Opposition Brief — Lapeyrouse Grain Corp. v. Nelson

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Lr Supreme Court, US. if

(y) FILED *}

No. 85-1414 MAR 26 1968

PE | ae Ol, JR. |

Supreme Court of the United States

October Term, 1985

LAPEYROUSE GRAIN CORPORATION and

LAPEYROUSE GRAIN CORPORATION

OF ALABAMA,

Petitioners,

vs.

FLORA JANE NELSON, doing business as

W. J. NELSON COMPANY,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

_."

Roger 8S. Morrow

*Rosert M. Auton, JR.

Counsel for Respondent

*Counsel of Record

OF COUNSEL:

Wuirese.., Morrow & Romrnz, P.C.

Post Office Box 2450

Montgomery, Alabama 36103-2450

Telephone: (205) 262-1967

Rosert M. Auton, Jr.

302 Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

Telephone: (205) 834-8661

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

1. Does the United States Supreme Court have juris-

diction in this case due to the fact Petitioners have failed

to exhaust their remedies in the Supreme Court of Ala-

bama and due to the fact the Supreme Court of Alabama

has entered an order reinstating Petitioners’ appeal?

2. Whether the Supreme Court of Alabama’s dis-

missal of an appeal filed by Petitioners, Lapeyrouse Grain

Corporation and Lapeyrouse Grain Corporation of Ala-

bama, constitutes a denial of due process of law and equal

protection of the law pursuant to the Fourteenth Amend-

ment to the United States Constitution when the appeal

was dismissed pursuant to the Alabama Rules of Appellate

Procedure more than forty-two (42) days after denial by

operation of law of Petitioners’ post-trial motions?

TABLE OF CONTENTS

Page

OPINIONS BELOW 1

STATEMENT OF JURISDICTION 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED 3

STATEMENT OF THE CASE 5

SUMMARY OF THE ARGUMENT WHY THE

WRIT SHOULD BE DENIED .... 11

ARGUMENT SUPPORTING REASONS FOR

DENYING CERTIORARI 14

A. The Court Does Not Have Jurisdiction in this

Case Due to the Fact that Lapeyrouse Has

Not Exhausted Its Remedies in the Supreme

Court of Alabama and Due to the Fact the

Supreme Court of Alabama Has Not Entered

a Final Judgment as Provided for in 28

U.S.C. § 1257 .... 14

B. The Dismissal of Lapeyrouse’s Appeal by the

Supreme Court of Alabama Did Not Consti-

tute a Denial of Equal Protection of Law or

Due Process of Law . a

CONCLUSION 29

APPENDIX innit aoe ce access ae B-1

lil

TABLE OF AUTHORITIES

Page

CasEs:

Carnes v. Carnes, 365 So.2d 981 (Ala. Civ. App. 1978) 22

Cox Broadcasting Corporation v. Cohn, 420 U.S.

469 (1975) 12, 16

Crowder v. Zoning Board of Adjustment, 406 So.

2d 917 (Ala. Civ. App. 1981), cert. den’d, 406

SETS 22

Duncan v. Tennessee, 405 U.S. 127 (1972) 13, 26, 27

Durham v. United States, 401 U.S. 481 (1971) 26

French v. Steel, Inc., 445 So.2d 561 (Ala. 1984) 23

Goldstein v. Cox, 396 U.S. 471 (1970) ... cat ae

Griffin v. Illamots, 351 U.S. 12 (1956) nn eee eeee eee 27

Holmes v. Powell, 363 So.2d 760 (Ala. 1978) .................. 21

Lacks v. Stribling, 406 So.2d 926 (Ala. Civ. App.

1981) Fr : 21

Tandsey v. Normet, 405 U.S. 56 (1972) nae neeeecsesnccecnecvenncesene 27

McKane v. Durston, 153 U.S. 684 (1894) 2 27

Minnick v. California Department of Corrections,

ee PERN 12, 16

National Union of Marine Cooks and Stewards v.

ee See ee 27

North Dakota State Board of Pharmacy v. Sny-

der’s Drug Stores, Inc., 414 U.S. 156 (1973) 0... 15, 16

Ortwein v. Schwab, 410 U.S. 656 (1973) 0. 27

Rice v. Sioux City Memorial Park Cemetery, 349

EES ISIE TE 28

State v. Wall, 348 So.2d 482 (Ala. 1977) 0. 23

Thompson v. Keith, 365 So.2d 971 (Ala. 1978) _..21, 22, 23

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

ee V5 OS a 15

TABLE OF AUTHORITIES—Continued

Page

OrHER CITATIONS:

United States Constitution, Amendment 14 WWW... 28

28 U.S.C. § 1257 3, 11, 12, 14, 15

U.S.C.A. Article IIT, 41 et seq. 15

Rule 4, Alabama Rules of Civil Procedure ..................... passim

Rule 58(a), Alabama Rules of Civil Procedure ......4, 19, 20

Rule 59.1, Alabama Rules of Civil Procedure ....... passim

Rule 60(b), Federal Rules of Civil Procedure —..... 10, 17

11 C. Wright and A. Miller, Federal Practice and

Procedure § 2781 at 6 (1973) 21

No. 85-1414

fy.

In The

Supreme Court of the United States

October Term, 1985

ray

LAPEYROUSE GRAIN CORPORATION and

LAPEYROUSE GRAIN CORPORATION

OF ALABAMA,

Petitioners,

vs.

FLORA JANE NELSON, doing business as

W. J. NELSON COMPANY,

Respondent.

ra’

RESPONDENT'S BRIEF IN OPPOSITION

re’

Respondent respectfully requests that the Court deny

the petition for a writ of certiorari to review the decision,

judgments and orders of the Supreme Court of Alabama

filed on October 11, 1985, November 22, 1985, and Decem-

ber 10, 1985.

OPINIONS BELOW

The petition for writ of certiorari filed by Lapeyrouse

Grain Corporation and Lapeyrouse Grain Corporation of

Alabama (hereinafter collectively referred to as Lapey-

rouse) is not complete in its citations of the opinions and

judgments issued by the Supreme Court of Alabama. In

addition to the opinions and judgments cited by Petition-

ers, the Supreme Court of Alabama entered an order on

February 28, 1986, in Case No. 84-342. A copy of that or-

der is reproduced in the Appendix, infra, at B-34. The

order of the Supreme Court of Alabama issued on Febru-

ary 28, 1986, reinstated an appeal filed by Lapeyrouse

which is the appeal that Lapeyrouse is claiming denied

them due process of law and equal protection of the law.

The order of February 28, 1986, has not been reported as

of this date. On March 6, 1986, the Supreme Court of Ala-

bama also issued two additional orders which have not

been reported but which are reproduced in the Appendix,

infra, at B-36, 38). The two orders of the Supreme Court of

Alabama dated March 6, 1986, clarified the court’s earlier

order of February 28, 1986, which reinstated Lapeyrouse’s

appeal in Case No. 84-342.

Petitioners refer to an order issued by the Supreme

Court of Alabama on January 28, 1986, which dismissed

their appeal in Case No. 85-393. Since the filing of the

petition for writ of certiorari, the Supreme Court of Ala-

bama has entered an additional order on February 28,

1986, which denied Lapeyrouse’s application for rehearing

in Case No. 85-393. A copy of the denial of the application

for rehearing issued by the Supreme Court of Alabama on

l’ebruary 28, 1986, is reproduced in the Appendix, infra, at

B-33.

J 6-0 An ai by i le ella

STATEMENT OF JURISDICTION

This Honorable Court does not have jurisdiction in

this case. Lapeyrouse contends in its statement of juris-

diction that jurisdiction is conferred on this Court by 28

U.S.C. § 1257(3). Flora Jane Nelson (hereinafter referred

to as Nelson) asserts that 28 U.S.C. § 1257 prohibits juris-

diction in this case. The reason that jurisdiction is ob-

jected to by Nelson is that 28 U.S.C. § 1257 requires a final

judgment to be rendered by the highest court of the state

before jurisdiction is conferred. Jurisdiction is not con-

ferred on this Court in this case because a final judgment

as contemplated by § 1257 has not been entered herein and

Lapeyrouse has not exhausted its remedies or appeals in

the courts of the State of Alabama.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to the constitutional and statutory provi-

sions cited by Lapeyrouse in its petition for writ of cer-

tiorari, the following constitutional and statutory provi-

sions are also involved in this case:

1. 28 U.S.C. § 1257 provides in pertinent part as fol-

lows:

‘‘Final judgments or decrees rendered by the highest

ecurt of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows:

* * *

(3) By writ of certiorari, where the validity of a

treaty or statute of the United States is

drawn in question or where the validity of a

State statute is drawn in question on the

ground of its being repugnant to the Consti-

tution, treaties or laws of the United States,

or where any title, right, privilege or im-

munity is specially set up or claimed under

the Constitution, treaties or statutes of or

commission held or authority exercised under,

the United States.’’

2. Rule 58 of the Alabama Rules of Civil Procedure

provides in pertinent part as follows:

‘**Rule 58.

Rendition and entry of judgments and orders.

(a) Rendition of judgments and orders. A judge

may render his order or judgment: (1) by

notation thereof upon his bench notes without

any other or further written document, or

(2) by execution a separate written document,

or (3) by including the order of judgment in

his opinion or memorandum, or (4) by simply

appending to his opinion or memorandum or

including therein his direction as to the order

or judgment sought to be entered.

(b) Sufficiency of judgment, order or minute en-

try thereof. A judgment or order, or the

minute eutry thereof, need not be phrased in

formal language nor bear particular words of

adjudication. The judgment or order or the

minute entry thereof will be sufficient if it is

signed or initialed by the judge and indicates

an intention to adjudicate, considering the

whole record, and if it indicates the substance

of the adjudication.

of a judgment or order as provided in sub-

division (a) of this rule, unless it contains a

specific direction otherwise or is subject to the

provisions of Rule 54(b), the clerk shall note

such judgment or order forthwith in the civil

docket if separately maintained. Notation of

a judgment or order on separately maintained

bench notes or in the civil docket or the filing

of a separate judgment or order constitutes

the entry of the judgment or order. The entry

of the judgment or order shall not be delayed

for the taxing of costs.’’

* > *

co)

STATEMENT OF THE CASE!

The statement of the case set forth by Petitioners, La-

peyrouse Grain Corporation and Lapeyrouse Grain Cor-

poration of Alabama (hereinafter referred to collectively

as Lapeyrouse), in this case is incomplete, misleading, and

incorrect in many regards. For this reason and for com-

pliance with the rules of this Court, Respondent, Flora

Jane Nelson, individually and d/b/a W. J. Nelson Com-

pany (hereinafter referred to as Nelson), will set forth the

following statement of the case.

This action was commenced on or about the 27th day

of January, 1983, by the filing of a complaint by Flora

Jane Nelson, individually and doing business as W. J. Nel-

son Company, against the Lapeyrouse Grain Corporation

and Lapeyrouse Grain Corporation of Alabama and vari-

ous fictitious parties. In Nelson’s complaint, Nelson

sought damages against Lapeyrouse for, inter alta, breach

IReferences to Appendix “A” are to the appendix contained

in the Petition for Writ of Certiorari to the Supreme Court of

Alabama fiied by the Petitioners herein. References to Appen-

dix “B” are to the appendix to Respondent's Brief in Opposition.

of fiduciary duty, and Nelson sought an accounting of cer-

tain disputed items concerning a running account between

merchants. (A-29) Subsequent to the filing of the original

complaint, Nelson amended her complaint to add additional

counts setting forth, inter alia, a cause of action against

Lapeyrouse for conversion. (B-1)

On or about July 26, 1984, this case came to trial in the

Cireuit Court of Baldwin County, Alabama. The case was

tried by a jury and on July 30, 1984, the jury returned a

verdict in favor of the Plaintiff and against the Defend-

ants on Plaintiff’s claims and assessed Plaintiff’s damages

at $561,537.47. The jury also found in favor of Nelson

against Lapeyrouse on Lapeyrouse’s counterclaim. Judg-

ment was entered on the verdict on August 9, 1984. (A-8;

A-23) On August 8, 1984, Lapeyrouse filed post-trial mo-

tions for judgment notwithstanding the verdict and motion

for new trial. (A-8; A-23) Rule 59.1 of the Alabama Rules

of Civil Procedure requires that a motion for new trial

must not remain pending for more than ninety days and,

thus, it is denied by operation of law at the expiration of

the ninetieth day. (See page 3 of Petition) The trial court

did not file or enter an order on Lapeyrouse’s post-trial

motions by November 6, 1984, which was the ninetieth day

after the filing of Lapeyrouse’s post-trial motions. (A-26;

A-52) The trial court did draft and sign an order granting

a motion for new trial which was dated November 5, 1984,

but this motion was not filed with the Cireuit Clerk of

Baldwin County, Alabama, until November 8, 1984. (A-26;

Affidavit of Barbara M. Judge, B-4)

Rule 4 (a) (3) of the Alabama Rules of Appellate Pro-

cedure provides that a party has forty-two (42) days from

the date of the entry of the judgment or order appealed

from within which to file a notice of appeal with the clerk

of the trial court. (A-106) The effective date for purposes

of computing time under the Alabama Rules of Civil and

Appellate Procedure is the date the order is filed. (A-10;

A-104; A-106) Under Rule 4 (a) (3) of the Alabama Rules

of Appellate Procedure, the filing of a post-judgment mo-

tion for judgment notwithstanding the verdict and new

trial suspends the running of the time for filing a notice of

appeal until the date of the entry of an order granting or

denying the post-judgment motion or until the operation of

Rule 59.1 of the Alabama Rules of Civil Procedure. (A-106;

Page 3 of petition)

On December 13, 1984, Nelson filed a precautionary

notice of appeal to the Supreme Court of Alabama from

the void order of the trial court which attempted to grant

Lapeyrouse’s motion for new trial after the expiration of

the ninety day period provided for in Rule 59.1 of the Ala-

bama Rules of Civil Procedure. (A-52) On December 26,

1984, Lapeyrouse filed a notice of cross-appeal to the Su-

preme Court of Alabama from the trial court’s denial of

Lapeyrouse’s motion for judgment notwithstanding the

verdict with respect to Nelson’s complaint and with re-

respect to the counterclaim, specifically stating that those

denials occurred as a matter of law on November 6, 1984,

due to the operation of Rule 59.1 of the Alabama Rules of

Civil Procedure. (A-54) The order of the trial court filed

on November 8, 1984, was void in that the trial court lost

jurisdiction to grant a new trial and consequently, Plain-

tiff’s notice of appeal filed on December 13, 1984, and De-

fendants’ notice of appeal filed on December 26, 1984, were

nullities and void. (A-8) Plaintiff’s notice of appeal was

clearly an appeal from the grant of a new trial pursuant

to Section 12-22-10, Code of Alabama, 1975, and Plaintiff

did not neéd or desire an appeal if the order granting new

trial was void. (B-6) Neither Plaintiff nor Defendants

filed an appeal from the judgment of $561,537.47; thus both

notices of appeal were also nullities.

