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02/03/95 ERNEST MORRISON AND KEATS MORRISON v.

February 3, 1995

ERNEST MORRISON AND KEATS MORRISON
v.
KEITH FRANKLIN



Appeal from Mobile Circuit Court. (CV-94-330). Douglas I. Johnstone, Trial Judge.

Released for Publication May 27, 1995.

Jones, Hornsby, C.j., and Maddox, Shores, Houston, and Ingram, JJ., concur.

The opinion of the court was delivered by: Jones

JONES, RETIRED JUSTICE.

This appeal presents two procedural issues and one substantive issue. The procedural issues: 1) whether the trial court erred in striking the plaintiffs' amendment to their complaint on the ground that the amendment was untimely filed; and 2) whether the appeal is due to be dismissed on the ground that the notice of appeal was untimely filed. The substantive issue: whether the trial court erred in granting the defendant's motion to strike the plaintiffs' amended complaint, thereby dismissing the plaintiffs' action against the defendant. *fn1

Ernest Morrison and Keats Morrison hired the defendant, Keith Franklin, an Alabama lawyer, to represent them in a lawsuit against their former employers. The lawsuit was transferred to a federal district court in Texas, without objection from the plaintiffs. The Morrisons, as plaintiffs in this malpractice action, claim that once the case began to proceed in Texas, Franklin failed in every way to properly represent them and that, as a result, they suffered damage.

On January 28, 1994, the Morrisons filed this legal malpractice action against Franklin, who accepted service of the summons and complaint on February 1, 1994.

On March 3, 1994, the defendant filed a Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss.

On March 9, 1994, the trial court granted the motion and made the following entry: "Granted for lack of allegations of proximately caused damage. 21 days to amend."

On March 21, 1994, the plaintiffs, acting pro se, moved to vacate the trial court's March 9 order of dismissal, stating that their original complaint did contain an allegation of proximately caused damage. They quoted the following portion of the original complaint as proof of that statement:

"(29) Each and all of the above and foregoing acts and omissions constituted negligence, gross negligence, professional negligence, breach of warranty and breach of contract, and each was a proximate cause of actual damages to Plaintiffs."

On March 30, 1994, the parties were notified that the trial court had set a hearing on the plaintiffs' motion to vacate. The hearing was held on April 15, 1994, attended by the plaintiffs and by counsel for the defendant.

The case action summary sheet reflects the following action taken on April 15, 1994, following the hearing: "Plaintiffs' motion to vacate order of dismissal is GRANTED, solely on ground of lack of notice. Court proceeds to hear motion to dismiss, with plaintiffs present and properly notified of motion. Motion to dismiss is GRANTED. Plaintiffs have 21 days to amend."

Immediately following that April 15 order, the plaintiffs petitioned this Court for a writ of mandamus, which this ...


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