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LLC v. Gleason

Supreme Court of Alabama

December 8, 2017

Mitchell's Contracting Service, LLC
v.
Robert Guy Gleason, Sr., as administrator of the Estate of Lorena Gleason, deceased

         Appeal from Wilcox Circuit Court (CV-13-900076)

          SELLERS, Justice.

         Mitchell's Contracting Service, LLC ("Mitchell"), appeals from the Wilcox Circuit Court's denial of Mitchell's renewed motion for a judgment as a matter of law or for a new trial in a wrongful-death action brought by Robert Guy Gleason, Sr., as the administrator of the estate of Lorena Gleason, deceased. We reverse the trial court's judgment and remand the cause for a new trial.

         Introduction

         According to Gleason's complaint as amended, James Pettway and Derrick Turner were both driving dump trucks in their capacities as employees of Mitchell when one of the trucks caused Lorena's vehicle to leave the road, where it collided with a tree, resulting in her death. Gleason asserted claims against Mitchell based on vicarious liability for Pettway's or Turner's negligent and wanton acts and omissions. A jury returned a verdict in favor of Gleason for $2.5 million. The trial court entered a judgment on that verdict and denied Mitchell's postjudgment motion. This appeal followed.

         Timeliness of Appeal

         As an initial matter, we must consider Gleason's argument that Mitchell's appeal was not timely filed. After the trial court entered a judgment on the jury's verdict, Mitchell, on October 19, 2016, filed a renewed "Motion for Judgment as a Matter of Law, and Motion to Alter, Amend or Vacate the Judgment, or in the Alternative, Motion for New Trial." In its motion, Mitchell argued that it was entitled to a judgment as a matter of law because, Mitchell asserted, Gleason had not presented sufficient evidence in support of his claim. Alternatively, Mitchell argued that it was entitled to a new trial based on the trial court's allegedly improper evidentiary rulings and other alleged errors.

         On October 24, 2016, the trial court entered an order stating:

"MOTION FOR JUDGMENT AS A MATTER OF LAW, AND MOTION TO ALTER, AMEND OR VACATE THE JUDGMENT, OR IN THE [sic] filed by MITCHELL'S CONTRACTING SERVICE, LLC is hereby DENIED."

(Capitalization in original.) Approximately one week later, the trial court entered a second order, stating: "The Court's 10-24-16 order denying defendant's motion to alter or amend is hereby vacated and set aside as it was done in error." The second order also set a hearing date, stating: "A Hearing on the Motion is set on 12-16-16." Thereafter, the parties stipulated that no hearing would be necessary. Accordingly, the trial court canceled the hearing. The trial court never entered another order ruling on Mitchell's postjudgment motion, and the parties considered it to have been denied by operation of law 90 days after it was filed, i.e., on January 17, 2017. See Rule 59.1, Ala. R. Civ. P.

         In response to a show-cause order issued by this Court on the question of the timeliness of the appeal, filed on January 30, 2017, Gleason argues that the trial court's October 24, 2016, order constituted a final judgment adjudicating Mitchell's postjudgment motion in its entirety. In support of his contention, Gleason argues that the trial court did not have jurisdiction to set aside its order a week after it entered it; that Mitchell's deadline to appeal began to run on October 24, 2016; and, thus, that its appeal, filed on January 30, 2017, was untimely. See, e.g., Southeast Envtl. Infrastructure, LLC v. Rivers, 12 So.3d 32 (Ala. 2008) (indicating that a trial court does not have jurisdiction to "reconsider" a postjudgment motion once the motion is denied); and Attalla Health Care, Inc. v. Kimble, 14 So.3d 883 (Ala. Civ. App. 2008) (indicating that a trial court does not have jurisdiction to, sua sponte, set aside an order denying a postjudgment motion). Mitchell, on the other hand, argues that the October 24, 2016, order did not completely resolve the postjudgment motion because, it says, the order did not rule on Mitchell's request for a new trial.

         The legal effect of a judgment is to be declared in light of the literal meaning of the language of the judgment. Southeast Constr., LLC v. WAR Constr., Inc., 159 So.3d 1227, 1238 (Ala. 2014). By its literal language, the October 24, 2016, order does not rule on Mitchell's motion for a new trial. It simply includes the superfluous words "or in the" following the two types of motions specifically mentioned. See also Rule 58(b), Ala. R. Civ. P. ("A written order or a judgment will be sufficient if it is signed or initialed by the judge, ... and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication." (emphasis added)); and Carroll v. Buttram, 758 So.2d 1097, 1102 (Ala. 1999) ("A judgment must be clear and unambiguous in order to stand."). The language "or in the" was not sufficient to indicate an intent to deny Mitchell's motion for a new trial. Accordingly, the trial court's order of October 24, 2016, did not deny Mitchell's postjudgment motion in its entirety and Mitchell's appeal was timely filed.[1]

         Facts

         On the day of the accident, Mitchell, pursuant to a contract with the owner of a paper mill in Wilcox County, was engaged in transporting wood ash from the paper mill to a dump site southeast of the paper mill. Wilmar Contracting Company ("Wilmar"), who Mitchell's corporate representative described as Mitchell's subcontractor, was also involved in transporting ash to the dump site. Some of the dump-truck drivers transporting ash were employed by Mitchell and some were employed by Wilmar.

         After loading their dump trucks, the dump-truck drivers would leave the paper mill and travel south along a state highway. They would then turn onto Wilcox County Road 12 and travel west toward the dump site. The accident occurred on County Road 12, which was described during the trial as a narrow two-lane road.

