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CIVIL PROCEDURE - EX PARTE HICKS

In Ex parte Hicks, [Ms. 1100136, Jan. 14, 2011] __ So. 3d __(Ala. 2011), the Supreme Court of Alabama granted Defendant's mandamus petition and vacated a trial court's order granting Plaintiff's Rule 60(b) motion to reinstate the underlying action that had been dismissed over four years previously. This case arose out of a vehicular accident between Virginia Marshall and Dean Hicks. In January of 2006, the trial court dismissed Marshall's action "for repeated refusal to comply with the Court's orders." In June of 2009, Marshall obtained new counsel and filed a motion pursuant to Rule 60(b), Ala.R.Civ.P., to have her case reinstated. Marshall contended that she had not been aware of her attorney's failure to comply with the trial court's orders and to properly pursue her claims. She presented detailed evidence regarding (1) her attempts to learn the status of the case from her first attorney, (2) his suspension from the practice of law, (3) his apparent fabrication of a motion to reinstate and a supposed order granting that such a motion, and other matters supporting her motion to reinstate. The trial court entered an order in September of 2010 reinstating the action. Hicks then filed a Petition for Writ of Mandamus with the Supreme Court of Alabama arguing that the trial court had abused its discretion by granting Plaintiff's Rule 60(b) motion. The Court agreed, holding that it was "not reasonable to allow a Plaintiff to sit idly by for several years without inquiring about the status of her case and then wait almost another year before pursuing a remedy for the dismissal of her case, even though the Plaintiff was not informed of the dismissal." Therefore, Plaintiff did not file her Rule 60(b) Motion within a "reasonable time" as required under the Alabama Rules of Civil Procedure.

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