Flippo v. Pope

834 So. 2d 83, 2002 Ala. LEXIS 132, 2002 WL 734349
CourtSupreme Court of Alabama
DecidedApril 26, 2002
Docket1010104 and 1010792
StatusPublished
Cited by2 cases

This text of 834 So. 2d 83 (Flippo v. Pope) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flippo v. Pope, 834 So. 2d 83, 2002 Ala. LEXIS 132, 2002 WL 734349 (Ala. 2002).

Opinion

LYONS, Justice.

Brandy Lynn Pope was injured on November 29, 1997, when an automobile in which she was a passenger collided with [84]*84another automobile. Nathan Flippo was driving the automobile in which Pope was riding. Eric Exum was driving another vehicle in the area at the time of the collision; Pope alleges that Exum caused the accident. At the time of the accident, Pope was a minor. Her father, Michael Cline, filed an action on Pope’s behalf pursuant to Rule 17(c), Ala. R. Civ. P., styled “Michael Cline, on behalf of himself and as father and next friend of Brandy Lynn Pope, a minor, v. Nathan Flippo, Eric Exum, American States Insurance Company, [and fictitiously named defendants].” Cline asserted claims of negligence and wantonness against Flippo and Exum. He also demanded uninsured/underinsured motorist benefits from American States Insurance Company.

On June 11,1998, while Cline’s action on her behalf was pending, Pope reached the age of majority in Alabama, 19 years. See § 26-1-1, Ala.Code 1975. Thereafter, on July 1, 1998, the trial court granted a motion filed by Cline’s attorneys requesting permission to withdraw from the case. At that time, the trial court entered a handwritten notation on the case action summary that stated: “Plaintiff has 45 days to secure the services of an attorney or case will be dismissed for lack of prosecution.” The case action summary states that Cline and Pope were notified of the order, but the case action summary does not indicate that Cline or Pope responded to the order. On September 22, 1998, on motion of American States, the trial court dismissed the action with prejudice for failure to prosecute. The case action summary states that Cline was notified of that order, at the address listed on the case action summary as Cline’s mailing address — a street address in Louisville, Kentucky.

On November 24, 1999, Pope filed an action in her own name against Flippo, Exum, and American States.1 Pope’s 1999 action contained identical claims for relief against the same parties as those asserted in Cline’s 1998 action. Flippo filed a motion for a summary, judgment and Exum filed a motion to dismiss, both raising the doctrine of res judicata as a defense. Pope responded to those motions with an affidavit in which she testified that she was not notified of the court’s order requiring her to obtain an attorney within 45 days after her father’s attorneys were allowed to withdraw or of the subsequent order of dismissal. She further testified that she learned that the 1998 action had been dismissed when she sought advice from her present attorney. The trial court did not rule on either of those motions.

Exum then filed a motion for a summary judgment and Flippo filed a second motion for a summary judgment, both arguing that the 1999 action was barred by the doctrine of res judicata. Flippo also argued that Pope, as a guest in the vehicle he was driving, could not recover against him for negligence and that, under the undisputed facts of the case, she could not recover against him for wantonness. Pope never responded to those motions for a summary judgment, relying instead on the affidavit she had filed previously in the case. The trial court denied Flippo’s and Exum’s motions for summary judgment. It later amended its order denying the motions to include the statement required for an interlocutory appeal pursuant to Rule 5, Ala. R.App. P. Flippo and Exum filed timely petitions for permission to ap[85]*85peal from the denial of their summary-judgment motions.

This Court granted Flippo and Exum permission to appeal, allowing the parties to address the following issue:

“Whether the doctrine of res judicata operates to bar an action filed by an adult plaintiff to recover for injuries sustained during an incident which occurred during her minority, where that same incident also formed the basis of a previous lawsuit filed on her behalf by her next friend against the same defendants which was dismissed for lack of prosecution after she reached the age of majority.”

For the reasons set forth below, we conclude that, under the circumstances presented in these cases, the doctrine of res judicata does not bar the later-filed action, and we affirm the trial court’s order denying Flippo’s and Exum’s summary-judgment motions.

The threshold issue is whether the next friend’s failure to prosecute is chargeable to a minor who reached the age of majority before the next friend committed the acts relied upon by the trial court as the basis for the failure to prosecute. In Maryland Casualty Co. v. Owens, 261 Ala. 446, 450, 74 So.2d 608, 611 (1954), Justice Merrill observed, in dicta: “For sound reasons and under numerous rulings it is well settled that the authority of a guardian ad litem of an infant defendant to represent him in the conduct of a cause expires with the minority of the infant, 43 C.J.S., Infants, § 113.” (Emphasis added; some citations omitted.)

Flippo and Exum maintain that Pope’s reaching the age of majority did not abate the 1998 action. See Johnson v. Alexander, 66 Okla. 128, 130, 167 P. 989, 991 (1917), where the Supreme Court of Oklahoma stated:

“The rule seems to be well established that where an action is commenced by a minor, by his next friend or guardian, and the minor reaches his majority during the pendency of the cause, the cause does not abate, and the arriving at majority by the minor is not grounds for dismissal of said cause. Bernard v. Pittsburg Coal Co., 137 Mich. 279, 100 N.W. 396; 22 Cyc. 671.
“The proper procedure seems to be in the case where a minor becomes of age during the pendency of the cause to strike the name of the guardian or next friend from the record and leave the cause standing in the name of the minor, but under the above authorities if this is not done it is a mere irregularity which does not affect the substantial rights of the other party, and therefore not prejudicial error. No doubt, where it is made to affirmatively appear to the court that it would materially affect the substantial rights of the defendants to allow the cause to proceed by the next friend after the minor, plaintiff, had reached his majority, it would be the duty of the court to require the plaintiff to continue the prosecution of the suit in his own name.”

(Emphasis added.) See also McCarthy v. Anable, 169 Misc. 595, 7 N.Y.S.2d 887 (1938), Shroyer v. Shroyer, 101 N.E.2d 298 (Ohio App.1950). However, these authorities do not deal with the situation presented here, where there is no indication that Pope ratified Cline’s continued pursuit of the action after she had reached the age of majority.

No Alabama authority resolves this question. While not directly on point, the discussion in Bell v. Burkhalter, 183 Ala. 527, 62 So. 786 (1913), is helpful. There, this Court stated:

“Where an action is instituted in the name of an infant, without the interven[86]*86tion of a guardian or next Mend, and pending the litigation the infant attains bis majority and thereafter manifests by his conduct in the cause, even through an attorney, an adoption or ratification of the action so erroneously commenced, the subsequent objection that he was an infant when the action was instituted cannot avail the objector.

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834 So. 2d 83, 2002 Ala. LEXIS 132, 2002 WL 734349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flippo-v-pope-ala-2002.