Rel: March 24, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

_________________________

SC-2023-0042

_________________________

Levorn Davis and Levern Davis

v.

Darryl Hamilton, as personal representative of the Estate of 

Henry Brim, deceased

Appeal from Etowah Circuit Court

(CV-17-900448)

WISE, Justice.

The defendants below, Levorn Davis and Levern Davis, appeal from 

the Etowah Circuit Court's judgment entered in favor of the plaintiff 

below, Darryl Hamilton, as personal representative of the estate of Henry 

Brim, deceased. We reverse and remand.
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2

Facts and Procedural History

On November 3, 2006, Brim sold property located on West

Tomahawk Trail in Gadsden ("the property") to Levern Davis. On that 

same date, Levern executed a promissory note and a mortgage in favor of 

Brim. The promissory note and the mortgage provided that the principal 

amount of the note was $56,000; that the interest rate was 7% per 

annum; that principal and interest payments were "due and payable in 

465 equal consecutive monthly installments of $350.00, on the first day 

of each month, beginning December 1, 2006"; and that the final 

installment would be due on August 1, 2045. On April 16, 2015, Levern 

executed a quitclaim deed in which he transferred his interest in the 

property to his brother, Levorn Davis. 

On June 1, 2017, Brim filed a complaint against the defendants in 

the Etowah Circuit Court. Brim alleged that the defendants were in 

default under the terms of the promissory note and the mortgage; that 

the defendants disputed that they were in default; and that the parties 

also disputed the balance owed on the note. Brim further alleged that he 

was seeking to foreclose on the property under terms of the mortgage but 

that, "until it is determined the defendants have defaulted under the 
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payment of the note and mortgage securing the same, foreclosure is not 

available." Thus, Brim asked the trial court to enter a judgment 

declaring that the defendants were in default; determining the amount 

still owed on the promissory note; and authorizing Brim to foreclose the 

mortgage.

On October 24, 2018, the trial court conducted a bench trial. At the 

conclusion of the trial, the trial court gave the parties time to file briefs

and to submit additional financial documents. However, the parties did 

not do so.

On May 8, 2019, Jack Floyd ("former counsel") filed a suggestion of 

death, stating that Brim had died on May 1, 2019. On June 18, 2021, 

John Floyd ("current counsel") filed a notice of appearance as counsel for 

"the plaintiff." On December 3, 2021, current counsel filed a motion to 

substitute Hamilton, as personal representative of Brim's estate, as the 

plaintiff. The motion stated that Hamilton had been appointed as the 

personal representative of Brim's estate on February 26, 2020. The trial 

court entered an order substituting Hamilton as the plaintiff on that 

same day.
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On December 6, 2021, the defendants filed a "Motion to 

Reconsider," in which they asked the trial court to reconsider its order 

substituting Hamilton as the plaintiff and to dismiss the action pursuant 

to Rule 25(a)(1), Ala. R. Civ. P. After being directed to do so by the trial 

court, Hamilton filed a response to the motion to reconsider on December 

16, 2021. In his response, Hamilton asserted:

"1. That the attorney for [Brim], Jack Floyd[,] filed a 

Suggestion of Death on May 8, 2019. That following the death 

of [Brim], the family member and caretaker of [Brim], Darryl 

Hamilton[,] came to the attorney for [Brim] to probate the 

Last Will and Testament of Henry Brim ....

"2. That [Brim] had numerous children/heirs-at-law 

that resulted in extensive time spent attempting to locate and 

provide service on the said heirs-at-law. Due to said delays, 

the Letters of Testamentary were not issued until February 

26, 2020.

"3. That prior to the letters being issued, Jack Floyd ...

filed a Motion to Continue on January 29, 2020[,] stating that 

the Estate of Henry Brim was presented to Probate and that 

a hearing to appoint a personal representative for the estate 

was scheduled for February 26, 2020, which provides evidence 

of intent by the attorney to file the Motion for Substitution 

once the Letters of Testamentary were issued. ...

