Bonnie Jean Myers v. BBH PBMC, LLC, d/b/a Princeton Baptist Medical Center; Brookwood Baptist Health 2, LLC; and Healthcare Network Alabama, Inc.

Rel: August 29, 2025

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
SPECIAL TERM, 2025

_________________________

SC-2024-0833
_________________________

Bonnie Jean Myers

v.

BBH PBMC, LLC, d/b/a Princeton Baptist Medical Center;
Brookwood Baptist Health 2, LLC; and Healthcare Network
Alabama, Inc.

Appeal from Jefferson Circuit Court
(CV-21-92)

McCOOL, Justice.
SC-2024-0833

Bonnie Jean Myers appeals from a judgment of the Jefferson

Circuit Court that dismissed the complaint she had filed against BBH

PBMC, LLC, d/b/a Princeton Baptist Medical Center; Brookwood Baptist

Health 2, LLC; HealthCare Network Alabama, Inc.; and other fictitiously

named defendants.

Facts and Procedural History

On December 11, 2020, Myers filed a complaint against the

defendants, in which she asserted a single negligence claim. That claim

alleged that, while walking through a waiting room in Princeton Baptist

Medical Center on December 12, 2018, Myers "tripped over an

obstruction in the form of a sign and/or display that had been placed in

the waiting room and injured herself." Throughout 2021, Myers and the

named defendants served each other with discovery notices, and Myers

sat for a deposition. However, it does not appear that any in-court

proceedings occurred during that year or the following two years. In

January 2024, the circuit court issued an order requiring the parties to

attempt to mediate their dispute, but mediation was unsuccessful.

On June 25, 2024, the circuit court issued an order scheduling a

status conference for August 9, 2024, which, for all that appears in the

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record, was to be the parties' first appearance in court. That order

expressly stated: "All parties must appear." However, neither Myers nor

her attorney appeared for the August 9, 2024, status conference, and the

circuit court issued the following judgment that same day:

"This matter came before the court for status conference on
this date. All parties were ordered on June 25, 2024, to
appear for said hearing on this date. Counsel for
Defendant[s], Deborah Wakefield, appeared. Counsel for
Plaintiff failed to appear. The court allowed a fifteen-minute
grace period for Plaintiff to appear, to no avail. Therefore,
this matter is dismissed in its entirety without prejudice."

Four days later, Myers's attorney filed a motion to set aside the

judgment of dismissal. That motion states, in relevant part:

"The reason undersigned did not appear at the status
conference on August [9], 2024, is that undersigned did not
see the order setting the hearing, and as such did not have the
court date on the calendar.

"Undersigned did not see the order as a result of the email
containing the order being accidentally saved to an email
folder for this case prior to being opened. Undersigned notes
that the order setting the status conference was the third
order issued the morning of June 25, 2024, in this case, and
assumes that when the first two orders (both of which were
opened and printed for the file) were moved to the email folder
for this case, the third email was inadvertently moved as well
without its attachment (the order setting hearing) being
opened and printed for the file.

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"This case recently underwent an attempted mediation at
substantial cost to [Myers], and both [Myers] and undersigned
counsel are prepared to move forward with litigation.

"Undersigned apologizes for the inconvenience experienced by
the court and by opposing counsel related to her oversight,
and asks that the order dismissing the case be set aside so
that the status conference … may be rescheduled and the case
resolved on the merits.

"[Myers] herself had no way to avoid this circumstance as she
does not independently receive emails and orders, rendering
the dismissal of the case particularly prejudicial to her, as she
was unaware of the hearing through no fault of her own.

"Undersigned asserts that caselaw supports trial on the
merits for all cases when possible, and further asserts that
her failure to appear for the status conference was excusable
neglect rather than intentional or contemptible conduct such
as would require dismissal of the case.

"As noted above, the dismissal of the case would be extremely
prejudicial to [Myers], whereas the conclusion of the litigation
would not be prejudicial to the defendant[s] in any way."

The circuit court did not rule on Myers's postjudgment motion, and, thus,

the motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.

Myers filed a timely notice of appeal.

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
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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).'

"Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.
2d 332, 341 (Ala. 1991). Moreover, ' "[w]illful" is used in
contradistinction to accidental or involuntary noncompliance.
No wrongful motive or intent is necessary to show willful
conduct.' Selby v. Money, 403 So. 2d 218, 221 (Ala. 1981)."

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

Discussion

Myers argues on appeal that the circuit court exceeded the bounds

of its discretion by dismissing her complaint pursuant to Rule 41(b), Ala.

