Terence Merchant v. Irving M. Winter, Jr.

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Rel: 05/04/2012 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CIVIL APPEALS OCTOBER TERM, 2011-2012 2110116 Terence Merchant v. I r v i n g M. W i n t e r , J r . Appeal THOMPSON, inmate against Merchant Court P r e s i d i n g Judge. On M a r c h an from Montgomery C i r c u i t (CV-11-319) 16, 2 0 1 1 , T e r e n c e M e r c h a n t of a Irving correctional M. W i n t e r , alleged claims facility, J r . ("Winter"). under ( " M e r c h a n t " ) , who i s filed a complaint I n h i s complaint, t h e Alabama Legal Services 2110116 L i a b i l i t y A c t ( " A L S L A " ) , § 6-5-570 e t s e q . , A l a . C o d e 1 9 7 5 , i n connection with Winter's proceeding that Merchant are r e s u l t e d i n Merchant's and W i n t e r proceeding Winter proceeded p r o se b e f o r e answered liability. dismiss r e p r e s e n t a t i o n of him i n the c r i m i n a l In the claims p r o se i n t h e t r i a l this Winter complaint filed Merchant a s s e r t e d of t h a t motion, W i n t e r submitted responded to the "motion documents in scheduled a hearing support of on a to dismiss," a n d he h i s arguments. facility i n w h i c h he i s i n c a r c e r a t e d t o a t t e n d parties' arguments documents as On that judgment, and trial the t r i a l court an order the c o r r e c t i o n a l court the scheduled considered admitted into evidence 10, 2 0 1 1 , t h e t r i a l court entered against Winter. the several exhibits. August "dismissing" hearing, from support submitted and i t e n t e r e d transported to Merchant also The denied In c e r t a i n documents. Merchant At and seeking him. allowing hearing. court and motion against the motion, t o be Both court. Merchant's addition, incarceration. Merchant's the trial claims court stated "[Merchant's] allegations lacked 2 that merit." i t a judgment In found Merchant that that filed a 2110116 supplemental of the s u b m i s s i o n o f e v i d e n c e two d a y s judgment; submission to i t appears the trial that court after Merchant before the the entry mailed entry that of the judgment. Merchant also filed court d i d not rule before t h e 90 d a y s had expired, filed is on M e r c h a n t ' s allowed Merchant under filed d e e m e d t o be h e l d 4(a)(5), A l a . R. of a pending postjudgment App. P. motion The until the r e s o l u t i o n trial court the supreme c o u r t of that Rule d i d not rule m o t i o n , and, t h e r e f o r e , on i t was d e n i e d Merchant's notice on t h e d a t e t h e p o s t j u d g m e n t motion I n c . v . CDC o f D o t h a n , of law. Kenco Signs & Awning L . L . C . , 813 S o . 2 d 9 1 3 , 915 ( A l a . The a p p e a l was t r a n s f e r r e d to this court by p u r s u a n t t o § 1 2 - 2 - 7 ( 6 ) , A l a . Code 1975. On a p p e a l , M e r c h a n t entering of appeal. C i v . P., appeal was d e e m e d d e n i e d b y o p e r a t i o n App. 2 0 0 1 ) . motion, but, 5 9 . 1 , A l a . R. of law pursuant t o Rule 59.1. Civ. trial or by i t s d e n i a l by o p e r a t i o n of law. a p p e a l became e f f e c t i v e Div., Rule The An i n abeyance Merchant's postjudgment by o p e r a t i o n motion. postjudgment h i s notice before the d i s p o s i t i o n m o t i o n by a r u l i n g of a postjudgment a judgment argues i n favor that the t r i a l of Winter. 3 court Initially, erred i n we note 2110116 that the parties' pleadings, of that being submission and t h e t r i a l evidence, converted to resulted a 1 2 ( b ) , A l a . R. Co., 414, So. 3d 417 evidence a c c e p t a n c e and i n Winter's motion C i v . P.; 30 court's of for a J e n k i n s v. ( A l a . C i v . App. the consideration "motion summary State outside to dismiss" judgment. Farm Mut. Auto. Rule Ins. 2008). " ' " [ A n a p p e l l a t e c o u r t ' s ] r e v i e w o f a summary j u d g m e n t i s de n o v o . W i l l i a m s v. S t a t e Farm Mut. A u t o . I n s . Co., 886 So. 2 d 7 2 , 74 ( A l a . 