Southampton 100, LLC v. Alabama Department of Revenue

Rel: November 26, 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
OCTOBER TERM, 2025-2026

_________________________

SC-2025-0227
_________________________

Southampton 100, LLC

v.

Alabama Department of Revenue

Appeal from Jefferson Circuit Court
(CV-21-903531)

COOK, Justice.

This appeal arises from the dismissal of an action ordered as a

sanction for alleged misconduct during discovery. The underlying
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litigation concerns a dispute over the amount of ad valorem taxes owed

by the appellant, Southampton 100, LLC ("Southampton"), for a low-

income-housing property that it purchased in 2019. Southampton

challenged multiple tax-year valuations assessed for the property by the

Jefferson County Tax Assessor's Office before the Jefferson County Board

of Equalization and Adjustments ("the Board"). Although the Board

adjusted some of those valuations, Southampton was not satisfied with

the assessments.

Over the next few years, Southampton appealed those assessments

in separate actions to the Jefferson Circuit Court. The circuit court then

consolidated Southampton's appeals into one action. The Alabama

Department of Revenue ("ADOR") subsequently filed a notice of

appearance in that appeal and thereafter became the named "appellee."

During the course of Southampton's appeal, a number of discovery

disputes arose between the parties, many of which prompted motions for

sanctions against Southampton by ADOR. The final straw came when

ADOR sought to depose one of Southampton's corporate representatives

in person. Southampton had previously provided one of its corporate

representatives for an in-person deposition and then offered to have its

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second corporate representative, a resident of California, testify via

Zoom, a videoconferencing service, that same day. ADOR refused that

offer and, instead, demanded that Southampton's second corporate

representative travel to Alabama so that he could be deposed in person.

Southampton objected to ADOR's demand on the basis that having

its second corporate representative fly to Alabama was overly

burdensome given that the parties had already rescheduled those

depositions on multiple occasions. In response, ADOR issued another

deposition notice. Southampton, however, never sought a protective

order.

Following additional disputes over this issue, including a motion for

sanctions, ADOR filed another motion for sanctions in which it asked the

circuit court to dismiss Southampton's tax appeal. Without holding a

hearing, the circuit court granted the motion and dismissed

Southampton's tax appeal with prejudice the very next day.

Although a trial court has discretion to sanction a party for willfully

failing to comply with discovery requests, as explained below, the record

before us does not indicate that Southampton willfully did so in this case.

We therefore reverse and remand.

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Facts and Procedural History

I. The Underlying Property-Tax Appeal

Property-tax values for each tax year are set by the county tax-

assessing official who appraises real property using the prior valuation

from October 1 of the previous year, making any adjustments to that

valuation that the assessor determines is legal and proper. See § 40-7-25,

Ala. Code 1975. The assessor then certifies all valuations to the local

board of equalization, which reviews, revises, and fixes the valuations as

listed by the assessor. See §§ 40-3-16, -17, and -18, Ala. Code 1975, and §

40-7-27, Ala. Code 1975.

On July 16, 2019, Southampton purchased a low-income-housing

tax-credit property for $2,570,000. Following that transaction, the

Jefferson County Tax Assessor's Office assessed the fair market value of

the property for the 2021 tax year. That assessed value was $3,823,800.

Southampton disagreed with the assessor's assessed value and

asked the Board to adjust it. According to the record, the Board lowered

that value to $3,250,000.

In December 2021, Southampton appealed that assessment to the

Jefferson Circuit Court. See §§ 40-3-24 and -25, Ala. Code 1975. Over the

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next few years, Southampton appealed the Board's additional tax

assessments for the property for 2022, 2023, and 2024. As stated

previously, the circuit court then consolidated those appeals into one

appeal.

As part of that appeal, Southampton requested a jury trial to

determine the fair market value of the property. As noted previously,

ADOR subsequently filed a notice of appearance, see § 40-3-26(b), Ala.

Code 1975, and thereafter became the named "appellee" in the appeal

below.

Although the circuit court initially set the jury trial in this case for

October 16, 2023, the trial was continued to February 24, 2025. The

circuit court thereafter issued a new scheduling order on October 28,

2024, in which it made clear that any further requests for a continuance

in the case would be disfavored and would require "good cause" to be

shown. The circuit court explained that the fact "that discovery has not

been completed, or other such reasons will not be considered 'good cause' "

for a continuance. It also directed "[a]ll discovery … to be completed

within 60 days of the trial date [February 24, 2025]" -- i.e., by December

26, 2024. The scheduling order included the following discovery provision

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under the Birmingham Differential Case Management Plan:1

"With respect to Rule 30(b)(6) of the Alabama Rules of Civil
Procedure, if corporate representatives are not located within
the State of Alabama, a party being asked to tender such
representatives for deposition will be expected to produce only
one such representative in Jefferson County, Alabama absent
agreement of the parties to the contrary, or unless otherwise
ordered. Any further depositions of additional corporate
representatives would be expected to be held at the deponents'
location. Should the party for whom the representative will be
testifying reasonably question the court's personal
jurisdiction, this party may object to producing a witness in
Jefferson County until the issue is resolved."

