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Ex parte Curry

Alabama Court of Civil Appeals

June 19, 2015

Ex parte Sylvia Curry
v.
Ron Gibson and Ron Gibson Construction Company In re: Sylvia Curry, Loretta Cuthbert, and Letitia Clark

         Editorial Note:

         This Opinion is subject to formal revision before publication in the advanced sheet of the Southern Reporter.

          (Calhoun Circuit Court, CV-10-900469).

         THOMAS, Judge. Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.

          OPINION

Page 1033

         PETITION FOR WRIT OF MANDAMUS

         THOMAS, Judge.

         On June 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" ).[1] 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.

         In 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.

         The plaintiffs filed this petition for the writ of mandamus in our supreme court on March 25, 2015; our supreme

Page 1034

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 (Ala. 1998).'"

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 ...


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