Woodham v. New York Times Broadcasting Service, Inc.

• Decision Date: 26 February 1988
• Citation: 526 So.2d 5
• Parties: L.C. "Buddy" WOODHAM, Sr., d/b/a Woodham Auto Sales v. NEW YORK TIMES BROADCASTING SERVICE, INC., et al. 86-1071.
• Court: Alabama Supreme Court

Page 5

526 So.2d 5

L.C. "Buddy" WOODHAM, Sr., d/b/a Woodham Auto Sales v. NEW YORK TIMES BROADCASTING SERVICE, INC., et al.

86-1071.

Supreme Court of Alabama.

Feb. 26, 1988.

Rehearing Denied April 29, 1988.

John Martin Galese, Birmingham, for appellant.

Gary C. Huckaby and Stuart M. Maples of Bradley, Arant, Rose & White, Huntsville, for appellees.

SHORES, Justice.

This is an appeal from an order dismissing plaintiff's action after the plaintiff had failed to comply with two different orders to produce. The complaint was filed in July 1984. The defendants sought discovery in December 1984, and began actively seeking compliance with the discovery requests in January 1985. They filed two motions to compel, and finally sought sanctions under A.R.Civ.P. 37(d). The trial was delayed after two trial dates had been set, because the plaintiff had failed to comply with the court's order to comply with defendants' discovery motions. Finally, the court entered its judgment dismissing the complaint. We affirm on the authority of Green v. Taylor, 437 So.2d 1259, 1260 (Ala.1983), where we wrote:

"The trial court clearly had the authority to dismiss under Rule 37(d), ARCP; the Greens do not contest that authority. However, they do contend the trial court abused its discretion in dismissing under the circumstances. We are precluded from review of this issue because the Greens did not present a timely motion ... to set aside the judgment of dismissal. Neither did they request a rehearing under Rule 59(a)(2), ARCP [more appropriately Rule 59(e) ARCP]. Because the trial court did not have an opportunity to review its own decision, we are foreclosed from reviewing it.

"This holding is premised upon Wade v. Pridmore, 361 So.2d 511 (Ala.1978). There we held that where a default judgment was taken against the defendant for failure to attend trial, this court could not review the decision to grant a default where no request had been made that the trial court set aside its judgment. There, we stated:

" 'We opine that a party in default should make a formal motion to set aside a judgment of default. The granting or denying the motion will involve the exercise of the sound discretion of the trial court, and that will be interfered with by an appellate court only where there is an abuse.

" '....'

"361 So.2d at 513.

"The rationale behind the Wade decision and the general rules regarding the necessity for post-trial motions is that, ordinarily, issues not raised before the trial court may not be raised for the first time on appeal. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979). This principle assures proper development of the record in the court below and places the primary responsibility on the trial judge to determine whether the sanction for dismissal for failure to comply with discovery orders is merited. The procedure affords the trial court, which has a feel of the case, an opportunity to correct its own errors and prevent the hardships of an appeal. Cf. Great Atlantic and Pacific Tea Co., Inc. v. Sealy, 374 So.2d 877 (Ala.1979); State v. Long, 344 So.2d 754 (Ala.1977).

"Because the Greens did not timely file a motion to set aside the dismissal of their action, the question of whether the trial court erred in that regard is not properly before us."

The reason for the rule was further illuminated by the Chief Justice's specially concurring opinion in Green, where he said:

"The decision in Wade v. Pridmore, 361 So.2d 511 (Ala.1978), dealt with the failure of the appellants to make a motion to set aside the default judgment before they appealed from that judgment. This Court correctly decided that case based on Rule 55(c), A.R.Civ.P., which specifically deals with the setting aside of default judgments, and the policy behind it. ¹ The rule was designed to allow the trial court the opportunity to revise its decision and set aside the default judgment if justice so required, preventing the hardship of an unnecessary appeal. Cf. Great Atlantic and Pacific Tea Co., Inc. v. Sealy, 374 So.2d 877 (Ala.1979). If the trial court refused to set aside the default judgment, then there would be a fully developed record in the court below, and that would enable this Court to make an informed decision as to whether the trial court erred. Without the subsequent hearing on the motion to set aside the default, the record on review before this Court would obviously be incomplete as it would only reflect the position of the...