John A. Daugherty and Cheryl A. Daugherty v. Brenda M. Campbell et al.
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ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2013 -2014
_________________________
2120844
_________________________
John A. Daugherty and Cheryl A. Daugherty
v.
Brenda M. Campbell et al.
Appeal from Jefferson Circuit Court
(CV-12-902133)
MOORE, Judge.
John A. Daugherty and Cheryl A. Daugherty appeal from a
summary judgment entered by the Jefferson Circuit Court in
favor of Brenda M. Campbell, Tavares Ward, Sr., Reli Title,
LLC, and Stewart Title Guaranty Company.
We affirm.
2120844
Background
On June 8, 2007, the Jefferson District Court entered a
default judgment ("the 2007 judgment") in the amount of
$10,000 in favor of Cheryl against Tavares Ward, Sr., Tavares
Ward, Jr., Lomb Avenue Automotive, and Five Star Automotive;
that judgment arose from automotive repairs that Cheryl had
sought from the defendants for her vehicle and that Cheryl
claimed had not been performed correctly.
On August 8, 2007,
Cheryl recorded the 2007 judgment in the Jefferson Probate
Court.1
On July 24, 2008, Tavares Ward, Sr. (hereinafter "Ward"),
through legal counsel, filed a motion in the district court,
seeking to set aside, pursuant to Rule 60(b), Ala. R. Civ. P.,
the 2007 judgment as to him.
In support of that motion, he
asserted that he had never been served with the summons and
complaint in the original action; that, as a result, the 2007
judgment was void as to him; and that Cheryl had recorded the
1
On July 8, 2008, Cheryl filed in the district court a
motion styled "Motion to Amend Judgment Nunc Pro Tunc" seeking
to clarify the names shown on the 2007 judgment and to
distinguish between Tavares Ward, Sr., and Tavares Ward, Jr.
The district court granted her motion to identify Tavares
Ward, Jr., as "Teague Ward aka Tavares Ward, Jr."
2
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2007 judgment, thereby encumbering real property for which he
currently had a pending sales contract.
motion.
Cheryl opposed that
On August 4, 2008, after a hearing, the district
court set aside the 2007 judgment against Ward.
On August 15, 2008, Cheryl timely filed in the circuit
court a petition seeking mandamus review of the district
court's order granting Ward's Rule 60(b) motion.2
On August
29, 2008, after Cheryl had filed her mandamus petition in the
circuit court, Ward executed a warranty deed conveying real
property located in Jefferson County ("the property") to
Campbell.
On
September
2,
2008,
Campbell
recorded
the
warranty deed she had received from Ward in the probate court.
As part of the conveyance from Ward to Campbell, Reli Title
2
Cheryl originally filed with the circuit court a notice
of appeal from the district court's August 4, 2008, ruling.
The circuit court subsequently granted Cheryl's motion to
treat her notice of appeal as a petition for a writ of
mandamus. See, e.g., Bates v. Stewart, 99 So. 3d 837 (Ala.
2012) (recognizing that a petition for a writ of mandamus is
a proper method of seeking review of a trial court's ruling
granting a motion, filed pursuant to Rule 60(b), Ala. R. Civ.
P., reinstating an action); and Ex parte McCrory & Williams,
Inc., [Ms. 2121099, Jan. 10, 2014] ___ So. 3d ___ (Ala. Civ.
App. 2014) (reviewing, by way of mandamus petition, a trial
court's granting of a motion, filed pursuant to Rule 60(b)(4),
Ala. R. Civ. P., seeking to set aside a default judgment).
We, therefore, refer to Cheryl's filing in the circuit court
as a mandamus petition.
3
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and Stewart Title issued title-insurance policies, but they
did not note or except from coverage the 2007 judgment against
Ward that Cheryl had recorded in the probate court.
On March 18, 2009, the circuit court entered a judgment
finding
that
Ward
had been
served with
complaint in the district-court action.
the summons
and
As a result, the
circuit court found that the district court had properly
entered the 2007 judgment against Ward and it "revived" and
reinstated the certificate of judgment previously recorded by
Cheryl.
On June 10, 2012, the Daughertys filed this action in the
circuit court.3
In the complaint, as finally amended, they
asserted a claim, pursuant to Ala. Code 1975, § 8-9A-1 et
seq., known as the "Alabama Uniform Fraudulent Transfer Act,"
against Ward, Campbell, Reli Title, and Stewart Title, and
they sought a judgment declaring the priority of Cheryl's
judgment lien as to Campbell's title to the property.
