Weldon v. Cotney

811 So. 2d 530, 2001 Ala. LEXIS 306, 2001 WL 996042
CourtSupreme Court of Alabama
DecidedAugust 31, 2001
Docket1000208
StatusPublished
Cited by4 cases

This text of 811 So. 2d 530 (Weldon v. Cotney) 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
Weldon v. Cotney, 811 So. 2d 530, 2001 Ala. LEXIS 306, 2001 WL 996042 (Ala. 2001).

Opinion

WOODALL, Justice.

Stephen S. Weldon and his parents, Joe H. Weldon and Bernella S. Weldon (hereinafter referred to collectively as the “Wel-dons”), appeal from a summary judgment entered in favor of Bernice Cotney in Cot-ney’s action against the Weldons.1 We vacate the summary judgment in part, reverse it in part, and remand.

This dispute arises out of the execution by Cotney of two warranty deeds to property in Tallapoosa County. Both deeds were executed on March 27, 2000. One deed conveyed fee-simple title in two parcels of the real estate to Stephen Weldon. The other deed conveyed fee-simple title in eight parcels of the real estate to Joe and Bernella Weldon, as joint tenants with right of survivorship.

On May 25, 2000, Cotney sued the Wel-dons, seeking a judgment setting aside the conveyances and awarding compensatory and punitive damages. Count one of her three-count complaint contained the following allegations:

“4. No consideration was paid by the Defendants to the Plaintiff for the transfer of the properties named [in the deeds]....
“5. The Plaintiff would show that the Defendants have not contributed to the support of the Plaintiff in any manner as envisioned by § 8-9-12, Code of Alabama, 1975....”

On July 5, 2000, she amended her complaint to add averments to count one, including the following:

“18. A material part of the consideration for the execution of these deeds was the Defendants’ agreements to support the Plaintiff during her lifetime.
[532]*532“19. Plaintiff would show that the Defendants have not contributed to her support and that pursuant to § 8-9-12, Code of Alabama, 1975, she is [seeking] to annul these conveyances and [to] return ownership of her property to her.”

On July 21, 2000, the Weldons filed, in connection with a discovery dispute in the action, the affidavit of Joseph T. Scarborough, Jr., Stephen Weldon’s law partner. Among other things, the affidavit recounted the circumstances under which the deeds were executed.2 On July 26, 2000, Cotney moved for a summary judgment on count one of her complaint, which was based on § 8-9-12 (“the count-one claim”).

On August 22, 2000, the trial court conducted a hearing on all pending motions, including Cotney’s summary-judgment motion. On September 8, 2000, the Weldons filed a “Memorandum of Law in Opposition to Summary Judgment.” It was accompanied by a number of affidavits, including those of Bernella Weldon, Joe Weldon, and Stephen Weldon. It was also accompanied by a copy of the Scarborough affidavit that had been filed on July 21.

On September 20, 2000, the trial court granted Cotney’s summary-judgment motion. The court’s order stated, in pertinent part:

“For purposes of this Order the court will consider the motion for summary judgment along with the supporting affidavits filed by plaintiff, the argument of counsel made at the hearing and [the Weldons’] post-hearing brief. However, the court is of the opinion that it is precluded from considering the affidavits attached to [the Weldons’] brief.
“Count one of the complaint and the amendment to the complaint allege that a material part of the consideration for conveying extensive property to defendants was the defendants’ promise to support plaintiff for life. Both deeds state consideration as follows:
“ ‘... for and in consideration of the sum of One Hundred and 00/100 ($100.00) Dollars and other good and valuable considerations the receipt and sufficiency of which is hereby acknowledged .... ’
“It is clear that no other monetary consideration was given to plaintiff....
“Section 8-9-12, Code of Alabama provides:
“ ‘Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option of the grantor, except as to bona fide purchasers for value, hen-ees, and mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance.’
“It is clear therefore that by filing the complaint in this case the grantor has instituted proceedings to annul the conveyances in this case. Plaintiff is entitled to summary judgment as to count one and the amended complaint insofar as the amended complaint addresses the consideration for conveyance.”

(Emphasis added.)

On October 13, 2000, the trial court certified the order as a final judgment, pursuant to Ala. R. Civ. P. 54(b). The Weldons appealed. On appeal, they present two issues that merit discussion. First, they contend that the trial court erred in refusing to consider the affidavits they submitted on September 8 with their memorandum in opposition to Cotney’s summary-judgment motion. Second, they argue that Cotney presented no evidence indicating that Stephen Weldon had promised to support her in exchange for her conveying [533]*533the property to him. Thus, they challenge the judgment, both as it applies to Joe Weldon and Bernella Weldon, and as it applies to Stephen Weldon.

I. Joe and Bernella Weldon— The Affidavits

It is clear that the trial court did not consider the four affidavits attached to the “Memorandum of Law in Opposition to Summary Judgment” filed on September 8. It is also clear that the court believed it was “precluded” from doing so. In this latter respect, the trial court erred.

Nothing precludes a trial court from considering an affidavit submitted in opposition to a summary-judgment motion before it rules on the motion. To be sure, Ala. R. Civ. P. 56(c)(2) does prescribe that any statement or affidavit in opposition to a summary-judgment motion be filed at least two days before “the hearing” on the motion.3 However, Rule 56(e) authorizes the court to “permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” (Emphasis added.) Moreover, Ala. R. Civ. P. 6(d) provides in pertinent part:

“When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c), opposing affidavits may be served not later than one (1) day before the hearing, unless the court permits them to be served at some other time.”

(Emphasis added.) Thus, Rule 6(d) “qualifies Rule 56(c) by placing it within the trial court’s discretion to permit, or to refuse to consider, an affidavit that is untimely.” Speer v. Pin Palace Bowling Alley, 599 So.2d 1140, 1142 (Ala.1992) (emphasis added). See Turner v. Hayes, 719 So.2d 1184 (Ala.Civ.App.1997), rev’d in part on other grounds sub nom. Ex parte Atmore Community Hosp., 719 So.2d 1190 (Ala.1998). In Turner the court said:

“We note that [the appellees] have argued in their brief that the trial court should have stricken certain evidentiary materials [the appellant] submitted in opposition to their motions for summary judgment.

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Cite This Page — Counsel Stack

Bluebook (online)
811 So. 2d 530, 2001 Ala. LEXIS 306, 2001 WL 996042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weldon-v-cotney-ala-2001.