SMITH v. BUTLER AUSTIN (2012)

In an earlier opinion, this court explained the procedural history of this matter as follows:

“On February 9, 2011, Kenneth Smith filed a pro se complaint in the Baldwin Circuit Court seeking to eject Connie Butler–Austin from certain real property. In his complaint against Butler–Austin, Smith alleged that John Reynolds had improperly leased the property to Butler–Austin. Smith's action against Butler–Austin was assigned case number CV–11–900208. On February 28, 2011, Butler–Austin answered Smith's complaint, denying that Smith had the right to eject her from the property.

“Also on February 28, 2011, Butler–Austin filed in case number CV–11–900208 a third-party complaint naming Reynolds as a third-party defendant. In that third-party complaint, Butler–Austin asserted various claims against Reynolds in the event the trial court determined that Reynolds was not the owner of the property Reynolds had contracted to lease to her. In support of that third-party complaint, Butler–Austin submitted a copy of a May 16, 1997, lease document naming Reynolds and Butler–Austin as parties to the lease agreement.

“On March 14, 2011, the trial court entered an order in case number CV–11–900208 scheduling a bench trial for July 26, 2011. Butler–Austin later moved to consolidate case number CV–11–900208 with a separate action Smith had initiated against Reynolds, which she alleged was designated as case number CV–11–900209 and which is hereinafter referred to as ‘the Reynolds action.’ The record on appeal contains no pleadings or orders pertaining to the Reynolds action. However, in a postjudgment motion discussed later in this opinion, Smith alleged that he had filed that action against Reynolds when he discovered that Reynolds had executed an agreement purporting to lease the property to Butler–Austin. On March 25, 2011, the trial court granted Butler–Austin's motion to consolidate the two actions.

“On July 26, 2011, the date of the scheduled bench trial, Butler–Austin filed a motion for an award of an attorney fee pursuant to the Alabama Litigation Accountability Act (‘ALAA’), § 12–19–270 et seq., Ala.Code 1975. As a basis for her ALAA claim, Butler–Austin alleged that the trial court had scheduled Smith's claims against her for a bench trial on July 26, 2011, and that Smith had failed to appear at the scheduled trial.

“On July 28, 2011, the trial court entered the following order (hereinafter ‘the July 28, 2011, order’) in case number CV–11–900208:

“ ‘This matter comes before the Court for bench trial final hearing [sic] this 26th day of July 2011; present in Court was the defendant, Connie Butler–Austin, represented by her attorney of record ․, and the defendant, John Reynolds, represented by ․ The plaintiff, Kenneth Smith, or any representatives on behalf, failed to appear. The Court, upon [Butler–Austin's] oral motion to dismiss [Smith's] complaint against defendant Connie Butler–Austin for his failure to appear, together with [Butler–Austin's] motion for an attorney fee, made verbal findings on the record which are incorporated within this order by reference; and, further, the Court hereby does:

“ ‘ORDER, ADJUDGE and DECREE as follows:

“ ‘1. That [Smith's] complaint as to defendant Connie Butler–Austin is hereby due to be, and is, dismissed with prejudice.

“ ‘2. That defendant Connie Butler–Austin's third-party complaint/cross-claim against defendant John Reynolds is hereby due to be and is dismissed without prejudice.

“ ‘3. That defendant Connie Butler–Austin's motion for an attorney fee pursuant to the [ALAA] is hereby due to be, and is GRANTED. Judgment is hereby entered in favor of defendant Connie Butler–Austin, and against plaintiff Kenneth Smith, for her attorney fees in defending this cause of action, in the amount of $1,500, for which execution [shall] issue.’

“(Capitalization in original.) Also on July 28, 2011, the trial court entered another order that is substantially the same as the order quoted above; that order stated: ‘Trial held on 7/26/2011. Plaintiff failed to appear. Case is dismissed and third-party complaint is dismissed without prejudice.’

“On August 26, 2011, Smith, who had by that time retained counsel, filed in case number CV–11–900208 a purported postjudgment motion in which he sought to set aside the July 28, 2011, order. See SCI Alabama Funeral Servs., Inc. v. Hester, 984 So.2d 1207, 1208 n. 1 (Ala.Civ.App.2007) (‘A valid postjudgment motion may only be taken in reference to a final judgment.’). Smith submitted certain exhibits in support of his August 26, 2011, motion. On August 29, 2011, the trial court entered an order denying Smith's August 26, 2011, motion to set aside the July 28, 2011, order. Smith appealed to our supreme court, which transferred the appeal to this court pursuant to § 12–2–7(6), Ala.Code 1975. Smith contends that the trial court erred in failing to set aside the July 28, 2011, order in case number CV–11–900208.”

Smith v. Butler–Austin, [Ms. 2110342, May 18, 2012] ––– So.3d ––––, –––– (Ala.Civ.App.2012) (footnotes omitted).

In Smith v. Butler–Austin, supra, this court concluded that the July 28, 2011, order from which Smith had appealed was not sufficiently final to support the appeal. Accordingly, this court remanded the cause for the trial court to determine whether to enter a final judgment, to determine whether a Rule 54(b), Ala. R. Civ. P., certification was appropriate, or to take no action. ––– So.3d at ––––.

