the trial court's refusal to grant Agnes W. Surette's Rule 60(b), Ala.R.Civ.P., motion was an abuse of discretion.

On October 19, 1984, Enoch L. Brantley's motion for summary judgment was granted and judgment was entered against Ms. Surette in the amount of $22,601.96. On December 4, 1984, Ms. Surette filed her Rule 60(b) motion. The trial court heard the motion on February 21, 1985, and denied the motion to set aside the judgment. Ms. Surette appeals. We affirm.

Rule 60(b), Ala.R.Civ.P., is an extreme remedy to be used only under extraordinary circumstances. City of Daphne v. Caffey, 410 So.2d 8 (Ala.1981). The determination of whether to grant or deny relief pursuant to Rule 60(b) is a matter within the discretion of the trial court, subject to revision only upon an abuse of that discretion. Maddox v. Druid City Hospital Board, 357 So.2d 974 (Ala.1978). A defaulting party seeking under Rule 60(b) to have a default judgment set aside must prove one of the grounds for relief set out in the rule, and must allege and prove a meritorious defense to the action. American Home Assurance Company v. Hardy, 378 So.2d 710 (Ala.1979). The same applies to a defendant seeking to have a summary judgment set aside.

At the time Brantley filed his motion for summary judgment, on July 13, 1984, Ms. Surette was represented by Daniel W. Molloy, Esquire. Mr. Molloy filed a motion to withdraw as attorney for Ms. Surette on August 1, 1984, with the Clerk of the Circuit Court of Mobile County. The certificate of service shows that he served Ms. Surette and the attorney for Brantley with this motion to withdraw. As grounds for his motion, Mr. Molloy alleged that Ms. Surette had failed or refused to communicate with him about her case or about arrangements for payment of his fees. He further alleged that he wrote Ms. Surette a letter informing her of the necessity of contacting him for the purpose of opposing Brantley's motion for summary judgment which had been filed, but that he had heard nothing from her. Mr. Molloy's motion was granted on September 20, 1984, over a month and a half after it was filed. Pursuant to the court's order, Ms. Surette was given thirty days to notify the court of the name of her new attorney or of her intentions in this case, or have a judgment taken against her. Thirty days later, the court having heard nothing from Ms. Surette and Ms. Surette not having filed affidavits in opposition to Brantley's motion, the court granted Brantley's summary judgment against Ms. Surette in the amount of $22,601.96. This was supported by Brantley's affidavit, which was filed with the motion for summary judgment.

At the hearing on the Rule 60(b) motion, Ms. Surette testified that she had not received the notice from the Court, which was mailed on September 20, 1984...