"4. That the Letters of Testamentary were received from 

the Probate Court by the attorney in March of 2020[,] after 

being processed. Simultaneously, due to the outbreak of 

Covid-19, an Administrative Order was entered by the 

Presiding Circuit Judge for the 16th Judicial Circuit of the 

State of Alabama on March 13, 2020, and an amended Order 
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5

on March 16, 2020. An Order of April 3, 2020[,] was issued as 

a result of said Administrative Order suspending the Civil 

Non-Jury Docket of April 13, 2020[,] that the case was set on

....

"5. That court conflicts by the attorney for [Brim] 

resulted in continuances and due to a major health crisis of a 

brain bleed experienced by Jack Floyd in May of 2021, an 

entry of appearance was filed by John Floyd on June 21, 2021.

"6. That John Floyd assisted in taking care of his father 

and law partner, Jack Floyd[,] after he had to undergo two 

surgeries to repair a brain bleed and remove a blood clot in 

June of 2021. 

"7. That Jack Floyd, [John Floyd's] father and law 

partner[,] contracted Covid-19 in August of 2021 and passed 

away on August 24, 2021.

"8. That due to the disruption resulting from the 

outbreak of Covid-19 and [Jack Floyd's] subsequently 

experiencing a major brain bleed that resulted in 

deteriorating health before his death from Covid-19, the 

failure to file the Motion for Substitution was made in error.

"WHEREFORE, premises considered [Hamilton] prays 

that your Honor will find that the failure to file a Motion for 

Substitution was made in error and that premises stated show 

that said error was made in excusable neglect."

On that same day, the trial court entered an order denying the motion to 

reconsider. 

On June 28, 2022, the trial court entered a final judgment in the 

case. The trial court held that the defendants had failed to timely make 
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all payments pursuant to the promissory note and the mortgage; that the 

defendants were in default; that the amount owed on the note was 

$26,125.50; and that Hamilton could proceed with foreclosure 

proceedings. This appeal followed.

Discussion

The defendants argue that the trial court erroneously denied their 

motion to reconsider the order substituting Hamilton as the plaintiff and 

to dismiss the action pursuant to Rule 25(a)(1), Ala. R. Civ. P., because 

the motion for substitution was not filed until nearly 31 months after the 

filing of the suggestion of death. 

Rule 25(a)(1) provides:

"If a party dies and the claim is not thereby extinguished, the 

court may order substitution of the proper parties. The 

motion for substitution may be made by any party or by the 

successors or representatives of the deceased party and, 

together with the notice of hearing, shall be served on the 

parties as provided in Rule 5[, Ala. R. Civ. P.,] and upon 

persons not parties in the manner provided in Rule 4[, Ala. R. 

Civ. P.,] for the service of a summons, and may be served in 

any county. Unless the motion for substitution is made not 

later than six months after the death is suggested upon the 

record by service of a statement of the fact of the death as 

provided herein for the service of the motion, the action shall 

in the absence of a showing of excusable neglect be dismissed 

as to the deceased party."

(Emphasis added.) Rule 6(b), Ala. R. Civ. P., provides, in pertinent part:
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"When by these rules or by a notice given thereunder or by 

order of court an act is required or allowed to be done at or 

within a specified time, the court for cause shown may at any 

time in its discretion ... (2) upon motion made after the 

expiration of the specified period permit the act to be done 

where the failure to act was the result of excusable neglect; 

but it may not extend the time for taking any action under 

Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b), [Ala. R. Civ. 

P.,] except to the extent and under the conditions stated in 

them."

In Hayes v. Brookwood Hospital, 572 So. 2d 1251, 1254 (Ala. 1990), 

this Court held that "the six-month provision of Rule 25(a)(1)[, Ala. R. 

Civ. P.,] is subject to the general language of Rule 6(b)[, Ala. R. Civ. P.,] 

allowing the extension of a specified time period upon a determination of 

excusable neglect." This Court went on to state:

"This holding requires the trial court to exercise 

discretion in determining, pursuant to Rule 6(b), whether 

there was excusable neglect warranting an extension of the 

time period in Rule 25(a)(1). The determination of excusable 

neglect will rest on the facts of each case. For example, in 

Wagner v. Frazier, 712 S.W.2d 109 (Tenn. App. 1986), the 

plaintiff died while awaiting a decision from the trial court on 

a question of damages. One of the defendants filed a 

suggestion of death, but no other action was taken within the 

90-day substitution period. The defendants moved for 

dismissal under Tennessee Rule of Civil Procedure 25.01, a 

rule similar to Alabama's except for the time period. The 

deceased plaintiff's administratrix filed a motion seeking 

substitution 8 days after the 90-day period had expired; she 

asserted that letters testamentary had been issued, and she 

sought an extension of time beyond the 90-day period set in 

Rule 25.01. The defendants argued that the rule was 
SC-2023-0042

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mandatory and that there was no showing or reason for the 

extension.

