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Traywick v. Kidd

Alabama Court of Civil Appeals

July 17, 2015

Kenneth S. Traywick
v.
Michael L. Kidd

          Appeal from Autauga Circuit Court. (CV-12-78).

         DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

          OPINION

Page 455

          DONALDSON, Judge.

         In rare circumstances, a summary judgment may be entered in favor of a party who did not file a motion for a summary judgment pursuant to Rule 56, Ala. R. Civ. P. See Adam v. Shelby County Commission, 415 So.2d 1066, 1068 (Ala. 1982). This case does not present one of those circumstances. Kenneth S. Traywick appeals a summary judgment entered by the Autauga Circuit Court (" the trial court" ) in favor of Michael L. Kidd[1] and from the denial of a motion for a summary judgment that was filed by Traywick. Because the evidence submitted by Traywick was insufficient to meet all the required elements of his claims against Kidd, we affirm the trial court's denial of Traywick's motion for a summary judgment. The record does not reflect that Kidd ever filed a motion for a summary judgment, and, as noted, this case does not present a circumstance permitting the entry of a summary judgment without a motion requesting one; therefore, we reverse the summary judgment entered in Kidd's favor.

         This case is before us for the second time on appeal. Traywick filed a complaint in the trial court against Kidd, a

Page 456

lawyer, alleging various claims arising from Kidd's representation of Traywick in a criminal case. All of Traywick's claims against Kidd are governed by the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975 (" the ALSLA" ). Kidd filed a motion to dismiss the complaint under Rule 12(b)(6), Ala. R. Civ. P., on the sole ground that it did not state a cause of action upon which relief could be granted. Kidd's primary argument was that the complaint did not allege a breach of the applicable standard of care. The trial court granted Kidd's motion to dismiss. Traywick appealed, and we reversed the order dismissing the complaint because, we held, pursuant to " the principles set forth in" Ex parte Free, 910 So.2d 753, 756 (Ala. 2005), and Free v. Lasseter, 31 So.3d 85 (Ala. 2009), Traywick was not required to allege a breach of the applicable standard of care in order to state a claim. Traywick v. Kidd, 142 So.3d 1189, 1195 (Ala.Civ.App. 2013).

         After the case was remanded, the trial court entered an order setting a hearing for February 25, 2014, on a motion for a summary judgment. No motion for a summary judgment had been filed by either party at that time. After the order setting the hearing was entered, Traywick filed a motion for a summary judgment. In the materials filed in support of his motion, Traywick alleged various acts or omissions by Kidd in the course of the legal representation that Kidd had rendered to Traywick at various times in 2007, 2008, and 2009. After Traywick's motion for a summary judgment was filed, the trial court again set a hearing to be held on February 25, 2014, on Traywick's motion for a summary judgment.

         On February 7, 2014, Kidd filed an answer that, for the first time, pleaded the affirmative defense that the applicable statute of limitations, provided in § 6-5-574, Ala. Code 1975, barred Traywick's action. That statute provides, in pertinent part:

" (a) All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure ....
" (b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitations for the commencement of actions, namely, [among others,] Sections 6-2-1, 6-2-2, 6-2-3, ...; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission, or failure complained of ...."

         The State Judicial Information System contains an entry on February 9, 2014, indicating that a motion for a summary judgment was filed by Kidd. That filing, however, consists of a refiling of Traywick's motion for a summary judgment. The record before this court does not contain a motion for a summary judgment filed by Kidd.

         On February 10, 2014, the trial court entered an order setting a hearing to be held, also on February 25, 2014, on the motion for a summary judgment purportedly filed by Kidd. On February 20, 2014, Traywick filed a ...


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