Nelson filed on January 28, 1985, a Petition for Writ

of Mandamus with the Supreme Court of Alabama request-

ing the Court to issue a Writ of Mandamus commanding

the trial court to vacate the void order granting Lapey-

rouse’s motion for new trial, and to further order that the

judgment in favor of Nelson be reinstated. (B-7) Nelson

also requested that her Petition for Writ of Mandamus as

well as her purported appeal and the purported cross-

appeal of Lapeyrouse be consolidated. (B-20) Nelson also

filed a motion to dismiss Lapeyrouse’s cross-appeal as un-

timely. (B-23) The motion to dismiss was filed due to the

fact that Defendants’ notice for cross-appeal was filed

more than forty-two (42) days after the automatic denial

on November 6, 1984, of Defendants’ post-trial motions,

and was thus untimely. (A-54; A-106)

On September 27, 1985, the Supreme Court of Alabama

rendered an opinion denying Nelson’s Petition for Writ of

Mandamus. (A-1) On September 30, 1985, the Supreme

Court of Alabama ordered ex mero motu that the Petition

for Writ of Mandamus be placed on rehearing. (B-26) On

October 11, 1985, the Supreme Court of Alabama granted

Nelson’s Petition for Writ of Mandamus and dismissed the

superfluous appeal of Nelson in Case No. 84-294, Nelson v.

Lapeyrouse Grain Corporation, and dismissed the cross-

appeal of Lapeyrouse in Case No. 84-342, Lapeyrouse

Grain Corporation v. Nelson. (A-8; A-12; A-15; A-16;

A-17)

The substance of the opinion and order of the Supreme

Court of Alabama was to the effect that a notice of appeal

from a void order granting a new trial will not support an

appeal and, thus, does not operate to extend the time for

filing a cross-appeal under Rule 4 (a) (2) of the Alabama

Rules of Appellate Procedure; therefore, Lapeyrouse’s ap-

peal was not timely filed. On application for rehearing

filed by Lapeyrouse on or about October 25, 1985, Lapey-

rouse raised for the first time any issues regarding an al-

leged deprivation of its constitutional rights. (A-69) The

Supreme Court of Alabama overruled Lapeyrouse’s appli-

cation for rehearing on November 22, 1985. ( A-12)

On December 10, 1985, the Supreme Court of Alabama

entered an order setting aside the void order of the trial

court purporting to grant new trial to Lapeyrouse. (A-17)

On this same date the Supreme Court of Alabama issued

two certificates of judgment which dismissed the appeal of

Nelson and the cross-appeal of Lapeyrouse. (A-15, A-16)

By order entered on December 16, 1985 (dated December

12, 1985), the trial judge set aside his void order filed No-

vember 8, 1984. (A-28)

On January 6, 1986, Lapeyrouse filed a notice of ap-

peal to the Supreme Court of Alabama from the order of

the trial judge complying with the Writ of Mandamus is-

sued by the Alabama Supreme Court. (A-91) On Janu-

ary 17, 1986, Nelson filed with the Supreme Court of Ala-

bama a motion to dismiss the appeal of Lapeyrouse.

(B-27) On January 28, 1986, the Supreme Court of Ala-

bama dismissed the appeal of Lapeyrouse taken from the

order of the trial judge complying with the Writ of Man-

damus issued by the Supreme Court of Alabama. (A-19)

The application for rehearing filed by Lapeyrouse was

overruled on February 28, 1986. (B-33)

On February 28, 1986, the Supreme Court of Alabama

also ordered, ex mero motu, that the cross-appeal of Lapey-

rouse in Case No. 84-342 be reinstated. (B-34) On March

6, 1986, the Supreme Court of Alabama ordered that the

appeal of Nelson in Case No. 84-294, also be reinstated.

(B-36) On March 6, 1986, the Supreme Court of Ala-

bama entered a second order clarifying its prior orders

stating that its prior orders issuing the Writ of Manda-

mus in Case No. 84-424, were unaffected by the Court’s or-

ders reinstating the appeals in Case Nos. 84-294 and 84-

342. The reinstated appeals in Case Nos. 84-294 and 84-

342 are currently pending before the Supreme Court of

Alabama. On March 13, 1986, Respondent filed an appli-

cation for rehearing concerning the reinstatement of La-

peyrouse’s appeal and a motion to dismiss the appeal of

Liapeyrouse. (B-41, 46) As of the date of the completion of

this brief the Supreme Court of Alabama has not ruled

on these motions.

In a corollary but related proceeding, Lapeyrouse

filed on December 11, 1985, an independent action pursuant

to Rule 60(b) of the Alabama Rules of Civil Procedure for

relief from the judgment in the Cireuit Court of Baldwin

County, Alabama. This action was filed as a result of the

Supreme Court of Alabama’s issuance of the Writ of Man-

damus in Case No. 84-424 and as a result of the dismissal

of Lapeyrouse’s appeal in Case No. 84-342. The Circuit

Court of Baldwin County (Judge Norton) dismissed the

Rule 60(b) action on January 3, 1986. (B-51) Lapey-

rouse filed a notice of appeal from that order of dismissal

and that appeal is currently pending before the Supreme

Court of Alabama as Case No. 85-471. (B-56, 57)

a eiatenercererienentnenitar antenatal

Be DARA TAR.

Due to the pendency of the three appeals in the Su-

preme Court of Alabama it is obvious that Petitioners

have not exhausted their remedies in the Courts of Ala-

bama and the Petition for Writ of Certiorari should be

summarily denied. This is certainly true since the Su-

preme Court of Alabama is reconsidering the dismissal of

Lapeyrouse’s appeal in Case No. 84-342, the dismissal of

which is the source of Lapeyrouse’s complaint of a pur-

ported denial of equal protection of law and due process

of law.

SUMMARY OF THE ARGUMENT

WHY THE WRIT SHOULD BE DENIED

Lapeyrouse’s petition for writ of certiorari to the

Supreme Court of Alabama should be denied for the fol-

lowing reasons:

1. The Court does not have jurisdiction in this case

due to the fact that Lapeyrouse has not exhausted its rem-

edies in the Supreme Court of Alabama and the Supreme

Court of Alabama has not yet entered a final judgment

as contemplated by 28 U.S.C. § 1257.

2. The decision of the Alabama Supreme Court did

not deny Lapeyrouse due process of law or equal protec-

tion of law.

It is absolutely clear in this case that the Supreme

Court of the United States does not have jurisdiction in

this case due to the fact that Lapeyrouse has not exhausted

its remedies in the state courts of Alabama. On February

28, 1986, the Supreme Court of Alabama entered an order

nities

reinstating Lapeyrouse’s appeal, the dismissal of which

was the basis of Lapeyrouse’s claim of denial of due pro-

cess of law and equal protection under the law. (B-34) On

March 13, 1986, Nelson filed an application for rehearing

concerning the reinstatement of Lapeyrouse’s appeal and

also a motion to dismiss Lapeyrouse’s appeal. Respondent

Nelson is claiming that the Supreme Court of Alabama

had previously issued a final judgment and that the Su-

preme Court of Alabama did not have jurisdiction to re-

instate Lapeyrouse’s appeal; however, the Supreme Court

of Alabama has not yet ruled in favor of Respondent Nel-

son and has not yet decided that issue.

Thus, as of the date of the filing of Respondent’s

brief, the Supreme Court of Alabama has not finally dis-

missed Lapeyrouse’s appeal; therefore a final judgment

has not been entered by the Supreme Court of Alabama

upon which 28 U.S.C. § 1257 would confer jurisdiction upon

this court. It is absolutely clear due to the posture of the

case before the Supreme Court of Alabama that the judg-

ment of dismissal entered by the Alabama Supreme Court

on December 10, 1985, is not final in the sense that no fur-

ther proceedings can possibly take place in the State ju-

dicial system, nor can it be stated that the proceedings

before the Alabama Supreme Court be characterized as

certain, nor can it be stated that the proceedings will not

have a significant effect on the constitutional issues of due

process of law and equal protection of law raised by Lapey-

rouse in their petition for writ of certiorari. See, Minnick

v. California Department of Corrections, 452 U.S. 105

(1980); Cox Broadcasting Corporation v. Cohn, 420 U.S.

469 (1975).

i a A A is BO By? ‘

Notwithstanding that this Court does not have juris-

diction to grant certiorari in this case, Lapeyrouse’s pe-

tition for writ of certiorari should be denied because it is

absolutely evident that Petitioners have not been denied

due process of law or equal protection of the law. The

Supreme Court of Alabama dismissed Lapeyrouse’s appeal

because the court did not have jurisdiction due to the fact

the Lapeyrouse’s notice of appeal was filed more than

forty-two (42) days after the automatic denial of Lapey-

rouse’s post-trial motions on November 6, 1984. Under

Rule 4 of the Alabama Rules of Civil Procedure, an appeal

must be filed within forty-two (42) days in order to invoke

the jurisdiction of the Supreme Court of Alabama. The

dismissal of “apeyrouse’s appeal involved questions that

were totally interrelated with the Alabama Rules of Civil

Procedure which are peculiar to the State of Alabama, the

constitutionality of which were not at issue in this case and

do not warrant an exercise of certiorari jurisdiction of this

Court. See, Duncan v. Tennessee, 405 U.S. 127 (1972).

This is simply a case where Lapeyrouse failed to timely

file an appeal pursuant to state law and their appeal was

dismissed. Such a dismissal does not constitute a denial

of due process of law or equal protection of the law and the

petition for writ of certiorari should be denied.

cc)

ARGUMENT SUPPORTING REASONS

FOR DENYING CERTIORARI

A. The Court Does Not Have Jurisdiction in

This Case Due to the Fact That Lapeyrouse

Has Not Exhausted Its Remedies in the Su-

preme Court of Alabama and due to the fact

the Supreme Court of Alabama Has Not Yet

Entered Final Judgment as Provided For in

28 U.S.C. § 1257.

28 U.S.C. § 1257 states in pertinent part as follows:

‘‘Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court as follows: .. .”’

In this case due to the pendency of various proceedings

before the Supreme Court of Alabama, a final judgment

as contemplated in 28 U.S.C. § 1257 has not been rendered

by the Supreme Court of Alabama. This is proven by the

fact that the Supreme Court of Alabama entered an order

reinstating Lapeyrouse’s appeal in Case No. 84-342. (B-34)

Subsequent to the entry of the order of the Supreme

Court of Alabama reinstating Lapeyrouse’s appeal in Case

No. 84-342, Nelson has filed an application for rehearing

and a motion to dismiss Lapeyrouse’s appeal in Case No.

84-342. (B-41, 46) In both the motion to dismiss and the

application for rehearing, Nelson is contending that the

Supreme Court of Alabama’s certificate of judgment en-

tered on December 10, 1985, dismissing Lapeyrouse’s ap-

peal in Case No. 84-342 is a final judgment and that the

Supreme Court of Alabama does not have the authority

or jurisdiction to reinstate that appeal. (B-41,46) The mo-

tion and application for rehearing have been briefed by

Nelson, but the Supreme Court of Alabama has not ruled on

these matters, and as of the date of this brief, Lapey-

rouse’s appeal concerning the judgment entered in favor

of Nelson for $561,437.47 on July 30, 1984, is currently

pending before the Supreme Court of Alabama. This being

the case, Lapeyrouse has not exhausted its remedies in the

courts of the State of Alabama and a final judgment as

contemplated by 28 U.S.C. § 1257 and as interpreted by

the United States Supreme Court has not been entered in

this case. This being true, this Court does not have juris-

diction of this matter and the petition for writ of certiorari

should be denied.

The finality requirement limiting the jurisdiction of

the United States Supreme Court to review a State court

judgment serves several ends which are as follows:

1. It avoids piecemeal review of State court de-

cisions ;

2. It avoids giving advisory opinions in cases where

there may be no real case of controversy in the sense of

Article III; and

3. It limits review of State court determinations of

federal constitutional issues to leave at a minimum intru-

sion in State affairs. U.S.C.A. Article ITI, $1, et seq.;

North Dakota State Board of Pharmacy v. Snyder’s Drug

Stores, Inc., 414 U.S. 156 (1973).

The requirements by Congress that review of state

court judgments be final was succinctly stated in the case

of Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

(1945), as follows:

‘¢. .. This requirement has the support of considera-

tions generally applicable to good judicial administra-

tion. It avoids the mischief of economic waste and of

delayed justice. Only in very few situations, where

intermediate rulings may carry serious public con-

sequences, has there been a departure from this re-

quirement of finality for federal appellate jurisdic-

tion. This prerequisite to review derives added force

when the jurisdiction of this Court is invoked to upset

the decision of a State court... .’’ 326 U.S. at 124.

It is axiomatic that a party must have exhausted his

remedies before the State appellate courts before the

United States Supreme Court will review a decision of the

highest court of that particular State. To invoke the

jurisdiction of this Court, the outcome of further pro-

ceedings of the State court have to be characterized as

certain or that further proceedings in the State court will

not have a significant effect on the federal constitutional

issues presented by certiorari petition. Minnick v. Cali-

fornia Department of Correction, supra. In some rare

cases, a state court’s decision of a federal issue can be

treated as a final judgment even though additional pro-

ceedings in a State court are anticipated. Cox Broadcast-

ing Corporation v. Cohn, supra; North Dakota State Board

of Pharmacy v. Snyder’s Drug Stores, Inc., supra. In

order to meet one of these exceptions, however, it has to

be evident that further proceedings in the State court will

not have a significant effect on the federal constitutional

issue presented in the certiorari petition or the petition

for writ of certiorari will be dismissed. Minnick v. Cali-

fornia Department of Correction, supra.

In this case it is clear that the additional rulings that

will have to be made by the Supreme Court of Alabama

will have a significant effect on the constitutional issues

raised by Lapeyrose. If the Supreme Court of Alabama

does not rule in favor of Nelson on her motion to dismiss

and application for rehearing, Lapeyrose will be granted

an appeal and their claim for denial of due process and

equal protection of the law will be moot. The petition for

writ of certiorari currently before the Court in this case

is a clear attempt at piecemeal appellate review which is

not favored by this Court. Goldstein v. Cox, 396 U.S. 471

(1970).

Another reason that Lapeyrouse has not exhausted its

remedies in the Courts of Alabama is the fact that Lapey-

rouse also has pending an appeal before the Supreme Court

of Alabama in Case No. 85-471. (B-56, 57) Lapeyrouse’s

appeal before the Supreme Court of Alabama in Case No.