"The trial court in Wagner, however, allowed the late 

substitution, finding '(1) [that] the time lapse was not an 

unreasonable one, and (2) [that] the case had been heard in 

its entirety, and (3) [holding] [that] as a matter within the 

court's discretion only "dire" circumstances would compel 

dismissal.' 712 S.W.2d at 113. The appellate court stated:

"'As is generally true, the kind of excuse that will 

satisfy this [excusable neglect] requirement is a 

function of the length of time that has passed and 

the possible harm to the opposite party. In this 

case where the suit had been fully tried and the 

parties were awaiting a decision from the court 

and the motion was made eight days after the 

ninety day period had run, we think the mere 

oversight of the plaintiff is excusable.'

"Id. See also Garcia v. Title Ins. Co. of Minn., 712 P.2d 1114 

(Colo. App. 1985) (waiting for estate to be opened is not to be 

considered excusable neglect where the issue of excusable 

neglect was raised only by a passing reference in the plaintiff's 

brief opposing the defendant's motion to dismiss); Doherty v. 

Straughn, 407 A.2d 207 (Del. 1979) (ignorance of the rule does 

not constitute excusable neglect); Markan v. Sawchyn, 36 

Ohio App. 3d 136, 521 N.E.2d 824 (1987) (excusable neglect 

existed where administrator of estate, appointed 99 days after 

suggestion of death, filed a motion for substitution 2 days 

after appointment); Miller v. Ladd, 140 Vt. 293, 437 A.2d 1105 

(1981) (excusable neglect requires some reasonable basis for 

noncompliance within the stated period)."

Hayes, 572 So. 2d at 1254.

"Rule 6(b) gives the court a very broad discretion to 

enlarge time periods, but such enlargement is to be only for 
SC-2023-0042

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cause shown. ... If ... the application for extra time comes 

after the period has run, notice of the motion must be given to 

the other parties, and the only cause for which extra time can 

be allowed is 'excusable neglect.' As to the meaning of 

'excusable neglect,' see 4 Wright & Miller, Federal Practice 

and Procedure, Civil, § 1165 (1969)."

Committee Comments on 1973 Adoption of Rule 6, Ala. R. Civ. P. 

According to the most recent edition of Federal Practice and Procedure, 

"[e]xcusable neglect seems to require a demonstration of good faith on the 

part of the party seeking an extension of time and some reasonable basis 

for noncompliance within the time specified in the rules." 4B Charles 

Alan Wright et al., Federal Practice and Procedure § 1165, at 644 (4th 

ed. 2015).

In this case, former counsel filed the suggestion of death on May 8, 

2019. The motion for substitution includes an assertion that Hamilton 

was appointed as the personal representative of Brim's estate on 

February 26, 2020. However, the motion for substitution was not filed 

until December 3, 2021. Hamilton did not file a motion for enlargement 

of time pursuant to Rule 6(b), Ala. R. Civ. P., or assert that the delay in 

filing the motion for substitution was the result of excusable neglect. 

Rather, he first addressed the issue of excusable neglect in his response 

to the motion to reconsider. 
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In that response, Hamilton asserted that, after Brim's death, he 

had contacted former counsel about probating Brim's will; that Brim "had 

numerous children/heirs-at-law that resulted in extensive time spent 

attempting to locate and provide service on the said heirs-at-law"; that, 

as a result of the delays, letters testamentary were not issued until 

February 26, 2020; and that "the Letters of Testamentary were received 

from the Probate Court by the attorney in March of 2020 after being 

processed." Hamilton also attached to the response a copy of a motion to 

continue that former counsel had filed in the trial court on January 29, 

2020, in which it was asserted that the probate court had set a date of 

February 26, 2020, to appoint a personal representative of the estate. 

