Rel: October 16, 2026
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, 2026-2027
SC-2026-0190
Commercial Properties, Inc.
v.
Ourania Charalambidou, Dionysios Mitsios, and Montgomery
Civic Ballet, Inc., d/b/a Montgomery Ballet Studios
SC-2026-0191
Ourania Charalambidou, Dionysios Mitsios, and Montgomery
Civic Ballet, Inc., d/b/a Montgomery Ballet Studios
SC-2026-0190 and SC-2026-0191
v.
Commercial Properties, Inc.
Appeals from Montgomery Circuit Court
(CV-21-900117)
SELLERS, Justice.
These consolidated appeals involve two commercial leases executed
by Commercial Properties, Inc. ("the landlord"), and Montgomery Civic
Ballet, Inc., doing business as Montgomery Ballet Studios ("the Ballet").
Dionysios Mitsios ("Danny") is the executive director of the Ballet, and
Ourania Charalambidou ("Rania") is his wife. In appeal no. SC-2026-0191, the Ballet, Danny, and Rania appeal from separate orders of the
Montgomery Circuit Court ("the trial court"), striking as untimely their
response to the landlord's motion for a partial summary judgment and
subsequently denying the resubmission of that response. We affirm. In
appeal no. SC-2026-0190, the landlord cross-appeals from the trial court's
February 3, 2026, order certifying its motion for a partial summary
judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., while, at the
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same time, purportedly dismissing the entire case. We affirm in part,
reverse in part, and remand.
I. Facts
The landlord and the Ballet entered into two separate lease
agreements in May 2008 and January 2012, respectively, pursuant to
which the landlord leased to the Ballet two suites located in a shopping
center owned and managed by the landlord. The lease agreements
contained a provision for indemnification by the tenant, a default
provision, and a provision outlining when the tenant would be liable for
attorney fees and costs incurred by the landlord.1 In December 2020, the
Ballet vacated the premises based on the landlord's alleged failure to
eliminate mold that existed in the leased premises.
In January 2021, the Ballet, Danny, and Rania filed a multicount
complaint against the landlord, alleging that Danny and Rania had
suffered personal injuries after being exposed to mold in the leased
premises. The Ballet also claimed that the mold had caused damage to
its personal property, including its costumes. The landlord answered the
1The Ballet, Danny, and Rania do not challenge the provisions of
the lease agreements upon which the landlord relied in seeking a partial
summary judgment; therefore, we do not quote or discuss them.
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SC-2026-0190 and SC-2026-0191
complaint and filed a counterclaim, seeking unpaid rent under the lease
agreements and defense and indemnity from the Ballet on the claims
asserted by Danny and Rania. The landlord thereafter sent the Ballet a
letter demanding that the Ballet defend and indemnify it on the claims
asserted by Danny and Rania, as required by the lease agreements. The
Ballet did not respond to that demand.
In February 2023, the landlord filed a motion for a partial summary
judgment, supported by various documents. The motion for a partial
summary judgment addressed only the claims involving the Ballet, and
not Danny's and Rania's claims against the landlord. In that motion, the
landlord sought
"(1) an interlocutory judgment declaring that [the Ballet]
owes [the landlord] $65,827.50 in unpaid rent, the judgment
to become a final judgment after the amount of prejudgment
interest and fees are submitted to [the trial court]; (2) [an]
interlocutory judgment declaring that [the] Ballet owes [the
landlord] defense and indemnity on the claims asserted
against it by [Danny and Rania], the claims to become a final
judgment at the time all claims in this matter are adjudicated
and the total amount of attorneys' fees are submitted; and (3)
[a] final judgment against the Ballet and in favor of [the
landlord] on [the] Ballet's claims against it. There are no
issues as to any material fact, and [the landlord] is entitled to
[a] judgment as a matter of law on these claims."
