Ex parte Jerry M. Blevins. PETITION FOR WRIT OF MANDAMUS (In re: Jerry M. Blevins v. Keith Edward Myers) (Elmore Circuit Court: CV-22-900191).

• Court: Supreme Court of Alabama
• Decided: August 23, 2024
• Docket: SC-2023-0638
• Status: Published

Opinion

Rel: August 23, 2024

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 SPECIAL TERM, 2024

_________________________

SC-2023-0545 _________________________

Keith Edward Myers

v.

Jerry M. Blevins

Appeal from Elmore Circuit Court (CV-22-900191)

SC-2023-0638 _________________________ SC-2023-0545; SC-2023-0638

Ex parte Jerry M. Blevins

PETITION FOR WRIT OF MANDAMUS

(In re: Jerry M. Blevins

Keith Edward Myers)

(Elmore Circuit Court: CV-22-900191)

SHAW, Justice.

These consolidated appellate proceedings apparently stem from a

negative customer review posted online by Keith Edward Myers, the

defendant below, regarding the quality of legal services rendered to

Myers by Jerry M. Blevins, an Alabama attorney and the plaintiff below.

In case no. SC-2023-0545 ("the direct appeal"), Myers purports to appeal

from the trial court's default judgment entered against him. In case no.

SC-2023-0638 ("the petition"), Blevins petitions for a writ of mandamus

directing the trial court to vacate its order quashing writs of execution

issued to Blevins and staying execution of the default judgment during

the pendency of the direct appeal. For the reasons provided herein, we

dismiss both the direct appeal and the petition.

Facts and Procedural History 2 SC-2023-0545; SC-2023-0638

Myers apparently posted to the Internet an unfavorable review

regarding Blevins's representation of Myers in a prior legal matter. On

September 4, 2022, Blevins, representing himself, sued Myers in the

Elmore Circuit Court. Blevins's complaint sought both damages and

injunctive relief premised on the following claims: defamation per se,

invasion of privacy, wantonness, and negligence. At that same time,

Blevins filed a motion requesting that the record in the case be sealed in

an apparent attempt to keep the allegedly defamatory contents of Myers's

review from further public disclosure; the trial court granted Blevins's

request on September 6, 2022.

After several unsuccessful attempts at serving Myers with the

complaint, Blevins filed a "status report" informing the trial court as to

his belief that Myers was "avoiding service." In December 2022, the trial

court granted Blevins's request to serve Myers by publication. Myers did

not appear or answer.

Blevins subsequently filed a motion seeking the entry of a default

judgment. On February 14, 2023, the trial court entered a default

judgment in favor of Blevins that awarded Blevins $500,000 in

compensatory damages and $1.5 million in punitive damages.

3 SC-2023-0545; SC-2023-0638

Additionally, the trial court awarded Blevins a permanent injunction

mandating that Myers remove the posted review on which Blevins's

claims were based and barring him from "any future negative comments

about [Blevins] on the internet or elsewhere."

In March 2023, Blevins obtained a writ of garnishment on Myers's

employment earnings. At or around that same time, Blevins also

obtained a writ of execution seeking to "[s]eize any real or personal

property belonging to … Myers" for sale and application to the judgment

amount.

On the same date the writ of execution issued, March 28, 2023,

counsel for Myers filed an initial appearance on his behalf in the trial

court. Also on March 28 -- more than 30 days after entry of the default

judgment on February 14 -- Myers filed separate motions seeking to

unseal the record in the case and requesting that the default judgment

be set aside. As grounds for relief from the judgment, Myers alleged that

publication for purposes of service had not occurred in the county where

he resides, that the case was not commenced in the county where he

resides, and that he had not been effectively served.

4 SC-2023-0545; SC-2023-0638

At a May 3, 2023, hearing at which both Myers's counsel and

Blevins were present, Myers indicated to the trial court that the sealed

status of the record had prevented him from accessing prior pleadings

and orders and moved "to delay [a] hearing on the Motion to Set Aside

until such time as he has access." On that same date, the trial court

entered an order changing the status of the case to maintain its

confidentiality but to afford both parties access to the court's records.

On May 31, 2023, Myers filed an amended motion to set aside the

default judgment against him on numerous grounds, including, among

others, purported improper venue, purported ineffective service, and

purported failure by Blevins to make a demand of retraction as provided

in § 6-5-186, Ala. Code 1975. Attached to the amended motion was his

answer to Blevins's complaint, which, in addition to a denial of Blevins's

material allegations, included numerous affirmative defenses. Myers

also filed motions seeking to stop execution of the writ of garnishment

Blevins had obtained and to stop the sale of his property in response to

the writ of execution, each of which Blevins opposed.