2 0 0 3 ) . We a p p l y t h e same s t a n d a r d o f r e v i e w a s t h e t r i a l c o u r t applied. S p e c i f i c a l l y , we m u s t d e t e r m i n e whether the m o v a n t h a s made a p r i m a f a c i e s h o w i n g t h a t no g e n u i n e i s s u e o f m a t e r i a l f a c t e x i s t s and t h a t t h e m o v a n t i s e n t i t l e d t o a j u d g m e n t as a m a t t e r o f l a w . Rule 5 6(c), A l a . R. C i v . P.; Blue Cross & Blue Shield o f A l a b a m a v . H o d u r s k i , 899 So. 2d 949, 952-53 ( A l a . 2 0 0 4 ) . In making such a d e t e r m i n a t i o n , we must r e v i e w t h e e v i d e n c e i n the light most f a v o r a b l e t o the nonmovant. W i l s o n v . B r o w n , 496 So. 2 d 7 5 6 , 758 ( A l a . 1 9 8 6 ) . Once t h e m o v a n t m a k e s a p r i m a f a c i e s h o w i n g t h a t t h e r e i s no g e n u i n e i s s u e of material fact, the burden then s h i f t s to the nonmovant t o produce ' s u b s t a n t i a l e v i d e n c e ' as t o the e x i s t e n c e of a genuine i s s u e of m a t e r i a l f a c t . B a s s v . S o u t h T r u s t B a n k o f B a l d w i n C o u n t y , 538 So. 2d 7 94 , 7 97-98 ( A l a . 1989); A l a . Code 1 975, § 12-21-12. ' [ S ] u b s t a n t i a l evidence i s evidence of s u c h w e i g h t and q u a l i t y t h a t f a i r - m i n d e d p e r s o n s i n the e x e r c i s e of i m p a r t i a l judgment can r e a s o n a b l y infer the existence of the fact sought to be proved.' W e s t v . F o u n d e r s L i f e A s s u r . Co. o f F l a . , 547 So. 2 d 8 7 0 , 871 ( A l a . 1 9 8 9 ) . " ' " Gooden v. City (quoting Prince o f T a l l a d e g a , 966 v. Poole, 935 So. So. 4 2d 2d 232, 431, 235 442 ( A l a . 2007) ( A l a . 2006), 2110116 quoting 1035, in turn 1038-39 pursuant That on to a split cocaine; split those to by the agreement serve the So. sentences were followed be by prison 2010. M e r c h a n t was to the served 20 followed that those charges plea assistant all 21 alleged district criminal dropped in his attorney counts by part o f f e r e d him pending offer, 5 he was of of sentence, four years' cocaine. f e l o n i e s , but complaint then pursuant to that purported as years that the The other sentences. i t appears agreement. Merchant were other 25 concurrently. unlawful-distribution also charged with of distribution sentenced to a f i v e - y e a r in the 12, sentences of u n l a w f u l to and s e n t e n c e s were to run c o n c u r r e n t l y w i t h each consecutively 2d incarcerated October serve in prison 9 counts is on e a c h o f f i v e c o u n t s o f t r a f f i c k i n g trafficking 897 pleadings on Merchant 5 years year in entered that each of one Party, p a r t i e s , Merchant M e r c h a n t was serve probation, allegations provided on Democratic 2004)). plea to Additionally, Alabama the submitted probation, but to agreement years, v. (Ala. According documents Dow October i n March 2010 2010 a 10-year sentence against him and an on that, to r e c e i v e c r e d i t f o r 2110116 "good t i m e " alleged offer of legal f o r time served that Winter advised and time and that he Winter spent fee. on did pending so taking that purported i n order Merchant's Merchant Merchant against him sentencing. case alleged in to increase i n order his to damages for negligence, wantonness, amount increase complaint c u r r e n t l y i n c a r c e r a t e d on a 3 3 - y e a r s e n t e n c e . the that he Merchant breach of his was sought contract, and fraud. In his "motion had committed was indigent costs in a fraud and, for that making to dismissed f o r that reason. knowingly r e j e c t e d the w h i c h M e r c h a n t was court Merchant's and to argued that Merchant representing to waive the claims court against plea offer that plea assistant district offered 2010. 