McLemore v. Fleming

Court of Civil Appeals of Alabama

McLemore v. Fleming

632 So. 2d 482, 1993 Ala. Civ. App. LEXIS 383, 1993 WL 322739

CourtCourt of Civil Appeals of Alabama

DecidedAugust 27, 1993

DocketAV92000564

StatusPublished

Cited by3 cases

This text of 632 So. 2d 482 (McLemore v. Fleming) 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.

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McLemore v. Fleming, 632 So. 2d 482, 1993 Ala. Civ. App. LEXIS 383, 1993 WL 322739 (Ala. Ct. App. 1993).

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Opinion

ROBERTSON, Presiding Judge.

This is an appeal from a summary judgment entered by the trial court in an eviction action.

The record reflects that the parties to this action are family members who have been in a litigious battle since their father and mother died, leaving substantial real estate holdings. One of those properties, on which Nadine McLemore has resided for approximately thirty years, is the subject of this eviction action.

After Roy Fleming filed his affidavit in support of his motion for summary judgment, McLemore responded with an affidavit, which put certain material facts in dispute. The trial court entered a judgment for Fleming, and after McLemore’s post-judgment motion was denied, she appealed.

A reviewing appellate court employs the same standard utilized by the trial court when reviewing an entry of a summary judgment. Southern Guaranty Ins. v. First Alabama Bank, 540 So.2d 732 (Ala.1989). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), AR.Civ.P.

After reviewing the pleadings and affidavits filed by each party, we conclude that there is a genuine issue as to the status of the ownership of the property that is the subject of this eviction action. Fleming contends that the ownership of the property has been previously adjudicated and that the doctrine of res judicata bars any further litigation as to that issue.

References are made in the record to a prior action between the parties; however, the record does not contain anything from that action that this court can review to determine if the ownership issue has been litigated. That action was appealed to the supreme court and is reported as McLemore v. Fleming, 604 So.2d 353 (Ala.1992). That case reflects that Fleming was acting as executor of the estate of O.J. Fleming, deceased, but it does not reflect what type relief granted by summary judgment was affirmed.

The summary judgment entered by the trial court in this case is hereby reversed, and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

THIGPEN and YATES, JJ„ concur.

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ROBERTSON, Presiding Judge.

This is an appeal from a summary judgment entered by the trial court in an eviction action.

The record reflects that the parties to this action are family members who have been in a litigious battle since their father and mother died, leaving substantial real estate holdings. One of those properties, on which Nadine McLemore has resided for approximately thirty years, is the subject of this eviction action.

After Roy Fleming filed his affidavit in support of his motion for summary judgment, McLemore responded with an affidavit, which put certain material facts in dispute. The trial court entered a judgment for Fleming, and after McLemore’s post-judgment motion was denied, she appealed.

A reviewing appellate court employs the same standard utilized by the trial court when reviewing an entry of a summary judgment. Southern Guaranty Ins. v. First Alabama Bank, 540 So.2d 732 (Ala.1989). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), AR.Civ.P.

After reviewing the pleadings and affidavits filed by each party, we conclude that there is a genuine issue as to the status of the ownership of the property that is the subject of this eviction action. Fleming contends that the ownership of the property has been previously adjudicated and that the doctrine of res judicata bars any further litigation as to that issue.

References are made in the record to a prior action between the parties; however, the record does not contain anything from that action that this court can review to determine if the ownership issue has been litigated. That action was appealed to the supreme court and is reported as McLemore v. Fleming, 604 So.2d 353 (Ala.1992). That case reflects that Fleming was acting as executor of the estate of O.J. Fleming, deceased, but it does not reflect what type relief granted by summary judgment was affirmed.

The summary judgment entered by the trial court in this case is hereby reversed, and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

THIGPEN and YATES, JJ„ concur.

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632 So. 2d 482, 1993 Ala. Civ. App. LEXIS 383, 1993 WL 322739, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclemore-v-fleming-alacivapp-1993.

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