(Emphasis added.)

II. The Parties Engage in Discovery

On September 5, 2023, ADOR served its interrogatories and

requests for production on Southampton. Over a year later, on October

16, 2024, Southampton responded to ADOR's discovery requests.

After ADOR reviewed Southampton's response to its discovery

1The Birmingham Division of Jefferson County implemented the

Birmingham Differential Case Management Plan in 1990. 1 Gregory C.
Cook, Alabama Rules of Civil Procedure Annotated, Rule 26, Author's
Comments § 26.21 (5th ed. 2018). Among other things, this plan "creates
three different tracks for cases (expedited, standard and complex)" and
"provides for differing calendars for each and provides for differing
amounts of discovery allowed under each." Id. In other words, the plan
functions as a part of the scheduling order in each case. For discovery
matters, this plan is merely a starting point for a trial court and can be
modified by the court as needed.
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requests, it filed a motion to compel discovery because, it said,

Southampton had not provided substantive responses for many of its

interrogatories and did not produce the documents it had requested

concerning Southampton's property. It also asked the circuit court to

continue the discovery deadline from December 26, 2024, to January 24,

2025.

In response, Southampton asserted that it had sufficiently

answered ADOR's interrogatories. It also noted that those

interrogatories exceeded 40 in number. See Rule 33(a), Ala. R. Civ. P.

The circuit court granted ADOR's motion to compel and ordered

Southampton to fully respond to ADOR's interrogatories and requests for

production by January 10, 2025. The circuit court also granted ADOR's

motion to continue discovery and set the new discovery deadline for

January 24, 2025.

When Southampton finally filed its supplemental responses to

ADOR's discovery requests, it did so four days after the circuit court's

January 10, 2025, deadline. As a result, ADOR immediately moved for

sanctions against Southampton and also moved to dismiss the property-

tax appeal based on Southampton's failure to supplement its responses

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in a timely manner. Without holding a hearing, the circuit court denied

ADOR's motion.

III. The Depositions of ADOR's Designated Representative and
Southampton's Corporate Representatives

On January 17, 2025, ADOR served its Rule 30(b)(6), Ala. R. Civ.

P., notice seeking to depose Southampton's corporate representative.

That notice outlined 20 different topics concerning the calculation of the

subject property's value that it wanted Southampton's corporate

representative to address. According to the record, Southampton

identified its property manager, Adam Castleberry, and one of its owners,

Ari Majer, as its corporate representatives.

To coincide with Southampton's deposition of ADOR's designated

representative, Craig Hall, ADOR set Southampton's corporate-

representative depositions for January 23, 2025. However, the

depositions were rescheduled twice to accommodate both Southampton's

and ADOR's counsel, resulting in a new deposition date of January 29,

2025.

That day, Southampton deposed Hall. At the conclusion of Hall's

deposition, ADOR deposed Castleberry. Castleberry's deposition lasted

about three hours. During that time, he answered questions related to
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most of the topics that ADOR had listed in its deposition notice, covering

14 of the 20 topics. There were, however, some topics about which

Castleberry admitted that he had no knowledge. For instance,

Castleberry explained that he could not give any testimony concerning

the circumstances surrounding the purchase of the property or its

purported value. Instead, he told ADOR that Majer would be the one to

ask for that information.

Following Castleberry's deposition, Southampton immediately

offered ADOR the opportunity to depose Majer, a resident of California,

via Zoom that same day. It is undisputed that ADOR's counsel declined

that offer, stating: "I want to take [the deposition] in person."

Southampton's counsel asked ADOR's counsel whether

Southampton should "move for a [p]rotective [o]rder [b]ecause it's unduly

burdensome to have [Majer] fly [to Alabama] for [ADOR] to take his

deposition." ADOR's counsel replied: "You can do that." However, counsel

for Southampton never did so.

IV. ADOR's Renewed Motion for Sanctions and Motion to Compel
Denied by the Circuit Court

Although Southampton never moved for a protective order, ADOR

took the initiative of bringing this dispute to the circuit court for

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resolution. On February 7, 2025, ADOR filed a renewed motion for

sanctions and an alternative motion to compel Majer's deposition in

which it specifically requested that he be ordered to appear in person for

his deposition. In its motion, ADOR argued, among other things, that

Southampton had willfully failed to respond to discovery by not

producing an individual that was competent to testify to all the topics it

had listed on its Rule 30(b)(6) deposition notice. ADOR further argued

that Majer was required to appear for his deposition in person because

its deposition notice specifically asked for Southampton's corporate

representative to physically appear for a deposition at Southampton's

counsel's office in Birmingham.

On February 11, 2025, Southampton filed its response, arguing that

it had complied with all of ADOR's discovery requests. It also asserted

that because the parties had previously rescheduled the corporate-

representative depositions multiple times, it was concerned that the

same would happen again, thus making any effort to fly Majer to

Alabama from California unduly burdensome.