85-471 is an appeal from a dismissal by the Circuit Court

of Baldwin County, Alabama, of Lapeyrouse’s independent

action for relief from judgment. This action was filed by

Lapeyrouse pursuant to Rule 60(b) of the Alabama Rules

of Civil Procedure. Rule 60(b) of the Alabama Rules of

Civil Procedure is basically the same rule as contained in

the Federal Rules of Civil Procedure. The Cireuit Court

of Baldwin County, Alabama, dismissed Lapeyrouse’s ac-

tion and refused to set aside the judgment of $561,537.47

and refused to grant Lapeyrouse a new trial. (B-51)

Lapeyrouse then filed a notice of appeal to the Supreme

Court of Alabama. (B-56) That appeal is currently

pending before the Supreme Court of Alabama and was

pending at the time this petition for writ or certiorari was

filed. As of the date of this response, briefs have not been

filed with the Supreme Court of Alabama in that appeal.

Due to the pendency of that appeal, Lapeyrouse has not

exhausted its remedies in the Supreme Court of Alabama

concerning the issues raised in this petition for writ of

certiorari.

Due to the pendency of three appeals in the Supreme

Court of Alabama, it is obvious that Petitioners have not

exhausted their remedies in the Supreme Court of Ala-

bama and the petition for writ of certiorari should be sum-

marily denied. This is certainly true since the Supreme

Court of Alabama has currently reinstated Lapeyrouse’s

appeal, which is the source of Lapeyrouse’s complaint of

denial of equal protection of law and due process of law.

B. The Dismissal of Lapeyrouse’s Appeal by the

Supreme Court of Alabama Did Not Consti-

tute a Denial of Equal Protection of Law or

Due Process of Law.

The thrust of Lapeyrouse’s argument in their petition

for writ of certiorari is that they have suffered a depriva-

tion of property while being denied due process of law

and equal protection of law due to the Supreme Court of

Alabama’s ruling that the trial court’s order granting a

new trial was void and that Lapeyrouse had not filed a

timely notice of appeal from the judgment; therefore, the

appeal was due to be dismissed. This argument on the

part of Lapeyrouse is without merit and does.not set forth

adequate cause for this Court to grant the petition for

writ of certiorari.

Lapevrouse, in their petition for writ of certiorari, has

misrepresented the facts surrounding the basis of the opin-

ion rendered by the Supreme Court of Alabama on QOcto-

ber 11, 1985. Lapeyrouse argues to this Court that the

Supreme Court of Alabama by judicial interpretation modi-

fied the Alabama Rules of Civil Procedure and thus arbi-

trarily and capriciously denied Lapeyrouse the right of

an appeal. Lapeyrouse goes further to argue that prior

to October 11, 1985, Rule 59.1 did not require the entry of

an order for the order to effectively dispose of a post-judg-

ment motion. This argument is simply a mischaracteriza-

tion of the law of Alabama and the facts in this case.

The opinion of the Supreme Court of Alabama ren-

dered on October 11, 1985, is made a part of the Appendix

to the petition for writ of certiorari and appears on page

A-8. As is shown in the opinion, the Supreme Court of

Alabama ruled that an order must be entered pursuant to

Rule 58 of the Alabama Rules of Civil Procedure for the

order to become effective. The court further ruled that

under Rule 59.1 of the Alabama Rules of Civil Procedure,

a post-judgment motion cannot remain pending for more

than ninety (90) days. Under Alabama law, the failure

of a trial court to dispose of a pending motion within ninety

(99) days constitutes an antomatic denial of that motion.

Under Alabama case law and under the Alabama Rules

of Civil Procedure, the trial court loses jurisdiction to

grant a new trial if the entry of the order is not made

within the ninety (90) day period. In this case the order

granting new trial was a separate written opinion which

was not filed with the Cireuit Clerk until November 8,

1984. The order was apparently signed on November 5,

1984, but the order was not effective because it was not

filed with the Clerk until November 8, 1984; thus, the order

was void since it was filed two days after the ninety (90)

day period provided for by Rule 59.1 of the Alabama

Rules of Civil Procedure had expired.

Lapeyrouse incorrectly argues in brief that the Su-

preme Court of Alabama ruled, after all period of appeal

for either side had run. that Rule 59.1 required the clerk

to take ministerial action on the written judgment within

the ninety (90) day period for the trial court’s order to

become effective. This is an incorrect statement of the

holding of the Supreme Court of Alabama. What the Su-

preme Court of Alabama held was that the trial judge

must iake action under Rule 58, Alabama Rules of Civil

Procedure, to effectively enter the order in order for that

order to become effective and dispose of a post-judgment

motion. If the trial court does not make the order effec-

tive through the entry of the order prior to the expiration

of ninety (90) days pursuant to Rule 59.1, the court has

not effectively disposed of the motion and the trial court

loses jurisdiction to set aside a judgment pursuant to a

post-trial motion. This was made clear in the special con-

eurrence of Chief Justice Torbert which was rendered on

November 22, 1985, and which is attached as A-12 of the

Appendix to the petition for writ of certiorari.

Lapeyrouse makes a grave mischaracterization of the

law when they attempt to argue that the Supreme Court

of Alabama changed the rules of procedure by rendering

its opinion of October 11, 1985. This is simply not true.

As is shown in the special concurrence of Chief Justice

Torbert, the trial court can effectively act upon a motion

by ruling on it by any of the means set forth in Rule 58(a)

of the Alabama Rules of Civil Procedure. The Chief Jus-

tice then stated that an order or judgment is not effective

for purposes of disposing of a post-judgment motion until

an entry of the judgment or order is made. As the Chief

Justice stated, this has to be the rule and it is comparable

to Rule 58 of the Federal Rules of Civil Procedure; the

intent of both rules being ‘‘to resolve the same problem,

i.e., when is an order or judgment an order or judgment?’’

Pe the.» ves, des, Danes: oti

Su a? oe DA RO. v ee

Oe ST LP Radke ee a ee a NR, ea

PIN UR Botts net See Le

It is ironic that Lapeyrouse now comes to the federal

courts in an attempt for relief since the Federal Rules of

Civil Procedure have always clearly required an entry of

the judgment or order before that judgment or order be-

comes effective. This is shown from the quote from 11

C. Wright and A. Miller, Federal Practice and Procedure

§ 2781 at 6 (1973), which was quoted by Chief Justice Tor-

bert, and which reads as follows:

‘*Rule 58 is intended to resolved ‘the old, old

question of when is a judgment a judgment.’ It is of

great importance in litigation to know precisely what

the judgment is and when it was entered. The time

in which to-make post-trial motions runs from the

entry of judgment as does the time when execution

may issue. Most important, however, is the fact that

the time for appeal runs from the entry of judgment.’’

It is interesting to note that Lapeyrouse does not ref-

erence the cases relied upon by the Alabama Supreme

Court which clearly demonstrated that the filing of a judg-

ment or order was required for that judgment or order to

be effective. Examples of the cases of the Supreme Court

of Alabama requiring that a separate written judgment

must be filed before that judgment can be effective are

Lacks v. Stribling, 406 So.2d 926 (Ala. Civ. App. 1981);

Holmes v. Powell, 363 So.2d 760 (Ala. 1978); and Thomp-

son v. Keith, 365 So.2d 971 (Ala. 1978). These cases were

rendered long before the facts of this case ever developed.

An analysis of the Alabama cases on point clearly demon-

strates that the Supreme Court of Alabama was correct in

granting the petition for writ of mandamus and in declar-

ing the trial court’s order granting new trial to be void

and outside the ninety (90) day period provided by Rule

59.1 of the Alabama Rules of Civil Procedure. Further-

more, the Courts of Alabama clearly have the power to

construe their own rules of civil procedure.

Lapeyrouse also argues in their petition for writ of

certiorari that the Supreme Court of Alabama arbitrarily

and capriciously denied it a right of appeal. Lapeyrouse’s

argument to this effect is very weak since apparently it is

based on an argument that the Supreme Court of Ala-

bama changed the requirements of Rule 59.1 and that the

decision of the Supreme Court of Alabama interpreting

Rule 59.1 could not have been anticipated. Such argu-

ment is simply without merit.

The appellate courts of the State of Alabama have

been very strict in requiring that a notice of appeal be

timely filed in order for a party to obtain a right of appeal.

The courts have particularly been strict in ruling that a

trial court has no jurisdiction to enter an order pursuant

to Rule 59 of the Alabama Rules of Civil Procedure where

more than ninety (90) days have passed from the time of

the party’s post-trial motion for new trial or rehearing,

and in dismissing appeals that were filed more than forty-

two (42) days from the date of the automatic denial under

Rule 59.1 of the Alabama Rules of Civil Procedure, See,

Thompson v. Keith, supra; Crowder v. Zoning Board of

Adjustment, 406 So.2d 917 (Ala. Civ. App. 1981), cert.

den’d, 406 So.2d 919 (Ala. 1981); Carnes v. Carnes, 365

So.2d 981 (Ala. Civ. App. 1978). Under Alabama law, a

trial court has never had the jurisdiction, since the pas-

sage of the Alabama Rules of Civil Procedure, to enter an

order pursuant to Rule 59 of the Alabama Rules of Civil

Procedure where more than ninety (90) days have passed

from the time of filing of the party’s post-trial motion

for new trial, and the time period has not been extended

Pe a ee ee |

as provided for in the rule. French v. Steel, Inc., 445 So.

2d 561 (Ala. 1984); Thompson v. Keith, supra. Under

Alabama law a post-trial motion is pending as of its filing

until acted upon by the court and the ninety (90) day

period begins to run from the date of filing. State v. Wall,

348 So.2d 482 (Ala. 1977). Thus, the argument by Lapey-

rouse that the ruling of the Supreme Court of Alabama

in its opinion of October 11, 1985, could not be anticipated

and was a change of the Alabama Appellate Courts’ inter-

pretation of the Alabama Rules of Civil Procedure is

simply ludicrous. The decision and opinion of the Sv-

preme Court of Alabama on the petition for writ of

mandamus in Case No. 84-424 was easily foreseeable and

that is why Nelson’s attorneys filed the petition for writ

of mandamus.

The reason the Supreme Court of Alabama dismissed

the appeal of Lapeyrouse is Lapeyrouse did not timely file

a notice of appeal from the judgment for $561,537.47.

Lapeyrouse did file a notice of cross-appeal after a pre-

cautionary notice of appeal was filed by Nelson from the

void order granting Lapeyrouse a new trial. (A-52; A-54)

Lapeyrouse’s notice of appeal was originally dismissed by

the Supreme Court of Alabama due to the fact that Lapey-

rouse’s notice of cross-appeal was filed on December 26,

1984, which was more than forty-two (42) days from No-

vember 6, 1984, which was the date of the automatic denial

of the post-trial motions. Lapeyrouse argues to this

Court, as it did to the Supreme Court of Alabama, that

Rule 4(a) of the Alabama Rules of Appellate Procedure

operated to bootstrap their cross-appeal into a timely ap-

peal. This argument was based upon the fact that Nelson

filed a precautionary notice of appeal from the trial court’s

void order granting new trial. This argument is without

merit.

Lapeyrouse contends that the fact Nelson originally

filed a notice of appeal from the void order of the trial

court granting new trial proved that Nelson’s attorneys

also thought the order was effective. This is not true.

Nelson filed a precautionary notice of appeal in order to

cover herself in case the Supreme Court of Alabama for

some unexplained reason ruled the trial court’s order to

be effective or to have been timely filed. Nelson’s attor-

neys elected to take a precaution to protect themselves in

case the Supreme Court of Alabama did not rule in their

favor. Unlike the precautionary attitude adopted by Nel-

son’s attorneys, attorneys for Lapeyrouse took the ap-

proach of not filing a precautionary notice of appeal in

ease the trial court’s order was determined to be void.

Since Lapeyrouse did not protect themselves by filing a

timely notice of appeal, they deprived themselves of an ap-

peal when the Supreme Court of Alabama correctly ruled

that the trial court’s order granting new trial was void.

Lapeyrouse’s argument concerning the fourteen (14)

day period provided for in Rule 4a of the Alabama Rules

of Appellate Procedure is also without merit due to the

fact that it only applies if an effective appeal is filed with-

in the required forty-two (42) day period. In this case

an effective notice of appeal was never filed since the ap-

peal filed by Nelson was an appeal from a void order.

Since Nelson filed a notice of appeal from the trial court’s

order which was a nullity, Nelson’s appeal could not oper-

ate to bootstrap Lapeyrouse’s cross-appeal into a timely

filed appeal. This was the reason the Supreme Court of

Alabama originally dismissed Lapeyrouse’s appeal which

is shown from the following quote from the opinion:

‘*Plaintiff filed a notice of appeal and this petition

for writ of mandamus. The defendant Lapeyrouse

filed a cross-appeal from the order of the trial court

denying its motion for judgment nctwithstanding the

verdict. For the reasons set out below, the plaintiff’s

appeal is due to be dismissed and the writ of manda-

mus is due to be issued. The defendant Lapeyrouse’s

cross-appeal from the order denying its motion for

judgment notwithstanding the verdict is due to be

dismissed because it was not filed within forty-two

(42) days of the order appealed from. It is interest-

ing that the notice of cross-appeal expressly recog-

nizes, and correctly so, that Lapeyrouse appeals ‘from

the trial court’s denial of said defendants’ motion for

judgment notwithstanding the verdict . . . which de-

nial ... occurred as a matter of law on November 6,

1984, pursuant to ARCP Rule 59.1.’ The notice of

cross-appeal was filed on December 26, 1984, beyond

forty-two (42) days from November 6, 1984. The

plaintiff’s superfuous notice of appeal from the pur-

ported order granting the motion for new trial would

not support an appeal—which the plaintiff recognized

and, therefore, filed the petition for writ of manda-

mus—and does not operate to extend the time for filing

the cross-appeal under ARAP Rule 4(a) (2).’’ (A-9,

10)

Thus, it is clear and logical why the appeal of Lapey-

rouse was originally dismissed by the Supreme Court of

Alabama. The appeal was not timely filed and, there-

fore, the Supreme Court of Alabama did not have juris-

diction. Furthermore, the notice of cross-appeal filed by

Lapeyrouse was never intended to be an appeal from the

judgment entered in favor of Nelson and the notice of ap-

peal fails to state that it is an appeal from that judgment.

It is indeed interesting to note — as pointed out by the

Supreme Court of Alabama — that Lapeyrouse expressly

recognized in the notice of cross-appeal that all the post-

trial motions pending before the trial court were effec-

tively denied on November 6, 1984, by operation of law.

Thus, the notice of cross-appeal filed by Lapeyrouse ex-

pressly demonstrates that the attorneys for Lapeyrouse

were well aware that Rule 59.1 operated to deny all post-

trial motions and started the running of the time periods

for filing notices of appeal.

