Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Curry v. Miller

Supreme Court of Alabama

March 16, 2018

Larry Curry
v.
Gable Carl Miller, Jr., and Auto Owners Insurance Company

         Appeal from Houston Circuit Court (CV-16-900224)

          SELLERS, JUSTICE.

         Larry Curry appeals from a judgment of the Houston Circuit Court dismissing his lawsuit against Gable Carl Miller, Jr., and Auto Owners Insurance Company ("Auto Owners") on the ground of failure to prosecute. We affirm.

         Facts and Procedural History

         On May 30, 2014, Curry was injured when the vehicle in which he was driving was struck from the rear by a vehicle being driven by Miller. Curry retained attorney Russell D. Johnson to represent him in the matter. On May 27, 2016, Johnson, on Curry's behalf, filed a personal-injury action against Miller. Johnson also asserted in the action a claim against Auto Owners seeking uninsured/underinsured-motorist benefits.[1]

         On March 13, 2017, the trial court set the case for a bench trial on May 9, 2017, and, at Miller's request, set a status conference on April 11, 2017. At some point Curry's relationship with Johnson began to deteriorate, and Curry terminated Johnson's employment.

         On March 24, 2017, Johnson filed a motion to withdraw as counsel, citing a "breakdown in communication" between him and Curry. Johnson requested in the motion to withdraw that the trial court continue the May 9, 2017, trial date to allow Curry time in which to obtain new counsel and to conduct discovery.

         On April 3, 2017, the trial court granted Johnson's motion to withdraw. On the same day, Johnson filed with the trial court a lien, pursuant to § 34-3-61, Ala. Code 1975, for attorney fees and expenses. Johnson attached to the attorney-fee lien a copy of his affidavit and a copy of the contract Curry had signed. Johnson stated in the lien that, during his representation of Curry, Miller had made an offer to settle Curry's claims for $17, 000; that Curry had accepted the offer to settle but had refused to sign the necessary releases; and that Johnson had filed the personal-injury action on Curry's behalf to prevent Curry's claims from being barred by the statute of limitations.

         On April 18, 2017, the trial court entered an order stating that the status conference had been held on April 11, 2017; that defense counsel had attended the conference; that Curry failed to appear at the conference; and that Curry was to notify the court within 30 days of his intention either to proceed pro se or to retain counsel. The order further stated that failure to comply with the order could result in sanctions, including dismissal of the lawsuit. On the same day, the trial court rescheduled the bench trial for July 18, 2017.

         On May 19, 2017, Miller and Auto Owners (hereinafter referred to collectively as "the defendants") filed a motion to dismiss Curry's claims for failure to prosecute, asserting that Curry had not attended the April 11, 2017, status conference and had not complied with the trial court's April 18, 2017, order requiring him to notify the court within 30 days of that order whether he intended to proceed pro se or to retain counsel. The trial court deferred ruling on the defendants' motion to dismiss for one week to give Curry ample opportunity to respond. Curry failed to respond, and the trial court entered an order on May 26, 2017, dismissing, with prejudice, Curry's lawsuit against the defendants.

         On May 30, 2017, Kristi Kirkland entered an appearance for Curry and filed, pursuant to Rule 59(e), Ala. R. Civ. P., a motion to vacate the judgment of dismissal and to reinstate the action. As grounds, Kirkland stated, among other things, that Curry was 84 years old and had little knowledge of the legal system; that Curry had telephoned her office after receiving defense counsel's motion to dismiss for want of prosecution; that Curry did not understand the motion to dismiss because he did not realize a lawsuit concerning his accident had been filed; that Curry had maintained to her that he had had no notice of the April 11, 2017, status conference, which was set before Johnson withdrew as counsel; that Curry did not recall receiving an order from the trial court requiring him to inform the court of his intention either to proceed pro se or to retain counsel; and that Miller had only answered the complaint on January 18, 2017. Kirkland finally stated in the motion to vacate that, considering that the lawsuit had been pending for less than six months, it was extremely premature for the trial court to issue a judgment of dismissal. Kirkland attached to the motion to vacate Curry's affidavit in which Curry stated that Johnson had not informed him of the April 11, 2017, status conference; that he did "not recall" receiving an order from the trial court requiring him to inform the court of his intention either to proceed pro se or to retain counsel; that when he telephoned Kirkland, he informed her that a lawsuit concerning the accident had not been filed; that Johnson did not perform to his satisfaction; that Johnson told him that he had settled his case; that Johnson did not consult with him concerning whether he could settle Curry's case; that he had filed a complaint with the Alabama State Bar against Johnson; and that he had not willfully refused to comply with orders of the trial court or failed to prosecute his case. The defendants filed a motion in response, asserting that Curry did have knowledge of the lawsuit Johnson had filed because, according to them, all correspondence concerning the lawsuit had been mailed to Curry at his personal address.

         On August 22, 2017, following a hearing, the trial court entered an order finding that Curry's failure to comply with its April 18, 2017, order was willful for purposes of a dismissal under Rule 41(b), Ala. R. Civ. P. Accordingly, the trial court denied Curry's motion to vacate the judgment of dismissal. This appeal followed.

         Standard of Review

"Ala. R. Civ. P. 41(b) provides for the involuntary dismissal of an action upon 'failure of the plaintiff to prosecute or to comply with [the Rules of Civil Procedure] or any order of [the] court.' Although dismissal for failure to comply with a court order is a 'harsh sanction, ' it is warranted where there is a 'clear record of delay, willful default or contumacious conduct by the plaintiff.' Selby v. Money, 403 So.2d 218, 220 (Ala. 1981). Because the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a reviewing court. Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947 (9th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir. 1971), cert. denied, 404 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.