However, in an effort to cooperate with ADOR's request,

Southampton offered "to make Mr. Majer available for deposition before

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going on the witness stand." In other words, it offered to have Majer sit

for an in-person deposition immediately before his appearance at the trial

of its tax appeal. Southampton then filed its witness list, which included

Majer as a witness.

On February 12, 2025, the circuit court denied ADOR's renewed

motion for sanctions and motion to compel, without holding a hearing.

Two hours later, ADOR filed a motion to reconsider the renewed motion

for sanctions and, alternatively, a motion to compel in which it again

argued that Majer should be required to come to Alabama for his

deposition.

The next day, Southampton filed a response to the motion to

reconsider in which it maintained that "Mr. Majer intends to be in town

for the trial, assuming it goes forward, with a schedule to fly in from

California on … February 24, 2025." (Emphasis added.) It also stated

that Majer "can be available for deposition Monday afternoon [February

24], if this court so orders."

The record does not indicate whether the circuit court ever ruled on

ADOR's renewed motion for sanctions and motion to compel.

V. ADOR's Request to Continue the Trial of Southampton's Tax
Appeal and Subsequent Attempt to Depose Majer
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On February 18, 2025, ADOR asked the circuit court to continue

the trial scheduled for February 24, 2025, so that it could depose Majer

in person since "Mr. Majer is already scheduled to be in Jefferson County

on … February 24, 2025 …." ADOR also asserted that the continuance

was necessary so that its expert could be deposed by Southampton. The

circuit court granted ADOR's motion to continue and rescheduled the

trial to March 10, 2025.

On February 19, 2025, ADOR served a deposition notice for Majer

and asked for that deposition to occur on February 25, 2025, in

Birmingham. The day before the deposition was scheduled to take place,

ADOR's counsel emailed Southampton's counsel requesting confirmation

that "Majer will be present in person at the deposition noticed for

[February 25, 2025]." A few hours later, Southampton's counsel replied:

"[N]o [Majer] is not going to be here."

ADOR's counsel then asked Southampton's counsel to provide

another day that week for Majer to be deposed, to which Southampton's

counsel replied: "I don't have any availability this week." At no point did

Southampton's counsel offer any alternative dates for this deposition.

VI. ADOR's Subsequent Motion for Sanctions and the Dismissal of
Southampton's Tax Appeal
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On February 25, 2025, ADOR served yet another deposition notice

for Majer. That same day, at 5:10 p.m., it moved for sanctions against

Southampton. In support of its request for sanctions, ADOR incorporated

the legal arguments it had made in its prior motions for sanctions and

also asked the circuit court to dismiss Southampton's tax appeal for

Southampton's failure to comply with its deposition notice. The next day,

at 1:28 p.m., without holding a hearing, the circuit court granted ADOR's

motion for sanctions and dismissed Southampton's tax appeal with

prejudice, pursuant to Rule 37(b)(2), Ala. R. Civ. P. Its order did not

contain any explanation or rationale for its decision.

On March 10, 2025, at 2:01 p.m., Southampton filed a motion to

alter, amend, or vacate the circuit court's order in which it argued that it

had not violated any discovery order and noted that the demand for Majer

to appear in person contradicted the circuit court's scheduling order

incorporating the Birmingham Differential Case Management Plan's

corporate-representative limitation. Because Castleberry had already

given a deposition in Birmingham as one of its corporate representatives,

Southampton argued, Majer was not required to do the same.

Alternatively, Southampton requested a hearing on the postjudgment

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motion.

An hour and seven minutes later, the circuit court denied

Southampton's motion without holding a hearing. This appeal followed.

Standard of Review

In reviewing a trial court's order on a motion for sanctions related

to a discovery dispute, we apply the following standard of review:

" 'The choice of discovery sanctions is within the trial court's
discretion and will not be disturbed on appeal absent gross
abuse of discretion, Johnson v. Langley, 495 So. 2d 1061 (Ala.
1986); Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala. 1984);
Weatherly v. Baptist Medical Center, 392 So. 2d 832 (Ala.
1981), and then only upon a showing that such abuse of
discretion resulted in substantial harm to appellant. Edward
Leasing Corp. v. Uhlig & Associates, Inc., 785 F.2d 877 (11th
Cir. 1986).' "

Daily v. Esser, 391 So. 3d 268, 287-88 (Ala. 2023) (quoting Iverson v.

Xpert Tune, Inc., 553 So. 2d 82, 87 (Ala. 1989)). "We now refer to that

standard as a trial court's 'exceeding its discretion.' ... However, the

standard itself has not changed." Kyser v. Harrison, 908 So. 2d 914, 918

(Ala. 2005).

