Late Summary-Judgment Responses Are Not Automatically Revived by a Later Hearing, and Rule 54(b) Certification Does Not Dismiss Pending Claims

1. Introduction

This decision addresses two procedural questions arising from commercial-lease litigation: when a trial court may exclude an untimely response to a summary-judgment motion, and whether certification of a partial judgment under Rule 54(b), Alabama Rules of Civil Procedure, permits dismissal of claims that remain unresolved.

The Supreme Court of Alabama affirmed the exclusion of a response filed on the Friday before a Monday hearing. Under the version of the time-computation rule applied by the Court, the intervening weekend did not count toward the required two-day response period. The Court also held that a later hearing to obtain an outstanding ruling did not automatically reopen the opportunity to submit the previously excluded response.

Separately, the Court upheld certification of the partial summary judgment but reversed language purporting to dismiss the entire action. Individual personal-injury claims and a determination of the landlord’s damages remained pending. The opinion therefore reinforces existing procedural rules rather than establishing a new substantive rule governing mold exposure, commercial leases, or contractual indemnity.

2. Background and Procedural History

The parties and the underlying dispute

Commercial Properties, Inc. (“the landlord”), leased two shopping-center suites to Montgomery Civic Ballet, Inc., doing business as Montgomery Ballet Studios (“the Ballet”), under agreements executed in May 2008 and January 2012. Dionysios Mitsios, referred to as Danny, was the Ballet’s executive director. Ourania Charalambidou, referred to as Rania, was his wife.

The Ballet vacated the premises in December 2020, alleging that the landlord had failed to eliminate mold. The following month, the Ballet, Danny, and Rania sued. Danny and Rania alleged personal injuries from mold exposure; the Ballet alleged damage to personal property, including costumes.

The landlord counterclaimed for unpaid rent and sought contractual defense and indemnification from the Ballet against Danny’s and Rania’s claims. The leases contained indemnification, default, and attorney-fee provisions. Because the plaintiffs did not challenge the provisions on which the landlord relied, the Supreme Court did not quote or interpret their language.

The partial-summary-judgment motion

In February 2023, the landlord moved for partial summary judgment concerning the claims involving the Ballet. It requested:

• A determination that the Ballet owed $65,827.50 in unpaid rent, with prejudgment interest and fees to be addressed later;
• A determination that the Ballet owed defense and indemnity against Danny’s and Rania’s claims, with further proceedings contemplated concerning attorney fees; and
• Judgment against the Ballet on its claims against the landlord.

The motion did not seek judgment on Danny’s and Rania’s individual personal-injury claims.

The disputed response and subsequent orders

On March 25, 2025, the trial court scheduled the motion for a hearing on Monday, April 21, 2025. The plaintiffs filed their opposition on Friday, April 18. The landlord moved to strike it as untimely, and the trial court granted that motion on the hearing date. The court did not then enter an order deciding the partial-summary-judgment motion.

In October 2025, the landlord requested the missing ruling. The trial court scheduled a December 3 hearing, stating that all “pending motions” would be heard. The plaintiffs treated that language as an opportunity to resubmit the same opposition. On December 22, the trial court rejected the renewed response and entered partial summary judgment for the landlord.

At the plaintiffs’ request, the trial court certified the partial judgment as final under Rule 54(b) on February 3, 2026. The same order stated that “this case is dismissed.” The plaintiffs appealed the rulings excluding their response; the landlord cross-appealed the purported dismissal of the entire action.

3. Summary of the Supreme Court’s Decision

Accordingly, the Court affirmed in appeal SC-2026-0191. In SC-2026-0190, it affirmed the Rule 54(b) certification, reversed the dismissal of the entire action, and remanded for further proceedings.

4. Precedents Cited and Their Influence

Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004)

The Court quoted Dow v. Alabama Democratic Party for the general summary-judgment framework. Appellate review is de novo: the reviewing court applies the same legal standard as the trial court and determines whether the movant established the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.

This supplied the background standard, but the plaintiffs’ preserved appeal concerned exclusion of their response rather than the substantive merits of the judgment. The discretionary standard governing that exclusion was therefore central to the actual appellate dispute.

Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74 (Ala. 2003)

This decision appeared within the quotation from Dow v. Alabama Democratic Party and supported de novo review of summary judgments. Its significance is the distinction between independently reviewing whether judgment was legally warranted and reviewing a trial court’s procedural decision about whether to accept late material.