3
Although John Daugherty is a practicing attorney who
represented Cheryl in obtaining the 2007 judgment, the record
does not explain his role as a plaintiff in the underlying
action before the circuit court. In any event, his interests
appear to be aligned with and identical to Cheryl's interests.
4
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Reli Title and Stewart Title filed, pursuant to Rule
12(b)(6), Ala. R. Civ. P., separate motions seeking to dismiss
the fraudulent-conveyance claim asserted against them in the
first
amended
complaint.
Reli
Title
and
Stewart
Title
subsequently filed, pursuant to Rule 12(b)(6), a joint motion
to dismiss the declaratory-judgment count asserted against
them in the second amended complaint.
Campbell answered the complaint, asserting, among other
things, that, pursuant to Ala. Code 1975, § 35-4-90(a), her
deed had been recorded before the circuit court had revived
Cheryl's judgment lien against Ward and, therefore, that her
deed had priority over Cheryl's lien.
Campbell also asserted
various affirmative defenses and a counterclaim, seeking a
judgment declaring that she was a bona fide purchaser without
notice of a valid lien at the time she acquired the property
and that her title to the property had not been impacted by
the circuit court's subsequent reinstatement of the 2007
judgment against Ward.
Alternatively, Campbell asserted that
she was entitled to an equitable lien for the value of the
improvements she had made to the property. Ward, who appeared
5
2120844
pro se, answered the complaint denying all claims.
Ward made
no further effort to defend against the claims.
The Daughertys and Campbell filed competing summaryjudgment motions, and the Daughertys sought to strike the
affidavits submitted in support of Campbell's summary-judgment
motion. The circuit court granted the motions to dismiss that
had been filed by Reli Title and Stewart Title.
After a
hearing
by
on
the
summary-judgment
motions
filed
the
Daughertys and Campbell, the circuit court entered a summary
judgment in favor of Campbell, denied the summary-judgment
motion filed by the Daughertys, denied the motion to strike
filed
by
the
prejudice.4
entry
of
Daughertys,
and
dismissed
the
action
with
The circuit court provided no reasoning for the
its
summary
judgment.
The
Daughertys
timely
appealed.
4
Based on the nature of the claims asserted against
Campbell and Ward, we conclude that the circuit court's entry
of a summary judgment in favor of Campbell implicitly disposed
of all claims asserted against Ward as well. Additionally,
Campbell has not conditionally cross-appealed from the
implicit denial of her cross-claim in which she had asserted
an equitable lien for the value of the improvements she had
made to the property.
6
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Standard of Review
"'We review the trial court's grant or denial of
a summary-judgment motion de novo, and we use the
same standard used by the trial court to determine
whether the evidence presented to the trial court
presents a genuine issue of material fact. Bockman
v. WCH, L.L.C., 943 So. 2d 789 (Ala. 2006). Once the
summary-judgment movant shows there is no genuine
issue of material fact, the nonmovant must then
present substantial evidence creating a genuine
issue of material fact. Id. "We review the evidence
in a light most favorable to the nonmovant." 943 So.
2d at 795.
We review questions of law de novo.
Davis v. Hanson Aggregates Southeast, Inc., 952 So.
2d 330 (Ala. 2006).'"
Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So. 2d
784, 793 (Ala. 2007) (quoting Smith v. State Farm Mut. Auto.
Ins. Co., 952 So. 2d 342, 346 (Ala. 2006)).
Analysis
On appeal,
the
Daughertys have
not argued that the
circuit court erred in entering a judgment in favor of all the
defendants as to the fraudulent-conveyance claim, and, as a
result, we deem that issue to have been waived.
See, e.g.,
Boshell v. Keith, 418 So. 2d 89, 92 (Ala. 1982) ("When an
appellant fails to argue an issue in its brief, that issue is
waived.").
The Daughertys also make no arguments specific to their
claims asserted against Reli Title or Stewart Title, and,
7
2120844
despite
Reli
Title's
and
Stewart
Title's
role
as
title
insurers involved in the conveyance of the property between
Ward and Campbell, the record fails to disclose any privity
between
the
Daughertys
and
Reli
Daughertys and Stewart Title.
