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Ex parte Price

Supreme Court of Alabama

May 18, 2018

Ex parte Mark Price d/b/a J&M Movers
v.
Mark Price d/b/a J&M Movers In re: Lawrence E. Brewer and Margaret Brewer

          Perry Circuit Court, CV-13-900038

          PETITION FOR WRIT OF MANDAMUS

          WISE, Justice.

         Mark 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.

         Facts and Procedural History

         On July 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.

         On June 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.

         Over 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."

         In 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.

         On 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 ...


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