Blue Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949, 952–53 (Ala. 2004)

Also cited within the quoted standard, this case supported the requirement that a summary-judgment movant make a prima facie showing of no genuine material factual dispute and entitlement to judgment as a matter of law.

That requirement matters even when opposition has been excluded. An unopposed motion is not automatically meritorious merely because no response remains before the court. Here, however, the Supreme Court did not conduct a preserved merits review of the landlord’s contractual claims.

Speer v. Pin Palace Bowling Alley, 599 So. 2d 1140 (Ala. 1992)

Speer v. Pin Palace Bowling Alley supplied the controlling approach to the exclusion ruling. A trial court’s decision to strike untimely summary-judgment opposition is reviewed for an excess of discretion.

The Court relied on this authority both when identifying the standard of review and when affirming the challenged orders. Its use confirms that exclusion is a permissible exercise of discretion, not an inevitable consequence that every late submission must face. The plaintiffs failed to establish that the trial court exceeded that discretion in the circumstances presented.

Elliott Builders, Inc. v. Timbercreek Prop. Owners Ass'n, 128 So. 3d 755, 765 (Ala. Civ. App. 2013)

This authority directly supported reading Rule 56(c)(2)’s two-day opposition requirement together with Rule 6(a). The quoted passage described the required interval as “two business days.” It therefore answered the plaintiffs’ contention that filing three calendar days before the hearing was sufficient.

The precedent’s role was computational: it explained why a Friday submission was too late for the Monday hearing under the applicable rules.

Moore v. Prudential Residential Services Ltd. Partnership, 849 So. 2d 914, 926 (Ala. 2002)

The plaintiffs invoked this case for the proposition that Rule 56(c)(2) gives a nonmoving party rights to notice and a hearing. The Supreme Court did not reject that principle; it found that the circumstances did not establish its violation.

The plaintiffs had notice of the scheduled summary-judgment hearing and, according to the Court, of the motion to strike filed and decided that day. Any failure by their counsel to attend did not establish error by the trial court. The Court thus distinguished protection against inadequate notice from relief against the consequences of a missed deadline or nonattendance.

Lloyd Noland Hosp. v. Durham, 906 So. 2d 157, 173 (Ala. 2005)

This case governed the scope of appellate review. The plaintiffs attempted to challenge the merits of the partial summary judgment for the first time in their reply brief. Applying the rule that an issue first raised in reply will not be considered, the Court declined to address those arguments.

This limitation is essential to understanding the decision: affirmance should not be mistaken for a developed substantive endorsement of the landlord’s interpretation of the leases or a resolution of the mold-related allegations.

5. Analysis of the Court’s Legal Reasoning

A. The response deadline depended on reading two rules together

Rule 56(c)(2) required opposition to be served two days before the hearing. The version of Rule 6(a) applied by the Court excluded the triggering day and, for periods of 11 days or less, intermediate Saturdays, Sundays, and legal holidays.

For the Monday, April 21 hearing, the computation was:

1. Exclude the hearing date, April 21.
2. Exclude Saturday and Sunday, April 19 and 20.
3. Count Friday, April 18, as the first business day before the hearing.
4. Count Thursday, April 17, as the second business day.

The opposition was therefore due April 17. Filing on April 18 missed the deadline, despite occurring three calendar days before the hearing.

The Court specifically referred to the version of Rule 6(a) applicable to the motion. The decision should not be detached from that qualification: future deadline calculations must use the governing version of the relevant rules. Practitioners must also distinguish filing from service, because the language quoted from Rule 56(c)(2) expressly addresses service.

B. Procedural flexibility must be requested through an appropriate mechanism

The plaintiffs argued that the timing requirements were procedural and subject to the trial court’s discretion. The Court accepted the existence of discretion but emphasized that the plaintiffs had not invoked available avenues for relief:

• Rule 56(f): a mechanism for seeking a continuance when necessary evidentiary material is unavailable; and
• Rule 6(b): a mechanism for requesting enlargement of a period for “cause shown.”

The reasoning distinguishes the court’s power to grant procedural relief from a party’s entitlement to receive it without a proper request. Simply asserting that deadlines are flexible did not demonstrate that exclusion was an excessive exercise of discretion.

C. Notice and an opportunity to participate did not require acceptance of late papers

The plaintiffs’ hearing argument did not overcome the record showing that a hearing had been scheduled and the motion to strike had been decided that day. The absence of a transcript did not establish that no hearing occurred. The Court also declined to fault the trial court for any failure by plaintiffs’ counsel to attend.