On June 1, 2012, the trial court entered a judgment in case number CV–11–900208 finding that Reynolds owned the property at issue, dismissing Smith's claims against Butler–Austin and Reynolds in “this action and the consolidated action,” noting that Butler–Austin had withdrawn her third-party claim against Reynolds, and ordering Smith to pay Reynolds an attorney fee under the ALAA. The record also indicates that on May 23, 2012, the trial court entered a judgment in the Reynolds action dismissing that action. Those judgments disposed of the remaining pending claims between the parties and, therefore, constituted a final judgment in this matter.

On appeal, Smith argues that the trial court erred in denying his motion seeking to set aside what he refers to as the trial court's “default judgment.” This court noted in Smith v. Butler–Austin, supra, that, although “[t]he parties refer to the July 28, 2011, order as a ‘default judgment,” ’ “[w]e conclude that that order was one dismissing the claims in case number CV–11–900208 pursuant to Rule 41(b), Ala. R. Civ. P.” Smith v. Butler–Austin, ––– So.3d at –––– n. 2 (citing Blake v. Stinson, 5 So.3d 615 (Ala.Civ.App.2008)).

This court has explained the law concerning a dismissal pursuant to Rule 41(b), Ala. R. Civ. P., as follows:

“ ‘The dismissal of a civil action for want of prosecution because of the plaintiff's failure to appear at a trial falls within the judicial discretion of a trial court and will not be reversed upon an appeal except for an abusive use of that discretionary power .’ Thompson v. McQuagge, 464 So.2d 105, 106 (Ala.Civ.App.1985). However, ‘[d]ismissal with prejudice is a harsh sanction and should be used only in extreme circumstances.’ Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990) (quoting Selby v. Money, 403 So.2d 218, 220 (Ala.1981)).

“ “ ‘In Alabama, and many federal courts, the interest in disposing of the litigation on the merits is overcome and a dismissal may be granted when there is a clear record of delay, willful default or contumacious conduct by the plaintiff. Willful default or conduct is a conscious or intentional failure to act. ‘Willful’ is used in contradistinction to accidental or involuntary noncompliance. No wrong motive or intent is necessary to show willful conduct.” ” '

Goodley v. Standard Furniture Mfg. Co., 716 So.2d 226, 227 (Ala.Civ.App.1998) (quoting Selby v. Mahoney, 403 So.2d 218, 220–21 (Ala.1981)).

With regard to reviewing a dismissal under Rule 41(b), this court has further explained:

“It is well settled that the decision whether to enter a Rule 41(b) dismissal is within the sound discretion of the trial court, and such a dismissal will be reversed only if the trial court exceeded its discretion. Atkins v. Shirley, 561 So.2d 1075, 1077 (Ala.1990); Riddlesprigger v. Ervin, 519 So.2d 486, 487 (Ala.1987); State ex rel. S.M. v. A.H., 832 So.2d 79, 80 (Ala.Civ.App.2002); and Coulter v. Stewart, 726 So.2d 726, 728 (Ala.Civ.App.1999). However, because dismissal with prejudice is a drastic sanction, it should be applied only in extreme situations. Smith v. Wilcox County Bd. of Educ., 365 So.2d 659, 661 (Ala.1978). Therefore, this court will carefully scrutinize orders dismissing an action with prejudice and occasionally will find it necessary to set them aside. Id. In reviewing the trial court's dismissal of an action, we must determine whether the ruling is supported by the evidence contained in the record. Nash v. Cosby, 597 So.2d 209, 210 (Ala.1992); Atkins v. Shirley, 561 So.2d at 1077; and Riddlesprigger v. Ervin, 519 So.2d at 487.”

Blake v. Stinson, 5 So.3d 615, 617–18 (Ala.Civ.App.2008).

In Goodley, supra, the trial court dismissed an action pursuant to Rule 41(b) when Goodley and his attorney failed to appear at the scheduled trial. In his postjudgment motion, Goodley alleged that his attorney had failed to notify him of the trial setting. This court reversed the dismissal, noting that, “[o]ther than Goodley's failure to appear on the date set for trial, the case action summary reveals no delay, default, or dereliction on his part .” Goodley, 716 So.2d at 227. This court concluded that the record on appeal indicated “no delay, willful default, or contumacious conduct by Goodley.” Id. See also Burdeshaw v. White, 585 So.2d 842 (Ala.1991) (the failure to appear at a summary-judgment hearing and then delaying 10 months to seek to have another hearing scheduled did not warrant a Rule 41(b) dismissal); and Cabiness v. Wilson, 501 So.2d 1177 (Ala.1986) (reversing a dismissal when the evidence indicated, in part, that the failure to appear for a summary-judgment hearing was not willful).

In his motion to set aside the judgment of dismissal, Smith alleged that, before the actions were consolidated, an order had been entered in case number CV–11–900208 scheduling that action for a bench trial on July 26, 2011, and that the bench trial in the Reynolds action had been scheduled for September 29, 2011. Smith stated that he erroneously concluded that the actions would be tried on the later date, i.e., September 29, 2011. Smith argued that his conclusion was “based on faulty judgment or logic” and that it was not “a wilful disregard of an order” of the trial court. Smith reiterates those arguments in his brief before this court.¹ The record contains no indication of any delay or dereliction by Smith before his failure to appear at the bench trial. Goodley, supra. Given the record on appeal and the arguments asserted by Smith, we must conclude that the trial court erred in dismissing Smith's claims. Therefore, we reverse the trial court's judgment and remand the cause for further proceedings.

REVERSED AND REMANDED.

THOMPSON, Presiding Judge.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.