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On March 25, 2025, the trial court entered an order setting a
hearing on the partial-summary-judgment motion for April 21, 2025, at
10:00 a.m.2 On April 18, 2025, the Ballet, Danny, and Rania filed their
response in opposition to the partial-summary-judgment motion. Before
the hearing commenced, the landlord filed a motion to strike the response
as untimely. Following the hearing, the trial court entered an order
granting the motion to strike, thus leaving the motion for a partial
summary judgment unopposed. However, the trial court did not enter an
order on the partial-summary-judgment motion -- presumably because of
an oversight.
On October 20, 2025, the landlord moved the trial court to enter an
order on its motion for a partial summary judgment. The trial court
entered an order setting the matter for a hearing on December 3, 2025,
noting that all "pending motions" would be heard at that time. The
2According to the landlord, the delay between the filing of the
motion for a partial summary judgment in February 2023 and the
scheduling of the hearing in March 2025 was not caused by any action or
inaction on behalf of the parties. Rather, the landlord points out that
Judge Johnny Hardwick, the original circuit-court judge assigned to hear
the matter, was assaulted while the action was pending and suffered
severe injuries that kept him from his duties. Shortly after setting the
April 21, 2025, hearing, Judge Hardwick retired, and the case was
assigned to Circuit Court Judge Tiffany McCord.
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SC-2026-0190 and SC-2026-0191
Ballet, Danny, and Rania filed a "response" to the landlord's motion for
an order on the partial summary judgment, and they resubmitted the
same response that the trial court had previously deemed untimely. The
landlord filed a motion to strike the response, arguing that the trial court
had already entered an order striking it as untimely.
On December 22, 2025, following a hearing, the trial court entered
an order denying the "renewed" response filed by the Ballet, Danny, and
Rania and entering a partial summary judgment in favor of the landlord.
The Ballet, Danny, and Rania moved the trial court to certify the partial
summary judgment in favor of the landlord as final pursuant to Rule
54(b), Ala. R. Civ. P.
On February 3, 2026, the trial court entered an order certifying the
partial summary judgment in favor of the landlord as final pursuant to
Rule 54(b) and indicating that "this case is dismissed." This appeal and
cross-appeal followed.
II. Standard of Review
"This Court's review of a summary judgment is de novo.
Williams v. State Farm Mut. Auto. Ins. Co., 886 So. 2d 72, 74
(Ala. 2003). We apply the same standard of review as the trial
court applied. Specifically, we must determine whether the
movant has made a prima facie showing that no genuine issue
of material fact exists and that the movant is entitled to a
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judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Blue
Cross & Blue Shield of Alabama v. Hodurski, 899 So. 2d 949,
952-53 (Ala. 2004)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038 (Ala. 2004). A
trial court's decision to strike an untimely submission offered in response
to a motion for a summary judgment is reviewed under an excess-ofdiscretion standard of review. Speer v. Pin Palace Bowling Alley, 599 So.
2d 1140 (Ala. 1992).
III. Discussion
A. Appeal No. SC-2026-0191 -- Timeliness of Opposition
In their appeal, the Ballet, Danny, and Rania ("the plaintiffs") do
not challenge the merits of the partial summary judgment entered in
favor of the landlord.3 Rather, they challenge only the April 21, 2025,
order striking as untimely their response to the partial summaryjudgment motion and the December 22, 2025, order denying that same
response. The plaintiffs first claim that their response was timely
3For the first time in their reply brief, the plaintiffs attempted to
challenge the merits of the partial summary judgment. However, we will
not consider their arguments. See Lloyd Noland Hosp. v. Durham, 906
So. 2d 157, 173 (Ala. 2005) ("It is a well-established principle of appellate review that we will not consider an issue not raised in an appellant's
initial brief, but raised only in the reply brief.").
