Failure to Substitute Personal Representative – Excusable Neglect

Davis v. Hamilton, as personal representative of Estate of Henry Brim, [Ms. SC-2023-0042, Mar. 24, 2023] __ So. 3d __ (Ala. 2023). The Court (Wise, J.; Parker, C.J., and Shaw, Bryan, Mitchell, and Cook, JJ., concur; Sellers, J., dissents, which Mendheim and Stewart, JJ., join) reverses the Etowah Circuit Court’s judgment on a defaulted promissory note in favor of Darryl Hamilton, as personal representative of the Estate of Henry Brim, deceased. Brim died after the case had been tried but before the parties submitted post-trial briefs. Ms. *3.

The Circuit Court ruled that the personal representative’s failure to comply with the six-month provision of Rule 25(a)(1), Ala. R. Civ. P, resulted from excusable neglect and denied the defendants’ motion to reconsider its order allowing the substitution of the personal representative as the plaintiff. Ms. *5.

The Court reverses

Hamilton’s response did not include any factual assertions or explanation as to why the disruptions caused by COVID-19 would justify the lengthy delay at issue here. Without more, the general allegations included in Hamilton’s response did not explain why the failure to file a motion for substitution during the 15-month period was actually the result of excusable neglect. Compare Cobb v. Fisher, 20 So. 3d 1253 (Ala. 2009)(holding that the circumstances did not warrant a finding of excusable neglect). Accordingly, the trial court exceeded its discretion when it denied the defendants’ motion to reconsider and to dismiss the action.

Ms. *12.

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