May 22, 2015
John C. Hudgins
Stephen Joel Anthony
from Cherokee Circuit Court. (CV-14-1).
Hudgins, an inmate incarcerated at the Childersburg Work
Release Center (" the work-release center" ),
appeals from a judgment of the Cherokee Circuit Court ("
the trial court" ) dismissing an action he had brought
against Stephen Joel Anthony. We reverse and remand.
2012, Hudgins was convicted of trafficking in marijuana and
sentenced to 15
years in prison. In January 2014, after he had begun serving
his sentence, Hudgins, acting pro se, sued Anthony. Hudgins
alleged that, in 2013, Anthony had converted Hudgins's
mobile home (" the mobile home" ), which was
located in Cherokee County. As relief, Hudgins sought
compensatory damages in the amount of $5,000, punitive
damages in the amount of $25,000, and an order compelling
Anthony to vacate the mobile home.
with his complaint, Hudgins filed an affidavit of substantial
hardship seeking an order waiving the payment initially of
the docket fee and service fees. In response to that
affidavit, the trial court entered an order stating: "
Affidavit of Hardship filed by John C. Hudgins ... is hereby
GRANTED. Prepayment of the docket fee is hereby waived, but
the Court reserves the right to tax [Hudgins] with costs
during or at the conclusion of the case."
(Capitalization in original.)
return on service following the initial attempt to serve
Anthony with process indicated that he was not at the mobile
home. Hudgins then notified the trial court that
Anthony's address was the Cherokee County Jail ("
the jail" ), and service of process on Anthony was
subsequently perfected. Answering Hudgins's complaint,
Anthony denied that he had converted the mobile home.
2014, the trial court set the action for a bench trial on
September 3, 2014. In August 2014, Hudgins filed a motion
(" the motion for transport" ) seeking an order
directing the Cherokee County Sheriff's Department to
transport him from the work-release center to the trial on
September 3, 2014. The trial court denied the motion for
transport in an order entered on August 7, 2014, which
" Motion to transport from confinement in prison to the
civil trial (unrelated to his incarceration) in this case
filed by John C. Hudgins ... is hereby DENIED. However,
[Hudgins] shall be allowed to present testimony in compliance
with Alabama Rules of Civil Procedure 30-31. Strict adherence
to those rules will be expected."
(Capitalization in original; emphasis added.)
subsequently filed a motion asking the trial court to
reconsider its denial of the motion for transport, which the
trial court denied. Hudgins then filed a motion seeking a
continuance of the September 3, 2014, trial setting so that
he could take depositions pursuant to Rules 30 and 31, Ala.
R. Civ. P., before trial. The trial court granted that motion
and reset the trial for November 12, 2014.
September 2014, Hudgins filed a motion asking the trial court
to appoint an officer (" the motion for the appointment
of an officer" ) before whom depositions upon written
questions could be taken pursuant to Rule 31, Ala. R. Civ.
P., and to set a date for those depositions. In pertinent
part, the motion for the appointment of an officer stated:
" 3. Rule 31(a), A[la]. R. Civ. P., provides that
'[a]fter commencement of the action, any party may take
the testimony of any person, including a party, by deposition
upon written questions.' The Rule further requires in
" 'A party desiring to take a deposition upon
written questions shall serve them upon every other party
with a notice stating (1) the name and address of the person
who is to answer them, if known, and if the name is not
known, a general description sufficient to identify the
person or the particular class or group to which the person
belongs, and (2) the name or descriptive title and address of
before whom the deposition is to be taken.'
" 4. Due to the unique circumstances of this case, that
[Hudgins] is incarcerated, Hudgins would ask that the Court
appoint an officer to take the depositions of the witnesses.
After such appointment, Rule 31(b) requires that '[a]
copy of a notice and copies of all questions served shall be
delivered by the party taking the deposition to the officer
designated in the notice; who shall proceed promptly, in the
manner provided by Rule 30(c), (e), and (f), to take the
testimony of the witness in response to the questions and to
prepare, certify, and file or mail the deposition, attaching
thereto the copy of the notice and the questions received by
" 5. The above considered, Hudgins prays that this Court
will appoint an officer and to set a date certain for the
taking of the depositions so that Hudgins may prepare the
questions for the witnesses, submit said questions to the
appointed officer, and request that subpoenas issue, if
necessary, to compel attendance of the witnesses for the
motion for the appointment of an officer bore a certificate
of service certifying that the motion had been given to
prison officials for mailing to Anthony in care of the
Cherokee County Sheriff at the jail. On September 11, 2014,
the trial court entered an order denying the motion for the
appointment of an officer. That order stated:
" Motion to Appoint Officer to Take Deposition and
Establish Time to Take Deposition filed by John C. Hudgins
... is hereby DENIED at this time. There appears to be no
effort exerted by [Hudgins] to comply with the rules
regarding discovery (i.e., notification of the adverse party
of the time and place, acquisition of an officer to take
depositions, and/or other interrogatories sent to
(Capitalization in original.) Hudgins subsequently filed a
motion asking the trial court to reconsider its denial of his
motion for the appointment of an officer, which the trial
court denied on September 19, 2014.
subsequently filed a motion asking the trial court to issue
subpoenas compelling the appearance of Anthony and several
nonparty witnesses (" the nonparty witnesses" ) at
the trial and submitted questions for the trial court to ask
them at trial; however, the trial court denied his motion on
the ground that he had not submitted the subpoenas and paid
the requisite fees for the issuance of the subpoenas. Hudgins
subsequently filed another motion asking the trial court to
issue subpoenas to Anthony and the nonparty witnesses and
attached subpoenas and written questions for the trial court
to ask Anthony and the nonparty witnesses at trial, and he
asserted that he was not required to pay fees for the
issuance of the subpoenas because the trial court had
approved his affidavit of substantial hardship. The trial
court did not rule on that motion before the November 12,
November 10, 2014, Hudgins filed an affidavit with documents
attached to it. In the affidavit, Hudgins attested to the
facts alleged in his complaint.
