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04/14/95 DONNELL TRUCKING COMPANY v. JACK D. SHOWS

April 14, 1995

DONNELL TRUCKING COMPANY, INC.
v.
JACK D. SHOWS, AS EXECUTOR OF THE ESTATE OF MARY SHOWS MOORE



Appeal from Montgomery Circuit Court. (CV-91-2620).

Holmes, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

In November 1991 Jack D. Shows, as executor of the estate of Mary Shows Moore, filed a complaint against Donnell Trucking Company, Inc. (Donnell), and its employee, Jimmy Glenn Nolin. The complaint alleged that Moore died as a result of injuries she received in an automobile accident in April 1991. The complaint further alleged that Moore's death was a result of the negligent and wanton actions of Donnell and Nolin.

Donnell filed an answer, after being served with a summons and a complaint. Nolin was never served with a summons and a complaint.

In March 1993 Donnell filed a motion for summary judgment and attorney fees, pursuant to the Alabama Litigation Accountability Act (Ala. Code 1975, §§ 12-19-270 through -276). Donnell also filed numerous documents in support of its motion for summary judgment. Shows filed several motions to strike various documents submitted by Donnell in support of its motion for summary judgment.

Shows also filed a brief in opposition to Donnell's motion for summary judgment and attorney fees, with supporting documentation. Donnell filed a motion to strike certain evidence from this response filed by Shows.

On June 15, 1993, Donnell filed another motion for attorney fees, wherein it requested that the trial court award attorney fees against Shows and the attorneys representing Shows, pursuant to Rule 11, Ala. R. Civ. P., and the Alabama Litigation Accountability Act (Act).

On June 16, 1993, the trial court issued two separate orders. One of the orders granted Donnell's motion for summary judgment. In this order the trial court noted that it had considered Donnell's motion and the supporting documentation filed with the motion, as well as the brief filed in opposition to Donnell's motion for summary judgment and attorney fees. This order mentioned the motions to strike and indicated that these motions would be dealt with in a separate order. The trial court further noted that it had heard oral argument on these motions. The order stated, in pertinent part:

"[Donnell] and [Nolin] are hereby granted summary judgment in their favor, and [Shows's] complaint against [Donnell and Nolin] is hereby dismissed with prejudice with costs assessed against [Shows]. It is further

"ORDERED, ADJUDGED and DECREED that there is no just reason for delay, and that this is the final judgment of the court dismissing this matter."

(Emphasis added.)

The other order issued on June 16, 1993, was the separate order which dealt with the various motions to strike filed by Shows and Donnell. This order contained the following statement:

"There being nothing further pending before the court, and there being no reason to delay entry of judgment on this matter, judgment is hereby granted in favor of [Donnell and Nolin] against all causes of action in [Shows's] complaint, and this ...


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