Discussion

On appeal, Southampton argues that the circuit court exceeded its

discretion by dismissing its tax appeal with prejudice, pursuant to Rule

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37(b)(2). Southampton notes that our caselaw requires that a party

willfully disobey a discovery order before a trial court can enter such a

sanction. According to Southampton, the circuit court never issued an

order requiring it to make Majer available for a deposition in

Birmingham. Southampton also asserts that it never engaged in any

willful conduct preventing ADOR from being able to depose Majer

because it offered to make Majer immediately available for a deposition

via Zoom and then again right before the trial of its tax appeal, which

was set to begin in February 2025. With no evidence of any willful

conduct on its part, Southampton contends, the circuit court exceeded its

discretion in dismissing its tax appeal with prejudice, and, it asserts, that

decision must be reversed.

In response, ADOR argues that Rule 37(d) empowers a trial court

to dismiss an action following a corporate representative's failure to

appear for a deposition regardless of whether the trial court has

previously issued a separate order directing the corporate representative

to appear. In the present case, ADOR contends that Southampton was

required to make Majer available for an in-person deposition in

Birmingham because Southampton identified him as one of its corporate

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representatives. Because Southampton has repeatedly failed to make

Majer available for an in-person deposition, ADOR contends,

Southampton has engaged in a willful refusal to provide discovery and,

thus, the dismissal of Southampton's tax appeal with prejudice was

warranted here.

I. A Party's Obligation to Cooperate with Discovery Requests Under
Alabama Law

Generally, under the Alabama Rules of Civil Procedure, the

discovery process is designed to work without the need for constant

intervention by our trial courts. See, e.g., Mobile Invs., LLC v. Corporate

Pharmacy Servs., Inc., 415 So. 3d 1018, 1025 (Ala. 2024); see also Rule

1(c), Ala. R. Civ. P. ("[The Alabama Rules of Civil Procedure] shall be

construed and administered to secure the just, speedy and inexpensive

determination of every action."); Othni Lathram & Anil A. Mujumdar,

LexisNexis Practice Guide: Alabama Civil Procedure § 6.83 (Matthew

Bender 2025) ("The plan of Alabama's discovery Rules still contemplates

that the parties will employ discovery, by and large, without judicial

supervision. ... Only when counsel or parties cannot agree need the court

intervene …."). This is so because our courts expect litigants to cooperate

to resolve discovery disputes if possible. See Ex parte AMI W. Alabama
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Gen. Hosp., 582 So. 2d 484, 487 (Ala. 1991) ("There should be few

[discovery] disputes, because lawyers acting professionally should be able

to agree on most discovery issues….").

Once a Rule 30(b)(6) deposition notice has been duly served, it is

the obligation of the responding party to take any necessary action to

identify its corporate representative and to make him or her available for

a deposition. See Ex parte Hankook Tire Am. Corp., 400 So. 3d 585, 591

(Ala. 2023) (explaining that the trial court may sanction the responding

party when the designated corporate representative fails to appear for a

properly noticed deposition). If the deposition notice is objectionable or is

otherwise impractical (for instance, if the witness or counsel has

scheduling conflicts), the responding party should promptly raise those

concerns with opposing counsel and attempt to negotiate a resolution.

See Rule 26(c), Ala. R. Civ. P. (requiring counsel to certify that they

attempted to resolve discovery concerns "through correspondence or

discussions with opposing counsel" before moving for a protective order).

If a resolution cannot be reached, it is the responsibility of the party

to whom a Rule 30(b)(6) deposition has been served to file a motion for a

protective order -- normally before the date of the deposition. See Rule

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26(c) ("Upon motion by a party … and for good cause shown, the court in

which the action is pending … may make any order that justice requires

to protect a party or person from annoyance, embarrassment, oppression,

or undue burden or expense ….").

As noted above, counsel for Southampton recognized this obligation

when its counsel asked whether Southampton should "move for a

[p]rotective [o]rder [b]ecause it's unduly burdensome to have [Majer] fly

[to Alabama] for [ADOR] to take his deposition," but failed to file such a

motion.

In addition, after the circuit court continued the trial -- based upon

a motion referring to the need to depose Majer -- counsel for Southampton

failed to notify ADOR's counsel that it would no longer be possible to

depose Majer on the previously scheduled trial date. And, when

contacted, Southampton's counsel simply stated that they had no other

dates available that week and failed to provide any alternative dates. In

short, counsel for Southampton neither found a cooperative solution to

this discovery issue with ADOR nor filed a motion for a protective order

as the Alabama Rules of Civil Procedure counsel. However, as discussed

below, this does not mean that Southampton is not entitled to relief here.

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II. Several Sanctions, Including Dismissal, Are Available When a
Party Fails to Produce its Corporate Representative for a
Deposition

As noted by ADOR, when a party inexcusably fails to produce its

corporate representative for a properly noticed Rule 30(b)(6) deposition,

a trial court has a number of powerful sanctions at its disposal under

Rule 37.

In the present case, the circuit court dismissed Southampton's tax

appeal with prejudice, pursuant to Rule 37(b)(2). Under that rule, "[i]f a

party or an officer, director, or managing agent of a party or a person

designated under Rule 30(b)(6) … to testify on behalf of a party fails to

obey an order to provide or permit discovery," the sanctions available to

a trial court include, among others:

"(A) An order that the matters regarding which the
order was made or any other designated facts shall be taken
to be established for the purposes of the action in accordance
with the claim of the party obtaining the order;

"(B) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or
prohibiting that party from introducing designated matters in
evidence;

"(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof, or
rendering a judgment by default against the disobedient party
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…."

