Rel: May 19, 2023

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, 

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SUPREME COURT OF ALABAMA

OCTOBER TERM, 2022-2023

_________________________

SC-2022-1018

_________________________

Gary Womble and Sheila Womble 

v. 

Collie Moore III

Appeal from Jefferson Circuit Court

(CV-20-900884)

STEWART, Justice.

Gary Womble and Sheila Womble, a married couple, appeal from 

an order of the Jefferson Circuit Court ("the trial court") denying their 

motion filed pursuant to Rule 60(b)(1), Ala. R. Civ. P., seeking to set aside 
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a judgment that dismissed, with prejudice, their action against Collie

Moore III. The Wombles have not demonstrated that the trial court 

exceeded its discretion in denying their Rule 60(b)(1) motion; therefore, 

we affirm the trial court's order denying their motion. 

Facts and Procedural History

On March 3, 2020, the Wombles sued Moore alleging claims of 

negligence, wantonness, and loss of consortium in connection with an 

automobile accident that had occurred March 28, 2018, in which Moore's 

automobile collided with the rear of the Wombles' automobile. The 

Wombles attached to their complaint interrogatories and requests for 

production of documents. 

Moore was personally served by a private investigator in July 2020 

with the complaint, the interrogatories, and the requests for production. 

Moore filed an answer and asserted various affirmative defenses, and he 

responded to the Wombles' discovery requests. Likewise, Moore served 

the Wombles with interrogatories and requests for production. On 

August 13, 2020, the trial court entered an order setting a teleconference 

for August 24, 2020. 
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On August 26, 2020, the trial court entered a scheduling order 

setting a jury trial for September 13, 2021, with a pretrial conference 

scheduled for the Friday preceding the trial. In that order, the trial court

also stated: 

"The case shall be DISPOSED of on or before the trial date, 

unless the Court grants a properly and timely filed Motion for 

Continuance. Such a Motion shall be granted only for good 

cause shown. The parties are advised that the following or 

other such reasons will NOT be considered 'good cause': 'that 

mediation failed'; 'that the trial setting is a first setting'; 'that 

the parties have agreed to a continuance'; and/or 'that 

discovery has not been completed.'"

(Capitalization in original.) The trial court also entered a separate order 

requiring the parties to mediate the case. 

On November 30, 2020, the Wombles' attorney filed a notice of 

attorney's lien and a motion to withdraw. The trial court granted the 

motion to withdraw and directed the clerk to forward all notices to the 

Wombles at their home address. 

On January 25, 2021, Moore filed a motion requesting a status 

conference in which he alleged that the Wombles had not responded to 

discovery requests or communicated with Moore since their attorney had

withdrawn. A status conference was scheduled to be held by 

teleconference on February 16, 2021; however, that conference was 
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canceled due to inclement weather. On March 30, 2021, Moore filed 

another request for a status conference. The trial court set a 

teleconference for April 29, 2021. It is not clear from the record whether 

that teleconference occurred. The trial court also later held a 

teleconference on June 24, 2021. There is no dispute that the Wombles 

participated in all teleconferences that were held. On August 23, 2021, 

Moore's attorney filed a conflict notice for the jury week of September 13, 

2021, but he stated that he would be prepared for trial and proceed at the 

direction of the trial court. 

On September 13, 2021, the scheduled trial date, the trial court 

entered a judgment dismissing the action, with prejudice, based on the 

Wombles' failure to prosecute the action. In the judgment, the trial court 

stated that the Wombles had failed to appear on the trial date and that 

Moore had orally moved to dismiss the action. 

On October 12, 2021, the Wombles, through a new attorney, filed a 

motion to set aside the judgment. The Wombles relied on Rule 60(b)(1), 

Ala. R. Civ. P., and cited excusable neglect as the basis for their motion. 

The Wombles attached to their motion an affidavit of Gary Womble in 

which he testified, in part:
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"2. I have always intended to pursue the present lawsuit to its 

conclusion. Toward that end I have participated in 

teleconferences with the Judge and opposing counsel.

"3. Had I known my presence was required at the September 

13, 2021 court setting I would have been in Court. The 

confusion stemmed from a prior understanding or 

misunderstanding that the case would be continued if we 

needed additional time.