The above argument is made to this Court in order to

clarify the rulings of the Supreme Court of Alabama. As

pointed out earlier in this brief, the Supreme Court of

Alabama has not finally disposed of the question of wheth-

er Lapeyrouse will be denied an appeal by operation of

Alabama law. However, it is clear that Lapeyrouse was

not arbitrarily or capriciously denied an appeal; and under

the law as interpreted by this Court, Lapeyrouse is not

entitled to have the petition for writ of certiorari granted.

It is axiomatic that appeals are a matter of right while

the Supreme Court’s certiorari decisions are wholly dis-

cretionary. Durham v. United States, 401 U.S. 481 (1971).

It is also clear that this Court will not grant certiorari in

a case to consider questions which seemingly present con-

stitutional questions where it appears that those questions

are interrelated with rules of court procedure peculiar to

the particular state where the constitutionality of those

rules are not at issue. See, Duncan v. Tennessee, 405 U.S.

127 (1972). In this case the constitutionality of the Ala-

bama Rules of Civil Procedure — which are basically the

same as the Federal Rules of Civil Procedure with minor

variance — are not challenged as being unconstitutional.

naa ey Beye ee ee ee ee

As can be gleaned from the statement of facts and from the

argument in this section of the brief, it is clear that the pur-

ported constitutional questions raised by Lapeyrouse are

as interrelated with the Alabama Rules of Civil Procedure

as any issue could ever be. Thus, on the authority of Dun-

can v. Tennessee, supra, certiorari should be denied in this

ease.

The petition for writ of certiorari should not be

granted in this case because there simply will not be a

denial of due process of law or equal protection of the law

even if Lapeyrouse’s appeal is finally dismissed by the

Supreme Court of Alabama. This Court has long recog-

nized, even in criminal cases, that due process or equal

protection concepts do not require a state to provide an

appellate system. Ortwein v. Schwab, 410 U.S. 656 (1973) ;

Lindsey v. Normet, 405 U.S. 56 (1972); Griffin v. Illinois,

351 U.S. 12 (1956); McKane v. Durston, 153 U.S. 684

(1894). It is true, however, that once a state provides a

right to appeal, that right of appeal cannot be granted for

some litigants and capriciously or arbitrarily denied to

others without violating the equal protection clause. Lind-

sey v. Normet, supra. However, to show a violation of the

equal protection clause or the due process clause, it is

imperative that the petitioner show that someone compar-

ably situated has been treated differently from the cer-

tiorari petitioner. National Union of Marine Cooks and

Stewards v. Arndld, 348 U.S. 37 (1954). In this case

Lapeyrouse cannot show that another class of individuals

have been treated differently, i.e., given an appeal under

similar circumstances, and Lapeyrouse cannot show a de-

nial of due process since discrimination cannot be shown

eeiiiias

and since due process does not per se require that the

state provide a right of appeal. In this case Lapeyrouse

cannot show that they have been treated any differently

from any other litigant in the State of Alabama.

Finally, the protection of the Fourteenth Amendment

to the United States Constitution can only be invoked if

the state deprives any person or denies him enforcement

of a right guaranteed. U.S. Constitution, Amendment 14;

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70 (1955). It has not been the policy of the Supreme

Court of the United States to satisfy scholarly interest in

issues contained in appeals nor does it sit for the benefit

of particular litigants. Rice v. Sioux City Memorial Park

Cemetery, supra. Certiorari, in fact, should not be granted

except in cases involving principles of settlement of which

are important to the public. Id.

In this case, the Supreme Court of Alabama’s opinion

of October 11, 1985, did not arbitrarily or capriciously deny

Lapeyrouse the right of appeal. Lapeyrouse has not been

treated any differently than any other litigant in the State

of Alabama. All courts, including this Court, require

jurisdictional time periods for filing law suits or appeals.

In this case Lapeyrouse’s attorneys failed to meet these

jurisdictional time periods and their appeal was dismissed.

This does not constitute a denial of due process of law, nor

does it constitute a deprivation of property without due

process of law, nor does it constitute a denial of equal pro-

tection of law.

CONCLUSION

There is absolutely no basis for this Court to grant

the petition for writ of certiorari filed by Lapeyrouse. The

issues involved in this case have not been finally decided

by the Supreme Court of Alabama; therefore, this court

does not have jurisdiction. Even if this Court does deter-

mine that the decisions of the Supreme Court of Alabama

are final, Lapeyrouse has not been arbitrarily or capri-

ciously denied the right of appeal and Lapeyrouse has not

been denied equal protection of law or due process of law.

For the reasons stated herein, the petition for writ of

certiorari should be summarily and immediately denied.

Respectfully submitted,

/s/ Rocer S. Morrow

/s/ Rosert M. Auton, JR.

OF COUNSEL:

WuiteEsE.., Morrow & Romryg, P.C.

Post Office Box 2450

Montgomery, Alabama 36103-2450

Telephone: (205) 262-1967

302 Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

Telephone: (205) 834-8661

APPENDIX

TABLE OF CONTENTS

Page

Amendment to Complaint B- 1

Affidavit of Barbara M. Judge of October 2, 1985 ........... B- 4

Section 12-22-10, Code of Alabama, 1975 B- 6

Petition for Writ of Mandamus (without attachments) B- 7

Motion for Consolidation. ... B-20

Motion to Dismiss (without attachments) B-23

Ex Parte Flora Jane Nelson d/b/a W. J. Nelson

Company, Order of September 30, 1985, Case

No. 84-424 B-26

Motion to Dismiss (January 17, 1986) (without at-

tachments) .... B-27

Order of February 28, 1986, of Supreme Court of

Alabama Denying Application for Rehearing in

Case No. 85-393 B-33

Order of February 28, 1986, of Supreme Court of

Alabama Reinstating Appeal in Case No. 84-342... B-34

Order of March 6, 1986, of Supreme Court of Ala-

~bama Reinstating Appeal in Case No. 84-294... B-36

Clarification Order of March 6, 1986, of Supreme

Court of Alabama ..... B-38

Application for Rehearing (March ano: B-41

Motion to Dismiss (March 13, 1986) B-46

Order of Dismissal of Circuit Court ....... B-51

Notice of Appeal in Case No. 85-471 (without at-

ae ee ae B-56

Appeal Docket Sheet in Case No. 85-471 . B-57

B-1

APPENDIX

IN THE CIRCUIT COURT FOR

BALDWIN COUNTY, ALABAMA

CASE NUMBER CV-83-500016

FLORA JANE NELSON,

d/b/a W. J. NELSON COMPANY,

PLAINTIFF,

VS.

LAPEYROUSE GRAIN CORPORATION,

LAPEYROUSE GRAIN CORPORATION

OF ALABAMA, et al.,

DEFENDANTS.

FIRST AMENDMENT TO COMPLAINT

Comes now the Plaintiff in the above-styled cause and

files this her first amendment to the complaint heretofore

filed in this cause.

COUNT TWO

Plaintiff adopts the allegations of paragraphs 1

through 20 of the original complaint.

22. Plaintiff avers that the Defendants wrongfully

converted to their own use funds belonging to the Plain-

tiff.

WHEREFORE, Plaintiff claims of the Defendants

the sum of $1,000,000.00 as compensatory damages and the

sum of $25,000,000.00 as punitive damages together with

interest and costs thereof.

B-2

COUNT THREE

Plaintiff adopts the aliegations of paragraphs 1

through 20 of the original complaint.

23. Plaintiff requests that an accounting be made be-

tween the Plaintiff and the Defendants giving effect to the

sale on November 5, 1980 of 49,6541, bushels of soybeans

at a market price of $9.37 per bushel for a total price of

$465,262.66 and that from the accounting between the par- _

ties the interest and handling charges pertaining to this

sale be removed and that the Defendants be required to pay

to the Plaintiff the balance due and owing to Plaintiff to-

gether with interest and costs thereof.

COUNT FOUR

Plaintiff adopts the allegations of paragraphs 1

through 20 of the original complaint.

24. Plaintiff avers that prior to October 9, 1981,

W. J. Nelson Company was a sole proprietorship, unincor-

porated entity, owned and operated solely by W. J. Nelson.

25. Plaintiff further avers that on or about October

9, 1981 W. J. Nelson deceased in Baldwin County, Ala-

bama.

26. Plaintiff avers that any indebtedness of W. |.

Nelson Company claimed by the Defendants prior and up

to October 9, 1981 were debts against W. J. Nelson in-

dividually.

27. Plaintiff further avers that the estate of W. J.

Nelson has been duly administered in Baldwin Ceunty,

Alabama and that notices as required by law were pub-

lished giving notice to all creditors to file claims against the

estate of W. J. Nelson, deceased.

B-3

28. Plaintiff further avers that the Defendants failed

and refused to file any claims for any indebtedness claimed

to be owing them by W. J. Nelson Company against said

estate.

29. Plaintiff avers that any and all claims of the De-

fendants arising out of any alleged indebtedness between

the Defendants and W. J. Nelson, deceased, are therefore

barred by the statute of nonclaims and that the Defendants

are barred from asserting any claims against the Plaintiff,

Flora Jane Nelson, for such indebtedness.

30. Plaintiff avers that the Defendants are indebted

to the Plaintiff, Flora .Jane Nelson, in the sum of $1,000,-

000.00 and that the Plaintiff is not indebted to the Defend-

ants.

Robert M. Alton, Jr.

Attorney for Plaintiff

Snite 302, Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

(205) 834-8661

CERTIFICATE OF SERVICE

I hereby certify that I have this date served a copy of

the foregoing First Amendment to Complaint upen the

Hon. Caine,.Q’Rear, III, by placing a copy of same in the

United States Mail, postage pre-paid and properly ad-

dressed.

This the — day of March, 1984.

STATE OF ALABAMA )

BALDWIN COUNTY )

AFFIDAVIT

Before me, Clara H. Smith, a notary public in and for

said County and for said State, personally appeared, Bar-

bara M. Judge, Court Clerk, III for the Cireuit Court of

Baldwin County, who is known to me and who first being

duly sworn, doth depose and say as follows, to wit;

1. My name is Barbara M. Judge, and I am over the

age of 19 years. I am a Court clerk, III for the Circuit

Court of Baldwin County, Alabama. I have personal

knowledge of the facts contained in this Affidavit.

2. I personally made the unsigned, handwritten en-

tries of the case action summary sheet in Nelson v. Lapey-

rouse Grain Corporation, Case Number CV-83-500016. On

the last page of the case action summary sheet is an entry

which reads, ‘‘Order granting motion for a new trial.’’

Beside that entry is the date 11/5/84. I made that entry

on the case action summary sheet on November 8, 1984,

which was the date the Register of the Cireuit Court of

Baldwin County received Judge Claud D. Neilson’s Order

Granting Motion for New Trial which stated it was signed

on November 5, 1984. I entered that Order on the case ac-

tion summary sheet on November 8, 1984. The date of

November 5, 1984, was the date the Judge signed the Order

but the Order was not filed with the Register and entered

on the case action summary sheet until November 8, 1984.

Judge Neilson did not make the entry on the case action

summary sheet which reads, ‘‘Order granting motion for

new trial’’, because that was the entry that I made on No-

vember 8, when I entered his November 5 Order. Further-

MARR SEAN Cm i PrN 6

at it

B-5

more, Judge Claud D. Neilson did not call me on Novem-

ber 5, 1984, directing an entry of ax Order for new trial.

The first notice that I had of the grant of a new trial was

when the Registers’ Office received the Order granting

new trial on November 8, 1984.

I have read the above and foregoing Affidavit of two

pages and I certify that the facts contained therein are

true and correct.

/s/ Barbara M. Judge

Sworn to and subscribed before me on this the 2nd day

of October, 1985.

/s/ Clara H. Smith

NOTARY PUBLIC

MY COMMISSION EXPIRES:

9/6/89

B-6

§ 12-22-10. Grant or refusal of motion for new trial.

Either party in a civil case, or the defendant in a crim-

inal case, may appeal to the appropriate appellate court

from an order granting or refusing a motion for a new

trial by the cireuit court. (Code 1896, § 434; Code 1907,

§ 2846; Acts 1915, No. 656, p. (722; Code 1923, 4 6088; Code

1940, T. 7, § 764; Acts 1949, No. 57, p. 81.)

B-7

IN THE SUPREME COURT

OF ALABAMA

SD: ae

CIVIL ACTION NO. CV-83-500016

EX PARTE, FLORA JANE NELSON, doing business

as W. J. NELSON COMPANY,

Petitioner

RE: FLORA JANE NELSON, doing business as

W. J. NELSON COMPANY,

Plaintiff

Vs.

LAPEYROUSE GRAIN CORPORATION,

LAPEYROUSE GRAIN CORPORATION

OF ALABAMA, et al.,

Defendants.

PETITION FOR WRIT OF MANDAMUS

Comes now Flora Jane Nelson, doing business as W. J.

Nelson Company, and petitions the above-named Court for

Writ of Mandamus to the Honorable Claude D. Neilson,!

of the Circuit Court of Baldwin County, Alabama, and

shows the following in support of this petition:

STATEMENT OF FACTS

This action was commenced on or about the 27th day

of January, 1983, by the filing of a complaint by Flora

Jane Nelson, doing business as W. J. Nelson Company

1The Circuit judges for Baldwin County had previously re-

cused themselves and Honorable Claude D. Neilson was ap-

pointed as presiding judge in this case on May 23, 1983.

B-8

against the Lapeyrouse Grain Corporation and Lapey-

rouse Grain Corporation of Alabama, and various ficti-

tious parties. In Plaintiff’s complaint, Plaintiff sought

damages against the Defendants for, inter alia, breach of

fiduciary duty, and Plaintiff sought an accounting of cer-

tain disputed items concerning a running account between

merchants. A copy of Plaintiff’s complaint is attached

hereto as Exhibit ‘‘A’’. Subsequent to the filing of the

original complaint, Plaintiff amended her complaint to add

additional counts setting forth, inter alia, a cause of action

against the Defendants for conversion. A copy of the

amended complaint is attached hereto as Exhibit ‘‘B’’.

Prior to the filing of the amended complaint, this case

went before this Court on Petition for Writ of Mandamus

seeking this Court to issue an order commanding the Cir-

cuit Judge to vacate an order he had entered transferring

this case to Mobile, Alabama. See Flora Jane Ne'son, etc.

vs. Lapeyrouse Grain Corporation, 448 So.2d 339 (Ala.

