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TIMELINESS OF APPEAL FROM DENIAL OF POST-JUDGMENT MOTION - FAILURE TO SUPPLEMENT DISCOVERY RESPONSE TO DISCLOSE EYEWITNESS - NEW TRIAL - JUDGMENT AS A MATTER OF LAW: MITCHELL'S CONTRACTING SERVICE V. GLEASON

Mitchell’s Contracting Service v. Gleason, [Ms. 1160376, Dec. 8, 2017] __ So. 3d __ (Ala. 2017). This decision by Justice Sellers (Stuart, C.J., and Wise, J., concur; Murdock, J., concurs in part and concurs in the result in part; Parker, J., concurs in the result; and Bolin, Shaw, Main, and Bryan, JJ., dissent) reverses the Wilcox Circuit Court’s denial of Mitchell’s Contracting Service, LLP (“Mitchell”)’s motion for new trial in a wrongful-death action in which the jury awarded $2.5 million against Mitchell. The claim arose from an automobile accident in which the decedent Lorena’s vehicle left Wilcox County Road 12 and struck a tree. Plaintiff’s theory of liability was that a dump truck driven by a Mitchell employee forced Lorena’s vehicle from the roadway. Ms. *2.

The Court first considered whether Mitchell’s appeal was timely. On October 24, 2016, the circuit court denied Mitchell’s post-judgment motion but set aside that order a week later. Ms. *3. The circuit court did not subsequently enter another order disposing of the post-judgment motion and the parties treated Mitchell’s motion as having been denied by operation of law under the provisions of Rule 59.1, Ala. R. Civ. P. The opinion concluded the appeal was timely because the October 24, 2017 order did not dispose of Mitchell’s motion for new trial so that the trial court retained jurisdiction to rule on the post-judgment motion notwithstanding entry of the October 24, 2016 order. Ms. *5-6.

On the substantive issue presented by the appeal, on a 5-4 vote, the Court held that the trial court exceeded its discretion in denying Mitchell’s request for a continuance in the midst of trial based on the plaintiff’s having failed to disclose an eyewitness to the crash. This witness, A. G. Smith, had been disclosed by plaintiff on a general witness list six weeks prior to the trial but the plaintiff had failed to identify Mr. Smith in response to an interrogatory requesting the identity of any eyewitness to the accident. Ms. *17-18. Mr. Smith’s testimony was critical to the plaintiff’s case as he was the only person who testified to having observed a white dump truck force Lorena’s vehicle off the highway. Ms. *10. Other witnesses testified that the only white dump truck operating in the area prior to the accident was a Mitchell dump truck. Ms. *15.

Quoting its seminal decision on the purpose of modern civil discovery, Ex parte Dorsey Trailers, Inc., 397 So. 2d 98, 103 (Ala. 1981), the Court reaffirmed that “the rules for discovery are designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments be rested upon the real merits of cases and not upon the skill and maneuvering of counsel.” Ms. *19, (internal citations and quote marks omitted). The Court held that when the plaintiff “discovered two months before trial that Smith was an eyewitness to the accident (in fact the only eyewitness), he had an immediate and affirmative duty to disclose to Mitchell that Smith had witnessed the accident.” Ms. *21. The Court further held that plaintiff’s disclosure of Smith only as a possible witness on a generic witness list six weeks before trial did not satisfy plaintiff’s discovery obligation:

Even though Gleason’s counsel learned of Smith’s status as the only eyewitness two months before the trial started, he failed to inform Mitchell. Gleason’s witness list identified Smith only as a possible trial witness; it did not disclose the substance of Smith’s proposed testimony. In addition, Gleason provided his witness list to Mitchell only after Gleason had previously indicated that he was unaware of the existence of any eyewitnesses to the accident. Gleason’s lack of candor in failing to supplement its responses to Mitchell’s interrogatories prevented Mitchell from fully preparing for trial.

Ms. *24. The Court concluded that in light of all the circumstances “the trial court exceeded its discretion in refusing Mitchell’s request for a continuance.” Ibid.

The Court rejected Mitchell’s appeal of the denial of its post-judgment motion for JML. The Court noted that “the question for this Court to answer is not what conclusion its members would have reached had they been on the jury that heard the case.” Ms. *14. The Court rejected Mitchell’s contention that a jury finding that its truck forced plaintiff’s decedent’s vehicle off the road was based on speculation. The Court concluded the testimony “was sufficient to allow a fair-minded person to conclude that Lorena was forced off the road by a white dump truck traveling in the opposite direction and that the only dump truck in the area during the relevant time frame fitting that description was one driven by a driver employed by Mitchell.” Ms. *15.

Similarly, the Court noted that

“ordinarily it is a question of fact for the jury, [but] the question whether a plaintiff is guilty of contributory negligence becomes a matter of law, and therefore one for the Court to decide, when the facts are such that all reasonable persons must draw the same conclusion therefrom.”

Ms. *16, quoting Rowden v. Tomlinson, 538 So. 2d 15, 18 (Ala. 1988). The Court concluded that on the record before it, it could not determine that all reasonable persons must conclude that Lorena was contributorily negligent in not maintaining control of her vehicle. Ms. *16.

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