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McGee v. Dillard

Alabama Court of Civil Appeals

January 12, 2018

Kenneth L. McGee d/b/a FMC Mobile
v.
David G. Dillard and Teresa Murray Dillard

         Appeal from Mobile Circuit Court (CV-16-900506)

          ON REHEARING EX MERO MOTU

          THOMPSON, PRESIDING JUDGE.

         This court's opinion of December 1, 2017, is withdrawn, and the following is substituted therefor.

         Kenneth L. McGee, a general contractor doing business as FMC Mobile ("McGee"), appeals from a partial summary judgment entered by the Mobile Circuit Court ("the circuit court"). Specifically, the partial summary judgment released a materialman's lien ("the lien") McGee had filed against David G. Dillard and Teresa Murray Dillard. The circuit court determined there was no just reason for delay of an appeal of the release of the lien and certified the partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. McGee also purports to appeal from interlocutory orders entered as to the Dillards' pending claims against McGee.

         The record indicates the following. McGee is a general contractor who preserves and improves structures. In June 2015, he entered into two separate agreements with the Dillards for the preservation and repair of a house ("the house") owned by the Dillards. McGee completed the work to be performed as provided by one of the agreements, and the Dillards paid for that work in full. The second agreement ("the agreement") is the subject of this litigation. Pursuant to the agreement, McGee was to paint certain portions of the exterior of the house and to make certain repairs to the interior of the house, including repairing three windows. The agreement was later revised, calling for the replacement of five windows rather than the repair of three windows.

         On March 10, 2016, the Dillards filed a complaint in the circuit court alleging that they had terminated McGee's services on or about September 4, 2015, and had paid him in full for all the work that had been performed, the materials provided, and the costs incurred through that date. According to the complaint, despite having been paid in full, McGee filed in the Mobile Probate Court the lien against the house. The Dillards sought a judgment determining that they did not owe McGee any further money, declaring the lien void, and releasing the lien. The Dillards also sought money damages for slander of title. The Dillards twice amended their complaint, adding counts of breach of contract, breach of the warranty to perform in a workmanlike manner, and negligence and/or wantonness.

         On March 11, 2016, the day after the Dillards filed their complaint in the circuit court, McGee, who has appeared pro se throughout these proceedings, filed an action in the Mobile small-claims court. The Dillards filed a motion in the circuit court requesting that the two actions be consolidated. The circuit court granted the motion on March 24, 2016.[1]After the actions were consolidated, McGee's action was treated as a counterclaim to the Dillards' action.

         On March 31, 2016, McGee filed an objection to the consolidation, saying, among other things, that it was "a rush to judgment." He claimed that he was owed $2, 953.13 and, therefore, that his action should be tried in the small-claims court. McGee attached to the objection his affidavit and the final invoice he had submitted to the Dillards on September 9, 2015. A copy of the lien was not attached to McGee's objection. The circuit court denied McGee's objection, and the litigation proceeded. The record shows that McGee has consistently refused to comply with discovery requests or to be deposed. In fact, in an e-mail message to the Dillards' attorney, McGee stated: "As you know, I'm not required to give you any of that material [requested in discovery]. I will have copies available for you at trial." Eventually, the Dillards filed a motion for sanctions against McGee. On September 9, 2016, the circuit court entered an order directing McGee to sit for a deposition no later than October 21, 2016. McGee filed various papers with the circuit court claiming that his constitutional rights would somehow be violated if his deposition was taken before the Dillards' depositions. We note that McGee has not attempted to notice depositions for the Dillards or to propound discovery requests on them. The record indicates that McGee is under the impression that, because the Dillards are the plaintiffs and bear the burden of proof, he is not required to submit requested discovery or to sit for a deposition until the Dillards have been deposed. Despite McGee's specious argument and the fact that McGee had not noticed depositions for the Dillards, the circuit court amended its September 9, 2016, order to require the Dillards to be deposed on the same day as McGee and allowing McGee's deposition to be held after the Dillards' depositions. Nonetheless, McGee failed to comply with the order, and the Dillards again filed a motion for sanctions.

         On January 6, 2017, the circuit court held a hearing on the motion for sanctions. In its order of January 9, 2017, the circuit court noted that, at the hearing, McGee continued "to argue the fairness of this Court's order requiring him to sit for a deposition before the [Dillards] were deposed." The circuit court then stated:

"This Court finds [McGee's] tactics to date to be dilatory. No good cause has been shown for ignoring the Court's order to sit for a deposition, nonetheless, the Court will give [McGee] one more opportunity to comply with its order of September 9, 2016. Accordingly, defendant, Kenneth McGee, shall make himself available for his deposition within 21 days from the date of the January 6, 2017, hearing, i.e., no later than January 27, 2017. Failing the same, the Court will enter appropriate sanctions which may include an award of attorney's fees, dismissal of [McGee's] counterclaim, and/or granting of a default judgment."

         We note that the record contains a motion for sanctions that the Dillards filed on January 31, 2017, alleging that McGee still refused to sit for a deposition. The record does not indicate that the circuit court has acted on that motion.

         Meanwhile, on December 16, 2016, the Dillards filed a motion for a summary judgment as to the declaratory-judgment count of their complaint, which sought the release of the lien. The Dillards argued that McGee had failed to commence an action to perfect or enforce the lien within six months, as required by § 35-11-221, Ala. Code 1975. That statute provides that "[a]ny action for the enforcement of the lien declared in this division [i.e., Title 35, Chapter ll, Division 8, §§ 35-11-210 through 35-11-234, Ala. Code 1975] must be commenced within six months after the maturity of the entire indebtedness secured thereby, except as otherwise provided in this division." In support of the motion for a partial summary judgment, the Dillards submitted a copy of the lien, purporting to secure an indebtedness of $3, 887.62, which was filed in the Mobile Probate Court on September 14, 2015. The lien stated that the work was completed on September 11, 2015. McGee filed an opposition to the motion.

         On March 6, 2017, the circuit court entered a partial summary judgment, finding that McGee had never sought to enforce his lien in the circuit court. Instead, the circuit court stated, McGee had filed an action in the small-claims court seeking monetary damages for work, labor, and materials furnished, which did not comply with statutory requirements for perfecting or enforcing the lien. The circuit court noted that McGee's action for monetary damages, which had been consolidated with the Dillards' action, could proceed.

         That same day, March 6, 2017, the circuit court entered an order declaring the lien invalid and releasing the lien. On March 14, 2017, the circuit court certified the March 6, 2017, partial summary judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. In doing so, the circuit court found that there was no just reason for delay in entering a final judgment on the issue of the release of the lien, explaining that the Dillards were scheduled to close on the property that was the subject of the lien, and ordered the closing ...


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