Allie Construction, Inc. v. Debra Mosier, as personal representative of the Estate of Willard Mosier

• Court: Supreme Court of Alabama
• Decided: March 24, 2023
• Docket: 2022-0790
• Status: Published

Opinion

Rel: March 24, 2023

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, 2022-2023

_________________________

SC-2022-0790 _________________________

Allie Construction, Inc.

v.

Debra Mosier, as personal representative of the Estate of Willard Mosier, deceased

Appeal from Jefferson Circuit Court (CV-2000-6948) SC-2022-0790

MITCHELL, Justice.

Under Alabama law, actions seeking to enforce a judgment must be

commenced within 20 years of the entry of the judgment. In this appeal,

Allie Construction, Inc., obtained writs of garnishment against the estate

of Willard Mosier one day shy of the 20th anniversary of obtaining a

judgment against his widow Debra Mosier, a beneficiary of his estate. As

a result, Allie Construction properly commenced an enforcement action,

and that action must be allowed to proceed. In reaching a contrary

conclusion, the Jefferson Circuit Court erred. We therefore reverse its

order and remand for further proceedings.

Facts and Procedural History

This appeal stems from a default judgment that Allie Construction

obtained against Debra Mosier. On March 12, 2002, the Jefferson Circuit

Court awarded Allie Construction "the sum of $59,400.00 along with all

costs of this action and interest at the rate of twelve percent (12%) per

annum from the date of this judgment." Additionally, the judgment

ordered a lien on Debra's property -- described as "Lot 3 Shook Hill

Estates" -- "in the amount of $28,500.00 …."

2 SC-2022-0790

No further action was taken until Allie Construction moved to

revive the 2002 judgment on November 8, 2018. The circuit court granted

that motion, stating that the "judgment against Defendant Debra S.

Mosier is REVIVED through that date that is twenty (20) years from the

date of the judgment." (Capitalization in original.) At some point after

the 2002 judgment was revived, Allie Construction learned that Debra

was a beneficiary of Willard's estate. On March 11, 2022 -- just one day

before the 20th anniversary of the 2002 judgment -- Allie Construction

obtained writs of garnishment against the estate to collect on its

judgment against Debra. Allie Construction served the probate judge

overseeing the administration of the estate with the writs of garnishment

on that day. Debra was served the next business day, March 14, 2022.

About a month later, Debra, in her capacity as personal

representative of the estate, filed an answer in the enforcement action in

circuit court. In her answer, she denied that the estate was obligated to

satisfy the judgment. She later filed a "Motion in Opposition to Revive

Judgment" in which she argued that the 2002 judgment had been

extinguished. Two days after she filed that motion, the circuit court

issued an "ORDER DENYING PLAINTIFF'S MOTION TO REVIVE 3 SC-2022-0790

JUDGMENT …." (Capitalization in original.) In the order, the circuit

court cited § 6-9-190, Ala. Code 1975, for the proposition that " '[a]

judgment cannot be revived after the lapse of 20 years from its entry.' "

The circuit court ultimately decreed that "no EXECUTION SHALL

ISSUE on the [2002] Judgment … and that any Judgment LIEN … is

RELEASED and EXTINGUISHED." (Capitalization in original.)

Allie Construction timely moved under Rule 59(e), Ala. R. Civ. P.,

to alter, amend, or vacate the circuit court's order. In its motion, Allie

Construction clarified that it did not seek to revive the 2002 judgment by

obtaining writs of garnishment but instead sought execution of a

previously revived judgment. The circuit court denied the motion. Allie

Construction appealed.

Standard of Review

We review de novo the application of statutory language to

undisputed facts. Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033,

1035 (Ala. 2005).

Analysis

Allie Construction makes one argument on appeal -- that obtaining

a writ of garnishment to enforce a judgment within 20 years of the entry 4 SC-2022-0790

of the judgment timely commences an enforcement action under the

relevant statute of limitations. We agree.

Section 6-2-32, Ala. Code 1975, governs the disposition of this

appeal. That statute provides: "Within 20 years, actions upon a judgment

or decree of any court of this state, of the United States, or of any state

or territory of the United States must be commenced." Here, no one

disputes that Allie Construction obtained writs of garnishment on March

11, 2022, which is within 20 years of March 12, 2002. Therefore, we must

determine whether obtaining the writs "commenced" an action.