R. Civ. P., which authorizes a court to dismiss a complaint "[f]or failure

of the plaintiff … to comply with … any order of court." Although the

circuit court did not state in its judgment of dismissal that it was
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dismissing Myers's complaint pursuant to Rule 41(b), it is clear from the

judgment that the court dismissed the complaint based on Myers's failure

to appear for the August 9, 2024, status conference. See S.C. v. Autauga

Cnty. Bd. of Educ., 325 So. 3d 793, 797 n.2 (Ala. 2020) (recognizing that

the trial court had dismissed the plaintiffs' complaint pursuant to Rule

41(b), even though there was no indication that the court had relied on

that rule, because the dismissal order "state[d] that the dismissal was

the result of [the plaintiffs'] failure to appear at [a] scheduled hearing").

According to Myers, the circuit court was not justified in dismissing her

complaint because, she says, she "did not fail to prosecute her case or

delay in any way the progress of her case," Myers's brief, p. 17, and her

attorney "did not engage in willful or contumacious conduct in missing

the … status hearing," Myers's brief, p. 15.

Before reaching the merits of Myers's argument, we note that the

judgment indicates that the circuit court purported to dismiss Myers's

complaint without prejudice, and, generally, an order dismissing a

complaint without prejudice is not a final judgment that will support an

appeal. Walker Brothers Inv., Inc. v. City of Mobile, 252 So. 3d 57, 63

(Ala. 2017) (citing Palughi v. Dow, 659 So. 2d 112, 113 (Ala. 1995)).

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However, although the circuit court stated that it was dismissing Myers's

complaint without prejudice, the practical effect of its judgment was to

dismiss her complaint with prejudice. This is so because Myers's

negligence claim accrued on December 12, 2018 -- the date of her alleged

accident in Princeton Baptist Medical Center -- and, as a result, the

statute-of-limitations period for her claim expired on December 12, 2020.

See § 6-2-38(l), Ala. Code 1975 (providing a two-year statute of

limitations for negligence claims). 1 Thus, at the time the circuit court

issued its judgment on August 9, 2024, the limitations period for Myers's

claim had long since expired, which means that the dismissal of her

complaint was, in fact, a dismissal with prejudice, i.e., a final judgment

that will support Myers's appeal. See Riddlesprigger v. Ervin, 519 So. 2d

486, 487 (Ala. 1987) (noting that, although the trial court had purported

to dismiss the plaintiff's complaint without prejudice, "the practical effect

1Although Myers asserted her negligence claim against various
medical providers, it does not appear from the allegations in her
complaint that her claim is governed by the Alabama Medical Liability
Act, see § 6-5-480 et seq., Ala. Code 1975, which governs claims against
a medical provider that occur "because of the provision of medical
services." Ex parte Vanderwall, 201 So. 3d 525, 537-38 (Ala. 2015)
(emphasis omitted). Regardless, the Alabama Medical Liability Act also
provides a two-year statute of limitations. See § 6-5-482, Ala. Code 1975.
7
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… [was] a dismissal with prejudice, because, prior to the dismissal, the

statute of limitations … had expired" (emphasis added)); and Taylor v.

Hibbett Sporting Goods, Inc., 267 So. 3d 859, 860 n.1 (Ala. Civ. App. 2018)

("The dismissal order specifically recites that the dismissal is without

prejudice, which would generally preclude an appeal. However, the

statute of limitations on Taylor's workers' compensation action had

already run at the time of the dismissal order, thus rendering the

dismissal, in effect, a dismissal with prejudice as to that count of Taylor's

complaint." (internal citation omitted)).

Having determined that Myers's appeal is properly before us, we

turn to the merits of her argument. As noted, Myers argues that the

circuit court exceeded the bounds of its discretion by dismissing her

complaint because, she says, she "did not fail to prosecute her case or

delay in any way the progress of her case" and her attorney "did not

engage in willful or contumacious conduct in missing the … status

hearing." In support of her argument, Myers cites S.C., supra, in which

this Court stated:

" 'Rule 41(b), Ala. R. Civ. P., permits a trial court to
dismiss an action when a plaintiff fails to prosecute that
action or fails to comply with the Rules of Civil Procedure or
orders of the court. … Typically, an appellate court will
8
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review a dismissal pursuant to Rule 41(b) to determine only
whether the trial court abused its discretion. Riddlesprigger
[v. Ervin], 519 So. 2d [486,] 487 [(Ala. 1987)].

