Edwards v. Johnson

143 So. 3d 691, 2013 WL 5663832, 2013 Ala. LEXIS 148
CourtSupreme Court of Alabama
DecidedOctober 18, 2013
Docket1120569
StatusPublished
Cited by5 cases

This text of 143 So. 3d 691 (Edwards v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edwards v. Johnson, 143 So. 3d 691, 2013 WL 5663832, 2013 Ala. LEXIS 148 (Ala. 2013).

Opinion

MOORE, Chief Justice.

This appeal is from a default judgment entered in the Greene Circuit Court. For the reasons discussed below, we dismiss the appeal as untimely.

I. Facts and Procedural History

On October 4, 2010, Bruce L. Johnson, Michael L. King, and William Harrison sued Luke Edwards, the Apostolic Advancement Association, Heritage Real Investment, Inc., Alabama-Mississippi Farm, Inc., and certain officers and board members of those corporations and that association in the Greene Circuit Court (the corporations, the association, the officers, and the board members are hereinafter referred to collectively as the “corporate defendants”). Given the disposition of this appeal, a recitation of the plaintiffs’ factual allegations is unnecessary.

On November 22, 2010, the plaintiffs filed an application for the entry of a default judgment against Edwards pursuant to Rule 55, Ala. R. Civ. P., for his failure to plead or otherwise to defend the allegations in the complaint. See Rule 55(a), Ala. R. Civ. P. On July 11, 2011, the plaintiffs filed another application for the entry of a default judgment along with supporting affidavits, requesting the trial court to enter default judgments against both Edwards and the corporate defendants (hereinafter referred to collectively as “the defendants”) for their failure to plead or defend.

On August 25, 2011, the trial court held a hearing on plaintiffs’ second application for a default judgment. The trial court thereafter entered a default judgment against the defendants and awarded damages in the amount of $6,599,648 and court costs. The same day, Edwards filed a [693]*693motion styled “Deny Application for Entry of Default and Motion to Dismiss,” maintaining that he had not been personally served with the summons and complaint. Edwards also asserted that the plaintiffs’ action failed to state a claim, that it was barred by the doctrine of res judicata, and that the trial court lacked subject-matter jurisdiction over the action. The trial court never ruled on Edwards’s August 25, 2011, motion.

On September 20, 2011, Edwards and the corporate defendants jointly moved to set aside the default judgment. See Rule 55(c), Ala. R. Civ. P. On December 19, 2011, 90 days after the motion was filed, the defendants’ Rule 55(c) motion was deemed denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P.1

Subsequently, the plaintiffs attempted to execute on the default judgment. On May 4, 2012, the defendants filed a motion to quash the writ of execution, stating that their September 20, 2011, motion to set aside the default judgment was still pending and was due to be set for a hearing. On that basis, they argued, the default judgment was not a final judgment that could be enforced by a writ of execution.

On May 7, 2012, the plaintiffs filed a motion to strike or to deny the defendants’ motion to quash the writ of execution, arguing that the defendants’ Rule 55(c) motion to set aside the default judgment had been denied by operation of law 90 days after its filing. The plaintiffs also noted that the 42-day period in which to appeal the denial of defendants’ Rule 55(c) motion had expired on January 30, 2012. See Rule 4(a)(1), Ala. R.App. P. The plaintiffs argued that, because the time for appeal had expired, the defendants’ motion to quash the writ of execution should be stricken or denied.

On July 2, 2012, the defendants filed a motion to vacate the trial court’s default judgment pursuant to Rule 60(b), Ala. R. Civ. P. In their motion, the defendants acknowledged that their September 20, 2011, Rule 55(c) motion to set aside the default judgment “was deemed denied 90 days after its filing.”

On January 5, 2013, the trial court denied defendants’ Rule 60(b) motion to vacate the judgment and concluded that “defendants’ contention that the default judgment is void is without merit.” On February 15, 2013, the defendants filed a notice of appeal of the order denying their Rule 60(b) motion to vacate and of the denial by operation of law of their Rule 55(c) motion to set aside the default judgment.

II. Analysis

The defendants concede they did not file a timely appeal from the Rule 59.1 denial by operation of law of their Rule 55(c) motion. In an effort to circumvent the requirement of Rule 4, Ala. R.App. P., that a notice of appeal be filed within 42 days of the judgment or order being appealed, the defendants argue that only a portion of their Rule 55(c) motion to set aside the default judgment was deemed denied by operation of law pursuant to Rule 59.1 and that this Court should construe the portion that was not denied after the passage of 90 days as a Rule 60(b) motion. They also argue that their July 2, 2012, Rule 60(b) motion was merely a resubmission that should relate back to the filing of their September 20, 2011, motion to set aside the default judgment.

[694]*694The defendants cite no authority for the proposition that a Rule 59.1 denial by operation of law could operate on only a portion of their Rule 55(c) motion. The Court of Civil Appeals has rejected such piecemeal application of Rule 59.1. See Carnes v. Carnes, 365 So.2d 981, 983 (Ala.Civ.App.1978):

“Defendant now attempts to escape the consequences of Rule 59.1 by asking this court to treat portions of his motion for new trial as a motion for relief from judgment under [Ala. R. Civ. P.] 60(b)(6) which provides:
“‘On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.’
“Our cases hold that a Rule 60(b) motion cannot be used to extend the time for appeal. Personnel Board for Mobile County v. Bronstein, 354 So.2d 8 (Ala.Civ.App.1977), cert, denied, 354 So.2d 12 (Ala.1978); State v. Wall, 348 So.2d 482 (Ala.1977). Similarly, we do not believe that defendant should be allowed to argue now for the first time that his motion for new trial was in reality a Rule 60(b) motion simply to avoid the applicability of Rule 59.1. While our Rules of Civil Procedure contemplate a liberal construction of pleadings and motions, we do not think they envision the kind of construction defendant now urges.”

In order to evade the effects of the 90-day denial by operation of law under Rule 59.1 and the 42-day filing requirement for a notice of appeal under Rule 4, the defendants advance a very liberal construction of their own motions. As did the defendant in Carnes, the defendants argue that a part of their Rule 55(c) motion “could and should be deemed a motion filed pursuant to Rule 60(b) since it clearly raised the issue of service of process on all of the [defendants].” We agree with the analysis in Carnes, and we do not believe that the defendants should be allowed to argue for the first time on appeal that a portion of their Rule 55(c) motion was in reality a Rule 60(b) motion simply to avoid the applicability of Rule 59.1.

We note that the Alabama Rules of Civil Procedure do not necessarily preclude a defendant from filing alternative Rule 55(c) and Rule 60(b) motions with the trial court.

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Cite This Page — Counsel Stack

Bluebook (online)
143 So. 3d 691, 2013 WL 5663832, 2013 Ala. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edwards-v-johnson-ala-2013.