442 So. 2d 932 | Ala. Civ. App. | 1983
This appeal concerns three lawsuits filed by the same plaintiff against the same defendants. In the instant appeal plaintiff, through able counsel, contends the trial court erred in denying his A.R.Civ.P. rule 60 (b)(6) motion for relief from the final judgment entered in the second lawsuit. Finding no abuse of discretion in the lower court's action, we affirm.
Plaintiff C S Construction Company filed its first suit against the defendants in the District Court of Mobile County in July of 1981. The complaint was for work and labor performed and breach of contract. In September of 1981, in an attempt to perfect a contractor's lien against the building repaired, plaintiff filed the second suit, this time in the Circuit Court of Mobile County.
Defendants filed a motion to dismiss suit No. 2, relying on Alabama Code provision
Plaintiff moved the circuit court to reconsider its dismissal of suit No. 2 under §
After the appellate decision on suit No. 2 was rendered, plaintiff filed suit No. 3 in the District Court of Mobile County. Defendants countered with a motion for summary judgment, contending that the order of dismissal in suit No. 2 was res judicata. In its brief plaintiff concedes that it filed its "Rule 60 Motion for Relief from Judgment" (seeking to have the judgment in suit No. 2 altered to recite specifically that *933 the dismissal was without prejudice) because it feared that the summary judgment motion in suit No. 3 would be successful. See A.R.Civ.P. 41 (b). ("Unless the court in its order for dismissal otherwise specifies, a dismissal . . . operates as an adjudication on the merits.") It becomes apparent that plaintiff's approach to the res judicata defense in suit No. 3 is to have the court in suit No. 2 declare that the dismissal of the action was a ruling in abatement and not an adjudication on the merits.
In opposition to plaintiff's appeal defendants contend that plaintiff's motion was properly denied as an untimely rule 59 (e) motion, see A.R.Civ.P. 59 (e) ("A motion to alter, amend, or vacate the judgment shall be filed not later than 30 days after entry of the judgment."), or in the alternative that it is barred by the four-month deadline in A.R.Civ.P. 60 (b)(1).But see Sack v. Low,
We do not interpret the case of Textron, Inc. v. Whitfield,
AFFIRMED.
WRIGHT, P.J., and BRADLEY, J., concur.