"4. This past summer my wife, Plaintiff Sheila Womble, and I 

traveled to the Birmingham area to have lunch with the 

Defendant's attorney, John Lawes, to discuss the case. At 

that lunch the Defendant's attorney stated to us that he had 

lost contact with his client, the Defendant, and could not 

locate him. We expressed with certainty our desire to resolve 

the case. Mr. Lawes requested we provide him medical 

documentation and he would make an effort to negotiate with 

us. It was then said by the Defendant's attorney that he did 

not feel comfortable going to Court with us unrepresented.

"5. Right after that my wife and I began assembling our 

records and notebooks in order to hire an attorney. I began to 

research various attorneys.

"6. Two to three weeks ago we met and engaged our current 

attorney and that is how we discovered the September 13, 

2021 court date and dismissal."

Moore filed a response in opposition to the Rule 60(b)(1) motion in 

which he made numerous factual statements and asserted, among other 

things, that the Wombles had failed to respond to discovery requests or 
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otherwise prepare the case for trial.1 The trial court set a videoconference

hearing for November 10, 2021, and, subsequently, a second 

videoconference hearing for December 9, 2021. There is no transcript 

from either of those hearings in the record.

On January 12, 2022, the Wombles filed a notice of appeal to this 

Court. On August 12, 2022, this Court issued an opinion dismissing the 

appeal as being from a nonfinal judgment because the trial court had not 

yet ruled on the Rule 60(b)(1) motion and dismissing the appeal insofar 

as it challenged the judgment dismissing their action because the appeal

had not been filed within 42 days of the entry of that judgment. Womble 

v. Moore, [Ms. 1210222, Aug. 12, 2022] ___ So. 3d ___ (Ala. 2022). 

On October 18, 2022, the Wombles filed a motion in the trial court

seeking to ascertain the status of their Rule 60(b)(1) motion. Moore filed 

a supplemental response in opposition to the Rule 60(b)(1) motion. On 

October 27, 2022, the trial court entered an order denying the Rule 

60(b)(1) motion "[p]ursuant to the August 12, 2022 opinion of the 

1We acknowledge that "[m]otions, statements in motions, and 

arguments of counsel are not evidence. Westwind Techs., Inc. v. Jones, 

925 So. 2d 166, 171 (Ala. 2005)." Ex parte Merrill, 264 So. 3d 855, 860 n.4 

(Ala. 2018).
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Supreme Court of Alabama and upon due consideration of [the Rule 

60(b)(1) motion]." On November 28, 2022, the Wombles timely filed a 

notice of appeal from that order. 

Standard of Review

"An appeal from the denial of a Rule 60(b) motion does not bring up 

for review the correctness of the judgment which the movant seeks to set 

aside, but is limited to deciding" whether the trial court exceeded its 

discretion in denying the motion. Menefee v. Veal, 484 So. 2d 437, 438 

(Ala. 1986) (citing Raine v. First Western Bank, 362 So. 2d 846 (Ala. 

1978)).

"It is well established that the decision to grant or to 

deny relief pursuant to a Rule 60(b) motion is discretionary 

with the trial court. In reviewing the trial court's ruling on 

such a motion, we cannot disturb the trial court's decision 

unless the trial court [exceeded] that discretion in denying the 

motion."

DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1089 (Ala. 1990) (citations 

omitted). Furthermore, "[i]n order for a movant to obtain relief under 

Rule 60(b)(1), he or she must allege and prove one of the grounds set out 

therein." Menefee, 484 So. 2d at 438. 

Discussion
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The Wombles primarily argue that their Rule 60(b)(1) motion was 

due to be granted based on the presumption that cases should be disposed 

of on the merits and on the premise that dismissal is a drastic sanction 

that should be reserved for extreme circumstances when the plaintiff has 

engaged in willful conduct. They assert that, to sustain the dismissal of 

their action, their conduct must have been "willful or contumacious." See

Gill v. Cobern, 36 So. 3d 31, 33-34 (Ala. 2009). In addition to Gill, the 

Wombles rely on Goodley v. Standard Furniture Manufacturing Co., 716 

So. 2d 226 (Ala. Civ. App. 1998), Poore v. Poore, 285 So. 3d 852 (Ala. Civ. 

App. 2019), and Ash v. Washington, 349 So. 3d 1284 (Ala. Civ. App. 2021),

in asserting that there is no evidence of willful or contumacious conduct 

to support the dismissal of their action. Those cases, however, are 

inapposite. The Wombles did not appeal from the judgment dismissing 

their action. Rather, they have appealed from the trial court's order 

denying their Rule 60(b)(1) motion. Therefore, the propriety of the trial 

court's dismissal judgment is not before us for review. This Court is 

tasked with determining only whether the Wombles presented sufficient 

grounds under Rule 60(b)(1) and, as a result, whether the trial court 
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exceeded its discretion in denying the Wombles' motion. See Menefee, 484 

So. 2d at 438. 