" ' "However, since dismissal with prejudice is a drastic
sanction, it is to be applied only in extreme situations," and
"appellate courts will carefully scrutinize such orders and
occasionally will find it necessary to set them aside." Smith
v. Wilcox County Bd. of Educ., 365 So. 2d 659, 661 (Ala. 1978)
(citing, among other things, 9 Wright & Miller, Federal
Practice & Procedure § 2370, p. 203, n. 1). [The Alabama
Supreme Court] has explained that "the plaintiff's conduct
must mandate the dismissal," and it has further reiterated
the rule espoused by the United States Court of Appeals for
the Fifth Circuit that a trial court "may dismiss with prejudice
an action 'only in the face of a clear record of delay or
contumacious conduct by the plaintiff.' " Smith, 365 So. 2d at
661 (quoting Durham v. Florida East Coast Ry. Co., 385 F.2d
366, 368 (5th Cir. 1967)).' "

325 So. 3d at 797-98 (quoting Kendrick v. Earl's, Inc., 987 So. 2d 589,

592-93 (Ala. Civ. App. 2007)).

The Court then went on to discuss those types of cases in which a

Rule 41(b) dismissal has been held to be proper and those types of cases

in which it has been held to be improper. Proper dismissals, the Court

explained, "involve flagrant behavior by the plaintiff," such as, for

example, when a plaintiff "sought and obtained a series of continuances

over a period of 20 months, failed to appear at 2 scheduled pretrial

conferences, and failed to appear on the date the case was set for trial."

9
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S.C., 325 So. 2d at 798 (citing Cassady v. Montgomery Cnty. Bd. of Educ.,

496 So. 2d 764 (Ala. 1986)) (emphasis added). On the other hand,

"[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. In Smith v. Savage, 655 So. 2d
1022 (Ala. Civ. App. 1995), the pro se plaintiffs sued the
defendant alleging wrongful detainer of personal property.
The plaintiffs failed to appear at trial at 8:30 a.m. as directed
by the court's docket list. One of the plaintiffs was
incarcerated at the time of trial, and the other plaintiff stated
in her affidavit that she did not reach the courthouse until
9:30 a.m. on the morning scheduled for trial because her
automobile had a flat tire. Based on the record, there did not
appear to be any undue delay, willful default, or contumacious
conduct on the part of the plaintiffs, and the Court of Civil
Appeals held that the trial court exceeded its discretion in
dismissing the plaintiffs' action with prejudice."

S.C., 325 So. 3d at 798.

Smith v. Savage, 655 So. 2d 1022 (Ala. Civ. App. 1995), which this

Court discussed in S.C., is not the only case in which an appellate court

has held that a trial court erred by dismissing a complaint based on the

plaintiff's inadvertent failure to attend a scheduled court proceeding. In

Gill v. Cobern, 36 So. 3d 31 (Ala. 2009), the trial court dismissed Lenzie

Gill's complaint with prejudice because his attorney had "failed to appear

at the pretrial conference." Id. at 32. Gill then filed a motion to vacate

the judgment of dismissal, arguing that "the failure of [his] attorney to
10
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appear at the pretrial conference was not willful, but the result of a

calendaring error." Id. The trial court denied that motion, and Gill

appealed. Relying on its prior decision in Cabaniss v. Wilson, 501 So. 2d

1177 (Ala. 1986), this Court reversed the judgment:

"In Cabaniss v. Wilson, 501 So. 2d 1177 (Ala. 1986), the
plaintiffs' attorney failed to appear at a hearing on a motion
for a summary judgment. At the hearing, counsel for the
defendants orally moved to dismiss the plaintiffs' complaint
with prejudice under Rule 41(b), Ala. R. Civ. P., for failure to
prosecute. The trial court granted the defendants' Rule 41(b)
motion, dismissing the plaintiffs' complaint with prejudice.
Subsequently, the plaintiffs filed a motion to alter, amend, or
vacate the judgment, claiming that the summary-judgment
hearing was 'inadvertently left off the calendar of plaintiffs'
counsel ....' 501 So. 2d at 1179. The trial court denied the
plaintiffs' motion, and the plaintiffs appealed. 501 So. 2d at
1179-80.

"Applying the well established rules concerning the
review of a trial court's dismissal with prejudice of a plaintiff's
claims, this Court held that the conduct of the plaintiffs'
attorney did not appear to be willful or contumacious because
'the failure of the plaintiffs' attorney to appear in court [at the
hearing on the summary-judgment motion] was allegedly
inadvertent on his part.' 501 So. 2d at 1181. Because there
was no evidence to support the trial court's dismissal with
prejudice, this Court reversed its order dismissing the
plaintiffs' claims and remanded the cause for further
proceedings.

