Slocumb Law Firm, LLC v. Raya E. Greenberger

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Rel: July 24, 2020 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) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. ALABAMA COURT OF CIVIL APPEALS SPECIAL TERM, 2020 _________________________ 2190038 _________________________ Slocumb Law Firm, LLC v. Raya E. Greenberger Appeal from Tuscaloosa Circuit Court (CV-16-900531) THOMPSON, Presiding Judge. Slocumb Law Firm, LLC ("the law firm"), appeals from a judgment of the Tuscaloosa Circuit Court ("the trial court") entered in favor of Raya Greenberger in her legal-malpractice action against the law firm. 2190038 This is the second time these parties have appeared before this court in connection with this action. In Ex parte Slocumb Law Firm, LLC, [Ms. 2190297, March 13, 2020] ___ So. 3d ___ (Ala. Civ. App. 2020), this court denied the law firm's petition for a writ of mandamus in which the law firm asked us to vacate the trial court's order compelling it to respond to Greenberger's postjudgment discovery requests. The record in this case indicates that Greenberger filed an action against the law firm in May 2016 alleging that it had violated the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975, in connection with its representation of her as the plaintiff in an underlying personal-injury action. A default judgment was entered in favor of Greenberger on December 13, 2016 ("the 2016 default judgment"). On March 20, 2018, the law firm filed a motion to set aside the 2016 default judgment on the ground that service of the summons and complaint had not been perfected and, therefore, that the trial court never obtained jurisdiction over the law firm. A hearing was held on the law firm's motion, and on October 14, 2018, the trial court entered an order setting aside the 2016 default judgment. 2 The trial 2190038 court gave Greenberger 30 days from the date of the order to perfect service. On March 1, 2019, Greenberger filed a renewed motion for a default judgment. a process server In that motion, Greenberger stated that had served a copy of the summons and complaint on an employee at the law firm's Auburn office on October 18, 2018. According to the affidavit of Catherine McCown, which was attached as an exhibit to the renewed motion for a default judgment, she served on October 18, 2018, the summons and complaint on Brittany Whitehead, who told McCown she was authorized to receive service for the law firm. In his affidavit, Mike Slocumb, the law firm's founder, denied that Whitehead was authorized to receive service. Specifically, Slocumb asserted that Whitehead was not an employee of the law firm but of Slocumb Advertising Services, LLC. After a hearing on the issue of service, the trial court, on March 29, 2019, entered a new default judgment against the law firm as to liability ("the March 2019 default judgment") and scheduled a hearing as to damages for April 18, 2019. On April 26, 2019, the trial court entered a default judgment in 3 2190038 favor of Greenberger in the amount of $30,000 ("the final default judgment"). On April 18, 2019, before the trial court entered the final default judgment, the law firm filed a "motion to reconsider" the default judgment. Although, based on the timing of its filing, the law firm's motion to reconsider was originally directed to the nonfinal March 2019 default judgment, the trial court and the parties, without objection, ultimately treated the motion as though it were directed to the final default judgment entered on April 26, 2019. See, e.g., McIntyre v. Satch Realty, Inc., 961 So. 2d 135 (Ala. Civ. App. 2006) (noting that defendant's motion to set aside nonfinal default judgment was treated by trial court, without objection from the parties, as if it was directed to the final default judgment, rather than the nonfinal judgment, once the final default judgment was entered). Therefore, although the law firm's motion to reconsider was filed before the final default judgment considered by the was entered, trial court that as a motion was properly postjudgment addressed to the trial court's final default judgment. 