6 court conduct should that agreement u l t i m a t e l y s e n t e n c e d was by the had be Merchant assistant pursuant l e s s than the attorney he constituted him purported the that certain Winter also asserted year sentence the i n March by entitled representation and attorney Winter Winter argued that Merchant's contempt district that upon the therefore, reason. that dismiss," to 10- purportedly 2110116 In support of h i s motion, Winter submitted certain e v i d e n c e p e r t a i n i n g t o some l a n d - s a l e t r a n s a c t i o n s i n w h i c h he represented concerning him Merchant, those agreement submitted which In only Merchant to of four Merchant letters certain submitted Winter as i n support submitted documents p e r t a i n i n g plea offer representation Before exhibits motion, he currently Merchant sent to Winter i n he and W i n t e r ' s of Merchant the trial summary-judgment itemization during he h a d Winter's certain of the October of charges i n the criminal court to as e x h i b i t s acceptance about motion, of the l e t t e r s evidence to Merchant's had proceeding. of h i s opposition into to the is complaints some Winter pertaining Winter's t h e h e a r i n g on W i n t e r ' s submitted motion. 2010 which to representation of r e p r e s e n t a t i o n of him i n the c r i m i n a l During already Merchant and documents to documented from and W i n t e r ' s response copies Merchant Winter's matter, pursuant incarcerated. letter transactions i n the criminal plea a for his proceeding. the summary-judgment h e a r i n g , M e r c h a n t a n d W i n t e r a l s o e a c h made r e p r e s e n t a t i o n s t o the trial supported court pertaining his position with to other regard 7 facts to the each contended summary-judgment 2110116 motion. facts Merchant explained pertaining terms, sentence. validity quality of of time Winter the purported nor Winter hearing, and, therefore, admissible considered by 2010 i n during their offer,i t s to serve plea on h i s regarding the offer and t h e However, of Merchant. neither t h e summary-judgment representations that evidence d i d not properly the trial court Dep't of Indus. could in a be summary-judgment Relations v. Smith, 62 3d 1046 ( A l a . C i v . App. 2 0 1 0 ) . In Alabama Department supra, the t r i a l prima facie Smith of I n d u s t r i a l court conducted a hearing summary-judgment m o t i o n . and 2010 p l e a expected Alabama proceeding. So. March was s w o r n constitute he h i sversion of made r e p r e s e n t a t i o n s of h i s representation Merchant court t o t h e p u r p o r t e d March and t h e l e n g t h current to the t r i a l case i n support failed to respond the parties, representations Smith, Department's o f i t s summary-judgment t o t h e summary-judgment a t t h e summary-judgment D u r i n g t h e summary-judgment h e a r i n g , of on t h e v. I n t h a t c a s e , t h e D e p a r t m e n t made a except through her appearance arguments Relations to the t r i a l and Smith court; 8 the t r i a l made motion, motion hearing. court heard the certain "however, Smith factual was n o t 2110116 sworn i n as sworn testimony Indus. Relations matters trial a witness, before court." court judgment Alabama 62 S o . 