In
Tucker v. Richard M. Scrushy Charitable Foundation, Inc., [Ms. 1100736, Apr. 6, 2012] __ So. 3d __(Ala. 2012), the Supreme Court
reversed the trial court's grant of summary judgment because the plaintiffs
were not given ten day notice of the hearing as required by Ala. R. Civ.
P. 56. In this case, the defendant filed a request for summary judgment
on one of Plaintiffs' claims the day before an already-scheduled hearing
for summary judgment on Plaintiffs' other claims. Nothing in the record
indicated the plaintiffs consented to the motion being heard on less than
ten days' notice as required under Rule 56. The Court held that non-compliance
with the ten-day notice rule does not constitute reversible error absent
a showing of actual prejudice. Here, the Court found that the plaintiffs
were caused actual prejudice because they did not have an opportunity
to even respond to the defendant's summary judgment request since
it was filed only one day before the scheduled hearing.
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