4 motion See, 2190038 e.g., Tanner v. Tanner, 146 So. 3d 15, 19 (Ala. Civ. App. 2013)(relying on McIntyre, supra). On September 2, 2019, the trial court denied the motion to reconsider. On October 10, 2019, the law firm filed its notice of appeal. Before we can consider the merits of the issues raised in the law firm's appeal, this court must determine whether the notice of appeal was timely filed. The issue of timeliness is jurisdictional, and this court may take notice of the issue ex mero motu. Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987); J.C.T. v. Mobile Cty. Dep't of Human Res., 142 So. 3d 705, 707 (Ala. Civ. App. 2013). On February 11, 2020, this court entered an order instructing the parties to address the issue of timeliness in their appellate briefs. The parties have complied with that instruction. To begin our analysis regarding the timeliness of the appeal, we must first determine the character of the law firm's "motion to reconsider." The Alabama Rules of Civil Procedure do not provide for a "motion to reconsider." The motion itself did not indicate the rule pursuant to which it was filed. Rule 55(c), Ala. R. Civ. P., provides that, within 5 2190038 30 days of the entry of a default judgment, a party may move to set aside that judgment. Rule 60(b)(4), Ala. R. Civ. P., permits a party to move for relief from a judgment on the ground that the judgment is void because the trial court rendering it lacked jurisdiction over the parties or the subject matter or on the ground that the trial court acted in a manner inconsistent with due process. Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991). It is well settled that this court looks to the essence of a motion and not to its title to determine how the motion is to be Procedure. 1998). considered under the Alabama Rules of Civil Ex parte Johnson, 715 So. 2d 783, 785–86 (Ala. "The 'character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.'" Ex parte Alfa Mut. Gen. Ins. Co., 684 So. 2d 1281, 1282 (Ala. 1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So. 2d 503, 505 (1969)). In Ex parte R.S.C., 853 So. 2d 228, 233–34 (Ala. Civ. App. 2002), this court explained that 6 2190038 "the 90–day period [under Rule 59.1, Ala. R. Civ. P.] for pending postjudgment motions applies only to motions filed under Rules 50, 52, 55, and 59, [Ala. R. Civ. P.] and that it does not apply to Rule 60(b)[, Ala. R. Civ. P.,] motions to set aside a judgment. Conway v. Housing Auth. of Birmingham Dist., 676 So. 2d 344 (Ala. Civ. App. 1996). A Rule 60(b) motion does not bring up for review the merits of the underlying judgment and is instead a collateral attack on the judgment. It does not affect the finality of a judgment or suspend its operation." We recently applied the rationale of R.S.C. in Jackson v. Jackson, [Ms. 2180982, May 1, 2020] ___ So. 3d ___ (Ala. Civ. App. 2020), to determine the character postjudgment motion filed in that case. of the In Jackson, we observed that the basis of a portion of the postjudgment motion filed by the mother in that case, within 30 days of the entry judgment, was that the judgment was void for lack of subject-matter jurisdiction. "Such an assertion does not challenge the merits of that judgment; it is a collateral attack on the judgment. Accordingly, we conclude that, even though the mother's postjudgment motion was filed within 30 days of the entry of the judgment, that motion, insofar as it challenged the trial court's jurisdiction to rule on issues of child custody in the ... judgment, was not a Rule 59 motion subject to Rule 59.1 but, rather, a Rule 60(b)(4) motion to set aside the judgment as void, to which Rule 59.1 does not apply." Jackson, ___ So. 3d at ___. 