Rule 37(b)(2) (emphasis added).

As stated previously, according to Southampton, the circuit court

never issued an order requiring it to make Majer available for a

deposition in Birmingham. Instead, the circuit court expressly denied

ADOR's motion to compel that very deposition and then failed to rule

upon ADOR's renewed motion to compel that deposition.

However, as ADOR correctly notes, Rule 37(d) empowers a trial

court to issue the sanctions listed under Rule 37(b)(2) for a the failure to

appear for a deposition, even in the absence of a prior discovery order.

That rule states, in relevant part:

"If a party or an officer, director, or managing agent of a party
or a person designated under Rule 30(b)(6) or 31(a)[, Ala. R.
Civ. P.,] to testify on behalf of a party fails (1) to appear before
the officer who is to take the deposition, after being served
with a proper notice, … the court in which the action is
pending on motion may make such orders in regard to the
failure as are just, and among others it may take any action
authorized under paragraphs (A), (B), and (C) of subdivision
(b)(2) of this rule."

Rule 37(d) (emphasis added); see also Ex parte Hankook Tire, 400 So. 3d

at 591 (noting that a court order is not " ' required to bring Rule 37(d) into

play' " (citation omitted)). Stated simply, even in the absence of a

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discovery order, several sanctions, including dismissal, are available to a

trial court for a party's failure to produce a corporate representative for

a Rule 30(b)(6) deposition.

Even though the sanction of dismissal is available as an option

under Rule 37(b)(2)(C), our Court has previously explained that that

sanction must be "proportionate to and compensatory of the particular

discovery abuse committed." Ex parte Seaman Timber Co., 850 So. 2d

246, 258 (Ala. 2002). This is so because our Court has "a long-established

and compelling policy objective of affording litigants a trial on the merits

whenever possible." Iverson v. Xpert Tune, Inc., 553 So. 2d 82, 89 (Ala.

1989). Because "[w]e recognize that the sanction of dismissal is the most

severe sanction that a court may apply," our Court has previously

explained that

"[j]udicial discretion must be carefully exercised to assure
that the situation warrants the imposition of such a sanction.
Weatherly v. Baptist Medical Center, [392 So. 2d 832 (Ala.
1981)]; Durham v. Florida East Coast Ry., 385 F.2d 366 (5th
Cir.1977); Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970).
Dismissal orders must be carefully scrutinized, and the
plaintiff's conduct must mandate dismissal. Smith v. Wilcox
County Board of Education, 365 So. 2d 659 (Ala. 1978)."

Id. at 87.

In particular, our Court has emphasized that "willfulness" is a key
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factor in determining whether the severe sanction of dismissal should be

applied, stating:

"We have held that 'willfulness' on the part of the
noncomplying party is a key factor supporting a dismissal. See
Weatherly v. Baptist Medical Center, [392 So. 2d 832 (Ala.
1981)]; see also National Hockey League v. Metropolitan
Hockey Club, Inc., 427 U.S. 639, 96 S. Ct. 2778, 49 L. Ed. 2d
747 (1976); Societe Internationale Pour Participations
Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197,
78 S. Ct. 1087, 2 L. Ed. 2d 1255 (1958). If one party has acted
with willful and deliberate disregard of reasonable and
necessary requests for the efficient administration of justice,
the application of even so stringent a sanction as dismissal is
fully justified and should not be disturbed. See Trans World
Airlines, Inc. v. Hughes, 332 F.2d 602 (2d Cir.1964), cert.
dismissed, 380 U.S. 248, 85 S. Ct. 934, 13 L. Ed. 2d 817 (1965);
1 Lyons, Alabama Practice (1973) (Author's Comments to
Rule 37); see also Cine Forty-Second St. Theatre Corp. v.
Allied Artists Pictures Corp., 602 F.2d 1062 (2d Cir. 1979)."

Id. at 87-88; see also Mobile Invs., 415 So. 3d at 1023 (quoting Iverson).

In addressing what level of conduct rises to the level of "willfulness"

in the context of discovery misconduct, our Court has explained that

" 'willfulness' might be found when ' "a party intentionally or willfully

fail[s] to attend a deposition" ' or does ' "not offer[] an explanation for his

failure to comply [with discovery requests]." ' " Mobile Invs., 415 So. 3d at

1023 (quoting Ex parte Seaman Timber, 850 So. 2d at 256 (other citations

omitted)); see also Weatherly v. Baptist Med. Ctr., 392 So. 2d 832, 835

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(Ala. 1981) ("[T]he 'willfulness' of plaintiff's refusal to answer

interrogatories in this case is a key criterion to the imposition of the

drastic sanction of dismissal.").

In light of the foregoing, the question we must answer here is

whether Southampton's conduct presents a clear example of "willfulness"

that would support the circuit court's decision to dismiss its tax appeal

with prejudice.