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SC-2026-0190 and SC-2026-0191
because, they say, it was filed three calendar days before the April 21,
2025, hearing. However, the plaintiffs fail to acknowledge the interplay
between Rule 56(c)(2), Ala. R. Civ. P., and Rule 6(a), Ala. R. Civ. P.,
concerning the computation of periods specified in the rules. Rule
56(c)(2) provides that a "motion for summary judgment, with all
supporting materials, including any briefs, shall be served at least ten
(10) days before the time fixed for the hearing" and that responses in
opposition to a summary-judgment motion must be served two days
before the hearing on the motion. The version of Rule 6(a) in effect at the
time the partial-summary-judgment motion was filed provided that, in
computing any period specified in the rules, "the day of the act, event, or
default from which the designated period of time begins to run shall not
be included" and that, when a filing must be accomplished within 11 days
or less, "intermediate Saturdays, Sundays, and legal holidays shall be
excluded in the computation." Therefore, pursuant to Rule 56(c) and Rule
6(a), the day of the hearing on the partial-summary-judgment motion
(April 21) and the Saturday and Sunday preceding the hearing (April 19
and 20) are excluded from computation; thus, any response in opposition
was due on Thursday, April 17, 2025, two business days before the
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hearing. See Elliott Builders, Inc. v. Timbercreek Prop. Owners Ass'n,
128 So. 3d 755, 765 (Ala. Civ. App. 2013) (indicating that Rule 56(c)(2)
"requires that matters in opposition to a summary-judgment motion
must be filed and served two days (i.e., two business days, see Rule 6(a),
Ala. R. Civ. P.) before the hearing on the motion"). Accordingly, the filing
of the response on the Friday before the scheduled hearing on Monday
was untimely.
The plaintiffs also contend that, by striking their response in
opposition to the landlord's partial-summary-judgment motion, they
were denied the opportunity to be heard on both the partial-summaryjudgment motion and the motion to strike their response. The plaintiffs
cite Moore v. Prudential Residential Services Ltd. Partnership, 849 So.
2d 914, 926 (Ala. 2002) ("Rule 56(c)(2), Ala. R. Civ. P., gives the
nonmoving party certain rights to notice and a hearing after a summaryjudgment motion has been filed."). However, it is clear that the plaintiffs
had notice of both the April 21, 2025, hearing on the motion for a partial
summary judgment and the motion to strike that was filed and ruled
upon on that same date. To the extent that counsel for the plaintiffs failed
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to attend that hearing, we will not fault the trial court for that absence.4
Furthermore, although the plaintiffs assert that the requirements of
Rule 56(c)(2) are procedural in nature and that a trial court is afforded
broad discretion in their application, they never invoked the very rules
that would have allowed the trial court to exercise such discretion. As
the landlord points out, the plaintiffs never invoked Rule 56(f),
permitting a continuance based on evidentiary matter being unavailable,
or Rule 6(b), permitting an enlargement of the period to respond for
"cause shown." Accordingly, we find no merit in the plaintiffs' argument
that they were denied an opportunity to be heard on both the motion for
a partial summary judgment and the motion to strike their response.
The plaintiffs also challenge the trial court's December 22, 2025,
order denying their "renewed" response to the landlord's request for an
4In their initial brief, the plaintiffs state that it was not clear
whether the April 21, 2025, hearing took place or not because, they say,
there is no transcript of that hearing. The record, however, indicates that the hearing was scheduled on that date at 10:00 a.m. and that the order
granting the motion to strike was filed at 11:06 a.m. According to the
landlord, the hearing occurred, and, it says, during the hearing the trial
court granted its motion to strike the response and heard its argument
on the partial-summary-judgment motion. To the extent that the
plaintiffs argue that the mere striking of the response deprived them of
a hearing, they cite no authority to support such an argument. See Rule
28, Ala. R. App. P.
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order on its motion for a partial summary judgment. As previously
indicated, the trial court entered an order striking the response to the
partial-summary-judgment motion, but it failed to issue a ruling on the
partial-summary-judgment motion. The landlord thereafter moved the
trial court to enter an order on the partial-summary-judgment motion.
