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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