Kenneth Laddie, Rebekah Laddie, Phillip Dial, and Rhonda Dial v. Alaran Construction, Inc.

Rel: May 15, 2026

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2025-2026

_________________________

SC-2025-0878
_________________________

Kenneth Laddie, Rebekah Laddie, Phillip Dial, and Rhonda Dial

v.

Alaran Construction, Inc.

Appeal from Shelby Circuit Court
(CV-21-900689)

STEWART, Chief Justice.

Kenneth Laddie, Rebekah Laddie, Phillip Dial, and Rhonda Dial

("the defendants") appeal from an order entered by the Shelby Circuit

Court ("the trial court") dismissing their counterclaims against Alaran
SC-2025-0878

Construction, Inc. For the following reasons, that order is reversed, and

the cause is remanded for further proceedings.

Facts and Procedural History

In October 2020, the Laddies entered into a contract with Alaran

for the construction of a house. Under the terms of the contract, the

parties agreed that the Laddies would pay Alaran twice a month for the

work performed. On November 12, 2021, before construction was

complete, Alaran filed a complaint in the trial court, alleging that the

Laddies had breached the contract by failing to make a scheduled

payment. Alaran later amended the complaint to add the Dials as

necessary defendants to the action after discovering that they were

guarantors on the Laddies' construction loan. See Rule 19, Ala. R. Civ. P.

On March 5, 2022, the defendants filed an answer to the complaint

and asserted counterclaims alleging negligence, breach of contract, fraud,

and conversion. The defendants later asserted a counterclaim alleging

slander of title after Alaran filed a lien on the property on which the

house was being constructed. On March 10, 2022, Alaran filed a motion

to dismiss the defendants' counterclaims, pursuant to Rule 12(b)(6), Ala.

R. Civ. P., arguing that they were not ripe because construction of the

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house was never completed. The trial court never entered a ruling on that

motion.

On April 22, 2024, Alaran filed a renewed motion to dismiss, raising

the same ripeness argument as before. Additionally, as to the slander-of-

title counterclaim, Alaran argued that dismissal was proper because, it

said, it was legally required to file a lien to preserve its right to recovery.

On June 13, 2024, the defendants filed a response to Alaran's motion.

The trial court entered an order denying Alaran's renewed motion to

dismiss on June 21, 2024.

Between July 8, 2024, and August 15, 2024, Alaran filed three

additional renewed motions to dismiss. On April 22, 2025, the trial court

entered an order setting a hearing on May 27, 2025, to address "[a]ll

pending motions." On May 22, 2025, the defendants filed a response to

Alaran's most recent renewed motions to dismiss, reasserting their

opposition to Alaran's arguments for dismissal.

According to the record, neither the defendants nor their counsel

appeared at the hearing on May 27, 2025. After the hearing concluded,

counsel for the defendants notified the trial court by telephone that they

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had failed to appear because of a "calendaring mistake." Nevertheless, on

May 28, 2025, the trial court issued the following order:

"Due to Defendants' failure to timely respond to the
Plaintiff's Motion to Dismiss Defendants' Five Counterclaims
filed by Plaintiff on July 8, 2024 and Defendants' failure to
appear and present opposition at the motion hearing on May
27, 2025, Plaintiff's Motion to Dismiss Defendants' Five
Counterclaims is hereby GRANTED. Defendants'
counterclaims of Negligence, Breach of Contract, Fraud,
Conversion, and Slander of Title are hereby DENIED."

(Capitalization in original.) On June 4, 2025, Alaran filed a motion to

dismiss its own claims, and the trial court entered a judgment the same

day dismissing the case with prejudice.