The trial court entered an order setting the matter for a hearing on
December 3, 2025, noting that all pending motions would be heard at that
time. The plaintiffs thereafter filed a response, at which time they
resubmitted their response in opposition to the partial-summaryjudgment motion that had been previously struck. In that response, the
plaintiffs stated:
"Due to this Honorable Court's most recent Order stating all
pending motions will be heard, as well as the [landlord's]
Motion for Summary Judgment having not been ruled on, [the
Ballet, Danny, and Rania] believe that their Response [in
opposition] should be accepted at this time, making the
previous Motion to Strike moot. Thus, [the Ballet, Danny, and
Rania] are filing their response to the [landlord's] motion for
[a partial] Summary Judgment contemporaneously with this
Response."
On December 22, 2025, the trial court entered an order denying the
plaintiffs' "renewed" response. We find no error in that respect. It is clear
that, when the trial court scheduled the December 3, 2025, hearing, there
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were no pending motions and that the trial court had already entered its
April 21, 2025, order striking as untimely the plaintiffs' response in
opposition to the landlord's partial-summary-judgment motion. It is
further clear that the December 3, 2025, hearing was merely a hearing
on the landlord's request for an order on its partial-summary-judgment
motion and not an invitation for the plaintiffs to submit for
reconsideration the same response that the trial court had already
deemed untimely. As the trial court acknowledged during the December
3, 2025, hearing: "So I just owe [the landlord] an order" on the motion
for a partial summary judgment that the landlord "already argued."
Accordingly, the April 21, 2025, order striking as untimely the plaintiffs'
response in opposition to the partial-summary-judgment motion and the
December 22, 2025, order denying that same response are affirmed. It is
settled law that a trial court has the discretion to exclude as untimely
any submission in opposition to a motion for a summary judgment that
is not served upon the opposing party at least two days before the hearing
scheduled on the motion. Speer, supra.
B. Appeal No. SC-2026-0190 -- Trial Court's Error in Dismissing Entire
Case
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In its cross-appeal, the landlord argues that the trial court erred by
dismissing the entire case. As previously indicated, the trial court
entered an order on December 22, 2025, granting the landlord's motion
for a partial summary judgment. In response, the Ballet, Danny, and
Rania moved the trial court to certify that order as final pursuant to Rule
54(b). On February 3, 2026, the trial court entered an order certifying
the partial summary judgment in favor of the landlord as final pursuant
to Rule 54(b) and further stating that "this case is dismissed." The
landlord argues that the February 3, 2026, order erroneously purports to
dismiss the entire case. We agree. The February 3, 2026, order certifying
the partial summary judgment as final pursuant to Rule 54(b) while, at
the same time, purporting to dismiss the entire case is legally
inconsistent. As the landlord asserts, its motion for a partial summary
judgment addressed only those claims concerning the Ballet, specifically
the Ballet's claims against the landlord for property damage and the
landlord's counterclaims against the Ballet seeking unpaid rent under
the lease agreements and defense and indemnity for the claims of Danny
and Rania. Thus, Danny and Rania's individual claims against the
landlord remained pending. Additionally, although the trial court
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entered a partial summary judgment in favor of the landlord, it left
unresolved and pending a determination of damages owed to the
landlord. Accordingly, the trial court erred in purportedly dismissing the
entire case.
IV. Conclusion
In appeal no. SC-2026-0191, we affirm the April 21, 2025, order,
striking as untimely the response in opposition to the landlord's motion
for a partial summary judgment, and the December 22, 2025, order,
denying the resubmission of that response. In appeal no. SC-2026-0190,
we affirm the February 3, 2026, order certifying the partial summary
judgment in favor of the landlord as final. However, we reverse that
order to the extent that it dismisses the entire case, and we remand the
cause for proceedings consistent with this opinion.
SC-2026-0190 -- AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED.
SC-2026-0191 -- AFFIRMED.
Stewart, C.J., and Wise, Cook, and Parker, JJ., concur.
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