III. Applying These Legal Principles to the Present Case

In answering this question, we find our recent decision in Mobile

Investments, supra, to be instructive. In that case, the plaintiff sought to

depose the defendants' corporate representative multiple times over two

years, even accommodating the defendants' schedule. Id. at 1020-21

However, the corporate representative repeatedly canceled the

deposition, allegedly due to scheduling conflicts. Id. at 1022. The plaintiff

moved to compel the deposition, and the trial court granted the motion.

Id. at 1020-21.

However, even after the trial court granted the plaintiff's motion,

the defendants' corporate representative again failed to sit for a

deposition. Id. at 1021. As a result, the plaintiff moved for sanctions and

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asked the trial court to enter a default judgment against the defendants

pursuant to Rule 37(b)(2)(C). Id. At that time, the trial court denied the

plaintiff's motion but issued an order stating that the defendants must

provide available dates for the corporate representative's deposition

within 30 days. Id. The trial court also warned the defendants that it

would likely enter a default judgment against them should their

corporate representative again fail to appear for his deposition. Id. When

the defendants did not provide the plaintiff with dates for the corporate

representative's deposition, the plaintiff renewed its motion, and the trial

court entered a default judgment as a sanction against the defendants. 2

Id. at 1021-22.

On appeal, our Court held that the trial court did not exceed its

discretion by entering a default judgment against the defendants. Id. at

1023. We reasoned that the defendants' "willfulness" was clear

considering their failure to (1) respond to the plaintiff's discovery

requests multiple times, (2) have their corporate representative sit for a

2As explained above, Rule 37(b)(2)(C) authorizes a trial court to
terminate the case as a sanction for a discovery violation either by
dismissal, if the plaintiff is at fault, or by default judgment, if the
defendant is at fault. In substance, these are functionally the same
remedy.
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deposition after the plaintiff accommodated the defendants' schedule,

and (3) follow the trial court's three orders compelling their corporate

representative's deposition. Id.

Unlike the defendants in Mobile Investments, Southampton did not

attempt to willfully prevent its corporate representative from being

deposed by ADOR. As explained above, Southampton designated two

corporate representatives in response to ADOR's Rule 30(b)(6) notice --

Castleberry and Majer. Castleberry appeared and testified to 14 of the 20

topics identified in ADOR's Rule 30(b)(6) deposition notice. After

Castleberry's deposition concluded, Southampton immediately offered

ADOR the opportunity to depose its second corporate representative --

Majer, a resident of California -- via Zoom that same day. ADOR's counsel

declined that offer.

In response, ADOR filed a renewed motion for sanctions and an

alternative motion to compel Majer's deposition in which it specifically

requested that he be ordered to appear in person for his deposition. The

circuit court denied ADOR's renewed motion for sanctions and motion to

compel. Two hours later, ADOR filed a motion to reconsider.

In its response to the motion to reconsider, Southampton

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maintained that "Mr. Majer intends to be in town for the trial, assuming

it goes forward, with a schedule to fly in from California on … February

24, 2025." (Emphasis added.) The circuit court never ruled on ADOR's

motion for reconsideration.

To further complicate an already messy situation, ADOR asked the

circuit court to continue the trial scheduled for February 24, 2025, so that

it could depose Majer in person since "Mr. Majer is already scheduled to

be in Jefferson County on … February 24, 2025 …." The circuit court

granted ADOR's motion to continue and rescheduled the trial to March

10, 2025. ADOR thereafter served another notice demanding that Majer

be made available for an in-person deposition. Majer did not appear, and

Southampton did not attempt to reschedule that deposition. As a result,

ADOR renewed its motion for sanctions, and the circuit court, without

holding a hearing or otherwise affording Southampton an opportunity to

respond, dismissed Southampton's tax appeal with prejudice the next

day.

As our caselaw above makes clear, "the sanction of dismissal is the

most severe sanction that a court may apply" and should be upheld only

when a party has acted with "willful and deliberate disregard" for

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reasonable and necessary discovery requests. Iverson, 553 So. 2d at 87.

A dismissal under Rule 37(b)(2)(C) "must be based upon 'evidence from

which [the trial court] could infer that [a party's] failure to comply with

[an opponent]'s discovery requests and the trial court's orders was the

result of [the party's] conscious or intentional failure to act, not his

accidental or involuntary noncompliance.' " W.W.H. v. D.L.H., 352 So. 3d

765, 769 (Ala. Civ. App. 2021) (quoting Smith v. Davidson, 58 So. 3d 177,

181-82 (Ala. Civ. App. 2010)).