1984). The Defendants filed answers to Plaintiff’s com-

plaint and amended complaint and Plaintiff filed Answers

to Defendants’ Counterclaim. Exhibits ‘‘C’’, ‘*D’’, ‘*K’’,

and ‘‘F’’,

On or about July 26, 1984, this case came to trial in

the Cireuit Court of Baldwin County, Alabama. The Hon-

orable Claude D. Neilson heard the case. (See footnote 1)

The case was tried by jury and on July 30, 1984, the jury

returned a verdict in favor of the Plaintiff and against

the Defendants on Plaintiff’s complaint and assessed

Plaintiff’s damages at Five Hundred Sixty-One Thousand

Five Hundred Thirty-Seven and 47/100 ($561,537.47)

DOLLARS. Exhibit ‘‘G’’ The jury also found in favor of

the Plaintiff against the Defendants on Defendants’

counterclaim. Exhibit ‘‘G’’. Judgment was filed with the

B-9

Cireuit Court of Baldwin County, Alabama, on August 9,

1984. Exhibit ‘‘G’’. On August 8, 1984, Defendants filed

post trial Motions for Judgment not Withstanding the

Verdict and Motion for New Trial. Exhibit ‘‘H’’ and

Exhibit ‘‘I’’. The trial court did not file or enter an

order on Defendants’ post trial motions by November 6,

1984, which was the ninetieth day after the filing of De-

fendants’ post trial motions. The trial court did draft

and sign an order granting a Motion for New Trial which

was dated November 5, 1984, but this motion was not filed

with the Cireuit Clerk of Baldwin County until November

8, 1984. Exhibit ‘‘J’’. On December 14, 1984, the trial

court entered a corrected order granting Defendants’

Motion for New Trial which was dated December 7, 1984.

Exhibit ‘‘K”’

On December 13, 1984, Plaintiff filed a Notice of Ap-

peal to the Supreme Court of Alabama from the orders of

the trial court which attempted to grant Defendants’ Mo-

tion for New Trial after the expiration of the ninety day

period provided for in Rule 59.1 of the Alabama Rules

of Cwtl Procedure. Exhibit ‘‘L’’ The case is docketed

with this court as Case No. 84-294. On December 26, 1984,

Defendants filed a Notice of Cross Appeal to the Supreme

Court of Alabama from the trial court’s denial of De-

fendants’ Motion for Judgment not Withstanding the Ver-

dict with respect to the complaint and with respect to the

counterclaim, specifically stating that those denials oc-

curred as a matter of law on November 6, 1984, due to

the operation of law.

The Plaintiff has filed contemporaneously with this

Petition for Writ of Mandamus, a Motion to Consolidate

B-10

for hearing and adjudication this Petition for Writ of

Mandamus with the appeal and cross appeal filed by the

parties in this case so the court will have before it the

entire record of the proceedings that took place in the

trial court.

THE ISSUE PRESENTED

The sole issue presented in this Petition for Writ of

Mandamus is whether the trial court’s order granting De-

fendants’ Motion for New Trial which was filed on No-

vember 8, 1984, and the subsequent corrected order filed

on December 14, 1984, are void as a matter of law due to

the operation of Rule 59.1 of the Alabama Rules of Cwil

Procedure or due to the fact Defendants’ post trial mo-

tions were filed prior to the entry of judgment.

RELIEF SOUGHT

Petitioner respectfully requests this Honorable Court

to issue a Writ of Mandamus commanding the Honorable

Claude D. Neilson, who for this case is the Presiding Judge

of the Cireuit Court of Baldwin County, Alabama, to va-

eate his orders granting Defendants’ Motion for New

Trial, and to further order that the judgment in favor of

the Plaintiff and against Defendants in the amount of Five

Hundred Sixty-One Thousand Five Hundred Thirty-Seven

and 47/100 ($561,537.47) DOLLARS (which was the ver-

dict returned by the jury in the trial of this case) be rein-

stated and re-entered for all purposes, including the pur-

pose of execution.

B-11

REASONS WHY THE WRIT SHOULD ISSUE

The reason this Court should issue the Writ of Man-

damus requested by the Plaintiff/Petitioner is the simple

reason that the trial court lost jurisdiction to grant De-

fendants’ Motion for New Trial on November 6, 1984,

due to the operation of Rule 59.1 of the Alabama Rules

of Civil Procedure. Rule 59.1 of the Alabama Rules of

Civil Procedure states in pertinent part that:

‘*No post-trial motion filed pursuant to Rules 50,

52, or 59 shall remain pending in the trial court for

more than 90 days, unless with the express consent

of all the parties, which consent shall appear of

record, or unless extended by the appellate court to

which an appeal of the judgment would lie, and such

time may be further extended for good cause shown.

A failure by the trial court to dispose of any pending

post-trial motion within the.time permitted hereunder,

or any extension thereof, shall constitute a denial of

such motion as of the date of the expiration of the

period.’’ (Emphasis supplied)

In this case the jury returned a verdict in favor of

the Plaintiff for Five Hundred Sixty-One Thousand Five

Hundred Thirty-Seven and 47/100 ($561,537.47) DOL-

LARS on July 30, 1984. Exhibit ‘‘G’’ The trial court

did not enter an order based upon the jury’s verdict until

August 9, 1984. Under Rule 4 of the Alabama Rules of

Appellate Procedure, the filing of a post-trial motion pur-

suant to ARCP Rule 59 will stay the running of the forty-

two (42) day period for filing a notice of appeal; however,

Rule 59.1 of the Alabama Rules of Civil Procedure states

that the motion is automatically denied at the expiration of

ninety (90) days. Under the facts of this case, Defend-

B-12

ants’ post trial motions were automatically denied by

operation of law on November 6, 1984, which was the nine-

tieth day from the date of the filing of the post trial mo-

tions. Defendants admit this in their Notice of Cross-

Appeal which states that their Motions for Judgment Not-

withstanding the Verdict were denied as a matter of law

on November 6, 1984. Exhibit ‘‘M’’

Under Alabama law, the trial court has no jurisdic-

tion to enter an order pursuant to Rule 59, Alabama Rules

of Civil Procedure, where more than ninety (90) days have

passed from the time of the parties post-trial motion for

new trial or rehearing and where such motion has not been

ruled upon in the time during which such motion could

remain pending and the time period has not been extended.

French v. Steel, Inc., 445 So.2d 561 (Ala.1984) ; Thompson

v. Keith, 365 So.2d 971 (Ala.1978); McKinley v. Colonial

Life & Accident Ins. Co., 410 So.2d 73 (Ala.Civ.Appeals

1982); Carnes v. Carnes, 365 So.2d 981 (Ala.Civ.Appeals

1978). cert. denied, 365 So.2d 985 (Ala.1979). A post-trial

motion is pending as of its filing and until acted upon by

the court and the ninety (90) day period begins to run

from the date of filing. State v. Wall, 348 So.2d 482 (Ala.

1977).

In this case the Defendants’ post-trial motions were

clearly denied by operation of law on November 6, 1984,

which was ninety days from the date the post-trial mo-

tions were filed with the Cireuit Court. Indeed, Defend-

ants in their own Notice of Cross-Appeal to this court have

admitted that November 6, 1984, was the day the post-

trial motions were deemed denied by operation of law.

Exhibit ‘‘M’’

B-13

It is anticipated that Defendants may argue that

since the trial court’s order states it was signed on No-

vember 5, 1984, the Rule 59.1 time period does not apply.

If this argument is made it is totally without merit since

the record clearly shows that the trial court’s order was

not filed until November 8, 1984; thus, the order was not

effective until November 8, 1984, which was more than

ninety (90) days after the filing of the post-trial motion.

Under Alabama law, a separate written judgment

must be filed before that judgment can become effective.

Rule 58, ARCP; Lacks v. Stribling, 406 So.2d 926 (Ala.

1981); Holmes v. Powell, 363 So.2d 760 (Ala.1978). This

court held in Lacks v. Stribling, supra, as follows, to-wit:

‘*A separate judgment may be signed by the trial

judge, but it is not effective until he authorizes that

it be filed with the clerk or register, even if the filing

date is several days, weeks, or even months later than

the date reflected on a judgment. When a separate

judgment is filed, the filing thereof constitutes the

entry of judgment and would take preference over an

additional attempted entry thereof by the clerk or

by Rule 58(c). To hold as contended by Lacks, supra,

would mean that if adequate time differed between the

date of entry by the Clerk on the case action summary

and the date of the filing of the separate judgment,

the Clerk could effectively eliminate a motion for new

trial (if the difference was more than thirty days), or

even an appeal (if the difference was more than forty-

two days) such construction is contrary to the spirit

of modern judicial philosophy. (citation omitted)

We determined that the judgment dated July 2

was entered when it was filed by the register on July

9, that such entry prevails and we are not governed

in this matter by the actions of the register in placing

B-14

the July 2 date and ‘‘Order of the Court’’ on the

case action summary, and the Stribling motion of

August 8 was timely filed.’’ 406 So.2d at 930

From reading the preceding excerpt from Lacks v.

Stribling, supra, it is clear that a separate written order

of the Court is not effective until that order is filed with

the clerk or register. The date that appears on the order

is not controlling but the actual filing of the judgment con-

stitutes the date when the judgment becomes effective and

is controlling and is the date from which time periods are

ealeulated. The court in Lacks v. Stribling, supra, held

that it does not matter if the date on the order is several

weeks prior to the filing date, the date for computation of

time periods under the Alabama Rules of Civil Procedure

will be the date the order is filed and this is true even if

the docket sheet entry shows a different date.

The filing of a judgment or order in the office of the

clerk constitutes the entry of the judgmeni for purposes

of computing time periods under the rules. See e.g.,

Holmes v. Powell, supra. In this case the record clearly

shows that the trial court’s first order granting Defendants

a new trial was not filed with the register until November

8, 1984. This is shown by the filing stamp which appears

on the order granting Defendants’ Motion for New Trial.

Thus, the- order granting Defendants’ Motion for New

Trial is void due to the fact that the ninety day time period

under Rule 59.1 had expired and Defendants’ Motion for

New Trial was automatically denied on November 6, 1984.

Similarly, the trial court’s corrected order which was filed

on December 14, 1984, was clearly past the ninety day time

period and void and of no effect.

B-15

It is totally clear from the record in this case that the

trial court’s orders in this case granting Defendants a new

trial are void and that the trial court lost all jurisdiction

to grant a new trial by allowing the ninety day time period

under Rule 59.1, APCP, to expire. The cases in Alabama

have uniformly held that the ninety day time period pro-

vided for in Rule 59.1 is a jurisdictional requirement and

if such time period expires the trial court is without power

to grant relief pursuant to a post-trial motion for a new

trial or motion for JNOV. Alabama law is also clear that

the date which appears on a written order of the trial court

is not controlling for the purpose of computing time peri-

ods but that the date of filing is controlling. See e.g.,

Lacks v. Stribling, supra.

The trial court’s orders granting Defendants’ Motion

for New Trial are also void because Defendants post-trial

motions for new trial were not timely or properly filed

with the Court pursuant to Rule 59, ARCP.

Rule 59(b), ARCP provides:

‘“(b) Time for Motion, A motion for a new trial!

shall be filed not later than 30 days after the entry of

judqment.’’ (emphasis supplied)

Rule 59(d), ARCP provides:

‘*(d) Om initiative of court. Not later than 30

days ofter entry of judgment the court of its own ini-

tiative may order a new trial for any reason for which

it might have granted a new trial on motion of a party,

and in the order shall specify the grounds therefor.”’

(emphasis supplied)

In this case, Defendants filed their post-trial motions

prior to the entry of judgment and not after the entry of

the judgment. Thus, a motion for new trial was not timely

B-16

or properly filed and a motion for new trial was never

properly before the trial court. Furthermore, the trial

court’s order granting Defendants a new trial was entered

more than thirty days after the entry of judgment; thus,

the court was without jurisdiction to grant a new trial

since a motion for new trial was not properly filed.

For these reasons, the Petitioner respectfully re-

quests that this Court issue the Writ of Mandamus vacat-

ing the trial court’s orders granting the Defendants a

new trial, and further requiring the Court to reinstate

the judgment it entered on July 30, 1984, which was based

upon the jury’s verdict in this case.

The following documents are enclosed or attached

which are essential to an understanding of the matters

set forth above:

Exhibit ‘‘A’’ — Complaint

Exhibit ‘‘B’? — Amended Complaint

Exhibit ‘‘C’? — Answer to Complaint

Exhibit ‘‘D’’ — Answer to Amended Complaint

Exhibit ‘‘E’? — Answer to Counterclaim

Exhibit ‘‘F’’ — Amended Answer to Counter-

claim

Exhibit ‘“‘G’’ — Judgment

Exhibit ‘‘H’’ — Docket Sheet

Exhibit ‘“‘I’? — Post Trial Motions

wk wrath f

FOO Be mt ees rem

B-17

Exhibit ‘“‘J’’ — Order Granting New Triai

Exhibit ‘‘K’? — Corrected Order

Exhibit ‘‘L’’ — Notice of Appeal

Exhibit ‘‘M’’ — Notice of Cross-Appeal

Petitioner would also refer the trial court to the record

on appeal in Case No, 84-294, styled ‘‘Flora Jane Nelson,

etc., Appellant, vs. Lapeyrouse Grain Corporation, et al.,

Appellees’’.

WHEREFORE, THE PREMISES CONSIDERED,

Petitioner prays that the Court grant the petition and

order that an answer to the petition be filed by the Re-

spondents.

I certify that I have this day served copies of this

petition on the Respondent Judge and all other parties

to the action in the trial court.

' Respectfully submitted,

/s/ Rocer S. Morrow

/s/ Ropert M. Auton, Jr.

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the above

and foregoing Petition on the foliowing, by mailing same

postage prepaid to their respective offices:

Hon. Ciaupe D. Nerson Hon. Carne O’Rear

Presiding Circuit Judge Attorney at Law

P. O. Box 489 P. O. Box 123

Demopolis, Alabama 36732 Mobile, Alabama 36601

(205) 433-5511

B-18

Hon. Cuarzes C. Partin

Attorney at Law

P. O. Box 1109

Bay Minette, Alabama 36507

This the 28th day of January, 1985.

/8/ Rocrer S. Morrow

OF COUNSEL

B-19

IN THE SUPREME COURT

OF ALABAMA

ON APPEAL SUPREME COURT

CASE NO. 84-294

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY,

Appellant,

vs.

LAPEYROUSE GRAIN CORPORATION and

LAPEYROUSE GRAIN CORPORATION OF

ALABAMA, et al.,

Appellee.

ON CROSS-APPEAL SUPREME COURT

CASE NO. 84-342

LAPEYROUSE GRAIN CORPORATION,

Appellant,

vs.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY,

Appellee.

B-20

CASE NO. ———

CIVIL ACTION NO. CV-83-500016

EX PARTE, FLORA JANE NELSON, doing business

as W. J. NELSON COMPANY,

Plaintiff, Petitioner,

RE: FLORA JANE NELSON, doing business as

W. J. NELSON COMPANY,

ae Vs.

LAPEYROUSE GRAIN CORPORATION,

LAPEYROUSE GRAIN CORPORATION OF

ALABAMA, et al.,

Defendants.

