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01/06/95 KENNETH ALAN SMITH AND STEPHANIE REGINA

January 6, 1995

KENNETH ALAN SMITH AND STEPHANIE REGINA SMITH
v.
WILLIE JAMES SAVAGE



Appeal from Colbert Circuit Court. (CV-93-326).

Holmes, Retired Appellate Judge, Robertson, P.j., and Yates, J., concur. Thigpen, J., concurs in the result.

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

This is an appeal from the trial court's order dismissing the plaintiffs' action with prejudice for failure to prosecute.

In June 1993 Kenneth Alan Smith filed a complaint against Willie James Savage, wherein Smith alleged that Savage was wrongfully detaining personal property owned by Smith. Smith requested that the trial court award him $15,000 in compensatory damages and $5,000 in punitive damages.

Savage filed an answer and a counterclaim for past-due rent. Smith filed a motion to add his sister, Stephanie Regina Smith, as a plaintiff because she was a co-owner of the personal property which was the subject of the complaint. The motion was granted.

Smith also filed an amended complaint, wherein he alleged that the actions of Savage had caused him to lose income. Smith sought compensatory and punitive damages. Savage's motion to strike the request for punitive damages was granted.

Savage also filed a motion for a protective order, wherein he alleged that the interrogatories filed by the Smiths on March 4, 1994, were essentially the same as interrogatories which had been previously answered. The trial court granted Savage's motion for a protective order.

The trial of the case was set for June 20, 1994. On that date, the trial court issued the following order:

"This cause having heretofore been set for trial this day and [the Smiths] having failed to appear, [Savage] appearing in person and represented by counsel and making a motion to dismiss this cause in open court for [the Smiths'] failure to prosecute;

"It is ORDERED that said motion be and hereby is granted, and this case is hereby dismissed with prejudice. [Savage's] counterclaim is dismissed on his own motion.

"DONE and ORDERED at Tuscumbia, Alabama, this the 20th day of June 1994."

Our review of the record reveals that the Smiths were appearing pro se at the trial level. Kenneth Smith was unable to attend the trial because he was incarcerated. Although the docket list stated, "ATTORNEYS AND PARTIES TO BE PRESENT AT 8:30 A.M. on June 20, 1994," Stephanie Smith did not arrive at the courthouse until 9:30 a.m. because her car had a flat tire.

The Smiths filed a motion for a new trial, which was denied. Thereafter, the Smiths filed a Rule ...


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