While we do not condone Southampton's conduct here, there is

nothing before us that indicates that Southampton willfully and

deliberately disregarded ADOR's attempts to obtain information from

Majer. In fact, the record before us indicates that Southampton was not

trying to prevent the deposition from taking place but simply wanted the

deposition to be conducted in a different way.3

Moreover, unlike in Mobile Investments, in which the trial court

3We note that Southampton argued both in its postjudgment motion

below and now on appeal that ADOR's demand that Majer appear in
person would violate the part of the circuit court's scheduling order that
incorporated the Birmingham Differential Case Management Plan.
ADOR disputes the meaning and applicability of that provision in the
scheduling order. Given our resolution of this appeal, we need not decide
the meaning or applicability of that provision in this case.
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directed the defendants to produce their corporate representative for a

deposition or face the consequence of a default judgment, here the

circumstances leading up to the circuit court's dismissal of

Southampton's tax appeal were ambiguous and likely caused some

confusion as to what was expected of Southampton. For instance, at that

point in the litigation, the circuit court had recently denied ADOR's

renewed motion for sanctions and motion to compel Majer's in-person

deposition. Moreover, when Southampton agreed to make Majer

available for a deposition the day of the scheduled February 2025 trial, it

agreed to do so "assuming [the trial] goes forward." When the circuit court

chose to continue the trial to a later date, it further muddied the waters

as to whether Southampton still had an obligation to make Majer

available for a deposition on February 24, 2025, or if it could wait and

make him available for an in-person deposition the day of the new trial

date -- March 10, 2025.

Given the contentiousness between the parties and the circuit

court's denial of ADOR's motion to compel Majer's in-person deposition,

the circuit court, before dismissing the tax appeal with prejudice, should

have specified for the parties whether it expected Southampton to make

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good on its prior statement that it would make Majer available for a

deposition (1) on February 24, 2025 (even though he would no longer be

in Birmingham "for the trial" on that date) or (2) on a date immediately

before the new March 10, 2025 trial date. It also should have given

Southampton an opportunity to respond to ADOR's renewed motion for

sanctions before entering the sanction of dismissal less than one day after

the filing of the motion. See, e.g., Ex parte Sansom, [Ms. SC-2025-0278,

Sept. 19, 2025] ____ So. 3d ____ (Ala. 2025) (holding that the trial court

did not give the plaintiffs a reasonable opportunity to respond to the

defendant's motion to transfer the action under the forum non conveniens

doctrine when the trial court granted the defendant's motion to transfer

one day after the motion was filed without an opportunity for plaintiffs'

reply). In any event, because there is no evidence indicating that

Southampton willfully tried to prevent Majer's deposition from taking

place or willfully disobeyed an unambiguous order of the circuit court, we

hold that the circuit court exceeded its discretion by dismissing

Southampton's tax appeal with prejudice.

Conclusion

Dismissal of an action with prejudice is a drastic sanction that

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should be imposed only when a party has acted with "willful and

deliberate disregard" for reasonable and necessary discovery requests.

Iverson, 553 So. 2d at 87. Because the record indicates that Southampton

made an effort to make Majer available to ADOR for a Rule 30(b)(6)

deposition, provided one other corporate representative, and was

confronted with an ambiguous procedural situation, it did not "willfully"

attempt to prevent discovery. We therefore conclude that the circuit court

exceeded its discretion in dismissing Southampton's tax appeal with

prejudice on this basis, despite our concerns noted above regarding the

conduct of Southampton. Accordingly, we reverse the circuit court's

judgment and remand the case for proceedings consistent with this

opinion.4

REVERSED AND REMANDED.

Stewart, C.J., and Shaw, Wise, and Sellers, JJ., concur.

Cook, J., concurs specially, with opinion.

4Based on our holding here, we need not address the remaining

arguments raised by the parties on appeal. See Jackson Hosp. & Clinic,
Inc. v. Murphy, 343 So. 3d 490, 498 n.3 (Ala. 2021) (stating that the Court
would pretermit discussion of remaining issues in light of the dispositive
nature of another issue).
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COOK, Justice (concurring specially).

Although I am the author of the main opinion, I write specially to

address whether a trial court must hold a hearing on a contested

dispositive motion, such as a motion for sanctions like the one at issue in

this case.

As noted in the main opinion, ADOR filed its motion for sanctions

on February 25, 2025, at 5:10 p.m. The Jefferson Circuit Court granted

the motion and dismissed the tax appeal brought by Southampton with

prejudice the next day at 1:28 p.m., without giving Southampton an

opportunity to respond to the motion either in writing or at a hearing.

Given our resolution of the key issue in this appeal, there was no need

for our Court to address whether the circuit court's failure to hold a

hearing was improper.

However, in my view, the norm and best practice should be for a

trial court to hold a hearing before granting such a contested dispositive

motion. This position is supported not only by the Alabama Rules of Civil

Procedure but also by our caselaw.

For example, Rule 78, Ala. R. Civ. P., contemplates the need for a

trial court to hold a hearing in most situations. That rule states, in

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relevant part:

"Each circuit court shall establish regular times and places,
at intervals sufficiently frequent for the prompt dispatch of
business, at which motions requiring notice and hearing may
be heard and disposed of; but the judge at any time or place
and on such notice, if any, as the judge considers reasonable
may make orders for the advancement, conduct, and hearing
of actions."

(Emphasis added.)