MOTION TO CONSOLIDATE

(Filed January 28, 1985)

Comes now Appellant/Petitioner, Flora Jane Nelson,

doing business as W. J. Nelson Company, by and through

her undersigned counsel, and moves this Honorable Court

to consolidate for purposes of hearing and adjudication

Flora Jane Nelson’s Petition for Mandamus with the

above-styled appeal bearing Supreme Court Case No.

84-294, and the above-styled cross-appeal filed by Lapey-

rouse Grain Corporation and Lapeyrouse Grain Corpora-

tion of Alabama, bearing Supreme Court Case No. 84-342.

Appellant/Petitioner sets forth the following grounds in

support of this Motion, to-wit: -

1. That all issues involved in the Petition for Writ

of Mandamus, the appeal and the eress-appeal are inter-

related and involve the same transactions and case;

2. That the record which has been filed or will be

filed in Case Nos. 84-294 and 84-342 contain the same

B-21

transcripts, pleadings, motions, and other documents that

will be helpful in ruling on the Petition for Writ of Man-

damus;

3. That some of the issues involved in all three pro-

ceedings before this Court are identical or similar.

WHEREFORE, THESE PREMISES CONSID-

ERED, Appellant/Petitioner, Flora Jane Nelson, respect-

fully requests this Honorable Court to consolidate all

three cases for adjudication and hearing.

/3/ Rocer S. Morrow

OF COUNSEL:

WHITESELL, Morrow & Rominz, P.C.

P. O. Box 2450

Montgomery, Alabama 36103-2450

(205) 262-1967

/s/ Rosert M. Auton, Jr.

Attorneys for Petitioner

OF COUNSEL:

302 Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

(205) 834-8661

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the above

and foregoing Petition on the following, by mailing same

postage prepaid to their respective offices:

Hon. Ciaupe D. NEILson Hon. Carne O’REaR

Presiding Circuit Judge Attorney at Law

P. O. Box 489 P. O. Box 123

Demopolis, Alabama 36732 Mobile, Alabama 36601

(205) 433-5511

B-22

Hon. Cuarues C. Partin

Attorney at Law

P. QO. Box 1109

Bay Minette, Alabama 36507

This the 28th day of January, 1985.

/8/ Roger S. Morrow

OF COUNSEL

B-23

IN THE SUPREME COURT OF ALABAMA

SUPREME COURT CASE NO. 84-342

LAPEYROUSE GRAIN CORPORATION, and

LAPEYROUSE GRAIN CORPORATION OF

AMERICA,

Cross-Appellants,

vs.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY,

Cross-Appellee.

MOTION TO DISMISS CROSS-APPEAL OF

DEFENDANTS/APPELLEES LAPEYROUSE GRAIN

CORPORATION AND LAPEYROUSE GRAIN

CORPORATION OF ALABAMA

(Filed January 28, 1985)

Comes now Cross-Appellee, Flora Jane Nelson, doing

business as W. J. Nelson Company, by and through her

undersigned counsel, and moves this Honorable Court to

dismiss the Cross-Appeal of Cross-Appellants, Lapeyrouse

Grain Corporation and Lapeyrouse Grain Corporation of

Alabama, on the following grounds, to-wit:

1. Said appeal was filed more than forty-two (42)

days after November 6, 1984, which was the date that

Cross-Appellants’ post-trial motions were denied as a

matter of law pursuant to Rule 59.1 of the Alabama Rules

of Civil Procedure;

2. That although Cross-Appellants filed their notice

of cross-appeal within fourteen (14) days of the date

Flora Jane Nelson filed her notice of appeal. ARAP Rule

4(a)2 does not operate to make the filing of Cross-Appel-

B-24

lant’s notice of appeal timely because Flora Jane Nelson’s

appeal was taken from a void order granting a motion for

new trial;

3. That the trial court’s order granting a new trial to

Lapeyrouse Grain Corporation and Lapeyrouse Grain Cor-

poration of Alabama is void due to the operation of Rule

59.1, ARCP;

4. That the Cross-Appeal of Lapeyrouse Grain Cor-

poration and Lapeyrouse Grain Corporation of Alabama

was not timely filed therefore the Supreme Court of Ala-

bama has no jurisdiction to entertain the Cross-Appeal.

5. That the notice of cross appeal was not timely

filed due to the fact that the post trial motions filed by

Lapeyrouse Grain Corporation and Lapeyrouse Grain Cor-

poration of Alabama were filed prior to the entry of judg-

ment and therefore did not suspend the forty-two (42) day

time period for filing a Notice of Appeal.

- WHEREFORE, THESE PREMISES CONSID-

ERED, Cross-Appellee, Flora Jane Nelson, respectfully

requests this Honorable Court to dismiss the Cross-Appeal

filed by Cross-Appellants, Lapeyrouse Grain Corporation

and Lapeyrouse Grain Corporation of Alabama.

/s/ Roger S. Morrow

OF COUNSEL:

WuitesEt., Morrow & Rominz, P.C.

P. O. Box 2450

Montgomery, Alabama 36103-2450

(205) 262-1967

/s/ Roxpert M. Aton, JR.

Attorneys for Petitioner

ne Fat ED ee ap ee ee

BO a aA iD Dae Stl - Pa

OF COUNSEL:

302 Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

(205) 834-8661

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the above

and foregoing Petition on the following, by mailing same

postage prepaid to their respective offices:

Hon. Carne O’Rear

Attorney at Law

P. O. Box 123

Mobile, Alabama 36601

(205) 433-5511

Hon. Cuaries C. Partin

Attorney at Law

P. O. Box 1109

Bay Minette, Alabama 36507

This the 28th day of January, 1985.

/s/ Rocter 8S. Morrow

OF COUNSEL

B-26

September 30, 1985

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

84-424

EX PARTE: FLORA JANE NELSON, d/b/a W. J.

NELSON COMPANY

PETITION FOR WRIT OF MANDAMUS

(In Re: Flora Jane Nelson, d/b/a W. J. Nelson Com-

pany v. Lapeyrouse Grain Corporation, Lapey-

rouse Grain Corporation of Alabama, et al.)

IT IS ORDERED, ex mero motu, that this cause be

placed on rehearing.

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama, do here-

by certify that the foregoing is a full,

true and correct copy of the instru-

ment(s) herewith set out as same ap-

pear(s) of record in said Court.

Witness my hand this 30th day of

September, 1985.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

UM eke Reg OY eT ne

B-27

IN THE SUPREME COURT

OF THE STATE OF ALABAMA

SUPREME CCURT CASE NO: 85-393

LAPEYROUSE GRAIN CORPORATION and

LAPEYROUSE GRAIN CORPORATION

OF ALABAMA,

Appellants/Defendants,

vs.

FLORA JANE NELSON d/b/a

W. J. NELSON COMPANY,

Appellee/ Plaintiff.

MOTION TO DISMISS APPEAL OF APPELLANTS,

LAPEYRUUSE GRAIN CORPORATION AND

LAPEYROUSE GRAIN CORPORATION

OF ALABAMA

(Filed January 17, 1986)

Comes now the Appellee/Plaintiff, Flora Jane Nelson,

individually and d/b/a W. J. Nelson Company, by and

through her undersigned counsel, and moves this Honor-

able Court to dismiss the appeal and notice of appeal filed

by Appellants, Lapeyrouse Grain Corporation and Lapey-

rouse Grain Corporation of Alabama, in the above styled

case on the following grounds, to wit:

1. That Appellants’/Defendants’ notice of appeal

was filed more than 42-days after November 6, 1984, which

was the date that Appellants’ post trial motions were

denied as a matter of law pursuant to Rule 59.1 of the

Alabama Rules of Civil Procedure. A copy of the judg-

ment of the Circuit Court is attached hereto as Exhibit

‘““A’’, A copy of Appellees’ notice of appeal is attached

hereto as Exhibit ‘‘B”’.

B-28

2. That this Honorable Court has ruled as a matter of

law that Appellants/Defendants, Lapeyrouse Grain Corp-

oration and Lapeyrouse Grain Corporation of Alabama,

have waived their right of appeal of the judgment entered

in this ease. Thet this Court reached this decision in the

cases of Kx parte Floras Jane Nelson d/b/a W. J. Nelson

Company, Supreme Court Case Number 84-424, Flora Jane

Nelson d/b/a W. J. Nelson Company v. Lapeyrouse Grain

Corporation, et al, Supreme Court Case Number 84-294,

and in Lapeyrouse Grain Corporation v. Flora Jane Nel-

son d/b/a W. J. Nelson Company, (October 11, 1986) Su-

preme Court Case Number 84-342. A copy of the relevant

mandates of this Court are attached hereto as Exhibits

= ma“ =

3. That in the case of Ex parte: Flora Jane Nelson —

d/b/a W. J. Nelson Company, Supreme Court Case Num-

ber 84-424, (October 11, 1986) this Honorable Court spe-

cifically held that the Appellants/Defendants Lapeyrouse

had failed to file a timely notice of appeal within 42 days

of the Rule 59.1 denial of their post trial motions and

therefore dismissed Defendants’ appeal (which was a cross

appeal) in case number 84-342, styled Lapeyrouse Grain

Corporation v. Nelson. In that opinion this Court specifi-

cally held that Defendants, Lapeyrouse Grain Corporation

and Lapeyrouse Grain Corporation of Alabama, had filed

their notice of appeal beyond 42 days from November 6,

1984, and that their appeal was therefore due to be dis-

missed on jurisdictional grounds. A copy of this Court’s

opinion in Supreme Court Case Number 84-424 is attached

hereto as Exhibit ‘‘F’’.

4. That in Ex parte Flora Jane Nelson d/b/a W. J.

Nelson Company, Supreme Court Case Number 84-424, this

B-29

Court issued a mandate ordering Honorable Cland D. Neil-

son, Circuit Judge, to enter an Order setting aside his void

Order dated November 5, 1984, which granted a motion for

new trial in the case of Flora Jane Nelson d/b/a W. J.

Nelson Company v. Lapeyrouse Grain Corporation, Lapey-

rouse Gratin Corporation of Alabama, et al, Baldwin Cir-

cuit Court case number CV-83-500016. A copy of that man-

date is attached hereto as Exhibit ‘‘C’’.

5. That pursuant to the mandate of this Court, Judge

Claud D. Neilson entered an Order on December 16, 1985,

(dated December 12, 1985) setting aside the void Order

dated November 5, 1984. A copy of said Order is attached

hereto as Exhibit ‘‘G’’.

6. That Appellants’/Defendants’ notice of appeal is

from the Order of Judge Claud D. Neilson entered on

December 16, 1985, dated December 12, 1985, which was

entered pursuant to this Court’s Order.

7. That the December 12, 1985, Order of Judge Claud

D. Neilson does not support an appeal in this case. A copy

of said Order is attached hereto as Exhibit ‘‘G’’.

8. That the appeal filed by Appellants/Defendants

is a blatantly frivolous appeal which attempts to appeal an

issue already decided by this Court; namely, whether the

Defendants, Lapeyrouse Grain Corporation and Lapey-

rouse Grain Corporation of Alabama can appeal the judg-

ment entered in this case after the 42 day jurisdictional

time period for the filing of a notice of appeal has expired.

9. That the notice of appeal in this case was filed

more than 42 days after November 6, 1984, which was the

date that the Appellants’ post trial motions were denied

as a matter of law pursuant to Rule 59.1 of the Alabama

B-30

Rules of Civil Procedure; therefore, Appellants’ notice of

appeal was not timely filed and the Supreme Court of Ala-

bama thus has no jurisdiction to entertain the appeal.

10. That Appellants’ notice of appeal should be dis-

missed on the grounds of res judicata and/or collateral

estoppel in that this Court has already decided as a matter

of law that Appellants’ notice of appeal was not timely

filed and thus Appellants are precluded from appealing the

judgment entered in this case or any of the Orders listed

in Appellants’ notice of appeal.

11. That this Court should immediately dismiss the

appeal filed by the Appellants in this case in that the Ap-

pellants, Lapevrouse Grain Corporation and Lapeyrouse

Grain Corporation of Alabama, have not filed a timely

notice of appeal; therefore, the Supreme Court of Alabama

does not have jurisdiction to entertain this appeal.

12. That Appellants/Defendants, Lapeyrouse Grain

Corporation and Lapeyrouse Grain Corporation of Ala-

bama, filed a supersedeas bond with this appeal which has

the effect of staying execution by the Plaintiff on the judg-

ment. That this stay of execution may cause irreparable

harm to the Appellee/Plaintiff since the amount of super-

sedeas bond is $701,921.84 (125% of the original judgment)

and since the amount of judgment, including accrued in-

terest plus penalty, now approximately equals or exceeds

$701,921.84 due to the length of time that has expired since

the original entry of judgment. Furthermore, Appellee

had filed and served a writ of garnishment on Appellants’

bank account prior to the filing of the supersedeas bond.

13. That since Appellants’ appeal has already been

dismissed, this appeal is totally frivolous.

B-31

14. That Appellee, Flora Jane Nelson, is entitled to

damages for a frivolous appeal pursuant to Rule 38 of the

Alabama Rules of Appellate Procedure which would in-

clude an award of a reasonable attorneys’ fees.

15. That the Appellee, Flora Jane Nelson, is entitled

to the 10% penalty provided by statute for an unsuccessful

appeal when a supersedeas bond is posted.

WHEREFORE, THESE PREMISES CONSID-

ERED, Appellee/Plaintiff, Flora Jane Nelson, respectfully

requests this Court for the following relief, to wit:

1. An Order dismissing the above styled appeal and

notice of appeal filed by Appellants, Lapeyrouse Grain

Corporation and Lapeyrouse Grain Corporation of Ala-

bama.

2. An award of damages for the filing of a frivolous

appeal which would include an award to Appellee’s attor-

neys of a reasonable attorneys’ fee.

3. The imposition of the 10% penalty for an unsuc-

cessful appeal as provided for by statute in cases where a

supersedeas bond is filed.

4. An Order declaring the forfeiture of the Appel-

lants’ supersedeas bond in the event they do noi immed-

iately pay to Appellee the amount of the judgment, plus

accrued interest, penalty, attorneys’ fees and damages

ordered by this Court.

5. Such other, further and additional relief to which

Appellee/Plaintiff may be entitled, the premises consid-

ered.

/s/ Roarer S. Morrow

Attorney for Appellee

B-32

OF COUNSEL:

WHITESELL, MORROW & ROMINE

P. O. Box 2450

Montgomery, Alabama 36103

_ Telephone: (205) 262-1967

/s/ Rosert M. Auton, Jr.

Attorney for Appellee

OF COUNSEL:

302 Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

Telephone: (205) 834-8661

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the fore-

going upon Honorable Caine O’Rear, II], HAND, AREN-

DALL, BEDSOLE, GREAVES & JOHNSTON, P. O. Box

123, Mobile, Alabama, 36601, by placing a copy of the same

in the United States mail, postage fully prepaid, on this

the 17th day of January, 1986.