Additionally, Hamilton asserted that former counsel had experienced a 

brain bleed in May 2021; that, in June 2021, former counsel underwent 

two surgeries to repair the brain bleed and to remove a blood clot; that, 

in August 2021, former counsel contracted COVID-19; and that former 

counsel died on August 24, 2021. Hamilton also asserted that current 

counsel was former counsel's son and law partner; that current counsel 

filed a notice of appearance on June 21, 2021; and that current counsel 

had assisted in taking care of his father after his June 2021 surgeries. 
SC-2023-0042

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Assuming, without deciding, that Hamilton set forth facts from which the 

trial court could have concluded that any delay between the filing of the 

suggestion of death and the appointment of the personal representative 

of Brim's estate and any delay that occurred after former counsel 

experienced the brain bleed were the result of excusable neglect, 

Hamilton has not set forth sufficient facts to support the conclusion that 

the approximately 15-month delay between the time Hamilton was 

appointed personal representative of Brim's estate and when former 

counsel experienced the brain bleed was the result of excusable neglect. 

The only reasons Hamilton provided for the delay during that 15-

month period were "the disruption resulting from the outbreak of Covid19"; the trial court's April 3, 2020, order suspending the civil nonjury 

docket that was scheduled for April 13, 2020; and the fact that "court 

conflicts by the attorney for the Plaintiff resulted in continuances." 

Although the trial court suspended the April 13, 2020, civil nonjury 

docket, the case-action-summary sheet includes notations that the trial 

court entered orders setting the matter for a bench trial and continuing 

the matter on several different occasions between April 2020 and May 

2021 and that the notices of those settings and continuances were sent to 
SC-2023-0042

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former counsel. Additionally, Hamilton has not explained why any of 

former counsel's "court conflicts" that resulted in continuances would 

justify or excuse his failure to file the motion for substitution during the

15-month period. Finally, Hamilton's response did not include any 

factual assertions or explanation as to why the disruptions caused by 

COVID-19 would justify the lengthy delay at issue here. Without more,

the general allegations included in Hamilton's response did not explain 

why the failure to file a motion for substitution during the 15-month 

period was actually the result of excusable neglect. Compare Cobb v. 

Fisher, 20 So. 3d 1253 (Ala. 2009)(holding that the circumstances did not 

warrant a finding of excusable neglect). Accordingly, the trial court 

exceeded its discretion when it denied the defendants' motion to 

reconsider and to dismiss the action.

Conclusion

Based on the foregoing, the trial court exceeded its discretion when 

it denied the defendants' motion to reconsider and to dismiss the action 

pursuant to Rule 25(a)(1), Ala. R. Civ. P. Accordingly, we reverse the 

trial court's judgment and remand this case for the trial court to set aside 

its December 3, 2021, order substituting Hamilton as the plaintiff, to set 
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aside the judgment it entered on June 28, 2022, and to enter a judgment 

dismissing the action pursuant to Rule 25(a)(1), Ala. R. Civ. P.1

REVERSED AND REMANDED.

Parker, C.J., and Shaw, Bryan, Mitchell, and Cook, JJ., concur.

Sellers, J., dissents, with opinion, which Mendheim and Stewart, 

JJ., join.

1Based on our disposition of the issue addressed in this opinion, we 

pretermit discussion of the remaining issue raised by the defendants.
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SELLERS, Justice (dissenting).

I respectfully dissent from the decision to reverse the trial court's 

judgment in favor of Darryl Hamilton, as personal representative of the 

estate of Henry Brim, deceased. In my view, the trial court did not exceed 

its substantial discretion in allowing the substitution of Hamilton as the 

plaintiff in this matter after Brim, the original plaintiff, died.

In June 2017, Brim commenced an action seeking a judgment 

declaring that a loan secured by a mortgage on land Brim had sold to 

Levern Davis in November 2006 was in default, declaring the 

outstanding amount due on the loan, and declaring that Brim could 

foreclose on the mortgage. A nonjury trial was held in October 2018, but, 

in May 2019, before a final judgment was entered, Brim died. His 

counsel, whom the main opinion refers to as "former counsel," filed a 

suggestion of death approximately one week later. In December 2021, 

Darryl Hamilton, as the personal representative of Brim's estate, filed a 

motion requesting that he be substituted as the plaintiff in this action.