McLendon v. Hepburn, 876 So. 2d 479, 480 (Ala. Civ. App. 2003), is

a helpful point of reference. In McLendon, a plaintiff sought to enforce a

judgment by obtaining a writ of garnishment more than 20 years after

the date of the original judgment. Id. The circuit court determined that

the action was impermissible, and the Court of Civil Appeals correctly

affirmed the circuit court's decision, stating that "actions on an original

judgment must be commenced within 20 years of the judgment's entry."

Id. at 486; see also Knights Franchise Sys., Inc. v. Gauri Shivam, LLC,

No. 2:11-MC-03892-ACA, Apr. 8, 2022 (N.D. Ala. 2022) (citing McLendon

for the proposition that "a plaintiff had until April 22, 2001 to obtain 5 SC-2022-0790

writs of garnishment to execute an April 22, 1981 judgment ...."). Based

on McLendon, it is clear that Allie Construction properly "commenced"

the action because it obtained the writs of garnishment within 20 years

of the entry of the 2002 judgment.

Debra attempts to undermine that conclusion. She asserts that,

because she was served on March 14, 2022 -- two days after the 20-year

anniversary of the 2002 judgment -- the writs of garnishment are

unenforceable. In doing so, she cites the principle that "[t]he rights of the

plaintiff in garnishment and the garnishee are determined as of the date

of service of the writ of garnishment on the garnishee." Deloney v. United

States Fid. & Guar. Co., 272 Ala. 569, 572, 133 So. 2d 203, 205 (1961).

Thus, she reasons, because she was served more than 20 years after the

date of the 2002 judgment, "there exists no lien upon which Allie

Construction can collect." Debra's brief at 17. In short, Debra would add

a requirement that a plaintiff effect service before the statute of

limitations expires to properly commence an action under § 6-2-32.

But that is not how we evaluate whether a statute of limitations

has been met. Of course, whenever a complaint is filed, "there must also

exist 'a bona fide intent to have it immediately served.' " Precise v. 6 SC-2022-0790

Edwards, 60 So. 3d 228, 231 (Ala. 2010) (quoting Dunnam v. Ovbiagele,

814 So. 2d 232, 237-38 (Ala. 2001)); see also Varden Cap. Props., LLC v.

Reese, 329 So. 3d 1230, 1231 (Ala. 2020) (holding that the plaintiff lacked

a bona fide intent to serve when she waited 100 days after filing to serve);

Precise, 60 So. 3d at 230 (holding that the plaintiff lacked a bona fide

intent to serve after failing to explain 131-day delay in service after

filing); Ward v. Saben Appliance Co., 391 So. 2d 1030, 1031 (Ala. 1980)

(noting that "appellant's attorney directed the clerk to withhold personal

service until he could obtain additional information on the case"). But

there is no evidence that Allie Construction lacked a bona fide intent to

have the writs of garnishment immediately served.

To the contrary. A review of the record reveals that Allie

Construction possessed the bona fide intent to serve process when it

obtained the writs of garnishment on Friday, March 11, 2022. That same

day, Allie Construction served the probate judge in charge of

administering the estate through a special process server. The following

Monday -- the very next business day -- it served Debra through a special

process server. These actions are markedly different from those outlined

7 SC-2022-0790

in the cases above, where there was a manifest and dramatic delay in

service. Thus, Debra's lack-of-bona-fide-intent argument is a nonstarter.

Debra offers two final arguments, neither of which is availing.

First, she says that Allie Construction may no longer collect on a

judgment after more than 20 years have passed because, she says, the

judgment no longer exists. And second, she argues that because a

creditor cannot revive a judgment after 20 years have passed, it may not

enforce a judgment after 20 years either. But neither argument squares

with the governing statute, which says nothing about the extinguishment

of a properly commenced action. All § 6-2-32 requires is that the

enforcement action be "commenced" within 20 years of the entry of the

original judgment -- which Allie Construction did here. Thus, Allie

Construction complied with the law.

Conclusion

The circuit court erred by extinguishing the judgment lien. Because

Allie Construction commenced an enforcement action within 20 years of

the entry of the 2002 judgment, that action is not time-barred under § 6-

2-32. Therefore, we reverse and remand.