Title
and
between
the
We, therefore, affirm the
circuit court's dismissal of the claims asserted against Reli
Title and Stewart Title.
Finally, the Daughertys have not
specifically addressed the claims asserted against Ward on
appeal. We, therefore, affirm the circuit court's judgment
implicitly entered in favor of Ward as to all claims asserted
against him.
In their brief filed with this court, the Daughertys
argue only that Cheryl's judgment lien against the property is
entitled to priority over Campbell's deed. The parties do not
dispute
that
the
2007
judgment
predated
Campbell's
deed
obtained from Ward in August 2008. It also is undisputed that
Cheryl recorded the certificate of judgment in August 2007
while Campbell recorded her deed in September 2008.
In Pope v. Gordon, 922 So. 2d 893, 896 (Ala. 2005), our
supreme court stated:
"A judgment creditor may ... create a lien on the
judgment
debtor's
property
by
obtaining
a
8
2120844
certificate of judgment from [any court of this
state] and filing that certificate in the office of
the judge of probate of any county. See Ala. Code
1975, § 6-9-210.
This filing creates a lien on
property of the judgment debtor in that county. See
Ala. Code 1975, § 6-9-211."
(Footnote omitted.)
We, therefore, agree with the Daughertys
that, by recording the certificate of judgment regarding the
2007 judgment in the probate court, Cheryl created a lien in
her favor as to the property.
Subsequent
to
the
creation
of
that
judgment
lien,
however, the district court set aside the 2007 judgment
entered against Ward on the basis that it was void due to lack
of service upon Ward.
Although Cheryl timely sought mandamus
review of that ruling, "[t]he filing of a petition for a writ
of mandamus against a trial judge does not divest the trial
court of jurisdiction, stay the case, or toll the running of
any period for obeying an order or perfecting a filing in the
case."
Ex parte State (State v. Webber), 892 So. 2d 869, 871
(Ala. 2004).
Because Cheryl's mandamus petition did not stay
the effect of the district court's ruling, the 2007 judgment
as to Ward was declared void and, as stated by the district
court, was "held for naught" as of August 4, 2008.
9
2120844
In determining the effect of the district court's ruling
on Cheryl's judgment lien, we find the following language in
Duncan v. Gunter Ins. Agency (In re Duncan), 60 B.R. 345
(Bankr. M.D. Ala. 1986), persuasive:
"Since a judgment lien
cannot exist independently of the judgment, such lien is
discharged by the satisfaction and extinguishment of the
judgment."
995).
Id. at 348 (citing 47 Am. Jur. 2d Judgments §
See also Ogburn v. SouthTrust Bank (In re Ogburn), 212
B.R. 984, 986 (Bankr. M.D. Ala. 1995) ("'Without the debt
there is nothing to secure and no basis for the lien.'"
(quoting 1 David G. Epstein et al., Bankruptcy § 3-11, at 156
n.27 (1992))).
Because the district court vacated the 2007
judgment as to Ward in August 2008, the judgment lien that was
created when Cheryl recorded the certificate of judgment was
discharged by operation of law.
See 50 C.J.S. Judgments § 826
(2009)
is
("The
[judgment]
lien
extinguished
where
the
judgment is vacated absolutely and finally, or canceled and
stricken off the record, or reversed on appeal, and in such
cases the court has no power to continue the lien so that it
may attach to such judgment as subsequently may be rendered."
(footnotes omitted)).
10
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We next consider the priority of Campbell's deed versus
Cheryl's void judgment, as determined by the district court,
and her revived judgment, as determined by the circuit court.
Campbell acquired title to the property shortly after the
district court declared the 2007 judgment as to Ward to be
void, and she recorded her deed to the property in September
2008.
Before the circuit court, Campbell asserted that, when
she acquired her title to the property and recorded her deed,
Cheryl held no valid lien against the property.
analysis set out above, we must agree.
Based on our
The 2007 judgment as
to Ward was not revived and given legal effect again until
March 18, 2009, when the circuit court so ordered.
By that
time, however, Campbell's deed had already been recorded.
In the circuit court, Campbell relied on Ala. Code 1975,
§ 35-4-90(a), which addresses the priority of deeds versus the
claims of judgment creditors.