/s/ Rocrer S. Morrow

OF COUNSEL

B-33

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

FEBRUARY 28, 1986

BALDWIN CIRCUIT COURT CV-83-500016

85-393

LAPEYROUSE GRAIN CORPORATION

AND LAPEYROUSE GRAIN CORPORATION

OF ALABAMA

Vv.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY

ORDER

The appellants having filed an application for rehear-

ing from the dismissal of the appeal in this cause, and the

same having been submitted and duly considered by the

Court,

IT IS ORDERED that the appellants’ application for

rehearing is overruled.

Torbert, C. J., and Maddox, Faulkner, Jones, Almon,

Shores, Beatty, JJ., concur.

Adams and Houston, JJ., not sitting.

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama, do here-

by certify that the foregoing is a full,

true and correct copy of the instru-

ment(s) herewith set out as same

appear(s) of record in said Court.

Witness my hand this 28th day of

Feb. 1986.

/3/ Robert G. Esdale

Clerk, Supreme Court of Alabama

B-34

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

FEBRUARY 28, 1986

BALDWIN CIRCUIT COURT CV-83-500016

84-342

LAPEYROUSE GRAIN CORPORATION

AND LAPEYROUSE GRAIN CORPORATION

OF ALABAMA

Vv.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY

ORDER

Because, upon further consideration of this case, the

Court is of the opinion that this appeal should not have

been dismissed at the time the petition for writ of manda-

mus was granted in 84-424, Ex parte Flora Jane Nelson

d/b/a W, J. Nelson Company (In re: Flora Jane Nelson

d/b/a W. J. Nelson Company v. Lapeyrouse Grain Corpo-

ration and Lapeyrouse Grain Corporation of Alabama),

IT IS ORDERED, ex mero motu, that the appeal in

84-342 filed by Lapeyrouse Grain Corporation and Lapey-

rouse Grain Corporation of Alabama be reinstated, and the

Clerk of the Circuit Court of Baldwin County is directed

to return forthwith to this Court the certificate of judg-

ment issued in this cause on December 10, 1985.

IT IS FURTHER ORDERED that the Reporter of

Decisions of this Court withhold from final publication the

opinion of this Court in 84-424, Ex parte Flora Jane Nel-

son Company, pending the further orders of this Court.

B-35

IT IS FURTHER ORDERED that the time for La-

peyrouse Grain Corporation and Lapeyrouse Grain Corpo-

ration of Alabama to file their appellants’ brief in 84-342

shall commence on March 3, 1986, and the time for filing

and serving briefs shall be governed by Rule 31(a), Ala-

bama Rules of Appellate Procedure.

Torbert, C. J., and Maddox, Faulkner, Jones, Almon,

Shores, Beatty, JJ., concur.

Adams and Houston, J., not sitting.

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama, do here-

by certify that the foregoing is a full,

true and correct copy of the instru-

ment(s) herewith set out as same

appear(s) of record in said Court.

Witness my hand this 28th day of

Feb. 1986.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

B-36

IN THE SUPREME COURT OF ALABAMA

MARCH 5, 1986

BALDWIN CIRCUIT COURT CV-83-500016

84-294

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY

Vv.

LAPEYROUSE GRAIN CORPORATION

AND LAPEYROUSE GRAIN CORPORATION

OF ALABAMA

ORDER

Because, upon further consideration of this case, the

Court is of the opinion that this appeal should not have

been dismissed at the time the petition for writ of manda-

mus was granted in 84-424, Ex parte Flora Jane Nelson

d/b/a W. J. Nelson Company (In re: Flora Jane Nelson

d/b/a W. J. Nelson Company v. Lapeyrouse Grain Corpo-

ration and Lapeyrouse Grain Corporation of Alabama),

IT IS ORDERED, ex mero motu, that the appeal in

84-294 filed by Flora Jane Nelson d/b/a W. J. Nelson Com-

pany be reinstated, and the Clerk of the Circuit Court of

Baldwin County is directed to return forthwith to this

Court the certificate of judgment issued in this cause on

December 10, 1985.

IT IS FURTHER ORDERED that the Reporter of

Decisions of this Court withhold from final publication the

opinion of this Court in 84-424, Ex parte Flora Jane Nel-

son d/b/a W. J. Nelson Company, pending the further or-

ders of this Court.

IT IS FURTHER ORDERED that the position of

Flora Jane Nelson d/b/a W. J. Nelson Company will be

B-37

that of a cross-appellant, and an appellee’s/cross-appel-

lant’s brief should be filed within twenty-one (21) days of

service of the appellants’ brief, i.e. Lapeyrouse Grain

Corporation’s and Lapeyrouse Grain Corporation of Ala-

bama’s brief in 84-342.

Torbert, C. J., and Maddox, Faulkner, Jones, Almon,

Shores, and Beatty, JJ., concur.

Adams and Houston, JJ., not sitting.

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama, do here-

by certify that the foregoing is a full,

true and correct copy of the instru-

ment(s) herewith set out as same

appear(s) of record in said Court.

Witness my hand this 6th day of

Mar. 1986.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

B-38

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

MARCH 6, 1986

BALDWIN CIRCUIT COURT CV-83-500016

84-294

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY

Vv.

LAPEYROUSE GRAIN CORPORATION

AND LAPEYROUSE GRAIN CORPORATION

OF ALABAMA

BALDWIN CIRCUIT COURT CV-83-500016

84-342

LAPEYROUSE GRAIN CORPORATION

AND LAPEYROUSE GRAIN CORPORATION

OF ALABAMA

Vv.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY

84-424

EX PARTE FLORA JANE NELSON d/b/a

W. J. NELSON COMPANY

{

PETITION FOR WRIT OF MANDAMUS

(IN RE: FLORA JANE NELSON, d/b/a W. J. NELSON

COMPANY V. LAPEYROUSE GRAIN CORPORATION

AND LAPEYROUSE GRAIN CORPORATION OF ALA-

BAMA)

B-39

BALDWIN CIRCUIT COURT CV-83-500016

85-393

LAPEYROUSE GRAIN CORPORATION

AND LAPEYROUSE GRAIN CORPORATION

OF ALABAMA

Vv.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY

ORDER

This Court having considered its prior orders in these

cases, and finding it necessary to clarify the orders,

IT IS ORDERED as follows:

1. That the opinion in 84-424 is temporarily with-

drawn from final publication, but that this Court’s de-

cision that the motion for new trial was overruled by

operation of law remains unaffected; and

2. That the position of Lapeyrouse Grain Corpora-

tion and Lapeyrouse Grain Corporation of Alabama will

be that of appellants, and they may brief the arguments,

for example, that they were entitled to judgment notwith-

standing the verdict or a new trial although an issue will be

whether Lapeyrouse Grain Corporation’s and Lapeyrouse

Grain Corporation of Alabama’s notice of appeal limits

them to arguing only the judgment notwithstanding the

verdict issue; and

3. That execution on the judgment in CV-83-500016

is stayed for a period of seven (7) days from the date of

this order in order to allow Lapeyrouse Grain Corporation

and Lapeyrouse Grain Corporation of Alabama the oppor-

tunity to file in the trial court a supersedeas bond.

Torbert, C. J., Maddox, Jones, Shores, and Adams, JJ.,

concur.

B-40

I, Robert G. Esdale, as Clerk of the

Supreme Court of Alabama, do here-

by certify that the foregoing is a full,

true and correct copy of the instru-

ment(s) herewith set out as same

appear(s) of record in said Court.

Witness my hand this 6th day of

Mar. 1986.

/s/ Robert G. Esdale

Clerk, Supreme Court of Alabama

B-41

IN THE SUPREME COURT OF ALABAMA

SUPREME COURT CASE NO, 84-342

BALDWIN COUNTY CIRCUIT

COURT NO. CV-83-50016

LAPEYROUSE GRAIN CORPORATION, and

LAPEYROUSE GRAIN CORPORATION OF

ALABAMA,

Appellants,

vs.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY,

Appellee.

APPLICATION FOR REHEARING

(Filed March 13, 1986)

Comes now Appellee/Plaintiff, Flora Jane Nelson, in-

dividually and d/b/a W. J. Nelson Company, and files

this application for rehearing from the order of this Court

issued on February 28, 1986, and the amended Order of

March 6, 1986, and moves this Honorable Court to grant a

rehearing concerning said Orders and to further withdraw

and vacate said Orders. As grounds for this motion, the

movant shows the Court as follows:

1.) The Court did not have jurisdiction to issue the

Order of February 28, 1986, which reinstated the appeal

of Lapeyrouse Grain Corporation and Lapeyrouse Grain

Corporation of Alabama (hereinafter referred to as

Lapeyrouse).

2.) That the certificate of judgment issued on De-

cember 10, 1985, in the above styled appeal was a final

B-42

judgment and this Court did not have jurisdiction or auth-

ority to amend or withdraw that certificate of judgment

on February 28, 1986.

3.) That principles of finality, res judicata and col-

lateral estoppel prevent this Court from withdrawing its

Order of December 10, 1985, causing a relitigation of the

issues presented in that appeal.

4.) That this Court is without authority or jurisdic-

tion to rescind or withdraw its Order of December 10,

1985, which finally dismissed the above styled appeal due

to the fact that Lapeyrouse had timely filed an applica-

tion for rehearing which addressed the dismissal of their

appeal and due to the fact that this Court rejected the

arguments of the Defendants and entered a final judg-

ment of dismissal on December 10, 1985.

5.) That this Court is without authority and without

jurisdiction to amend, modify, vacate or rescind its final

judgment of December 10, 1985, dismissing the above

styled appeal on the ground that more than thirty days

had elapsed since the entry of a final judgment of dis-

missal of the appeal, therefore ARCP Rule 59 bars the

Court from modifying its order ex mero motu.

6.) That this Court is without authority or jurisdic-

tion to vacate, rescind or withdraw its judgment of De-

ecember 10, 1985, in that said judgment dismissing the ap-

peal on December 10, 1985, became a final judgment after

the allowance of an application for rehearing and that

Rule 40 of the Alabama Rules of Appellate Procedure

specifically prohibits this Court from granting a second

application for rehearing in a case. The effect of this

B-43

Court’s Order of February 28, 1986, was the allowance of

a second application for rehearing through the subter-

fuge of a brief filed in the case styled Lapeyrouse Grain

Corporation, et al., v. Flora Jane Nelson, Supreme Court

Case No. 85-393. That this Court committed error in re-

versing its earlier decision dismissing the above styled

appeal and that the reasoning originally contained in this

Court’s opinion issued on October 11, 1985, and affirmed

on November 22, 1985, in Case No. 84-424 was correct.

7.) That the above styled appeal should be dismissed

and was correctly dismissed by this Court due tc the fact

that the notice of appeal was filed after the lapse of the

forty-two (42) day period for filing the appeal, therefore

this Court has no jurisdiction to entertain the appeal.

8.) That this Court’s Order of February 28, 1986,

constitutes a violation of the rights guaranteed to Plain-

tiff/Appellee under the Fifth and Fourteenth Amend-

ments (equal protection clause and/or due process clause)

to the Constitution of the United States of America;

Article 1, Sections 1, 10 and 13, Constitution of Alabama,

1901; Amendment No. 328, Article 6, Section 6.01 and/or

6.02, Constitution of Alabama, 1901 (as amended), and/or

Section 12-2-7, Code of Alabama, 1975.

9.) That the operation and/or effect of this Court’s

Order of February 28, 1986, reversing an earlier final de-

cision of this Court and reinstating Defendants’ appeal

operates as a denial of due process of law and equal pro-

tection under the law due to the fact that said reinstate-

ment violates prior opinions and decisions of this Court

and gives unequal treatment and advantage to Defendants

B-44

Lapeyrouse that have not been previously given other

litigants under the laws of this state.

WHEREFORE, THE PREMISES CONSIDERED,

Appellee/Plaintiff, Flora Jane Nelson, individually and

d/b/a W. J. Nelson Company, respectfully requests this

Honorable Court to grant her application for rehearing,

to withdraw, rescind and vacate its Order of February 28,

1986, as later amended on March 6, 1986, and to enter an

order finally dismissing the above styled appeal. Addi-

tionally, Appellee requests the Court to enter an Order

staying any further additional briefs on the merits of the

appeal in the above styled case until this Court has ruled

on Plaintiff/Appellee’s application for rehearing and mo-

tion to dismiss the above styled appeal.

/s/_Roger S. Morrow

OF COUNSEL

Whitesell, Morrow & Romine, P.C.

P. O. Box 2450

Montgomery, Alabama 36103-2450

205-262-1967

/s/ Robert M. Alton, Jr.

Attorneys for Plaintiff/Appellee

302 Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

205-834-8661

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the above

and foregoing document on the following, by mailing same

postage prepaid to their respective offices:

B-45

Hon. Caine O’Rear Hon. Charles C. Partin

Attorney at Law Attorney at Law

P. O. Box 123 P. O. Box 1109

Mobile, Alabama 36601 Bay Minette, Alabama 36507

This the 13th day of March, 1986.

/s/ Roger S. Morrow

OF COUNSEL

B-46

IN THE SUPREME COURT OF ALABAMA

SUPREME COURT CASE NO. 84-342

BALDWIN COUNTY CIRCUIT COURT NO. CV-83-50016

LAPEYROUSE GRAIN CORPORATION, and

LAPEYROUSE GRAIN CORPORATION OF

ALABAMA,

Appellants,

vs.

FLORA JANE NELSON, d/b/a

W. J. NELSON COMPANY,

Appellee.

MOTION TO DISMISS APPEAL OF

APPELLANTS/DEFENDANTS, LAPEYROUSE

GRAIN CCRPORATION AND LAPEYROUSE

GRAIN CORPORATION OF ALABAMA

(Filed March 13, 1986)

Comes now Appellee/Plaintiff, Flora Jane Nelson, in-

dividually and d/b/a W. J. Nelson Company, by and

through the undersigned counsel, and moves this Honor-

able Court to dismiss the appeal and notice of appeal

filed by the Appellants, Lapeyrouse Grain Corporation,

and Lapeyrouse Grain Corporation of Alabama (herein-

after collectively designated as Lapeyrouse), in the above

styled case on the following grounds, to-wit:

1.) Said appeal was filed more than forty-two (42)

days after November 6, 1984, which was the date that

Lapeyrouse’s post-trial motions were denied as a matter

of law pursuant to Rule 59.1 of the Alabama Rules of Civil

Procedure.

2.) That although Lapeyrouse filed their notice of

cross-appeal within fourteen (14) days of the date Flora

Rees FLOR 4* SO oe eee ee ee ee

B-47

Jane Nelson filed her notice of appeal, ARAP Rule

4(a)(2) does not operate to make the filing of Cross-

Appellant’s notice of appeal timely because Flora Jane

Nelson’s appeal was taken from a void order granting a

motion for new trial.

