Looney v. State

60 So. 3d 293, 2010 Ala. Civ. App. LEXIS 282, 2010 WL 3722570
CourtCourt of Civil Appeals of Alabama
DecidedSeptember 24, 2010
Docket2090694
StatusPublished
Cited by8 cases

This text of 60 So. 3d 293 (Looney v. State) 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
Looney v. State, 60 So. 3d 293, 2010 Ala. Civ. App. LEXIS 282, 2010 WL 3722570 (Ala. Ct. App. 2010).

Opinion

PER CURIAM.

Joe Looney, Jr., who is currently incarcerated at the Bibb Correctional Facility, appeals from a judgment denying his motion for relief from an underlying judgment ordering the forfeiture of $680 in United States currency. Looney filed his motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., alleging that he had not received notice of the underlying forfeiture action, in violation of his right to due process. Therefore, he contended, the forfeiture judgment was void.

The record indicates the following. On May 22, 2008, the Ashville Police Department executed a search warrant at Looney’s house in connection with a narcotics investigation. As a result of the search, [295]*295police seized $680 in United States currency and two shotguns. Looney, who was on parole at the time,1 was arrested and taken to the St. Clair County jail. He remained in the jail until June 28, 2008, when he was transferred to Kilby Correctional Facility because his parole had been revoked.

On July 22, 2008, the State of Alabama filed a civil forfeiture action relating to the seized currency and shotguns. The record indicates that the complaint was “served” on Looney at his Ashville address and that Lance Bell, listed on the case-action summary as Looney’s attorney, also accepted the forfeiture complaint. Notice regarding the forfeiture hearing was also published in a St. Clair County newspaper.

The hearing was held as scheduled on October 28, 2008. Looney was not present, and no one appeared on his behalf. After the hearing, the trial court ordered that the $680 and the shotguns seized at Looney’s house be forfeited to the Ashville Police Department for use by law enforcement.

More than a year later, on January 15, 2010, Looney mailed a letter to the St. Clair Circuit clerk’s office from the Bibb Correctional Facility, where he apparently had been transferred since being taken to the Kilby Correctional Facility, requesting information about the forfeiture of his vehicle and asking for notice of any forfeiture hearing regarding the vehicle.2- In response to Looney’s letter, the clerk’s office provided him with the record in this case. On February 20, 2010, Looney filed a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking to have the forfeiture judgment set aside because, he said, he had not been served with the complaint and, thus, had not had notice of the forfeiture proceedings against him. He pointed out that he could not have been served at his house because he had been incarcerated since his arrest at the time the search warrant was executed. He also pointed out that the State was aware that he was incarcerated but that it made no effort to serve him at the jail where he had been taken initially or at the prison where he had been transferred. Looney also asserted that the forfeiture proceedings were not instituted promptly.

On March 29, 2010, the trial court entered a judgment stating that “[a]n examination of the Court record shows that there was proper service of the notice of claim by the St. Clair County Sheriffs Department” and denying Looney’s Rule 60(b)(4) motion. Looney, appearing pro se, appeals.

The State asserts that “[t]he facts of this case were received ore tenus” and that, therefore, this court is to apply the ore tenus standard of review to determine whether the denial of Looney’s Rule 60(b)(4) motion was proper. We note that nothing in the record indicates that ore tenus evidence was taken in connection with Looney’s motion. In fact, the trial court’s order explicitly states that it examined the record to determine whether Looney had been properly served with the complaint in the underlying forfeiture proceeding. The language of the trial court’s judgment indicates that the decision to deny Looney’s motion was based solely upon documents in the record. According[296]*296ly, the ore tenus standard of review has no application in this case.

Furthermore, as our supreme court stated in Nationwide Mutual Fire Insurance Co. v. Austin, 34 So.3d 1238, 1242 (Ala.2009), the opinions of our appellate courts recognize that, when relief is sought under Rule 60(b)(4), a de novo standard of review is applied. “This is so because the issue of jurisdiction raised in a Rule 60(b)(4) motion is a purely legal one.” Id. See, e.g., Duncan v. S.N., 907 So.2d 428, 430 (Ala.2005) (de novo review applied in determining whether an inmate had been served properly with a summons and complaint). The proper standard of review of the denial of a Rule 60(b)(4) motion is as follows:

“ ‘ “The standard of review on appeal from the denial of relief under Rule 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment, as under Rule 60(b)(4), discretion has no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.” ’ ”

Bank of America Corp. v. Edwards, 881 So.2d 403, 405 (Ala.2003) (quoting Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655, 657 (Ala.2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991))); Ex parte N.B., [Ms. 1080440, June 30, 2010] — So.3d -, - (Ala.2010).

The State contends that the judgment denying relief from the underlying forfeiture judgment is due to be affirmed because, it says, Looney’s challenge to the forfeiture judgment is untimely. In its brief, the State writes: “Rule 60(b), [Ala.] R. Civ. P., provides that challenges under Rule 60(b)(4), [Ala.] R. Civ. P., shall ‘not be made moré than four months after the judgment, order, or proceeding was entered or taken.’ ” In fact, however, Rule 60(b) provides that a motion filed pursuant to the rule “shall be made within a reasonable time, and for reasons [set forth in Rule 60(b) ](1), (2), and (3)[3] not more than four (4) months after the judgment, order, or proceeding was entered or taken.” Clearly, Looney’s Rule 60(b)(4) motion was not filed pursuant to reasons (1), (2) or (3), but pursuant to reason (4), i.e., that the judgment is void. “ ‘As a nullity, a void judgment has no effect and is subject to attack at any time.... [A] motion for relief from a void judgment is not governed by the reasonable-time requirement of Rule 60(b).’ Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003).” Milloy v. Woods, 23 So.3d 48, 51 (Ala.Civ.App.2009). Well settled law renders meritless the State’s assertion that Looney’s request for relief from the forfeiture judgment, filed pursuant to Rule 60(b)(4), was untimely.

As mentioned, Looney contends that the forfeiture judgment is void because he was deprived of his due-process right to notice of the forfeiture proceedings. This court recently addressed whether a failure to afford due process to a defendant results in a void judgment.

“ ‘ “[I]t is established by the decisions in this and in Federal jurisdictions that due process of law means [297]*297notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.”
‘Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940) (emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
60 So. 3d 293, 2010 Ala. Civ. App. LEXIS 282, 2010 WL 3722570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/looney-v-state-alacivapp-2010.