While Myers's motions remained pending, he filed in the trial court

on June 12, 2023, a suggestion of bankruptcy, which indicated that

5 SC-2023-0545; SC-2023-0638

Blevins was identified as a creditor in a pending Chapter 13 bankruptcy

case commenced by Myers. As a result, all proceedings in the trial court

were stayed. In July 2023, however, Myers's bankruptcy case was

dismissed. At or around that same time, Blevins refiled his writs of

garnishment and execution. On July 28, 2023, Myers filed a notice of

appeal.

On August 30, 2023, Myers filed in the trial court a renewed motion

seeking to stop Blevins's execution on real property Myers owns in

Cullman County. In response, the trial court granted Myers's request

and stayed execution pending this Court's resolution of the direct appeal.

Blevins filed a motion requesting that the trial court "reconsider" its stay

of execution, in which he argued that Myers had not filed the supersedeas

bond necessary to entitle him to "a stay of the judgment during the

[direct] appeal." See Rule 8(a), Ala. R. App. P.

Blevins filed the petition with this Court on September 3, 2023,

challenging the trial court's order quashing his writs of execution and

staying execution pending our resolution of the direct appeal. We

subsequently ordered answers and briefs. The direct appeal and the

petition were later consolidated on motion of Blevins.

6 SC-2023-0545; SC-2023-0638

Discussion

A. The Direct Appeal (No. SC-2023-0545)

Myers purports to appeal from both the trial court's default

judgment and its prior order sealing the record. Those orders were,

respectively, entered on February 14, 2023, and September 6, 2022.

Because Myers's notice of appeal was filed over five months after the

entry of the default judgment, to the extent that he intends to appeal

directly from that judgment, his appeal is untimely and due to be

dismissed. See Branson v. Moore Grp., Inc., 439 So. 2d 116, 117-18 (Ala.

1983) ("Generally, a notice of appeal to be timely must be filed with the

clerk of the trial court within forty-two days of the date of the entry of

the judgment or order appealed from except in the case of certain

specified orders and judgments. … [The] notice of appeal, being filed

more than five months after the entry of the default judgment …, comes

too late for review of the judgment."). See also Rule 2(a)(1), Ala. R. App.

P. ("An appeal shall be dismissed if the notice of appeal was not timely

filed to invoke the jurisdiction of the appellate court.").

Rule 55(c), Ala. R. Civ. P., provides that a trial "court may … set

aside a judgment by default on the motion of a party filed not later than

7 SC-2023-0545; SC-2023-0638

thirty (30) days after the entry of the judgment." Here, Myers's motion

to set aside the default judgment was filed more than 30 days after the

entry of that judgment by the trial court; thus, we presume, as Myers

appears to suggest in his answer to the petition, that Myers intended to

seek relief pursuant to Rule 60(b)(1), Ala. R. Civ. P. See Kirtland v. Fort

Morgan Auth. Sewer Serv., Inc., 524 So. 2d 600, 603 (Ala. 1988) (" 'After

30 days has passed since the entry of the default judgment, Rule 60, [Ala.

R. Civ. P.], becomes available to a party who has had a default judgment

entered against him.' " (quoting Wiggins v. Tuscaloosa Warehouse

Groceries, Inc., 396 So. 2d 91, 92 (Ala. 1981))).

Among other issues, we note that the record before us fails to

indicate -- as both Myers and Blevins also concede -- that the trial court

ever ruled on Myers's Rule 60(b) motion. In such cases, we have

explained:

" 'The question of whether an order or judgment is final and therefore can support an appeal is jurisdictional.' Cox v. Parrish, 292 So. 3d 312, 315 (Ala. 2019). Generally, when an appeal is premature -- i.e., when it has been taken before a final, appealable order or judgment has been entered -- our appellate courts do not have jurisdiction to hear the appeal and the appeal is due to be dismissed. See, e.g., Thompson v. State ex rel. Jett, 318 So. 3d 1226, 1231 (Ala. Civ. App. 2020) (holding that the appellate court lacked jurisdiction over the appeal because the appellant's Rule 60(b) motion was still 8 SC-2023-0545; SC-2023-0638

pending before the trial court and, thus, the appeal was premature and due to be dismissed).

"….

"Rule 59.1, Ala. R. Civ. P., provides:

" 'No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59[, Ala. R. Civ. P.,] shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown.'