That statute provides, in
pertinent part:
"(a) All conveyances of real property, deeds,
mortgages, deeds of trust or instruments in the
nature of mortgages to secure any debts are
inoperative and void as to purchasers for a valuable
consideration, mortgagees and judgment creditors
without notice, unless the same have been recorded
before the accrual of the right of such purchasers,
mortgagees or judgment creditors."
11
2120844
The Daughertys responded that § 35-4-90(a) offered no support
for Campbell's claim that her deed was entitled to priority
over Cheryl's revived judgment; the Daughertys asserted that
§ 35-4-90(a), in fact, supported their claim that Cheryl's
recorded
judgment
lien
was
entitled
to
priority
over
Campbell's deed. In Johnson v. Haleyville Mobile Home Supply,
Inc., 477 So. 2d 328 (Ala. 1985), on which the Daughertys
rely, our supreme court discussed the proper application of §
35-4-90(a).
In Johnson, Haleyville Mobile Home Supply, Inc.
("HMH"), the judgment creditor, sued the debtor-defendants,
the Lewises, in January 1983, and the Lewises conveyed some of
their property to Johnson in March 1983.
Id. at 328.
HMH
obtained a judgment in its favor on May 25, 1983, and it
recorded its judgment on that same day.
Lewises
filed
a
postjudgment
motion
Id. at 328-29.
challenging
aspects of the judgment on June 14, 1983.
The
certain
Id. at 329.
Johnson recorded his deed on July 19, 1983, after the entry of
the judgment in favor of HMH.
Id. at 329.
On July 27, 1983,
the trial court denied the Lewises' postjudgment motion, but
it amended the judgment to reduce the amount awarded to HMH.
Id.
12
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On appeal, Johnson relied on § 35-4-90(a) and asserted
that his deed had been recorded before HMH had acquired its
judgment rights, which, Johnson argued, had occurred when the
Lewises' postjudgment motion had been finally resolved.5
Id.
Our supreme court rejected that argument, stating:
"Based on the language used by the trial judge in
the order dated July 27, 1983, we must also disagree
with this argument. In that order, the trial judge
stated, 'the Court is of the opinion that the
judgment heretofore entered on the 25th day of May,
1983 should be reduced.' Nowhere in that order is it
stated that it was intended to be a new judgment. If
a timely motion for new trial is made, a trial court
may amend or correct its judgment. Jasper Community
Hospital v. Hyde, 397 So. 2d 153, 155 (Ala. Civ.
App. 1981). In this case, upon timely motion, the
trial judge amended the judgment of May 25, 1983, by
reducing the amount to be awarded to HMH, and this
action did not affect the rights established in that
previous judgment.
"The trial court was correct in deciding that
HMH's judgment lien was superior to Johnson's deed
from the Lewises. For a judgment creditor to have
priority over a prior executed deed under [Ala.]
Code 1975, § 35-4-90, it must be shown that the
rights as a judgment creditor accrued before the
prior executed deed was recorded and that the
judgment creditor did not have notice of the deed at
the time of the judgment. W.T. Rawleigh Co. v.
5
In Johnson, supra, our supreme court recognized that
"[t]he issue [in] this appeal is whether HMH obtained the
rights of a judgment creditor for the purposes of [Ala.] Code
1975, § 35-4-90, on the date of the initial entry of judgment
by the trial court or on the date the Lewises' motion for new
trial was denied." 477 So. 2d at 328.
13
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Barnette, 253 Ala. 433, 436, 44 So. 2d 585, 587
(1950). We have decided that HMH's rights as a
judgment creditor accrued on May 25, 1983. The facts
presented to the trial court show that Johnson did
not record his deed until July 19, 1983, and that
HMH did not have notice of that deed at the time its
judgment was rendered and recorded. Therefore, the
determination of the trial court in favor of HMH was
correct."
Johnson, 477 So. 2d at 329-30.
The facts of this case are easily distinguishable from
those of Johnson. In Johnson, our supreme court held that the
creditor's judgment rights had accrued before the deed at
issue had been recorded.
The supreme court also concluded
that the trial court's later amendment of that judgment, in
response to a postjudgment motion, did not amount to the entry
of a new judgment.
In this case, the August 2008 judgment entered by the
district court set aside the 2007 judgment as to Ward; that
ruling vacated Cheryl's creditor's rights as to Ward.
Cheryl
sought a review of that ruling from a different court, i.e.,
the circuit court, which ultimately reversed the district
court's ruling.
