Hooie v. Barksdale

93 So. 3d 942, 2012 WL 887475, 2012 Ala. Civ. App. LEXIS 66
CourtCourt of Civil Appeals of Alabama
DecidedMarch 16, 2012
Docket2100924
StatusPublished
Cited by10 cases

This text of 93 So. 3d 942 (Hooie v. Barksdale) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hooie v. Barksdale, 93 So. 3d 942, 2012 WL 887475, 2012 Ala. Civ. App. LEXIS 66 (Ala. Ct. App. 2012).

Opinion

PER CURIAM.

Marla D. Hooie appeals from the Limestone Circuit Court’s denial of her motion seeking relief from a default judgment entered against her. We affirm the judgment.

In February 1997, Jerry R. Barksdale filed a complaint in the Limestone Circuit Court (“the trial court”) against Hooie, alleging that Hooie owed him $20,548.70 for legal services that Barksdale had performed. After Hooie failed to answer or otherwise respond to the complaint, Barks-dale obtained a default judgment against her in April 1997. The default judgment was not executed within 10 years of its entry. In November 2010, Barksdale filed a motion to revive the default judgment, pursuant to § 6-9-192, Ala.Code 1975, which provides, in pertinent part, that “[n]o execution shall issue on a judgment ... on which an execution has not been sued out within 10 years of its entry until the [judgment] has been revived.” In December 2010, the trial court granted the motion to revive the default judgment. In January 2011, Hooie was served with a writ of execution on the default judgment.

In April 2011, Hooie filed a Rule 60(b), Ala. R. Civ. P., motion seeking relief from the default judgment. In that motion, Hooie asserted that she had never been served with the complaint and, thus, that the trial court had never obtained personal jurisdiction over her and that the default judgment based on the complaint was therefore void. See Wright v. Rogers, 435 So.2d 90 (Ala.Civ.App.1983) (holding that failure of proper service results in a lack of personal jurisdiction and renders any subsequent default judgment void). Hooie labeled her motion as a Rule 60(b)(6) motion. However, because Hooie’s motion asserted that the default judgment is void, her motion was actually made pursuant to Rule 60(b)(4). See Ex parte R.S.C., 853 So.2d 228, 233 (Ala.Civ.App.2002). In support of her Rule 60(b)(4) motion, Hooie submitted, among other things, her affidavit in which she testified that she had not been served with process. At the hearing on Hooie’s motion, Hooie testified that she did not remember being served with process by the sheriff in March 1997, as Barksdale asserted. The trial court subsequently denied Hooie’s Rule 60(b)(4) motion, and Hooie appealed.

[944]*944“The standard of review on appeal from an order granting [or denying] relief under Rule 60(b)(4), Ala. R. Civ. P. (‘the judgment is void’), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala.1988). ‘If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process.’ Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala.1978) (emphasis added).”

Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 641 (Ala.2003). A motion brought under Rule 60(b)(4) is not subject to the reasonable-time requirement of Rule 60(b) and may be brought at any time. 883 So.2d at 643 (“As a nullity, a void judgment has no effect and is subject to attack at any time.”).

On appeal, as she did below, Hooie contests whether she was served with process. In circuit-court cases in which service is contested, the burden of proof falls on the party asserting proper service to prove that service was performed in accordance with the Alabama Rules of Civil Procedure. Horizons 2000, Inc. v. Smith, 620 So.2d 606, 607 (Ala.1993). The version of the rules applicable in 1997, when the complaint was allegedly served on Hooie, provided that an individual defendant could be served

“by serving the individual or by leaving a copy of the summons and the complaint at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and the complaint to an agent authorized by appointment or by law to receive service of process.”

Former Rule 4(c)(1), Ala. R. Civ. P. Barksdale maintained that he obtained personal service on Hooie through the Limestone County Sheriffs office on March 3, 1997. At that time, as they do today, the rules authorized sheriffs to personally serve process on individuals residing within the state. Former Rule 4.1 and current Rule 4(i)(1)(A), Ala. R. Civ. P. Personal service would have been perfected by locating the individual and delivering a copy of the process and accompanying documents to that person. Former Rule 4.1(b)(3), Ala. R. Civ. P. “Strict compliance with the Rules of Civil Procedure regarding service of process is required.” Wright, 435 So.2d at 91. Thus, the burden rested on Barksdale to show that Hooie was personally served as provided by the operative rules.

The record reflects that, on February 26, 1997, the clerk of the trial court instructed the sheriff to serve process on Hooie at her home address in Athens. The case-action-summary sheet contains a handwritten entry indicating that Hooie was served on March 3, 1997. The record also contains an exhibit, which was part of the clerk’s record, dated March 5, 1997, in which the clerk of the court signed a statement asserting that service had been made on Hooie on March 3, 1997. However, the record does not contain a completed return of service signed by a process server showing a date of service on Hooie. The version of Rule 4.1(b)(3) in effect at the pertinent time provided that a duly executed return of service constituted prima facie evidence of service of process. In her brief to this court, Hooie argues that, “[w]ith no signed [s]heriffs return, there is no [p]rima facie evidence of perfected service and the [a]ppellant does not have the [945]*945burden to show by clear and convincing evidence that she was not served.” Hooie’s reasoning suggests that strict adherence to the rules regarding service of process required a completed return of service and that, without one, a party could not present a prima facie case of service. We disagree.

As stated above, pursuant to former Rule 4.1(b)(3), service would have been perfected once an authorized process server located the person to be served and personally delivered process to that person. The completion and filing of a return of service merely provided prima facie evidence of that service. “Prima facie evidence” is “evidence which suffices for proof of a particular fact until the fact is contradicted by other evidence.” Lavett v. Lavett, 414 So.2d 907, 911-12 (Ala.1982), overruled on other grounds by McBride v. McBride, 548 So.2d 155, 157 (Ala.1989). The presence of a signed return of service is “prima facie evidence” of the fact of service, but the converse is not also true. That is, the lack of a signed return of service does not compel the conclusion that service was not properly effected and does not require a trial court to ignore other evidence tending to prove the fact of service.

In Welch v. Walker, 4 Port. 120 (Ala.1836), the supreme court held that, in the absence of a sheriffs return of service, sufficient other proof must be obtained to show actual service on the defendant in order to sustain a default judgment. Likewise, in Norwood v. Riddle, 9 Port.

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Cite This Page — Counsel Stack

Bluebook (online)
93 So. 3d 942, 2012 WL 887475, 2012 Ala. Civ. App. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hooie-v-barksdale-alacivapp-2012.