"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
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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
his absence was the result of a calendaring error and that it
was not the result of willful or contumacious conduct. The
motion alleged that Gill's attorney also represented Gill in an
action filed in the federal court against Progressive, an
original party in the present case, and that Gill's attorney
deleted the pretrial conference in this action from his calendar
on the mistaken belief that it pertained to the action filed in
federal court. No brief in opposition to Gill's motion was filed,
and the motion was denied by operation of law 90 days after
it was filed. See Rule 59.1, Ala. R. Civ. P. 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."

Gill, 36 So. 3d at 33-34 (footnote omitted).

Relying on Gill and Cabaniss, the Court of Civil Appeals has

likewise held that a trial court's dismissal of a complaint was reversible

error in circumstances that are quite similar to those in this case. In Ash

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

her attorney failed to appear for trial, and the trial court dismissed the

case for failure to prosecute. The plaintiff then filed a postjudgment

motion in which she "argued that her attorney had 'inadvertently failed

to open the email containing the order setting the case for trial.' " Id. at

1287. The trial court denied the plaintiff's postjudgment motion, and the

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Court of Civil Appeals reversed that ruling on the basis that, " '[o]ther

than [the plaintiff's] failure to appear on the date set for trial, the case

action summary reveals no delay, default, or dereliction on [her] part.' "

Id. at 1289 (quoting Goodley v. Standard Furniture Mfg. Co., 716 So. 2d

226, 227 (Ala. Civ. App. 1998)).

Similarly, in McGinnis v. Steeleman, 199 So. 3d 69 (Ala. Civ. App.

2015), the trial court dismissed a father's petition seeking postminority

child support from the child's mother because the father had failed to

appear for a hearing on the mother's motion to dismiss the petition. Once

again relying on Gill and Cabaniss, the Court of Civil Appeals reversed

the judgment of dismissal because

"there [was] no indication that there was a clear record of
delay by the father. Rather, the father indicated in his …
postjudgment motion that his failure to attend the hearing
was the result of his counsel's lack of awareness of the hearing
due to 'a break-down in office procedures governing the
calendaring of motion hearings by counsel's staff.' … [T]he
father's absence from the hearing on the mother's motion to
dismiss was the result of a calendaring error on the part of his
counsel. We conclude that the father's failure to attend the
hearing, without more, does not amount to contumacious
conduct or a willful default such that dismissal was
warranted."

199 So. 3d at 73.

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This case is no different than Gill, Cabaniss, Ash, and McGinnis.

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. To the contrary, Myers has actively sought

discovery from the named defendants, sat for a deposition, and attempted

to mediate the parties' dispute. 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. That, as noted, is

exactly what happened in Ash and is similar to what happened in Gill,

Cabaniss, and McGinnis.

In short, there is nothing in the record to indicate that Myers and

her attorney willfully or contumaciously refused to appear for the August

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9, 2024, status conference, and, in the absence of such evidence, this case

is far from one of the " ' "extreme situations" ' " in which dismissal of the

complaint is warranted. S.C., 325 So. 3d at 797 (citations omitted). Thus,

the circuit court exceeded the bounds of its discretion by imposing "the

harsh sanction of dismissal," id. at 798, and its judgment of dismissal is

therefore due to be reversed.

We acknowledge the named defendants' argument that Myers

presented no evidence in support of her postjudgment motion and that

she instead relied on the allegations of her attorney. That much is true.

However, there is no indication that the plaintiffs in Gill, Cabaniss, Ash,

and McGinnis supported their postjudgment motions with evidence

indicating that their and their attorneys' failure to attend a scheduled

court proceeding had been inadvertent. 2 Nevertheless, the reviewing

courts in those cases accepted the allegations in the plaintiffs'

postjudgment motions at face value in light of the fact that there was no

other evidence that tended to conflict with those allegations. Indeed, it

2The plaintiffs in Cabaniss did submit an affidavit with their
postjudgment motion, but that affidavit was not submitted in support of
the plaintiffs' contention that their attorney had inadvertently failed to
attend a hearing.
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is apparent from the face of Gill that this Court relied on the allegations

that the attorney raised in the postjudgment motion in holding that the

entry of the dismissal order in that case was reversible error. See Gill,

36 So. 3d at 33 (citing only the attorney's allegations in his postjudgment

motion and the lack of any indication in the record of willful or

contumacious conduct in holding that dismissal was unwarranted). We

likewise accept the allegations in Myers's postjudgment motion at face

value, given that there is nothing in the record to indicate that Myers

and her attorney willfully or contumaciously refused to attend the

August 9, 2024, status conference. Moreover, as the Court of Civil

Appeals noted in Ash, " ' " '[a]ttorneys are officers of the court and " 'when

they address the judge solemnly upon a matter before the court, their

declarations are virtually made under oath.' " ' " ' " Ash, 349 So. 3d at 1287

n.2 (quoting Ex parte Owen, 860 So. 2d 887, 880 (Ala. 2003)) (other

citations omitted).