REVERSED AND REMANDED. 8 SC-2022-0790

Parker, C.J., and Mendheim, Stewart, and Cook, JJ., concur.

Sellers, J., concurs specially, with opinion.

Bryan, J., dissents, with opinion, which Shaw and Wise, JJ., join.

9 SC-2022-0790

SELLERS, Justice (concurring specially).

On March 12, 2002, Allie Construction, Inc., obtained a judgment

against Debra Mosier; in November 2018, it revived that judgment; and,

on March 11, 2022, it obtained writs of garnishment to collect on the

judgment. I agree with the main opinion that Allie Construction properly

commenced its enforcement action by requesting writs of garnishment

within the limitations period of § 6-2-32, Ala. Code 1975 ("Within 20

years, actions upon a judgment or decree of any court of this state … must

be commenced.").

Although Allie commenced garnishment proceedings within the

referenced 20-year window, the trial court concluded that the judgment

nevertheless had to be deemed satisfied under the statutory bar of § 6-9-

190, Ala. Code 1975, which provides that "[a] judgment cannot be revived

after the lapse of 20 years from its entry." In my view, however, the mere

lapse of 20 years from the entry of a judgment, in and of itself, does not

mean that a judgment is invalid and uncollectable. Instead, the law

conclusively presumes that the judgment has been satisfied only if there

has been no activity or engagement between the debtor and the creditor

10 SC-2022-0790

regarding the judgment in the 20 years since its entry. In State v. Mudd,

273 Ala. 579, 583, 143 So. 2d 171, 175 (1962), this Court explained:

"[I]f parties allow twenty years to elapse without taking any steps to compel a settlement, or to assert rights to property, the presumption of payment, or settlement of the disputed title arises. And this presumption is conclusive, and is not affected by the circumstances of the situation, as is considered in the case of laches."

(Emphasis added.)

Thus, a judgment expires and is conclusively presumed to be

satisfied only if no party has taken any action within 20 years. For

example, "where the [creditor], before the expiration of twenty years,

takes possession of the property, assesses it for taxation in her own name

and without recognition of any rights of the mortgagor, and without

application of any rents or profits to the mortgage indebtedness, the

presumption of payment is rebutted." McCary v. Crumpton, 267 Ala. 484,

487, 103 So. 2d 714, 716 (1958). The Advisory Committee's Notes to Rule

301, Ala. R. Evid., are helpful to understanding this: "Conclusive

presumptions ... are those applied when because of certain proven facts

the law requires the finder of fact to find another -- presumed -- fact." The

"fact" necessary to create the conclusive presumption here would be the

11 SC-2022-0790

absence of any action taken to collect on the judgment. In this case,

however, Allie Construction did take action to collect on the judgment by

seeking writs of garnishment. Thus, Allie Construction removed any

presumption that the judgment had been satisfied. Once the request for

writs of garnishment was filed, the validity of the judgment was properly

acknowledged, allowing the garnishment proceeding to continue until

resolved.

If the trial court's position on § 6-9-190 is correct, then Allie

Construction had to actually collect on its judgment within 20 years of

the entry of that judgment. The better view is that, when a party

commences a garnishment proceeding at a time when the underlying

judgment is still valid, expiration of the 20-year period during the

pendency of that proceeding does not create a conclusive presumption

that the judgment has been satisfied.

12 SC-2022-0790

BRYAN, Justice (dissenting).

I believe that the Jefferson Circuit Court's order releasing and

extinguishing purported writs of garnishment requested by Allie

Construction, Inc. ("Allie Construction"), in this case was consistent with

this Court's current precedent regarding § 6-9-190, Ala. Code 1975, and

relevant caselaw discussing the duration of judgments under Alabama

law. Because I do not believe that Allie Construction has adequately

addressed this precedent on appeal or otherwise demonstrated reversible

error by the circuit court in its application of § 6-9-190 under the

circumstances presented by this case, I respectfully dissent from the

majority's decision to reverse the circuit court's order. In a future case in

which the issue has been thoroughly briefed by the parties on appeal, I

would be open to considering any arguments regarding the proper

interpretation and application of § 6-9-190.

Shaw and Wise, JJ., concur.