         Wilmar dump-truck drivers Raymond Lovelace and Steve Maness each testified that, after delivering loads of ash to the dump site on the morning of the accident, they were traveling east on County Road 12 toward the state highway, en route to the paper mill. Lovelace testified that a loaded white dump truck passed him traveling in the opposite direction on its way to the dump site; that the white dump truck was not entirely within its lane; and that Lovelace had to move his dump truck over to allow the white dump truck to pass safely. Maness testified that he too encountered a white dump truck traveling west along County Road 12 toward the dump site. Lovelace confirmed that the white dump truck was one of the trucks being operated by Mitchell. Mitchell's principal member, who testified as its representative, stated that Derrick Turner, who was an employee of Mitchell, was driving a white dump truck on the day of the accident.

         Both Lovelace and Maness testified that there was not a car resting against the tree off County Road 12 where Lorena's car was found when they drove east along County Road 12. They did, however, testify that another driver, Daniel Hunter, [2] who was also traveling east along County Road 12 at a distance behind Lovelace and Maness, telephoned each of them and indicated that he had seen that a car appeared to have left the road and was resting against a tree.

         Lovelace testified that the white dump truck he encountered was the only dump truck he met on County Road 12 before Hunter informed him that Hunter had seen what turned out to be Lorena's car resting against a tree. Maness testified that he encountered two dump trucks as he was traveling east on County Road 12--the white truck and a black truck, which was also a Mitchell truck. Mitchell's representative testified that Mitchell employee James Pettway was driving a black dump truck on the day of the accident.

         Hunter testified that, after he had delivered a load of ash to the dump site, he was traveling east along County Road 12 when a white dump truck passed him traveling in the opposite direction. He stated that he had personal knowledge of the truck and that he had no doubt that it was a truck being operated by a driver employed by Mitchell. Hunter testified that the truck was traveling at an excessive rate of speed, that the truck was traveling in the middle of the two-lane road, and that Hunter had to move his truck off the road to allow the truck to pass. According to Hunter, after the white dump truck passed him, he discovered Lorena's car against a tree and telephoned 911 emergency service. He also testified that he believed the accident had occurred recently because "smoke" was still coming out from under the hood of Lorena's car and because Lovelace, who was traveling in front of Hunter, had not seen the car.

         Andrew Webb, Gleason's accident reconstructionist, testified that Lorena was traveling east on County Road 12 when she left the roadway onto the south-side shoulder, that she attempted to maneuver her vehicle back onto the road, that she over-corrected to the north side, that she lost control of her vehicle, and that her vehicle crossed over the road onto the north-side shoulder and struck a tree. Webb opined that Lorena had engaged in an avoidance maneuver in driving off the road onto the south-side shoulder and that there was no evidence of distracted driving on Lorena's part. He also opined that Lorena's vehicle struck the tree while traveling approximately 18 miles per hour. Photographs admitted into evidence show that the tree is relatively close to the north-side shoulder of the road. Mitchell's accident reconstructionist agreed that Lorena had originally left the road onto the south-side shoulder and that she lost control of the vehicle when she over-corrected in an attempt to move the car back onto the road. He testified, however, that the evidence was consistent with distracted driving. Agee Smith testified that he witnessed a white dump truck force Lorena's vehicle off County Road 12:

"Q [By Gleason's attorney]. Now, Mr. Smith, on [the day of the accident], you were in Coy[, Alabama, ] on that date?
"A. Oh, yes, sir.
"Q. Are you -- where were you in Coy?
"A. I was traveling on County Road 12, but it be coming from my farm. It would be kind of east like northeast.
"Q. And what happened when you -- you said you made it to the stop sign?
"A. As I approached on towards the stop sign, which would be down below the fire department, traveling on County Road 12. And we went on -- I was turning north a little bit and still traveling on County Road 12, and I was coming around this curve --coming around the curve. I saw the little car kind of flank a little bit. And I said, well, what's going on? And as I was going on up, I could see this body of this big truck coming. And the big truck on the little small vehicle, it had it going on the side of the highway, it was all the way over cross the line, it was across the dividing line in the highway. It was on --
"Q. Will you tell the jury what kind of big truck you saw?
"A. It was a big dump truck. It was a big dump truck. And, you know, it was hauling some kind of soil, I believe.
"Q. And will you tell the jury, you said it was straddling the road. You mean, it was not in its lane.
"A. It was not in its lane. As I go to say, there was a northbound lane, so the truck was all in the northbound lane when it should have been -- you know, it was southbound, but it was in the northbound lane when it should have been in the southbound lane.[3]
"Q. And was there a vehicle in front of you? You was saying some little vehicle. Do you know what color it was? Can you describe it?
"A. It was a little red -- little red vehicle, and I saw a struggle with the vehicle. I saw somebody --I felt that they was fighting, I guess, for their life or fighting to get the vehicle under control. But seconds after then, when I looked over, the vehicle jumped across the -- after the big truck zoomed on, the vehicle across -- I guess, it was trying to, you know, take control of the vehicle, whoever was driving the vehicle, but it didn't happen. It was a big oak tree when it went across the -- it went across after the -- after the big dump truck had passed by, that's where they -- it went across. The big dump truck gone on. And, myself, I didn't go up to the vehicle. I was thinking things. I saw things coming from the vehicle, but it was the steam coming from the radiator.
"....
"Q. Now let's go back.
"A. Okay --
"Q. You say you saw the big truck on the wrong side of ...

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