(251) 299-0101

Summary Judgment Procedure - View of Scene by Circuit Judge

Robinson v. Harrigan Timberlands Limited Partnership, [Ms. 1170515, Nov. 30, 2018] __ So. 3d __ (Ala. 2018). In this unanimous decision by Justice Mendheim (Stuart, C.J., and Parker, Main, Bryan, JJ, concur), the Court reverses a judgment of the Clarke Circuit Court dismissing Robinson's action against an adjoining landowner and several of the landowner's alleged agents. Robinson alleged that the defendants wrongfully cut timber on land owned by Robinson.

The defendants moved to dismiss, contending that they had cut no timber west of Bassetts Creek. The plaintiff's complaint alleged that Bassetts Creek was the eastern boundary of his property. Ms. *6. The parties submitted various surveys and affidavits in support of and in opposition to the motions to dismiss, and the trial court ultimately went to the property with the parties to conduct a view. Thereafter, the trial court purported to grant the defendants' motion to dismiss stating, in pertinent part, that the timber was cut on the east of Bassetts Creek and Robinson's property is all located on the west of Bassetts Creek, and further that "based on the inspection of the property the Court does not believe there was an avulsion (so as to alter the boundary line) of Bassetts Creek as argued by Robinson." Ms. *15.

The Court first concluded that the summary judgment standard of review applied because the circuit court had considered matters outside Robinson's complaint. Ms. *18-19. The Court reversed the summary judgment. The Court held the trial court improperly had made findings of fact based upon its view of the property.

The summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact. ... The summary judgment procedure is not a substitute for the trial of disputed issues of fact. ... The procedure is well adapted to expose sham claims and defenses but cannot be used to deprive a litigant of a proper trial of genuine issues of fact.

Ms. *24, quoting Howell v. Mobile Infirmary, 337 So. 2d 338, 340 (Ala. 1976) (quoting in turn 3 Barron & Holtzoff, Federal Practice and Procedure § 1231 (1958)).

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