3.) That the tria! court’s order granting a new trial

to Lapeyrouse is void due to the operation of Rule 59.1,

ARCP.

4.) That the Cross-Appeal of Lapeyrouse was not

timely filed; therefore the Supreme Court of Alabama has

no jurisdiction to entertain the Cross-Appeal.

5.) The Court did not have jurisdiction to issue the

Order of February 28, 1986, which reinstated the appeal

of Lapeyrouse Grain Corporation and Lapeyrouse Grain

Corporation of Alabama (hereinafter referred to as

Lapeyrouse).

6.) That the certificate of judgment issued on De-

cember 10, 1985, in the above styled appeal was a final

judgment and this Court did not have jurisdiction or

authority to amend or withdraw that certificate of judg-

ment on February 28, 1986.

7.) That principles of finality, res judicata and col-

lateral estoppel prevent this Court from withdrawing its

Order of December 10, 1985, causing a relitigation of the

issues presented in that appeal.

8.) That this Court is without authority or jurisdic-

tion to rescind or withdraw its Order of December 10,

198, which finally dismissed the above styled appeal due

to the fact that Lapeyrouse had timely filed an applica-

B-48

tion for rehearing which addressed the dismissal of their

appeal and due to the fact that this Court rejected the

arguments of the Defendants and entered a final judgment

of dismissal on December 10, 1985.

9.) That this Court is without authority and without

jurisdiction to amend, modify, vacate or rescind its final

judgment of December 10, 1985, dismissing the above

styled appeal on the ground that more than thirty days

had elapsed since the entry of a final judgment of dis-

missal of the appeal, therefore ARCP Rule 59 bars the

Court from modifying its order ex mero motu.

10.) That this Court is without authority or juris-

diction to vacate, rescind or withdraw its judgment of De-

cember 10, 1985, in that said judgment dismissing the ap-

peal on December 10, 1985, became a final judgment after

the allowance of an application for rehearing and that

Rule 40 of the Alabama Rules of Appellate Procedure

specifically prohibits this Court from granting a second

application for rehearing in a case. The effect of this

. Court’s Order of February 28, 1986, was the allowance of

a second application for rehearing through the subter-

fuge of a brief filed in the case styled Lapeyrouse Grain

Corporation, et al., v. Flora Jane Nelson, Supreme Court

Case No. 85-393. That this Court committed error in re-

versing its earlier decision dismissing the above styled

appeal and that the reasoning originally contained in this

Court’s opinion issued on October 11, 1985, and affirmed

on November 22. 1985, in Case No. 84-424 was correct.

11.) That the above styled appeal should be dis-

missed and was correctly dismissed by this Court due to

the fact that the notice of appeal was filed after the lapse

B-49

of the 42-day period for filing the appeal, therefore this

Court has no jurisdiction to entertain the appeal.

12.) That this Court’s Order of February 28, 1986,

constitutes a violation of the rights guaranteed to Plain-

tiff/Appellee under the Fifth and Fourteenth Amend-

ments (equal protection clause and/or due process clause)

to the Constitution of the United States of America;

Article 1, Section 1, 10 and 13, Constitution of Alabama,

1901; Amendment No. 328, Article 6, Section 6.01 and/or

6.02, Constitution of Alabama, 1901 (as amended) ; and/or

Section 12-2-7, Code of Alabama, 1975.

13.) That the operation and/or effect of this Court’s

Order of February 28, 1986, reversing an earlier final de-

cision of this Court and reinstating Defendants’ appeal

operates as a denial of due process of law and equal pro-

tection under the law due to the fact that said reinstate-

ment violates prior opinions and decisions of this Court

and gives unequal treatment and advantage to Defendants

Lapeyrouse that have not been previously given other

litigants under the laws of this state.

WHEREFORE, THE PROMISES CONSIDERED,

Appellee/Plaintitf, Flora Jane Nelson, individually and

d/b/a W. J. Nelson Company, respectfully requests this

Honorable Court to dismiss the above styled appeal and

to tax all costs of this proceeding against the Defendants,

Lapeyrouse Grain Corporation and Lapeyrouse Grain Cor-

poration of Alabama. Additionally, Plaintiff/Appellee re-

quests this Court to enter an Order staying any further

additional briefs on the merits of the appeal in the above

styled case until this Court has ruled of Plaintiff/Appel-

lee’s application for rehearing and motion to dismiss the

above styled appeal.

/s/ Roger S. Morrow

B-50

OF COUNSEL

Whitesell, Morrow & Romine, P.C.

P. O. Box 2450

Montgomery, Alabama 36103-2450

205-262-1967

/s/ Robert M. Alton, Jr.

Attorneys for Plaintiff/ Appellee

302 Corporate Square

555 South Perry Street

Montgomery, Alabama 36104

205-834-8661

CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the above

and foregoing document on the following, by mailing same

postage prepaid to their respective offices:

Hon. Caine O’Rear Hon. Charles C. Partin

Attorney at Law Attorney at Law

P. O. Box 123 P. O. Box 1109

Mobile, Alabama 36601 Bay Minette, Alabama 36507

This the 13 day of March, 1986.

/s/ Roger S. Morrow

OF COUNSEL

B-51

IN THE CIRCUIT COURT OF BALDWIN

COUNTY, ALABAMA

CASE NUMBER CV-85-500231

LAPEYROUSE GRAIN CORPORATION, and LAPEY-

ROUSE GRAIN CORPORATION OF ALABAMA,

Plaintiffs

FLORA JANE NELSON, individually and d/b/a

W. J. NELSON COMPANY,

Defendant

ORDER

(Filed January 3, 1986)

This cause came before the Court on Petitioner Lapey-

rouse’s complaint, which included a prayer for temporary

restraining order, and Respondent Nelson’s Motion to

Dismiss, and Motion to Dissolve the temporary restrain-

ing order. The TRO was granted on December 11, 1985,

and a hearing set for December 20, 1985, at which time

the court heard argument of counsel for both parties and

extended the TRO until January 2, 1986, to allow the

court adequate time to review the pleadings, exhibits,

briefs and arguments of counsel.

Lapeyrouse’s petition calls upon the court to grant it

permanent relief from a judgment on four (4) basic

grounds: first, that the judgment would have been set aside

except for mistake, inadvertence, accident or excusable

neglect on the part of the Judge, the court personnel, or

both; second, that equity and good conscience so demand;

third, that Lapeyrouse has good defense to Nelson’s origi-

nal claim and meritorious grounds for its counterclaim;

B-52

and fourth, that it has no adequate remedy at law. Addi-

tionally, the complaint asks for an injunction prohibiting

execution on the judgment pending the outcome of this

action.

The facts giving rise to this action are, briefly, as fol-

lows:

1. After a trial of the original issues between these

parties a jury returned a verdict for the Plaintiff (Nelson)

on both the complaint and the counterclaim.

2. Judgment was rendered on the verdict on July 30,

1984, by the Honorable Claude Neilson, Circuit Judge, who

was specially assigned to try the case.

3. Defendant Lapeyrouse filed motions for J.N.O.V.,

and in the alternative, for new trial on August 8, 1984.

4. On November 5, 1984, Judge Neilson signed an

order granting the Motion for New Trial, but that order

was not filed until November 8, 1984.

5. Nelson filed an appeal of the order of November

5, 1984, and later a Petition for Writ of Mandamus ask-

ing that Judge Neilson be required to withdraw that order.

6. Lapeyrouse filed a cross appeal of the denial of

its Motion for J.N.O.V.

7. On October 11, 1985, the Supreme Court issued its

order mandating that Judge Neilson’s order of November

5, 1984, be vacated.

8. Lapeyrouse filed an application for rehearing

which was overruled on November 22, 1985. On December

11, 1985, Lapeyrouse filed this action, CV-85-500231 as an

independent action pursuant to Rule 60, ARCP.

B-53

9. On December 12, 1985, Judge Neilson vacated his

order of November 5, 1984.

The granting of Lapeyrouse’s requested TRO was im-

provident. Motions pursuant to Rule 60(b) do not effect

the finality of a judgment or suspend its operation. Sim-

ilarly, such a motion does not extend the time for taking

of an appeal. Crockrell v. World’s Finest Chocolate, Inc.,

Ala., 349 So. 2d 1117 (1977). Rule 60, ARCP is not a sub-

stitute for appeal. Daphne v. Caffey, Ala., 410 So. 2d 8

(1981), citing Marsh v. Marsh, Ala. Civ. App., 388 So. 2d

422 (1976). Stay of execution may be had upon appeal.

Rule 62(b) ARCP. Further, there was no showing of

those matters mandated by Rule 65(b).

Looking at Petitioner’s four (4) basic grounds in re-

verse order, it is clear that Lapeyrouse has not appealed

from the judgment rendered on the jury verdict and thus

has not exhausted its legal remedies.

As to Lapeyrouse’s defenses and meritorious grounds

for counterclaim, these appear to have been available at

the original trial and are thus matters going to the merits

of the case which are not proper grounds for motions un-

der Rule 60(b) ARCP. Paphne v. Caffey, supra. It

should also be noted that Judge Neilson did not grant

Lapeyrouse’s Motion for J.N.O.V. and that Lapeyrouse

unsuccessfully attempted to appeal from that denial.

As to the claim that equity and good conscience de-

mands the setting aside of this judgment, it is clear that

the issue of whether the verdict is due to be set aside on

the grounds that it is against the great weight and pre-

ponderance of the evidence is a proper matter for the trial

judge, who heard the evidence ore tenus, on Motion for

B-54

New Trial, or for the appellate courts on appeal. How-

ever, ‘‘the law of Alabama does not entitle a party to re-

litigate issues which were raised or could have been raised

in the prior suit.’? McSween v. McSween, Ala. Civ. App.,

366 So. 2d 293 (1979), citing Anderson v. Moorer, 372 F.

2d 747 (5th Cir. 1967). It further appears that as to these

grounds for relief, ‘‘the defendant is in effect utilizing Rule

60(b) as an appeal from the final judgment, which is not

permitted under our rules. Daphne v. Caffey, supra.

Finally as to Lapeyrouse’s first grounds, that of mis-

take, inadvertence, accident or excusable neglect, it is

clear from Judge Neilson’s affidavit, attached to Exhibit

D filed herein, that he was, mistaken as to the law pertinent

to filing judgments under Rule 58, ARCP. While this

court would have, prior to the Supreme Court’s ruling,

been subject to the same mistake of law, a mistake of law is

not a mistake, inadvertence, surprise or excusable neglect

as embodies in ARCP 60(b) (1). Nor can a mistake of

law be a basis for granting relief under ARCP 60(b) (6).

Boles v. Hooper and McDorald, Inc., Ala. Civ. App., 424

So. 2d 634 (1932).

For the reasons set out above, it appears that the in-

stant action, CV-85-500231, is not ripe and is untimely

filed, and Respondent Nelson’s Motion to Dismiss is due

to be granted. Further, in as much as Respondent Nelson

was required to appear and defend the unsupported re-

quest for TRO filed by Petitioner, Respondent Nelson is

entitled to attorney’s fees for such defense and upon re-

quest of Respondent Nelson, the court will set a hearing

to determine the amount of such attorney’s fees.

B-55

The Ten Thousand ($10,000) Dollar bond posted for

the TRO shall remain in effect for further orders on attor-

ney’s fees and costs. The second bond of Seven Hundred

One Thousand Nine Hundred Twenty-one Dollars and

HKighty-four Cents ($701,921.84) is discharged.

It is hereby ORDERED, ADJUDGED and DECREED

that the TRO heretofore issued, as extended, is due to be

and it is hereby disselved. It is further ORDERED, AD-

JUDGED and DECREED that Respondent Nelson’s Mo-

tion to Dismiss is granted without prejudice. Petitioner

Lapeyrouse shall be taxed with the costs of these proceed-

ings.

Done this 2 day of January, 1986.

/s/ Thomas B. Norton, Jr.,

Cireuit Judge

I, Eunice G. Tindal, Register of the Circuit Court of Bald-

win County, Alabama, do hereby certify that the foregoing

is a correct copy of the original decree rendered by the

Judge of the Circuit Court in the stated cause, which said

decree is on file and enrolled in my office.

WITNESS MY HAND AND SEAL this the 3rd day of

January, 1986.

/s/ Eunice G. Tindal

B-56

IN THE CIRCUIT COURT OF BALDWIN

COUNTY, ALABAMA

CIVIL ACTION NO. CV-85-500231

LAPEYROUSE GRAIN CORPORATION, and LAPEY-

ROUSE GRAIN CORPORATION OF ALABAMA,

Plaintiffs,

vs.

FLORA JANE NELSON, individually and d/b/a

W. J. NELSON COMPANY,

Defendants.

NOTICE OF APPEAL TO THE

SUPREME COURT OF ALABAMA

(Filed January 14, 1986)

Notice is hereby given that plaintiffs/appellants La-

peyrouse Grain Corporation and Lapeyrouse Grain Cor-

poration of Alabama appeal to the Supreme Court of Ala-

bama from the Order of the trial court dated and signed

on January 2, 1986, and filed on January 3, 1986.

The Supreme Court of Alabama has jurisdiction inas-

much as the amount in controversy, exclusive of interest

and costs, exceeds $10,000.00.

/s/ C. B. Arendall, Jr.

/s/ Alex F. Lankford

/s/ Caine O’Rear III

Of Counsel:

HAND, ARENDALL, BEDSOLE,

GREAVES & JOHNSTON

Post Office Box 123

Mobile, Alabama 36601

(205) 432-5511

DATE FILED: Jan. 14, 1986

Certified as true copy:

/s/ Eunice G. Tindal

B-57

Office of

Clerk of the Supreme Court

State of Alabama

Montgomery

MAILING ADDRESS: TELEPHONE: 261-4609

P.O. Box 157

Montgomery, Alabama 36101

Re: 85-471

LAPEYROUSE GRAIN CORPORATION, ET AL.

Appellant

vs.

FLORA JANE NELSON, ET AL.

Appellee

You are hereby notified that the following indicated

action was taken in the above cause by the Supreme Court

today :

—XX—Appeal docketed. Future correspondence should

refer to the above number.

——Court Reporter granted additional time to file re-

porter’s transcript to and including

————Clerk/Register granted additional time to file

clerk’s record/record on appeal to and including

——— Appell granted 7 additional days to file briefs

to and including

——— Appellant(s) granted 7 additional days to file re-

ply briefs to and including

———Record on Appeal filed

——— Appendix Filed

—_———Submitted on Briefs

B-58

—_—Petition for Writ of Certiorari denied. No opinion.

Application for rehearing overruled. No opinion

written on rehearing.

Permission to file amicus curiae briefs granted

—__1/24/86 ajh

Robert G. Esdale, Clerk

By: /s/ Dorothy F. Norwood,

Deputy Clerk

Supreme Court of Alabama

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.