Therefore, unlike in Johnson, supra, the
subsequent ruling by the circuit court in March 2009 resulted
in the revival of the judgment in favor of Cheryl.
14
Although
2120844
Cheryl regained her rights as a judgment creditor as to Ward,
a lapse of time occurred in which Cheryl held no valid
judgment against Ward.
During that lapse in the validity of
Cheryl's judgment against Ward, Campbell obtained title to the
property and recorded her deed. See 50 C.J.S. Judgments § 826
(2009) ("When an order vacating a judgment is set aside the
lien is revived in all its pristine vigor except as to the
rights of third persons acquired in the meantime." (footnotes
omitted)).
Additionally, when the judgment against Ward was revived
in favor of Cheryl in March 2009, Cheryl knew or should have
known of Ward's conveyance of the property.
In his motion to
set aside the 2007 judgment, Ward indicated that he had a
contract to sell property located in Jefferson County and that
Cheryl's recorded judgment was interfering with that sale.
Thus, Cheryl was on notice that Ward intended to sell property
that
she
claimed
was
subject
to
her
judgment
lien.
Additionally, at the time Cheryl's judgment was revived,
Campbell's deed was duly recorded in the probate court.
See,
e.g., Baldwin Cnty. Fed. Sav. Bank v. Central Bank of the
South, 585 So. 2d 1279 (Ala. 1991) (discussing the notice
15
2120844
exception of § 35-4-90(a) and recognizing that, for a judgment
creditor to be given priority over an existing deed holder,
the judgment creditor must record its judgment without actual
or constructive notice of the earlier conveyance).
Because Campbell's deed was recorded before Cheryl's
rights as a judgment creditor against Ward were revived and
because Cheryl knew or should have known of Campbell's deed at
the
time
those
rights
were
revived,
Campbell's
deed
is
entitled to priority over Cheryl's judgment rights, pursuant
to § 35-4-90(a).
The
Daughertys
also
argue
that
the
doctrine
of
lis
pendens requires a reversal of the circuit court's summary
judgment.6
See Ala. Code 1975, § 35-4-131(a) (recognizing
that a lis pendens may be recorded against specific real
property when an action is brought to enforce "any lien upon,
right to or interest in, or to recover any land").
6
Citing
Although the Daughertys presented these arguments to the
circuit court, they did so in a brief submitted to the circuit
court after the parties had concluded their arguments in
support of and in opposition to the competing summary-judgment
motions. Campbell moved to strike the Daughertys' untimely
filed brief, but the circuit court did not rule on Campbell's
motion to strike before entering a summary judgment in
Campbell's favor. Although it is unclear whether the circuit
court considered the Daughertys' arguments, we briefly address
them.
16
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Jesse P. Evans III, Alabama Property Rights and Remedies §
5.13 (4th ed. 2010), the Daughertys argue in their brief that,
"[u]nder the common-law doctrine of lis pendens, the filing of
an action respecting a right, title, interest in or claim to
the property placed the property in custodia legis, or in the
custody of the court in which the action was commenced."
We
disagree.
In Stephens v. Huie, 37 So. 3d 776, 779 (Ala. Civ. App.
2009), this court stated:
"The doctrine of lis pendens has no application
when the action involved seeks the recovery of a
money judgment. McCollum v. Burton, 220 Ala. 629,
127 So. 224 (1930); see also 51 Am. Jur. 2d Lis
Pendens § 28 (2000) (stating that 'where the primary
purpose of a lawsuit is to recover money damages and
the action does not directly affect the title to or
the right of possession of real property, the filing
of a notice of lis pendens is inappropriate')."
Applying the principles applicable to the doctrine of lis
pendens to this case, it is clear that Cheryl's original
claims against Ward did not relate to the title to or the
right of possession of real property; her claims arose as a
result
of
automobile
improperly performed.
repairs
that
she
claimed
had
been
At all times relevant to her claims
against Ward, Cheryl has attempted to obtain and to retain her
17
2120844
right to recover money damages from Ward.
We, therefore,
agree with Campbell that the doctrines of lis pendens and in
custodia legis were never applicable in this case.
Based on the above, we conclude that the circuit court
properly entered a summary judgment in favor of Campbell. We,
therefore, affirm the circuit court's judgment.
AFFIRMED.
Thompson, P.J., and Pittman, Thomas, and Donaldson, JJ.,
concur.
18
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