Smith v. Cowart, 68 So. 3d 802

Heartland Products, Inc. was formed by Nathan and Dale Smith (49%) and Buford Cowart (51%), with equipment and land at issue in Heartland’s operations in Macon County.
Smiths claimed Heartland owned equipment (forklifts, loader, bark screener, tub grinder) and real property, while Cowarts contended the Cowarts owned most of the equipment.
Heartland secured loans from SouthTrust Bank; SouthTrust obtained a security interest in Heartland property, with disagreement whether equipment was covered and who guaranteed the loans.
Smiths alleged Buford Cowart diverted Heartland resources to businesses owned by Debbie Cowart and Herman Cowart, improperly transferring equipment and breaching fiduciary duties.
June 1999: Smiths sought a writ of seizure under Rule 64 to attach equipment; a bond of $250,000 was posted with USF&G as surety.
2008: After years of delay, the trial court dismissed the Smiths’ claims for lack of prosecution following a May 12, 2008 hearing where Smiths/ counsel were absent.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal for failure to prosecute was proper	Smiths argue lack of intentional delay; insufficient grounds to dismiss.	Cowarts assert chronic delay and nonprosecution; court has discretion to dismiss.	Affirmed dismissal for lack of prosecution
Whether the June 23, 2008 order denying the writ was proper due process	Smiths had no notice or opportunity to be heard for the motion leading to June 23 order.	Cowarts contend hearing provided due process; Smiths had notice via appearance at related proceedings.	Reversed in part; due process violation for lack of notice regarding June 23 order
Whether the trial court could forfeit the bond based on the June 23 order	Forfeiture supported by findings on damages; Smiths argue lack of notice invalidates	Bond forfeiture warranted given wrongful seizure and notice deficiencies were not properly shown	Reversed; bond forfeiture reversed due to notice failure
Whether remaining counterclaims were adjudicated or properly final	All claims should have been adjudicated; finality under Rule 54(b) not clearly met	Trial court rendered final judgment on all claims by August 26, 2009	Final judgment proper as to Smiths’ claims; remand for remaining issues

Henderson v. G & G Corp., 582 So.2d 529 (Ala. 1991) (dismissal for delay may be proper to control docket; discretion afforded)
Hollander v. Nance, 888 So.2d 1275 (Ala. Civ. App. 2004) (discretion in dismissals for want of prosecution)
Ex parte Lang, 500 So.2d 3 (Ala. 1986) (Rule 60(b) motion interplay with Rule 55(c) clarifications)
Ex parte Vaughan, 539 So.2d 1060 (Ala. 1989) (alternative Rule 55[c] and Rule 60(b) motion permitted)
Ex parte Gamble, 709 So.2d 67 (Ala. Civ. App. 1998) (permissible to combine §60(b) relief with post-judgment motion)
Ex parte Dowling, 477 So.2d 400 (Ala. 1985) (Rule 60(b) relief cannot substitute for appeal when facts known earlier)
McIntyre v. Satch Realty, Inc., 961 So.2d 135 (Ala. Civ. App. 2006) (Rule 60(b) cannot be used to relitigate postjudgment matters previously denied)
D. & J. Mineral & Mining, Inc. v. Wilson, 456 So.2d 1099 (Ala. Civ. App. 1984) (litigant bears responsibility to know case status; court owes no duty to notify)
Humane Soc’y of Marshall County v. Adams, 439 So.2d 150 (Ala. 1983) (due process requires notice and opportunity to be heard before property disposition)