June 19, 2015
Ex parte Sylvia Curry
Ron Gibson and Ron Gibson Construction Company In re: Sylvia Curry, Loretta Cuthbert, and Letitia Clark
Opinion is subject to formal revision before publication in
the advanced sheet of the Southern Reporter.
(Calhoun Circuit Court, CV-10-900469).
Judge. Thompson, P.J., and Pittman, Moore, and Donaldson,
FOR WRIT OF MANDAMUS
30, 2014, the Calhoun Circuit Court (" the trial
court" ) entered a summary judgment in favor of Sylvia
Curry, Loretta Cuthbert, and Letitia Clark (hereinafter
collectively referred to as " the plaintiffs" ) on
their claims against Ron Gibson and Ron Gibson Construction
Company (hereinafter collectively referred to as "
Gibson" ). Gibson filed a postjudgment motion
directed to the summary judgment on July 29, 2014. After a
status review, the trial court entered on October 22, 2014,
an order stating: " Trial of this matter is hereby set
for the week commencing on February 23, 2015, at 9:00
a.m." The trial court entered a scheduling order on
December 19, 2014. The parties complied with the trial
court's scheduling order even as late as February 3,
2015, but on February 4, 2015, counsel for the plaintiffs
informed counsel for Gibson that he believed that the trial
court lacked jurisdiction to hold a trial because, in his
opinion, Gibson's postjudgment motion had been denied by
operation of law on October 27, 2014.
response to the plaintiffs' communication, Gibson filed
on February 6, 2015, a Rule 60(b), Ala. R. Civ. P., motion
seeking to have the trial court enter an order specifically
granting the postjudgment motion. Gibson relied on Rule
60(b)(6) and argued that Gibson was entitled to relief from
the operation of the 90-day provision in Rule 59.1, Ala. R.
Civ. P., because the trial court had entered an order
scheduling a trial, which, Gibson contended, was an implicit
grant of the postjudgment motion. Furthermore, Gibson argued,
the parties had understood that the postjudgment motion had
been granted, as evidenced by their compliance with the trial
court's scheduling order. The trial court granted
Gibson's Rule 60(b) motion on February 11, 2015.
plaintiffs filed this petition for the writ of mandamus in
our supreme court on March 25, 2015; our supreme
court transferred the petition to this court on April 29,
2015. We called for an answer, which Gibson timely filed. The
standard applicable to the review of a petition for the writ
of mandamus is well settled.
" '" [M]andamus is a drastic and extraordinary
writ that will be issued only when there is: (1) a clear
legal right in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform, accompanied
by a refusal to do so; (3) the lack of another adequate
remedy; and (4) properly invoked jurisdiction of the
court." Ex parte Horton, 711 So.2d 979, 983
Ex parte Builders & Contractors Ass'n of Mississippi
Self--Insurer's Fund, 980 So.2d 1003, 1006
(Ala.Civ.App. 2007) (quoting Ex parte Alloy Wheels
Int'l, Ltd., 882 So.2d 819, 821 (Ala. 2003),
overruled on other grounds by Ex parte DBI, Inc., 23
So.3d 635, 657 (Ala. 2009)).
their petition, the plaintiffs seek an order compelling the
trial court to set aside its order granting the Rule 60(b)
motion. They argue that the trial court's October 22,
2014, order setting the case for trial does not meet the
requirement that an order disposing of a postjudgment motion
either grant or deny that motion. See Ex parte Chamblee, 899
So.2d 244, 248 (Ala. 2004); see also French v. Steel,
Inc., 445 So.2d 561, 563 (Ala. 1984). Thus, they
contend, the postjudgment motion was denied by operation of
law on October 27, 2014, and, they say, the trial court
lacked a basis for granting the Rule 60(b) motion.
the determination whether Gibson's postjudgment motion
was denied by operation of law is not so easily made. Gibson
contends that the trial court's October 22, 2014, order
was sufficient to indicate that the trial court was granting
Gibson's postjudgment motion. The caselaw on the question
is not entirely clear.
as the plaintiffs contend, our supreme court has indicated
that an order disposing of a postjudgment motion must either
grant or deny the motion, but in Ex parte Chamblee, for
example, the trial court had orally stated that it intended
to grant the postjudgment motion but had not entered any
order ruling on the motion before the expiration of the
90-day period set out in Rule 59.1. Ex parte
Chamblee, 899 So.2d at 248. Even after the trial court
in Ex parte Chamblee attempted to correct the record to show
a timely ruling on the postjudgment motion, the trial court
had timely entered an order stating only that the motion
" 'was due to be granted,'" which,
according to our supreme court, was still insufficient to
qualify as a ruling on the postjudgment motion. Id.
