Opinion
2910530.
June 4, 1993.
Appeal from the Etowah Circuit Court, Julius S. Swann, Jr., J.
James W. Steeley, Jr., pro se.
Allan L. Armstrong and Rachel J. Moore of Najjar Denaburg, P.C., Birmingham, for appellee.
Citicorp North America, Inc. (Citicorp), filed a complaint against James W. Steeley, Jr., d/b/a Vincent and Associates, alleging default on a lease agreement and asking for damages, attorney's fees, interest, and costs. Steeley's motion to dismiss was denied. Steeley then answered with a general denial and also claimed that Citicorp was not duly licensed or registered in the State of Alabama and, therefore, was not entitled to recover.
On February 5, 1992, Citicorp filed a motion for summary judgment with supporting documents, including an affidavit of its legal manager, an "Amended Certificate of Authority" dated December 14, 1987, authorizing Citicorp to transact business in Alabama, a copy of a lease agreement signed by Steeley dated April 25, 1990, and two affidavits supporting the attorney's fee request. The trial court, without a hearing or notice that it would issue a ruling, granted summary judgment in favor of Citicorp on March 26, 1992.
On April 14, 1992, Steeley filed a motion for reconsideration, alleging that he had not been served with the motion for summary judgment and, therefore, that he had no knowledge of the motion and no opportunity to reply. Citicorp in its response denied a lack of service and attached a copy of its original motion and certificate of service.
Steeley then filed an affidavit supporting his motion for reconsideration, again alleging no notice of the motion for summary judgment and claiming that the leased equipment was incomplete and inoperable. Steeley further alleged that he notified both the dealer and IBM Credit Corporation, who held the original agreement, of the problem and that he advised them that "they could pick it up or [he] would deliver it to them." Steeley also alleged that the return of the equipment was never authorized and that the lease agreement was sold to Citicorp. Steeley asserted that he "had intended to retain counsel to defend this action," and "would have responded promptly" if he had known of the summary judgment motion. Steeley's motion for reconsideration was denied. Steeley, pro se, appeals from the summary judgment granted in favor of Citicorp.
Steeley contends that, because he was not served with a copy of the motion for summary judgment and was not notified as to the setting of a hearing on the pending motion, the trial court erred in granting summary judgment. Citicorp responds by saying that it properly served Steeley by mail at Steeley's last known address.
As to Steeley's claim that the trial court erred by not providing him with ten days' notice prior to hearing the motion for summary judgment, the trial court never scheduled a hearing on Citicorp's motion. Rule 56(c), Alabama Rules of Civil Procedure, contemplates a hearing by the trial court upon a motion for summary judgment, "unless failure to hold the hearing is harmless." Hicks v. Alabama Pest Services, Inc., 548 So.2d 148, 150 (Ala. 1989). Rule 56(c)(2) provides that "[t]he motion for summary judgment, with all supporting materials, including any briefs, shall be served at least ten (10) days before the time fixed for the hearing, except that a court may conduct a hearing on less than ten (10) days' notice with the consent of the parties concerned." The ten-day notice requirement is based on due process considerations. Cofield v. City of Huntsville, 527 So.2d 1259 (Ala. 1988).
In the instant case, the motion for summary judgment was granted approximately two months after it was filed. Because no hearing was scheduled, notice was not sent. Summary judgment may ultimately be proper here; however, Steeley was denied an opportunity to present adverse evidence. Hales v. First National Bank of Mobile, 380 So.2d 797 (Ala. 1980). We hold that he should have an opportunity to respond. Therefore, the judgment is reversed, and the cause is remanded.
REVERSED AND REMANDED.
ROBERTSON, P.J., concurs.
THIGPEN, J., dissents.
I respectfully dissent.
The majority opinion states that Steeley was denied an opportunity to present adverse evidence because he contends that he did not receive notice of the motion for summary judgment and that no hearing was held on the motion. I disagree.
Although Steeley claims that he did not receive notice of the motion for summary judgment, Citicorp asserts that it properly served Steeley by mailing a copy of the motion to the same address and in the same manner as all previous pleadings. A certificate of service, sworn by counsel for Citicorp and attached to the motion for summary judgment, indicating Steeley's address, appears in the record. The record discloses that approximately ten documents were sent to Steeley at that address, by either Citicorp or the trial court. Steeley does not dispute that the address was proper or that he had received all prior and subsequent pleadings and orders relating to the case at that same address. It is noteworthy that the order granting summary judgment was also sent to and received by Steeley at that address.
Rule 5, A.R.Civ.P., clearly provides that service of every pleading subsequent to the original complaint is proper upon mailing the pleading to the party at his last known address. It states that "service by mail is complete upon mailing." Rule 5(b), A.R.Civ.P. See also Hayes v. Hayes, 472 So.2d 646 (Ala.Civ.App. 1985). Steeley's unsupported assertion that he did not receive notice is insufficient to overcome Citicorp's certification of service by mail. This certification is strengthened by Steeley's own admission that he received all other notices. From these facts, it appears that Steeley was properly served with notice from Citicorp of its motion for summary judgment. There is simply no evidence in the record upon which one could conclude otherwise. To conclude differently is to establish the proposition that a party must prove that every filing was, in fact, received by the opposing party; otherwise, the opponent may escape judgment simply by saying "I did not receive it!"
Steeley did not receive notice from the trial court of a hearing on the motion because no hearing was scheduled. A trial court is not required to schedule a hearing on a summary judgment motion. Hicks, supra. Although Steeley was harmed by the entry of summary judgment, the harm was self-inflicted. Steeley, a pro se litigant, merely neglected his duty; i.e., litigants "must keep track of their case." Bowman v. Pat's Auto Parts, 504 So.2d 736, 737 (Ala.Civ.App. 1987). The law is well settled that once in court, whether by filing an answer or other pleading, a party has a duty to follow his or her case. Bowman, supra. See also Wetzel v. Birmingham Electric Co., 250 Ala. 267, 33 So.2d 882 (1948); Bowman v. Slade, 501 So.2d 1236 (Ala.Civ.App. 1987); Ritter v. State, 494 So.2d 76 (Ala.Civ.App. 1986); and D. J. Mineral Mining, Inc. v. Wilson, 456 So.2d 1099 (Ala.Civ.App. 1984).
It does not appear of record that the trial court acted arbitrarily or hastily in granting summary judgment approximately two months after the motion was filed. Steeley had ample time and opportunity to respond, had he properly followed his case.
When a party undertakes to proceed pro se, he must comply with legal procedure and court rules. Courts are no more forgiving to a pro se litigant than to one represented by counsel. Black v. Allen, 587 So.2d 349 (Ala.Civ.App. 1991). By affidavit filed ten days after his motion for reconsideration, Steeley stated that he "had intended to retain counsel to defend this action," and "would have responded promptly" if he had known of the pending summary judgment motion. Even on appeal, however, Steeley represents his own interests. He is not entitled to be accorded any special leniency for choosing to do so. Neither a pro se litigant nor one represented by counsel can simply ignore an important pleading or fail to monitor his own case without repercussion.
At the trial court level, Steeley neither requested nor received a hearing on his motion for reconsideration. He did not contend that denial of that motion without a hearing was improper, and he does not argue on appeal that his motion was improperly denied by the trial court.
Although the result I would reach seems harsh, based upon the foregoing it is my opinion that summary judgment was the legally correct disposition of this case. Therefore, I must respectfully dissent.