On July 4, 2025, the defendants filed a motion to vacate the trial

court's order dismissing their counterclaims, arguing that the dismissal

was not warranted under Rule 41(b), Ala. R. Civ. P. Specifically, the

defendants explained that their failure to appear at the hearing did not

constitute "willful default or contumacious conduct" but instead, was the

result of an "inadvertent scheduling error" by their counsel. Additionally,

the defendants argued that their response to Alaran's renewed motions

to dismiss on May 22, 2025, was timely. The defendants' motion to vacate

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was denied by operation of law on October 2, 2025. See Rule 59.1, Ala. R.

Civ. P. The defendants timely appealed.1

Standard of Review

" 'Ala. R. Civ. P. 41(b) provides for the
involuntary dismissal of an action upon "failure of
the plaintiff to prosecute or to comply with [the
Alabama Rules of Civil Procedure] or any order of
[the] court." Although dismissal for failure to
comply with a court order is a "harsh sanction," it
is warranted where there is a "clear record of
delay, willful default or contumacious conduct by
the plaintiff." Selby v. Money, 403 So. 2d 218, 220
(Ala. 1981). Because the trial judge is in the best
position to assess the conduct of the plaintiff and
the degree of noncompliance, his decision to grant
a motion to dismiss for failure to prosecute will be
accorded considerable weight by a reviewing court.
Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947
(9th Cir. 1976); Von Poppenheim v. Portland
Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051
(9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S.
Ct. 715, 30 L. Ed. 2d 731 (1972). Therefore we will
reverse that decision only upon a showing of abuse
of discretion. Selby, [403 So. 2d] at 220; Smith v.
Wilcox County Bd. of Educ., 365 So. 2d 659 (Ala.
1978).'

1According to the record, the defendants filed their notice of appeal

on November 14, 2025, which was one day after the filing deadline. See
Rule 4, Ala. R. App. P. Pursuant to Rule 57(k), Ala. R. App. P., counsel
for the defendants attached a "Declaration of Electronic Hardship" to the
notice of appeal, in which he explained that he had missed the filing
deadline due to technological difficulties with the e-filing system and that
this Court should accept the filing as timely. This Court accepted the
defendants' notice of appeal as timely filed as permitted by Rule 57(k).
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"Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.
2d 332, 341 (Ala. 1991)."

Curry v. Miller, 261 So. 3d 1175, 1178 (Ala. 2018).

Analysis

On appeal, the defendants contend that the trial court exceeded its

discretion when it dismissed their counterclaims against Alaran,

pursuant to Rule 41(b), which provides, in relevant part, that a trial court

may dismiss an action "[f]or failure of the plaintiff to prosecute [the case]

or to comply with … any order of court." Before addressing the merits of

the defendants' arguments, we note that, in its order of dismissal, the

trial court did not state that it was dismissing the counterclaims

pursuant to Rule 41(b). However, the order of dismissal plainly stated

that the counterclaims were dismissed because the defendants had failed

to file a timely response to Alaran's July 8, 2024, renewed motion to

dismiss and had failed to appear at the hearing on May 27, 2025.

Accordingly, we construe the order of dismissal as having been entered

pursuant to Rule 41(b). See S.C. v. Autauga Cnty. Bd. of Educ., 325 So.

3d 793, 797 n.2 (Ala. 2020) ("[T]he substance of the circuit court's order

and the circumstances under which it was entered indicate that [the

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order] was based on Rule 41(b)."); see also Myers v. BBH PBMC, LLC,

[Ms. SC-2024-0833, Aug. 29, 2025] ___ So. 3d ___, ___. (Ala. 2025).

Furthermore, we note that, because the trial court's order did not

otherwise specify, the dismissal of the defendants' counterclaims was

with prejudice. See Rule 41(b) ("Unless the court in its order for dismissal

otherwise specifies, a dismissal under this subdivision and any dismissal

not provided for in this rule … operates as an adjudication upon the

merits.").

