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CIVIL PROCEDURE - SUMMARY JUDGMENT OPPOSITION FILED TWO DAYS BEFORE HEARING - BRENDA DARLENE, INC. V. BON SECOUR FISHERIES, INC.

Brenda Darlene, Inc. v. Bon Secour Fisheries, Inc., [Ms. 2110687, Aug. 10, 2012] ___ So. 3d ___ (Ala. Civ. App. 2012). Plaintiffs filed their opposition to summary judgment at 4:50 p.m. on the Friday before a Tuesday hearing on the defendant's summary-judgment motion. The trial court struck that response as not coming two days, "or more specifically, a full 48 hours, before the hearing." The Court of Civil Appeals held that the trial court erred in striking the response because "the Rules of Civil Procedure do not require that an act that must be performed under the Rules, such as service or filing, be completed at a particular time on the date upon which it is due, just that it be completed on that date." (Emphasis in original.) The Court of Civil Appeals thus considered the plaintiff's opposition in determining whether the circuit court erred in entering the summary judgment. The plaintiffs were shrimp-boat companies that sold shrimp to a seafood packing company, alleging that they had an oral agreement for a greater price than actually paid, and also alleging misrepresentation, suppression, unjust enrichment, and conversion. The Court of Civil Appeals first analyzed whether an exception to the statute of frauds applied, but held that it did not because "the parties do not agree on the price term [so] the partial performance exception cannot be fairly applied," and, further, that the judicial-admission exception in ¤ 7-2-201(3)(b) did not apply either. The Court thus affirmed summary judgment on the contract claim. The Court also affirmed the summary judgment on the misrepresentation claim on the ground that the alleged misrepresentation was a promissory fraud, if a fraud at all, and that the statute of frauds bars a promissory-fraud claim where enforcement of the promise is barred by the statute of frauds. Similarly, "if the suppression claim were allowed to proceed, the shrimp-boat companies could possibly recover in tort the benefit of the alleged contract that they are precluded from enforcing under ¤ 7-2-201," so the Court affirmed summary judgment on the suppression claim. The Court affirmed summary judgment on the unjust-enrichment claim for lack of any evidence that the defendant was enriched (it said it lost money), and on the conversion claim for lack of any citation to pertinent authority. The Court of Civil Appeals reversed an award of attorney fees under the Alabama Litigation Accountability Act, because the trial court did not make findings that the shrimp boat company's action was brought without substantial justification. The trial court was directed to make findings on that issue upon further consideration of the motion for attorney fees.
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