Tharp v. Union State Bank
In Tharp v. Union State Bank, 364 So. 2d 335 (Ala. Civ. App. 1978) the defendant attended a hearing conducted for the purpose of considering a motion to dismiss a counterclaim. However, at that hearing, the trial court also granted summary judgment in favor of the plaintiffs. The defendant objected to the entry of summary judgment on the ground that it was not aware that the summary-judgment motion would be discussed and decided at the hearing.
The Tharp court held that "this objection to the entry of summary judgment and the state of the record showing that ten days had not expired since even the certified date of service of the motion for summary judgment negates any claim of waiver." 364 So. 2d at 338.
The Tharp court noted that the plaintiff's argument that the defendant was not prejudiced by the entry of summary judgment against it was invalid because Rule 56 "is not prefaced upon whether or not the opposing party may successfully defend against summary judgment, but it does require that the opportunity to defend be given." Tharp, 364 So. 2d at 338.