Additionally, the plaintiffs supplied no authority establishing that striking their response itself deprived them of a hearing. The Court referenced Rule 28, Alabama Rules of Appellate Procedure, in addressing that unsupported contention. The result underscores the difference between denial of an opportunity to participate and failure to use an opportunity that was provided.

D. A later hearing did not automatically reset the opposition deadline

The trial court’s failure to enter its summary-judgment ruling immediately after the April hearing did not erase its order excluding the plaintiffs’ response. Nor did the later reference to “pending motions” automatically invite renewed opposition.

The Supreme Court treated the December hearing as a proceeding to obtain the ruling the trial court still owed, not a fresh hearing reopening the motion for submissions. The trial court’s own explanation—“So I just owe [the landlord] an order”—supported that reading.

The holding is correspondingly limited. It does not establish that trial courts can never reconsider excluded material. It establishes that the later hearing, in these circumstances, did not itself revive the response or make the prior exclusion moot.

E. Rule 54(b) certification did not dispose of matters outside the partial judgment

The landlord’s motion concerned the Ballet’s property-damage claims and the landlord’s counterclaims against the Ballet. It did not address Danny’s and Rania’s individual injury claims. In addition, the amount of damages owed to the landlord remained unresolved.

The Supreme Court therefore found the combination of Rule 54(b) certification and wholesale dismissal legally inconsistent. Certification permitted the partial judgment to receive final treatment for the appeal at issue; it did not provide a basis to eliminate the remaining litigation.

The Court affirmed the certification itself. Its opinion should not be read more broadly as holding that every liability determination with unresolved damages is eligible for Rule 54(b) certification. It did not undertake that broader analysis or identify every component of the partial judgment as an independently final monetary award.

6. Potential Impact

Summary-judgment practice

The decision warns litigants against relying on calendar-day intuition when short procedural periods are involved. Opposition deadlines require coordinated reading of the motion rule and the applicable time-computation rule.

It also encourages timely, explicit applications for extensions or continuances. A party seeking relief should identify the appropriate procedural basis and obtain a ruling rather than assume that the court will overlook lateness.

Delayed rulings and subsequent hearings

A delay between argument and decision does not automatically reopen briefing. Parties should determine whether a later hearing actually permits supplemental submissions or merely concerns entry of an outstanding order.

Appellate briefing

The refusal to consider merits arguments first presented in reply reinforces the importance of identifying all appellate grounds in the opening brief. A procedural challenge to exclusion of evidence is not a substitute for a separately developed challenge to the resulting judgment.

Partial judgments in multiparty litigation

The decision emphasizes precise judgment drafting. Orders should distinguish adjudicated claims, certified rulings, unresolved damages, and claims that remain pending. Broad dismissal language can improperly terminate litigation beyond the matters actually decided.

Commercial-lease disputes

The substantive implications are limited. The opinion does not establish a general rule concerning mold remediation, tenant abandonment, personal-injury liability, or enforceability of lease indemnification provisions. Its principal significance lies in civil procedure and the scope of the trial court’s disposition.

7. Complex Concepts Simplified

Summary judgment

A decision without trial when no genuine dispute over a material fact requires resolution and the moving party is legally entitled to judgment.

Partial summary judgment

A ruling resolving only part of a case. Other claims or issues may remain for later proceedings.

De novo review

Independent appellate review of the legal issue, without deference to the trial court’s conclusion.

Excess-of-discretion review

Review asking whether the trial court went beyond the permissible range of procedural choices, rather than whether the appellate court would have made the same choice.

Motion to strike

A request to exclude material from consideration. Here, the reason was untimeliness, not a decision about whether the opposition’s factual assertions were true.

Rule 54(b) certification

A mechanism allowing a qualifying judgment resolving fewer than all claims or parties to be treated as final for appeal. It does not itself decide the remaining claims.

Defense and indemnity

Related but distinct contractual obligations: defense concerns responding to claims, while indemnity concerns responsibility for covered losses or liabilities. The Court did not interpret the particular lease language here.

Remand

Returning the case to the trial court for further proceedings consistent with the appellate decision.

8. Conclusion

Commercial Properties, Inc. v. Charalambidou reinforces three procedural principles: short deadlines must be calculated under the applicable computation rules; a later hearing does not automatically revive previously excluded opposition; and Rule 54(b) certification does not dismiss unresolved claims.

The plaintiffs’ procedural appeal failed, but the landlord successfully challenged the blanket dismissal. The remaining individual claims and unresolved damages issues return to the trial court, without a substantive appellate determination of the mold-related allegations or the disputed leases’ meaning.