"(Emphasis added.) The 90-day period provided in Rule 59.1 applies only to motions filed under Rules 50, 52, 55, and 59, Ala. R. Civ. P.; it does not apply to Rule 60(b) motions to set aside a judgment. See Ex parte R.S.C., 853 So. 2d 228, 233 (Ala. Civ. App. 2002) ('It is well settled that the 90-day period for pending postjudgment motions applies only to motions filed under Rules 50, 52, 55, and 59, and that it does not apply to Rule 60(b) motions to set aside a judgment.'). Because motions made pursuant to Rule 60(b) are not subject to Rule 59.1, they are 'not subject to being denied by operation of law pursuant to that rule.' Tucker v. Nixon, 215 So. 3d 1102, 1106 (Ala. Civ. App. 2016). …

"There is no indication in the record that the trial court ruled on the [plaintiffs' Rule 60(b)] motion, and neither side disputes that no formal ruling was ever made on the motion. In such cases, our appellate courts have held that the Rule 60(b) motion remains pending in the trial court. See Thompson, 318 So. 3d at 1231 (holding that the appellant's Rule 60(b) motion was still pending before the trial court and, thus, that the appeal was premature), and Tucker, 215 So. 3d at 1106-07 (holding that, because it was not subject to being

9 SC-2023-0545; SC-2023-0638

denied by operation of law under Rule 59.1, the appellant's Rule 60(b) motion was still pending before the trial court). As a result, in such circumstances, our appellate courts have further held that an appeal concerning a still-pending Rule 60(b) motion must be dismissed for lack of appellate jurisdiction. See Thompson, 318 So. 3d at 1231 (dismissing appeal after determining that jurisdiction was lacking because the appellant's Rule 60(b) motion was still pending in the trial court), and Tucker, 215 So. 3d at 1106-07 (dismissing, in part, an appeal insofar as it concerned the appellant's Rule 60(b) motion that was still pending in the trial court). Cf. Ex parte R.S.C., 853 So. 2d at 234 (holding that a petition for a writ of mandamus seeking to set aside a purported denial by operation of law of a Rule 60(b) motion was premature because the trial court had not yet ruled on the motion). Because the [plaintiffs'] Rule 60(b) motion remains pending before the trial court, this Court lacks jurisdiction over the [plaintiffs']' appeal insofar as it challenges the trial court's purported denial by operation of law of their Rule 60(b) motion, and, therefore, their appeal, insofar as it challenges that purported denial, is due to be dismissed."

Womble v. Moore, 370 So. 3d 817, 818-20 (Ala. 2022).

In the present case, it appears that the pendency of Myers's

bankruptcy case halted proceedings in the trial court before that court

had the opportunity to rule on Myers's Rule 60(b) motion seeking relief

from the default judgment. Following the dismissal of Myers's

bankruptcy case, Blevins resumed his efforts aimed at collecting the

judgment amount, which resulted in Myers's initiating the direct appeal

before the trial court ruled on the motion. Because Myers's Rule 60(b)

10 SC-2023-0545; SC-2023-0638

motion challenging the default judgment entered against him remains

pending below, to the extent that the direct appeal challenges the trial

court's failure to set aside the default judgment, the appeal is due to be

dismissed.

Myers also appears to challenge the trial court's ruling "grant[ing]

Blevin[s]'s Motion to Seal the Record," which, Myers contends, was

allegedly made without satisfying established procedural requirements.

As explained above, the trial court initially sealed the record on

September 6, 2022, two days after Blevins filed his complaint. After the

entry of the default judgment and Blevins's initial execution attempts,

counsel for Myers filed his notice of appearance in the case on March 28,

2023. At that same time, Myers filed a motion requesting that the trial

court unseal the record in the case, in which he exclusively argued,

without any citation to authority, that because it was a "simple

defamation/slander case … there appear[ed] to be no reason for the case

to be sealed." That request was opposed by Blevins, and it was denied by

the trial court on March 29, 2023. However, the trial court entered a

subsequent order changing the status of the case to "confidential"; thus,

11 SC-2023-0545; SC-2023-0638

that order, in substance, changed the case's status from "sealed" as Myers

had requested.

On appeal, Myers cites to authority recognizing a "presumption of

a right of public access to judicial proceedings" and the corresponding

necessity of specific findings that the party seeking to seal the record has

demonstrated by clear and convincing evidence

"that the information contained in the document sought to be sealed:

"(1) constitutes a trade secret or other confidential commercial research or information; … or

"(2) is a matter of national security; … or

"(3) promotes scandal or defamation; or

"(4) pertains to wholly private family matters, such as divorce, child custody, or adoption; … or

"(5) poses a serious threat of harassment, exploitation, physical intrusion, or other particularized harm to the parties to the action; or

"(6) poses the potential for harm to third persons not parties to the litigation."

