Circuit Court, CV-13-900038
PETITION FOR WRIT OF MANDAMUS
Price d/b/a J&M Movers ("J&M"), a defendant
below, filed a petition for a writ of mandamus in this Court
requesting that we order the Perry Circuit Court to vacate
its order granting a motion for relief from judgment filed by
Lawrence E. Brewer and Margaret Brewer, the plaintiffs below.
We grant the petition and issue the writ.
and Procedural History
17, 2013, the Brewers sued J&M and fictitiously named
defendants, asserting a single claim alleging trespass based
on the June 23, 2009, repossession of a mobile home that was
located on their real property. According to the Brewers, on
or about June 23, 2009, J&M unlawfully entered their real
property to repossess the mobile home and caused damage to
their property during the process. J&M filed an answer in
which it denied the allegations in the complaint.
9, 2015, the Brewers filed an amended complaint, substituting
Brandon Scott Asberry d/b/a Scott Asberry Transportation as
"the proper party Defendant in this case." On June
12, 2015, the Brewers filed a motion to dismiss J&M as a
defendant in the case. On June 18, 2015, the trial court
granted the motion and dismissed J&M as a defendant.
two years later, on August 8, 2017, the Brewers filed a
motion for relief from the judgment of dismissal, citing Rule
60(b)(6), Ala. R. Civ. P., and asking the trial court to
reinstate J&M as a defendant. The Brewers alleged the
following as the grounds for their motion:
"(1) [The Brewers] filed this suit against [J&M] on
July 17, 2013 alleging damages resulting from a
trespass unto their lands.
"(2) During the course of this litigation, defendant
[J&M, ] through counsel, represented to [the
Brewers'] counsel that it would present conclusive proof
to [the Brewers'] counsel that it could not have been
[J&M] who trespassed onto [the Brewers'] property.
"(3) [The Brewers'] counsel agreed to a dismissal of
[J&M] and substituted as the defendant the party whose
identity was revealed by [J&M].
"(4) In the meantime, [J&M] prepared the June
18, 2015 order that was signed by this court.
"(5) It is apparent that the entity given to [the
Brewers] by the defendant (Scott Asberry Transportation) did
not enter [the Brewers'] property on June 23,
2009, but sometime in 2010."
support of their motion, the Brewers attached an undated
document related to what appears to be a repossession by
Scott Asberry Transportation for 21st Mortgage Corporation.
August 14, 2017, J&M filed a response in opposition to
the Brewers' motion for relief from the judgment of
dismissal. It asserted that, while researching the
Brewers' claims, its counsel had discovered litigation
from 2009 between 21st Mortgage Corporation and the Brewers
relating to a default on a mortgage on a mobile home.
According to J&M, the trial court in that case had issued
a writ of execution for repossession of the mobile home, and
the repossession had ...