Similarly, this court has determined that an order "
'grant[ing] in part'" a postjudgment motion and
setting the motion for a hearing was not a ruling on the
postjudgment motion as contemplated by Rule 59.1. Eight
Mile Auto Sales, Inc. v. Fair, 25 So.3d 459, 462
(Ala.Civ.App. 2009). In contrast, this court has determined
that an order amending a judgment in a manner requested in a
postjudgment motion is, even without reference to the
postjudgment motion, a ruling on that postjudgment motion.
See Bittinger v. Byrom, 65 So.3d 927, 931
(Ala.Civ.App. 2010); BancTrust Co. v. Griffin, 963
So.2d 106, 109 (Ala.Civ.App. 2007).
order in the present case is unlike an order indicating an
intent to rule on the motion or an order amending a judgment
in a manner requested by a postjudgment motion. Thus, cases
like Ex parte Chamblee, Eight Mile Auto Sales, and Bittinger
cannot help us to completely resolve the issue whether the
October 22, 2014, order setting the case for trial can
properly be construed as an implicit grant of Gibson's
postjudgment motion seeking to have the summary judgment
vacated. More instructive
are two other cases this court has decided: Palmer v.
Browning, 33 So.3d 1249 (Ala.Civ.App. 2009), and
Stober v. Brimer, 111 So.3d 743 (Ala. Civ. App
Palmer, this court considered whether an order entered by a
trial court that merely restated, albeit more concisely, the
substance of its earlier judgment was, in fact, a denial of a
postjudgment motion directed to the earlier judgment.
Palmer, 33 So.3d at 1250. Because the order in
Palmer was entered after the filing of both the postjudgment
motion and the response to that motion, the majority of this
court could determine no other reason the trial court would
have entered the order other than to dispose of the
postjudgment motion. Id. at 1251. Accordingly, we
determined that, because the order did not grant any relief
sought in the postjudgment motion, the order had denied that
postjudgment motion. Id. at 1252.
Stober, this court considered the import of a trial
court's order scheduling the case for a " 'final
hearing'" ; the order had been entered after the
filing of a husband's postjudgment motion but before a
hearing on that motion. Stober, 111 So.3d at 744. A
majority of this court determined that the use of the term
" final hearing," as opposed to use of the terms
" trial," " new," or " grant,"
indicated that the trial court had intended to set the
postjudgment motion for a hearing. Id. at 745.
Furthermore, we supported our conclusion with the observation
that the trial court had used the term " trial" in
orders that had set the case for an adjudication on the
merits and that the trial court had, at the hearing set by
the contested order, used the present tense when it stated
that " [the earlier] judgment was 'hereby' set
aside and 'we're back at square one.'"
Id. Judge Moore dissented, arguing that, based in
part on the language of the order and in part on statements
made at the later hearing, the trial court had clearly
intended to grant the postjudgment motion and had scheduled
the entire case for a trial on the issues. Id. at
often the case, none of the many cases determining whether a
particular order satisfies the requirement that an order on a
postjudgment motion either grant or deny the postjudgment
motion directly answers the question posed in this case.
Although there are some differences, this case most closely
resembles Stober. The order in the present case, like the
order in Stober, does not specifically state whether it is
granting or denying the postjudgment motion. However, the
October 22, 2014, order scheduled a trial in this matter, as
opposed to scheduling merely a " hearing." Thus,
based on Stober, the October 22, 2014, order scheduling the
case for a trial should be construed as an order implicitly
granting Gibson's postjudgment motion. Construing the
October 22, 2014, order as an implicit ruling on Gibson's
postjudgment motion is also consistent with our holdings in
Bittinger and BancTrust. In fact, in Bittinger, we concluded
that an order amending a judgment implicitly granted the
postjudgment motion insofar as it amended the judgment in a
manner requested by the postjudgment motion but implicitly
denied other requested relief not addressed in the amended
judgment. Bittinger, 65 So.3d at 931. An order
setting a case for a trial on the merits is at least as clear
an implicit grant of a postjudgment motion as the failure to
grant relief in an amended judgment issued in response to a
postjudgment motion is an implicit denial of that motion.
in light of our decisions in BancTrust, Palmer, Bittinger,
and Stober, we conclude that the trial court's order
setting the case for trial implicitly granted Gibson's
motion seeking to vacate the summary judgment. Based on this
we further conclude that Gibson's Rule 60(b) motion was
unnecessary. The trial court had timely granted Gibson's
postjudgment motion, and it therefore was not required to set
aside any purported denial by operation of law of that same
postjudgment motion. Because we have determined that the
trial court timely granted Gibson's postjudgment motion,
and because the Rule 60(b) motion was unnecessary, we
conclude that the plaintiffs have failed to show a clear
legal right to the relief they seek. The petition for the
writ of mandamus is therefore denied.
P.J., and Pittman, Moore, and Donaldson, JJ., concur.
We note that these parties have been before
the court before. See Gibson v. Curry (No. 2120619,
August 30, 2013), 166 So.3d 155, __ (Ala.Civ.App. 2013)