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12/09/94 NADINE MCLEMORE v. ROY FLEMING

December 9, 1994

NADINE MCLEMORE
v.
ROY FLEMING



Appeal from Lauderdale Circuit Court. (CV-92-713). Ned Michael Suttle, TRIAL JUDGE.

Rehearing Overruled January 13, 1995, . Certiorari Denied April 21, 1995. Released for Publication August 28, 1995.

Robertson, Presiding Judge. Thigpen and Yates, JJ., concur.

The opinion of the court was delivered by: Robertson

ROBERTSON, Presiding Judge

This is an appeal from a summary judgment entered in favor of Roy Fleming in an eviction action.

This case was previously before this court on an appeal from a prior summary judgment entered by the trial court on April 8, 1993. The facts, as set out in that earlier appeal, McLemore v. Fleming, 632 So. 2d 482 (Ala. Civ. App. 1994) (hereinafter "McLemore I "), are as follows:

"The record reflects that the parties to this action are family members who have been in a litigious battle since their father and mother died, leaving substantial real estate holdings. One of those properties, on which Nadine McLemore has resided for approximately thirty years, is the subject of this eviction action.

"After Roy Fleming filed his affidavit in support of his motion for summary judgment, McLemore responded with an affidavit, which put certain material facts in dispute. The trial court entered a judgment for Fleming, and after McLemore's post-judgment motion was denied, she appealed."

McLemore, 632 So. 2d at 483.

Based on the record at that time, this court found that a genuine issue of material fact existed as to the ownership of the property that was the subject of the eviction action. We reversed the summary judgment in McLemore I and remanded the cause for further proceedings.

Upon remand to the trial court, Fleming filed a second motion for summary judgment. This subsequent motion and affidavit were supported by exhibits that included: the clerk's record in Lauderdale County Circuit Court case number CV-91-64 (which included the deposition of Nadine McLemore); the last will and testament of O. J. Fleming; the order admitting O. J. Fleming's last will and testament to probate; a copy of the last will and testament of Virgie Fleming; a copy of the check from Roy Fleming to Virgie Fleming for the purchase of the property in dispute; a copy of the deed from Virgie Fleming to Roy Fleming; the affidavit of James T. Stevenson, a title expert; and a copy of our Supreme Court's opinion in Lauderdale County Circuit Court case number CV-91-64, McLemore v. Fleming, 604 So. 2d 353 (Ala. 1992). These exhibits were not before the trial court or this court in McLemore I.

On June 9, 1994, the trial court entered a summary judgment in favor of Fleming. McLemore then moved for a new trial, or in the alternative, to set aside the summary judgment and to reinstate the cause on the jury docket for a trial. The trial court denied McLemore's motion; hence this appeal.

The issues raised by McLemore on appeal are: (1) whether the trial court was prohibited from entering the summary judgment, under the doctrine of res judicata; and (2) whether a genuine issue of material fact exists as to the ownership of the property in dispute.

We first address whether the granting of Fleming's subsequent motion for summary judgment was barred by the doctrine of res judicata. McLemore argued that because the summary judgment in McLemore I had been reversed and the cause remanded for further proceedings, the June 9, 1994, summary judgment was prohibited. There are four essential elements of res judicata: (1) a prior judgment on the merits; (2) rendered by a court of competent jurisdiction; (3) with substantially the same identity of ...


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