Baig v. Ala-Tune

274 So. 3d 289
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 28, 2018
Docket2170858
StatusPublished

This text of 274 So. 3d 289 (Baig v. Ala-Tune) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baig v. Ala-Tune, 274 So. 3d 289 (Ala. Ct. App. 2018).

Opinion

MOORE, Judge.

Ameena Baig appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") dismissing her complaint against Ala-Tune. We reverse the trial court's judgment.

Procedural History

On February 2, 2018, Baig filed in the trial court a complaint against Coliseum Motor Company ("Coliseum") and Ala-Tune, alleging, in part:

"6. On August 18, 2017, [Baig] purchased from Coliseum a used 2010 Nissan Altima [automobile] [for] the amount of $5,200 in cash.
"7. On August 31, 2017, just thirteen days later, that vehicle broke down and became inoperable.
"8. [Baig] ... had the vehicle towed to Coliseum to have the company assess the vehicle's condition and determine [the] next steps, as [Baig had] signed a warranty for the vehicle.
*291"9. On or about October 3, 2017, [Baig] filed a lawsuit in the Montgomery County District-Civil Division [ (the district court) ] against Coliseum, seeking damages related to the vehicle.
"10. At some point within the next few ... weeks, in Montgomery County, Alabama, Coliseum unlawfully converted [Baig's] vehicle to Ala-Tune, without [Baig's] knowledge or permission. [Baig] did not discover this fact until several months later, as detailed below.
"11. On December 19, 2017, [Baig's] case was heard before [the district court].
"12. During that hearing, [the district court] instructed Coliseum, via its employee/agent Michael Babston, to return title and possession of the vehicle at issue back over to [Baig].
"13. At that time, Coliseum ..., via Mr. Babston, did provide ... Baig with title of the vehicle.
"14. However, since the hearing concluded, Coliseum, via its employee Mr. Babston, has refused to provide [Baig] with the vehicle itself.
"15. In early-January 2018, just past the 14 day cut-off to file a timely post-judgment motion in [the district] [c]ourt, [Baig] learned for the first time that her vehicle was unlawfully in the possession of Ala-Tune and that Ala-Tune was illegally demanding a 'storage fee' for release of the vehicle.
"16. [Baig] filed a post-judgment motion with [the district court] to request [that court] to compel Coliseum to return the vehicle to [Baig;] however[,] due to the untimeliness of the motion, [Baig's] motion was denied.
"17. [Baig] has NEVER, at any time, received ANY written notice whatsoever from Coliseum that her vehicle was transferred to Ala-Tune. [Baig] has NEVER, at any time, received ANY written notice whatsoever from Ala-Tune that it has possession of her vehicle and/or is holding it for a 'storage fee.'
"18. [Baig] believes that this 'storage fee' is illegally being used as a ransom by Coliseum and/or Ala-Tune with the intent to deprive her of possession of the vehicle. The principal of Ala-Tune, Joseph Bocchino, verbalized to [Baig] that he intended to gain possession of the vehicle, which is illegal given that [Baig] is the lawful titleholder and owner of the vehicle.
"19. Given this statement by Mr. Bocchino and the actions of him and Mr. Babston, [Baig] believes that the two may be acting in concert to hold the vehicle for a ransom with the intent to steal the vehicle[,] which she legally owns and has title to.
"20. To date, which is close to two month[s] since the [district court] hearing concluded, Ala-Tune still has not provided [Baig] written notice of the 'storage fee' amount.
"21. [Baig] has taken every imaginable step to recover possession of her vehicle, even contacting the local police department to enlist their help. They require a court order to compel Coliseum and/or Ala-tune to return [Baig's] vehicle to her.
"22. [Baig] intended to re-sell the vehicle and/or its parts to a buyer she had lined up[;] however, due to Coliseum and/or Ala-Tune's unlawful possession of the vehicle, that sale fell through.
"23. [Baig] has no other choice but to file this Complaint against both Coliseum and Ala-Tune to request relief from this Honorable Court."

(Capitalization in original.)

Baig specifically requested, among other things, a judgment for the market value of the vehicle, the return of her vehicle, and punitive damages. On March 2, 2018, service was perfected on Ala-Tune.

*292On March 20, 2018, Coliseum filed a motion to dismiss the complaint. On April 18, 2018, Ala-Tune filed a response to the complaint. That response stated:

"I Joey Bocchino (owner of Alatune Auto Repair) was call[ed] in September 2017 to tow away a 2010 Nissan Altima by Donna Bozeman[,] the owner of Coliseum[,] ... from her car lot. I was told that the owner knew where her car was being stored and Mrs. Bozeman made the owner aware that we were charging a storage fee on a daily basis. At the time the owner was involved in a law suit with Mrs. Bozeman. After the owner lost the case she then made false allegations that I was going to jail for stealing her car when she knew where it was the entire time. I have been in business for 35 years. I have never stole anyone's car. I am still storing the car on my lot at this time. The owner ... called me one time and I explained everything to her and she said she was getting the money together to pick up her car so I have not filed the car abandon at this time."

On May 2, 2018, the trial court entered an order granting Coliseum's motion to dismiss. On May 14, 2018, the trial court entered a judgment stating: "This case is hereby DISMISSED as to all parties in the above-styled cause." (Capitalization in original.)

On May 16, 2018, Baig filed a motion to strike Ala-Tune's untimely response and requested that the trial court enter a default judgment or, in the alternative, enter a prejudgment writ of seizure against Ala-Tune. On May 30, 2018, Baig filed a motion requesting that the trial court "reconsider" the judgment of dismissal. Baig filed a second motion to "reconsider" on June 1, 2018. On June 21, 2018, Baig filed her notice of appeal to this court. This court transferred the appeal to the Alabama Supreme Court for lack of appellate jurisdiction; that court subsequently transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Standard of Review

"[I]n considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true, Ussery v. Terry, 201 So.3d 544, 546 (Ala. 2016) ; we do not consider ' "whether the pleader will ultimately prevail but whether the pleader may possibly prevail," ' Daniel v. Moye, 224 So.3d 115, 127 (Ala. 2016) (quoting Newman v. Savas, 878 So.2d 1147, 1149 (Ala.

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Cite This Page — Counsel Stack

Bluebook (online)
274 So. 3d 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baig-v-ala-tune-alacivapp-2018.