Rule 60(b)(1) permits a trial court to "relieve a party or a party's 

legal representative from a final judgment, order, or proceeding for ... 

mistake, inadvertence, surprise, or excusable neglect." "Excusable 

neglect" has been defined as:

"A failure -- which the law will excuse -- to take some proper 

step at the proper time ... not because of the party's own 

carelessness, inattention, or willful disregard of the court's 

process, but because of some unexpected or unavoidable 

hindrance or accident or because of reliance on the care and 

vigilance of the party's counsel or on a promise made by the 

adverse party." 

Black's Law Dictionary 1244 (11th ed. 2019). Similarly, this Court has 

described "excusable neglect" as follows:

"'If a judgment be entered against a party in his 

absence, before he can be relieved of the judgment he must 

show that it was the result of a mistake or inadvertence which 

reasonable care could not have avoided, a surprise which 

reasonable precaution could not have prevented, or a 

negligence which reasonable prudence could not have

anticipated.'"

DaLee, 561 So. 2d at 1091 (quoting McDavid v. United Mercantile 

Agencies, Inc., 248 Ala 297, 301, 27 So. 2d 499, 503 (1946)).
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Here, the Wombles assert that they were, in fact, pursuing their 

case -- they had participated in all teleconferences, and they had stayed 

in communication with Moore's attorney. As stated in Gary Womble's 

affidavit, the Wombles further contend that their failure to attend the 

trial was based on a "misunderstanding that the case would be continued 

if [they] needed additional time." Therefore, the Wombles argue, their

failure to appear at the trial was inadvertent and, therefore, the 

judgment should be set aside on the basis of excusable neglect.

Moore contends that this case is akin to Penn v. Irby, 496 So. 2d 

751 (Ala. 1986), a case in which this Court affirmed a trial court's order 

denying a plaintiff's Rule 60(b)(1) motion seeking relief from a judgment 

of dismissal for lack of prosecution. The pro se plaintiff in Penn failed to 

attend numerous trial settings, and although the plaintiff denied 

knowledge of the last trial setting, the record indicated that he had been 

given notice of that setting multiple times. This Court concluded that the 

record did not establish that the trial court had exceeded its discretion in 

denying the Rule 60(b)(1) motion. Id. at 752.

Moore also notes that "the fact that a party was acting pro se 

typically does not qualify as the kind of 'mistake, inadvertence, ... or 
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excusable neglect' countenanced by [Rule 60(b)(1)]," Ex parte Branson 

Mach., LLC, 78 So. 3d 950, 955 (Ala. 2011), and that a party acting pro 

se is charged with the duty of taking the appropriate legal steps to protect 

that party's interests and cannot rely on the lack of counsel as a valid 

ground under Rule 60(b)(1) to set aside a judgment. Id. (quoting Ex parte 

Spriggs Enters., 879 So. 2d 587, 591-92 (Ala. Civ. App. 2003)).

Here, based on the record before us, we cannot say that the trial 

court erred in concluding that the Wombles' failure to appear for trial 

was not "'the result of a mistake or inadvertence which reasonable care 

could not have avoided, a surprise which reasonable precaution could not 

have prevented, or a negligence which reasonable prudence could not 

have anticipated.'" DaLee, 561 So. 2d at 1091. The Wombles were

indisputably aware of the trial setting. The Wombles' sole excuse for 

their failure to appear at trial was that they were under a

"misunderstanding that the case would be continued if [they] needed 

additional time." The Wombles do not identify on what information their 

misunderstanding was based, nor do they assert that they communicated 

a need for additional time. Moreover, the Wombles had been warned by 

the trial court that no continuance would be granted absent a motion 
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establishing "good cause," which the Wombles did not file. Moreover, the 

Wombles' claim that they had intended to prosecute the matter was 

belied by their failure to respond to discovery, to disclose potential 

witnesses, to retain new counsel before the trial setting, or to otherwise 

prepare their case for trial. Accordingly, based on the limited evidence 

presented to the trial court in support of the Wombles' Rule 60(b)(1) 

motion, the Wombles have not demonstrated that the trial court exceeded

its discretion in denying that motion.

AFFIRMED.

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