Regarding dismissals under Rule 41(b), this Court has observed

that a

"[d]ismissal with prejudice is a harsh sanction and should be
used only in extreme circumstances. …

"In Alabama, and many federal courts, … a dismissal
may be granted when there is a clear record of delay, willful
default or contumacious conduct by the plaintiff. Smith v.
Wilcox County Board of Education, 365 So. 2d at [659,] 661
[(Ala. 1978)]. See, e.g., Boazman v. Economics Laboratory,
Inc., 537 F.2d 210 (5th Cir. 1976); Pond v. Braniff Airways,
453 F.2d 347 (5th Cir. 1972). Willful default or conduct is a
conscious or intentional failure to act. Welsh v. Automatic
Poultry Feeder Co., 439 F.2d 95 (8th Cir. 1971). 'Willful' is
used in contradistinction to accidental or involuntary
noncompliance. No wrongful motive or intent is necessary to
show willful conduct."

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Selby v. Money, 403 So. 2d 218, 220-21 (Ala. 1981). Moreover, "[w]hen

our appellate courts have reversed an order dismissing with prejudice, it

was because the record did not reveal the extreme circumstances

sufficient to warrant the harsh sanction of dismissal." S.C., 325 So. 3d at

798.

The defendants argue that their failure to appear at the hearing on

May 27, 2025, did not evidence "a clear record of delay, willful default or

contumacious conduct" to justify dismissal under Rule 41(b). Selby, 403

So. 2d at 220. In support of their argument, the defendants cite Myers,

supra. In that case, the trial court dismissed Bonnie Myers's complaint

after she and her attorney had failed to appear at a status conference, for

which the trial court had ordered that "[a]ll parties must appear."

Myers's attorney filed a motion to set aside the judgment, explaining that

she and her client had failed to appear at the status conference because

she had inadvertently not opened the email with the scheduling order

and that, as a result, the court date was never calendared. The motion

was denied, and Myers appealed. On appeal, Myers argued that the trial

court had committed reversible error by dismissing the case because

there was no evidence indicating that she had failed to prosecute the case

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or that her attorney had engaged in willful or contumacious conduct. This

Court reversed the trial court's judgment, concluding:

"There is nothing in the record to indicate that Myers
contributed to any of the delay that occurred in her case or
that she failed to take steps to prosecute her claim. … Thus,
the only conduct that could support the circuit court's
dismissal of Myers's complaint is the fact that Myers and her
attorney did not appear for the August 9, 2024, status
conference, which, for all that appears in the record, was the
first scheduled court appearance for the parties. However,
Myers's attorney stated in the postjudgment motion she filed
on Myers's behalf that she and Myers had not appeared for
the status conference because the attorney 'did not have the
court date on the calendar' and that the reason the status
conference was not on her calendar was because she had
inadvertently failed to open the email containing the court's
scheduling order."

Myers, ___ So. 3d at ___.

This Court reached a similar conclusion in Cabaniss v. Wilson, 501

So. 2d 1177 (Ala. 1986). In that case, the attorney for the plaintiffs, James

Cabaniss and Martha Cabaniss, failed to appear at a hearing on a motion

for a summary judgment. At the hearing, counsel for the defendants

made an oral motion to dismiss the complaint under Rule 41(b) for failure

to prosecute, and the trial court granted the motion. The Cabanisses filed

a motion to vacate the judgment, explaining that the summary-judgment

hearing was " inadvertently left off of the calendar" of their attorneys. 501

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So. 2d at 1179. The trial court denied the motion, and the Cabanisses

appealed to this Court. This Court reversed the trial court's judgment of

dismissal, concluding that "the facts of the present case do not justify

dismissal with prejudice." Id. at 1181. Specifically, this Court recognized

that "the failure of the plaintiffs' attorney to appear in court … was

allegedly inadvertent on his part" and, thus, did not rise to the level of

willful or contumacious conduct. Id.

Similarly, in Gill v. Cobern, 36 So. 3d 31 (Ala. 2009), this Court

reversed the judgment of the trial court that dismissed Lenzie Gill's

complaint after Gill's attorney did not appear at a pretrial conference.