3 d a t 1 0 4 8 . a judgment on t h e m e r i t s during motion. the t r i a l the hearing This court admissible evidence, representations Indus. Dep't Based of on t h e i n favor the of the S m i t h h a d made b e f o r e t h e on t h e D e p a r t m e n t ' s court reversed the judgment, h o l d i n g t h a t because Smith's f a c t u a l to provide That judgment i n c l u d e d f a c t u a l f i n d i n g s t h a t were b a s e d on t h e f a c t u a l r e p r e s e n t a t i o n s trial she d i d n o t t o i t a t t h e summary-judgment h e a r i n g , entered Department. the t r i a l v. S m i t h , presented court and, t h e r e f o r e , Relations were not the t r i a l i n entering v. Smith , sworn and trial summarycourt's representations d i d not c o n s t i t u t e c o u r t e r r e d i n r e l y i n g on i t s judgment. Alabama 62 S o . 3 d a t 1 0 4 9 - 5 0 . those Dep't of 1 R e c e n t l y , i n W i l l i a m s v . H a r r i s , 80 So. 3d 273 ( A l a . C i v . App. 2 0 1 1 ) , t h i s c o u r t d e t e r m i n e d t h a t t h e f a c t s o f A l a b a m a D e p a r t m e n t o f I n d u s t r i a l R e l a t i o n s v . S m i t h , s u p r a , were d i s t i n g u i s h a b l e from those of t h a t case. I n W i l l i a m s v. Harris, supra, the t r i a l c o u r t f a i l e d t o swear i n t h e w i t n e s s e s d u r i n g a h e a r i n g on t h e m e r i t s . This court h e l d that the p a r t i e s ' f a i l u r e to object to the t r i a l court's f a i l u r e t o p l a c e t h e p a r t i e s under oath b e f o r e they t e s t i f i e d c o n s t i t u t e d a w a i v e r o f any s u c h o b j e c t i o n a n d , t h e r e f o r e , t h a t t h e i s s u e had n o t been p r e s e r v e d f o r a p p e a l . W i l l i a m s v. H a r r i s , 80 So. 3d a t 278-79. I n so h o l d i n g , t h e c o u r t d i s t i n g u i s h e d t h a t case from Smith, s u p r a , by n o t i n g t h a t i n S m i t h t h e m a t t e r h a d b e e n b e f o r e t h e t r i a l c o u r t on a summary1 9 2110116 Similarly, representations did not court this Winter constitute could Indus. base before submitted by case, and v. the Merchant Smith, trial made r e p r e s e n t a t i o n of Merchant, by The the the which only court the trial Dep't of admissible documentary evidence letters oral trial Alabama included certain the upon supra. which that to judgment. c o u r t was the p a r t i e s , accepted conclude admissible evidence land-sale transactions, agreement we i t s summary Relations evidence to in evidence pertaining regarding Winter's and documents f o r m a l i z i n g t h e p l e a Merchant in October 2010. Neither W i n t e r n o r M e r c h a n t s u b m i t t e d an a f f i d a v i t or other testimony concerning neither presented evidence action 385 the under the ALSLA. ( A l a . 2004) In underlying regarding applicable found the that standard See care applicable generally, the to So. 896 ALSLA an 2d and the care). i t s judgment Merchant's of and V a l e n t i n e v. W a t t e r s , (discussing, standard of entering facts, in this c l a i m s were case, the trial "without merit." court However, j u d g m e n t h e a r i n g a t w h i c h t h e p a r t i e s made l e g a l a r g u m e n t s , as o p p o s e d t o t h e e v i d e n t i a r y h e a r i n g on t h e m e r i t s a t i s s u e i n W i l l i a m s v. H a r r i s , s u p r a . 80 So. 3d a t 278. We conclude t h a t t h i s case i s f a c t u a l l y s i m i l a r to Smith, supra, r a t h e r t h a n t o W i l l i a m s v. H a r r i s , s u p r a . 10 2110116 "because there judgment," this cause was this to no court the admissible evidence must trial reverse court the for Pittman support judgment further Alabama Dep't o f Indus. R e l a t i o n s v. S m i t h , R E V E R S E D AND to and 62 S o . 3 d a t 1 0 5 0 . and Thomas, J J . , c o n c u r . J . , concurs i n the r e s u l t , Bryan, J., dissents, without 11 without writing. remand proceedings. REMANDED. Moore, that writing.

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