November 12, 2014, the action was called for trial, and the
trial court stated the following:
" THE COURT: We'll go on the record in the case of
John C. Hudgins vs. Stephen Joel Anthony. This is Case No.:
" Mr. Hudgins is the plaintiff in this case, and he is
a resident of the Alabama Department of Corrections. The
Mr. Stephen Joel Anthony, is not present in the courtroom,
" Mr. Hudgins has filed various motions in this case,
one of which was a Motion to Continue the earlier set trial
until today. That motion was granted. This matter has been
set today for trial.
" Mr. Hudgins has presented no evidence in support of
his claims, no depositions, no interrogatory testimony. And
he is obviously not here. But the Court is not holding it
against him that he is not present -- [the court] has tried
to make efforts to make him aware of the Rules of Civil
Procedure that would allow him to present testimony in
" He has not done that so this case will be
November 14, 2014, the trial court entered a final judgment,
" The above styled case came for a civil non-jury trial
on the 12th day of November 2014. [Hudgins] is currently
incarcerated in the state penitentiary, and his request to be
physically present for this trial was denied. However,
[Hudgins] was given the opportunity to conduct depositions
and all other discovery allowed under the Alabama Rules of
Civil Procedure. He failed to properly avail himself of those
tools, and he also failed to request a continuance of this
trial setting. [Anthony] was not present on the day of trial.
" It is hereby ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
" 1. That the above styled case is DISMISSED with cost
taxed to [Hudgins]."
(Capitalization in original.)
November 25, 2014, Hudgins filed what was, in substance, a
Rule 59(e), Ala. R. Civ. P., postjudgment motion challenging
the November 14, 2014, judgment. In pertinent part, that
" 1. This Court stated as grounds [for its judgment
dismissing the action] that (1) Hudgins had 'failed to
properly avail himself' of the tools available under the
Alabama Rules of Civil Procedure in order to prosecute this
case without being physically present for trial, (2) Hudgins
'was not present on the day of trial,' and had (3)
failed to ask for a continuance.
" 2. Hudgins objects to that conclusion on the basis
that, as far as this Court would allow, he followed the Rules
of Civil Procedure to the letter in requesting subpoenas for
witnesses, submitting written depositions for said witnesses,
and submitting his own deposition/affidavit and other
evidence. A continuance was thus not necessary.
" 3. This Court has not pointed to any specific act or
omissions in support of its conclusion that Hudgins failed to
properly avail himself of the Rules. To the contrary, the
record speaks for itself, in Hudgins's favor.
" 4. Under the unique circumstances of this case, it is
strikingly similar to the case of Cloud v. Cloud,
833 So.2d 649 (Ala.Civ.App. 2002), [in] which [a trial
court's judgment dismissing an incarcerated person's
action] was reversed on appeal. ..."
trial court denied Hudgins's postjudgment motion the same
day it was filed, and Hudgins timely appealed to this court.
Because this is an appeal from a judgment entered in a civil
action in which the amount at issue does not exceed $50,000,
this court has jurisdiction over Hudgins's appeal. See
§ 12-3-10, Ala. Code 1975.
argues that the trial court erred in dismissing his action
because, he says, the trial court's actions prevented him
from introducing evidence at trial in
the form of depositions on written questions. In Feagin
v. Stokes, 837 So.2d 857 (Ala.Civ.App. 2002), this court
" Our supreme court has held that 'a prisoner has no
right to be removed from his place of confinement in order
that he might appear and testify in his own behalf in a civil
suit unrelated to his confinement.' Clements v.
Moncrief, 549 So.2d 479, 481 (Ala. 1989). The Clements
court held that the '" proper course for [an
incarcerated party] is to take his own oral or written
deposition under Rule 30 or 31, A[la]. R. C[iv]. P., to be
used at trial as specifically provided in Rule 32(a)(3)(C),
A[la]. R. C[iv]. P." ' Id. (quoting
Hubbard v. Montgomery, 372 So.2d 315 (Ala. 1979))."
837 So.2d at 860.
In order for a deposition of a prisoner to be taken in a
civil action, whether upon oral examination or upon written
questions, the trial court must grant leave. Rule 30(a) and
31(a), Ala. R. Civ. P." Cloud v. Cloud, 833 So.2d 649,
650 (Ala.Civ.App. 2002). In the present case, the trial court
granted leave for Hudgins to take his own oral or written
deposition pursuant to Rules 30 and 31, Ala. R. Civ. P., but
it denied Hudgins's motion for the appointment of an
officer. Rule 28(a), Ala. R. Civ. P., provides:
" Within the United States .... depositions to be used
in this State shall be taken before an officer authorized to
administer oaths by the laws of the United States, or of the
State of Alabama, or of the place where the examination is
held, or before a person appointed by the court in which the
action is pending. A person so appointed has power to
administer oaths and take testimony."
(Emphasis added.) By denying Hudgins's motion for the
appointment of an officer, the trial court, in effect,
prevented Hudgins from taking his own deposition pursuant to
either Rule 30 or Rule 31 and thereby committed reversible
error. Cf. Cloud, supra; and Feagin, supra. Accordingly, we
reverse the trial court's judgment and remand the cause
for further proceedings consistent with this opinion.
the judges concur.