After Brim died, Hamilton retained former counsel to assist in 

having Hamilton designated as personal representative of Brim's estate 

and in probating Brim's will. Although Brim died in May 2019, because 
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of delays associated with locating Brim's heirs, Hamilton was not 

appointed personal representative of Brim's estate until February 2020. 

Former counsel received notice of the appointment of Hamilton as 

personal representative in March 2020.

By that point, the COVID-19 pandemic had started to cause delays 

in court systems across the country. And, because of scheduling conflicts 

and health problems, former counsel received multiple continuances in 

this action. Eventually, former counsel experienced a brain bleed in May 

2021, which required two surgeries in June 2021. That same month, 

former counsel's son and law partner, whom the main opinion refers to 

as "current counsel," entered an appearance on behalf of "the plaintiff." 

Former counsel died unexpectedly in August 2021. On December 3, 2021, 

current counsel moved to substitute Hamilton as the plaintiff in this 

action.2

Although Rule 25(a)(1), Ala. R. Civ. P., generally requires a motion 

for substitution after the death of a party to be filed not later than six 

2It does not appear that the defendants below, either in the trial 

court or in this Court, have disputed the above-stated facts that Hamilton 

has alleged in attempting to excuse his delay in seeking to have himself 

substituted as the plaintiff in this action.
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months after the death is suggested on the record, an action should not 

be dismissed for failure to meet that deadline if there is a showing of 

excusable neglect for the delay. And, as the main opinion notes, Rule 

6(b), Ala. R. Civ. P., gives trial courts broad discretion in determining 

whether there has been excusable neglect. See Gilland v. Schuman, 582 

So. 2d 1096, 1097 (Ala. 1991) (noting that trial courts have discretion in 

determining whether there has been excusable neglect and that 

resolution of that issue depends on the specific facts of each case); 

Committee Comments to 1973 Adoption of Rule 6, Ala. R. Civ P. ("Rule 

6(b) gives the court a very broad discretion to enlarge time periods ....").

As the main opinion notes, a leading treatise discussing the 

analogous Federal Rule of Civil Procedure states that "[e]xcusable 

neglect seems to require a demonstration of good faith on the part of the 

party seeking an extension of time and some reasonable basis for 

noncompliance within the time specified in the rules." 4B Charles Alan 

Wright et al., Federal Practice and Procedure § 1165, at 644 (4th ed. 

2015). In the present case, the parties had already tried this action when 

Hamilton sought to be substituted as the plaintiff. The only remaining 

step was the entry of a final judgment. The delay in substituting 
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Hamilton resulted from difficulties in locating the heirs of Brim's estate, 

the COVID-19 pandemic, and the health problems and unexpected death 

of former counsel, who was current counsel's father. 

In Edwards v. Allied Home Mortgage Capital Corp., 962 So. 2d 194, 

213 (Ala. 2007), this Court described when a trial court exceeds its 

discretion as follows:

"A court exceeds its discretion when its ruling is based on an 

erroneous conclusion of law or when it has acted arbitrarily 

without employing conscientious judgment, has exceeded the 

bounds of reason in view of all circumstances, or has so far 

ignored recognized principles of law or practice as to cause 

substantial injustice."

Viewed together, the facts in this particular case are sufficient to justify 

the conclusion that excusable neglect existed and to justify the trial 

court's exercising its discretion to allow the substitution of Hamilton as 

the plaintiff, albeit more than two and one-half years after Brim's death. 

I simply cannot conclude that the trial court "acted arbitrarily without 

employing conscientious judgment," "exceeded the bounds of reason in 

view of all circumstances," or "so far ignored recognized principles of law 

or practice as to cause substantial injustice." Id. Accordingly, I 
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respectfully dissent from the Court's decision to reverse the trial court's 

judgment.3

Mendheim and Stewart, JJ., concur.

3I also am not persuaded by the alternative argument for reversal, 

namely, that the evidence does not support the trial court's ruling 

regarding the unpaid balance on the loan secured by the mortgage.