Gill filed a motion to vacate the judgment of dismissal, contending that

the trial court should reinstate the case because the failure to appear was

not willful but, instead, was "the result of a calendaring error." Id. at 32.

The trial court denied the motion, and Gill appealed. This Court, relying

on Cabaniss, reversed the judgment and stated as follows:

"As was the case in Cabaniss, the record here does not
reveal the presence of 'extreme circumstances' sufficient to
warrant the 'harsh sanction' of a dismissal with prejudice. See
Selby v. Money, 403 So. 2d 218, 220 (Ala. 1981). … [T]he
record clearly indicates that the trial court dismissed Gill's
action on the sole basis that Gill's attorney did not appear at
the pretrial conference. In Gill's motion to alter, amend, or
vacate the trial court's judgment, Gill's attorney alleged that
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his absence was the result of a calendaring error and that it
was not the result of willful or contumacious conduct. …
Nothing in the record indicates that Gill's attorney was
engaged in 'willful' delay or 'contumacious conduct.'
Therefore, we hold that the trial court erred in dismissing
Gill's action with prejudice."

Id. at 33-34 (footnote omitted).

This case is analogous to Myers, Cabaniss, and Gill. There is no

evidence in the record to suggest that the defendants failed to prosecute

their counterclaims. To the contrary, the record indicates that the

defendants were actively participating in the litigation process.

Moreover, the record does not indicate that the defendants or their

counsel engaged in willful or contumacious conduct by not appearing at

the motion hearing on May 27, 2025. As noted earlier, counsel for the

defendants contacted the trial court by telephone on the day of the

hearing and the defendants later filed a motion to vacate, explaining that

their inadvertent failure to appear was due to a "calendaring mistake."

Our caselaw is clear that such a failure is not typically an "extreme

circumstance" that warrants the "harsh sanction" of a dismissal with

prejudice. Gill, 36 So. 3d at 33 (citing Selby, 403 So. 2d at 220)). Thus,

consistent with our prior decisions, we conclude that the trial court erred

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when it dismissed the defendants' counterclaims based on their

inadvertent failure to appear at the hearing on May 27, 2025.

We note that the trial court also justified the dismissal of the

defendants' counterclaims on the defendants' purported failure "to timely

respond" to Alaran's July 8, 2024, renewed motion to dismiss. Alaran

argued in its July 8, 2024, renewed motion to dismiss that the defendants'

first four counterclaims were not ripe and that their fifth counterclaim

alleging slander of title was not viable as a matter of law. On May 22,

2025, the defendants filed a written response that specifically addressed

each argument contained in Alaran's July 8, 2024, renewed motion to

dismiss. However, the record contains no order setting an earlier

deadline for the defendants to respond to Alaran's motion, and our Rules

of Civil Procedure provide no particular timeline for responding to a

motion to dismiss. See McGinnis v. Steeleman, 199 So. 3d 69, 73-74 (Ala.

Civ. App. 2015) (recognizing that even the failure to file a written

response to a motion to dismiss does not give rise to a procedural default).

Accordingly, to the extent that the trial court dismissed the defendants'

counterclaims for their purported failure to file a timely response to

Alaran's July 8, 2024, renewed motion to dismiss, it was simply incorrect,

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and the order of dismissal, insofar as it was entered on that basis, is due

to be reversed.

Conclusion

Based on the foregoing, we conclude that the trial court exceeded

its discretion in dismissing the defendants' counterclaims with prejudice

pursuant to Rule 41(b) for the defendants' failure to appear in court and

their purported failure to file a response to Alaran's July 8, 2024,

renewed motion to dismiss. Accordingly, the order dismissing the

counterclaims is reversed, and the case is remanded for further

proceedings. In reversing the trial court's order of dismissal, we do not

address the merits of the defendants' counterclaims.

REVERSED AND REMANDED.

Wise, Sellers, Cook, and Parker, JJ., concur.

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