Public-domain · open source
OpenJurist

632 So. 2d 482

McLemore v. Fleming

Court of Civil Appeals of Alabama

Decided August 27, 1993

Court of Civil Appeals of Alabama · decided 1993-08-27

Cited by 3 later decisions — most recently September 1995

3 state decisions

Key passage — most relied on by later courts

“‘“The burden is on one moving for summary judgment to demonstrate that no genuine issue of material fact is left for consideration by the jury. The burden does not shift to the opposing party to establish a genuine issue of material fact until the moving party has made a prima facie showing that there is no such issue of material fact.’ “... [W]e must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant.””

quoted by 2 later decisions, including McKeel v. Jasper Housing Authority, AmSouth Bank, N.A. v. Bischoff

““The record reflects that the parties to this action are family members who have been in a litigious battle since their father and mother died, leaving substantial real estate holdings. One of those properties, on which Nadine McLemore has resided for approximately thirty years, is the subject of this eviction action. “After Roy Fleming filed his affidavit in support of his motion for summary judgment, McLemore responded with an affidavit, which put certain material facts in dispute. The trial court entered a judgment for Fleming, and after MeLemore’s post-judgment motion was denied, she appealed.””

quoted by 1 later decision, including McLemore v. Fleming

Relies on 604 So. 2d 353 - McLemore v. Fleming · 540 So. 2d 732 - Southern Guar. Ins. Co. v. First Ala. Bank

Good law ✅— No negative treatment on recordhow we know

Decided 1993-08-27

View the full empirical analysis of this case →

ROBERTSON, Presiding Judge.

¶1This is an appeal from a summary judgment entered by the trial court in an eviction action.

¶2The record reflects that the parties to this action are family members who have been in a litigious battle since their father and mother died, leaving substantial real estate holdings. One of those properties, on which Nadine McLemore has resided for approximately thirty years, is the subject of this eviction action.

¶3After Roy Fleming filed his affidavit in support of his motion for summary judgment, McLemore responded with an affidavit, which put certain material facts in dispute. The trial court entered a judgment for Fleming, and after McLemore’s post-judgment motion was denied, she appealed.

¶4A reviewing appellate court employs the same standard utilized by the trial court when reviewing an entry of a summary judgment. Southern Guaranty Ins. v. First Alabama Bank, 540 So.2d 732 (Ala.1989). Summary judgment is proper when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c)(3), AR.Civ.P.

¶5After reviewing the pleadings and affidavits filed by each party, we conclude that there is a genuine issue as to the status of the ownership of the property that is the subject of this eviction action. Fleming contends that the ownership of the property has been previously adjudicated and that the doctrine of res judicata bars any further litigation as to that issue.

¶6References are made in the record to a prior action between the parties; however, the record does not contain anything from that action that this court can review to determine if the ownership issue has been litigated. That action was appealed to the supreme court and is reported as McLemore v. Fleming, 604 So.2d 353 (Ala.1992). That case reflects that Fleming was acting as executor of the estate of O.J. Fleming, deceased, but it does not reflect what type relief granted by summary judgment was affirmed.

¶7The summary judgment entered by the trial court in this case is hereby reversed, and this matter is remanded for further proceedings.

¶8REVERSED AND REMANDED.

THIGPEN and YATES, JJ„ concur.
/632/so2d/482 · .json · Public domain