Conclusion

The circuit court exceeded the bounds of its discretion by dismissing

Myers's complaint pursuant to Rule 41(b) because the only evidence to

support dismissal is the fact that Myers and her attorney inadvertently

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failed to appear in court for the first status conference. We therefore

reverse the circuit court's judgment of dismissal and remand the case for

further proceedings.

REVERSED AND REMANDED.

Stewart, C.J., and Bryan and Mendheim, JJ., concur.

Shaw, J., concurs in the result, with opinion.

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SHAW, Justice (concurring in the result).

I respectfully concur in the result.

The trial court dismissed the action of the appellant, Bonnie Myers,

apparently under Rule 41(b), Ala. R. Civ. P., for failure to prosecute

because Myers did not appear at a hearing.

" '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 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. Therefore
we will reverse that decision only upon a showing of abuse of
discretion.' "

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

Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So. 2d 332, 341 (Ala.

1991)) (citations omitted; emphasis added).

In the trial court, Myers filed a motion to set aside the dismissal of

her action. This motion was denied by operation of law. On appeal,

Myers argues that her reason for missing the hearing, which was argued

in her motion to set aside, made the dismissal improper. However, the
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appellees point out that Myers did not, in her motion below, substantiate

her excuse with evidence. Instead, her motion contained only unsworn

assertions and representations by her counsel. 3

In the face of the appellants' argument that her motion to set aside

the dismissal was not supported by evidence, Myers provides no

response. Specifically, she filed no reply brief to challenge the appellants'

argument, and the three cases she cites in her opening brief do not hold

that the assertions in her motion can be used to support it. It is the

burden of the appellant to demonstrate on appeal that a lower court's

decision must be reversed. Reagan v. Alabama Alcoholic Beverage

Control Bd., 339 So. 3d 211, 217 (Ala. 2021) ("the appellant ... has the

burden of demonstrating that the trial court erred to reversal …."), and

Johnson v. Life Ins. Co. of Alabama, 581 So. 2d 438, 444 (Ala. 1991) ("An

3See Ex parte Merrill, 264 So. 3d 855, 860 n.4 (Ala. 2018) ("Motions,

statements in motions, and arguments of counsel are not evidence."), and
Fountain Fin., Inc. v. Hines, 788 So. 2d 155, 159 (Ala. 2000)
(" '[S]tatements in motions are not evidence and are therefore not entitled
to evidentiary weight.' " (quoting Singh v. Immigration & Naturalization
Serv., 213 F.3d 1050, 1054 n. 8 (9th Cir. 2000))). I believe that we should
require evidence to be submitted in support of a motion to set aside a
Rule 41(b) dismissal. Cf. Ex parte Bhones, 285 So. 3d 740, 746 (Ala. 2019)
(noting that a motion to set aside a default judgment must be supported
by evidence and rejecting "bare, unverified allegations" of counsel).
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appellant has the burden of showing that a trial court has committed

error.").

Nevertheless, caselaw suggests that even "an attorney's unexcused

failure to appear at a scheduled hearing" may be "insufficient to show a

failure to prosecute." Burdeshaw v. White, 585 So. 2d 842, 849 (Ala.

1991). In the absence of a "clear record of delay or contumacious

conduct," we have reversed Rule 41(b) dismissals that were based on a

failure of a party to attend a hearing. S.C. v. Autauga Cnty. Board of

Education, 325 So. 3d 793, 799 (Ala. 2020); see also Burdeshaw, supra.

I am hesitant to presume that a party's failure to attend a hearing would,

alone, never support a dismissal under Rule 41(b). Generally speaking,

in "the absence of evidence in the record, this Court will not assume error

on the part of the trial court." Zaden v. Elkus, 881 So. 2d 993, 1009 (Ala.

2003). But our caselaw, in reviewing such dismissals, requires a clear

record to support a trial court's decision. I question whether this always

affords a trial court the necessary deference.

20