However, Rule 78 also provides certain specific exceptions to this

hearing requirement. The existence of these exceptions strongly suggests

that hearings on contested dispositive motions should otherwise be the

norm. For instance, the rule permits a trial court to "make provision by

rule or order for the submission and determination of motions not seeking

final judgment without oral hearing upon brief written statements of

reasons in support and opposition." Rule 78 (emphasis added). In other

words, a hearing would generally be necessary if the motion is "seeking

final judgment."

Likewise, the rule states that, "unless there is a request for oral

hearing, the court may enter an order denying a motion to dismiss

without oral hearing." Rule 78 (emphasis added). In other words, unless

a party specifically asks for a hearing, the trial court may deny a Rule

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12, Ala. R. Civ. P., motion to dismiss without holding a hearing. The need

to provide express, textual exceptions in Rule 78 is a clear indication that

the rule otherwise requires a hearing before the granting of contested

dispositive motions.

Our caselaw supports my reading of this rule, specifically in the

context of summary-judgment motions. For example, in Zieman v.

Zieman Speegle, LLC, 295 So. 3d 66 (Ala. 2019), our Court reversed a

summary judgment after the trial court had failed to hold a hearing

before ruling on the motion. In support of our holding, our Court

explained that " 'Rule 56(c), Ala. R. Civ. P., itself entitles the parties to a

hearing on a motion for summary judgment.' " Id. at 70 (quoting Van

Knight v. Smoker, 778 So. 2d 801, 805 (Ala. 2000)).

Our Court also cited Rule 78. We noted that, although Rule 78

allows trial courts to rule on some motions without holding a hearing, a

hearing is necessary on motions " 'seeking final judgment,' " such as a

motion for a summary judgment. Id. (quoting Rule 78). We also noted

that the Committee Comments on 1973 Adoption of Rule 78 state that

" 'the rule prohibits the granting of a Motion Seeking Final Judgment

such as a Motion for Summary Judgment without giving the parties an

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opportunity to be heard orally,' " thus, supporting our position. Id.

(emphasis added in Zieman).

More recently, in Cartron v. Board of Governors of Valley Hill

Country Club, Inc., 372 So. 3d 1175 (Ala. 2022), our Court reversed a

summary judgment after the trial court had failed to hold a hearing

before entering its judgment. In support of our decision, our Court relied

on the text of Rule 56(c), Ala. R. Civ. P., and explained that the text of

that rule requires a hearing except in "certain limited circumstances." Id.

at 1178.

There are sound reasons for requiring a hearing before granting

any contested dispositive motion. Because these motions could lead to a

ruling terminating the case, hearings provide the trial court with a

greater opportunity to understand the parties' claims and defenses.

Hearings also serve a practical function -- they prompt busy, practicing

lawyers to prepare and respond to the motions in a timely manner. The

proper functioning of our legal system is best served when both sides are

fully engaged and afforded the opportunity to timely present their

strongest arguments to the trial court.

Beyond the types of motions discussed above, there are other

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contested dispositive motions for which a hearing may be even more

crucial because of the nature of the motions themselves. Such motions

include Rule 37, Ala. R. Civ. P., motions for sanctions for discovery

misconduct and Rule 41(b), Ala. R. Civ. P., motions for involuntary

dismissal due to a failure to prosecute. These motions inquire into the

conduct of the litigation and the lawyers -- which occur, in part, outside

of the record -- rather than just the hard facts of the underlying dispute.

Because of the nature of these types of motions, the trial court benefits

from the opportunity to hear from the lawyers and to ask questions

regarding whether the failure to comply with discovery obligations or the

failure to prosecute was justified, excusable, or not sufficiently serious to

justify a dismissal. For instance, the trial court would benefit from the

opportunity to hear whether there was a sound reason for a lawyer's

failure to prosecute the case or comply with discovery or whether a

legitimate communication problem existed between the parties.

Although conducting a hearing before granting a contested

dispositive motion is the best practice in my view, I am not yet convinced

that a trial court must do so in all cases and situations. Cf. Henderson v.

G & G Corp., 582 So. 2d 529, 531 (Ala. 1991) (affirming dismissal for

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failure to prosecute when plaintiff failed to appear at a summary-

judgment hearing after almost six years of inactivity and repeated court-

ordered warnings); Watts v. Mitchell, 617 So. 2d 693, 694 (Ala. Civ. App.

1993) (affirming dismissal for failure to prosecute when plaintiff failed to

appear at hearing on motion to dismiss for failure to state a claim and

did not offer a reason for the absence); Rule 55(b)(2), Ala. R. Civ. P.

(allowing entry of default judgment without three days' notice of hearing

if the defendant fails to appear at scheduled trial date).

While I am certain that there are contested dispositive motions and

procedural situations that I cannot envision today, as an appellate court,

our Court trusts trial judges to use their discretion in handling their

dockets and managing the recurring disputes between counsel. By

raising the points above, my hope is that our talented and busy trial

judges will always make conducting hearings on contested dispositive

motions the norm in their courtrooms across our State.

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