12 SC-2023-0545; SC-2023-0638

Holland v. Eads, 614 So. 2d 1012, 1015 and 1016 (Ala. 1993) (emphasis

added). 1 Myers also suggests that, as a result of the trial court's decision

to seal the record, his right to "knowledge of a case against him is being

violated," and he references his initial inability to access or respond to

Blevins's pleadings.

Assuming that Myers's claims are, in fact, preserved for our review,

we first note, as to Myers's challenge based on the alleged violation of his

ability to access the trial court's records, that the trial court's order

changing the status of the case resolved any complaint in this regard.

Myers obtained in the trial court the relief he sought -- the record in the

case was unsealed, and he was able to access the trial court's records. It

is unclear what additional remedy he seeks on appeal. See Chesser v.

Mid-S. Elecs., Inc., 652 So. 2d 240, 242 (Ala. 1994) ("Only adverse rulings

by the trial court are reviewable on appeal."), and Rule 45, Ala. R. App.

P.

1To the extent that Myers suggests that, in sealing the record purportedly without complying with the requirements of Holland, supra, the trial court was deprived of jurisdiction, he includes no authority supporting that proposition, and we have found none.

13 SC-2023-0545; SC-2023-0638

Further, assuming that Myers may challenge the purported

deprivation of public access to the record in his case, we conclude that he

may not do so in this direct appeal. As explained, Myers's apparent

attempt to directly appeal from the default judgment is untimely and any

attempt to appeal the denial of his Rule 60(b) motion is premature, i.e.,

neither properly invokes this Court's jurisdiction. Further, although a

challenge to a trial court's decision to seal a record has been reviewed by

petition for a writ of mandamus, see Ex parte Gentry, 228 So. 3d 1016,

1021 (Ala. Civ. App. 2017), Myers's challenge again comes too late. See

Rule 21(a)(3), Ala. R. App. P. ("The presumptively reasonable time for

filing a petition seeking review of an order of a trial court or of a lower

appellate court shall be the same as the time for taking an appeal.").

For the reasons discussed above, the direct appeal is dismissed in

its entirety.

B. The Petition (No. SC-2023-0638)

In the petition, Blevins seeks a writ of mandamus directing the trial

court to vacate its order quashing the writs of execution that permitted

Blevins to proceed with collecting on the default judgment against Myers.

As the petition notes, the trial court's order quashing those writs at

14 SC-2023-0545; SC-2023-0638

Myers's request specifically provided: "As previously Ordered on June

14, 2023, all action in this matter is STAYED until there is a decision

from the Appellate Court." (Capitalization in original.) In his "motion

for reconsideration," Blevins opposed any stay of the execution of the

judgment during the pendency of the direct appeal on the ground that

Myers had not posted the required supersedeas bond. Based on the

nature of the relief requested, we conclude that our resolution of the

direct appeal renders the petition moot.

Here, Blevins seeks relief from the trial court's order quashing

existing writs of execution and staying further execution efforts by

Blevins during the pendency of the direct appeal. Our resolution of the

direct appeal will necessarily allow proceedings before the trial court --

including Blevins's execution efforts in the absence of an unfavorable

ruling on Myers's Rule 60(b) motion -- to resume. As a result of our

decision, the trial court's stay, by its terms, will expire, thus granting

Blevins the relief he seeks in the petition. Cf. Alabama Disposal Sols.-

Landfill, L.L.C. v. Town of Lowndesboro, 837 So. 2d 292, 296 (Ala. Civ.

App. 2002) ("The relief sought in these appeals … was relief from the trial

court's order staying all … proceedings …. With the lifting of the stay,

15 SC-2023-0545; SC-2023-0638

there is no longer any need for the relief sought in these appeals."), and

Carpenter v. State, 276 Ala. 695, 695, 166 So. 2d 423, 423 (1964) ("The

petition for mandamus is thus rendered moot because the petitioner now

has the relief for which he prayed and the petition for mandamus is due

to be dismissed."). Accordingly, the petition is due to be dismissed.

Conclusion

Based on the foregoing, both the direct appeal and the petition are

SC-2023-0545 -- APPEAL DISMISSED.

SC-2023-0638 -- PETITION DISMISSED.

Parker, C.J., and Wise, Bryan, Sellers, Mendheim, Stewart,

Mitchell, and Cook, JJ., concur.