7 2190038 In Ali v. Williamson, [Ms. 1170896, Nov. 22, 2019] ___ So. 3d ___ (Ala. 2019), our supreme court considered the character of a motion filed after the entry of a default judgment under circumstances similar to those in this case. Our supreme court wrote: "On September 22, 2017, Ali filed a motion to set aside the default-judgment order. Ali argued that he was not served with Williamson's March 28, 2017, amended complaint; that Williamson did not follow the proper procedures for service by publication; that the default judgment was entered without having provided notice of the default-judgment hearing to Ali; and that, although he had participated in the arbitration proceedings, he was not a party to the trial-court action. Although Ali's motion to set aside the default judgment was filed within 30 days of the entry of the default judgment as required by Rule 55(c), Ala. R. Civ. P., we construe Ali's motion to be one requesting the trial court to set aside a void judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. Hughes v. Cox, 601 So. 2d 465, 467 n.3 (Ala. 1992)('Insofar as [a motion to set aside a default judgment] argued that the default judgment was void we will construe it as a motion under Rule 60(b)(4), Ala. R. Civ. P.; insofar as it sought to have the default judgment set aside on other grounds, we will construe it as a motion under Rule 55(c), Ala. R. Civ. P.'). Accordingly, Ali's motion was not subject to the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P., and his motion was not denied by operation of law." ___ So. 3d at ___. 8 2190038 In this case, the sole basis of the "motion to reconsider" was the law firm's contention that the trial court did not have jurisdiction over it because, it alleged, it had not been served with the summons and complaint. Therefore, the law firm maintained, the default judgment was void. Because that was the only argument raised in the motion to reconsider, we conclude that that motion was not a Rule 55 motion but, rather, a Rule 60(b)(4) motion to set aside the judgment as void. See Jackson, ___ So. 3d at ___. "'[T]he denial of a Rule 60(b)[, Ala. R. Civ. P.,] motion is an appealable order.'" Reeves v. State, 882 So. 2d 872, 873 (Ala. Civ. App. 2003) (quoting Ex parte King, 821 So. 2d 205, 209 (Ala. 2001)). Rule 4(a)(1), Ala. R. App. P., provides that, ordinarily, a notice of appeal must be filed within 42 days of the entry of a final, appealable judgment. Pitts v. Pitts, [Ms. 2180655, April 10, 2020] ___ So. 3d ___ Civ. App. 2020). (Ala. The trial court entered its order denying the Rule 60(b) motion on September 2, 2019, and the law firm filed its notice of appeal on October 10, 2019, within the 42 days required by Rule 4(a)(1). 9 Accordingly, the appeal is 2190038 timely as to the denial of the Rule 60(b)(4) motion, and we proceed to the merits of the law firm's arguments. "[A] party may appeal the denial of a Rule 60(b) motion, but the scope of appellate review is limited to the correctness of the denial of the Rule 60(b) motion, and not the correctness of the underlying judgment. Hilliard v. SouthTrust Bank of Alabama, N.A., 581 So. 2d 826 (Ala. 1991)." Ex parte Keith, 771 So. 2d 1018, 1021 (Ala. 1998). "[T]he denial of a Rule 60(b) motion does not present for review on appeal the underlying judgment. Halstead v. Halstead, 53 Ala. App. 255, 299 So. 2d 300 (1974)." McLeod v. McLeod, 473 So. 2d 1097, 1098 (Ala. Civ. App. 1985). "'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. Satterfield v. Winston Industries, Inc., 553 So. 2d 61 (Ala. 1989).' "Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991)." 10 2190038 Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So. 2d 655, 657 (Ala. 2001).1 On appeal, the law firm argues that the final default judgment should have been set aside because, it claims, it had not been properly served with the summons and complaint. The law firm is correct that the failure to prefect service renders a default judgment against the improperly served defendant void. 1 "[A] Rule 60 motion is not included in Rule 4(a)(3), Ala. R. App. P., as one of the motions that toll the time in which to file an appeal. See also Borders v. City of Huntsville, 875 So. 2d 1168, 1175 (Ala. 2003); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So. 2d 426, 428 (Ala. 1983) (holding that a Rule 60(b)(6) motion 'does not affect the finality of the judgment or toll the time for appeal')." Graves v. Golthy, 21 So. 3d 720, 722–23 (Ala. 2009). Therefore, the "motion to reconsider" did not toll or suspend the time for filing an appeal from the final default judgment. The final default judgment was entered on April 26, 2019, and the notice of appeal was filed on October 10, 2019, well beyond the 42-day period for filing a notice of appeal provided by Rule 4(a)(1), Ala. R. App. P. Therefore, to the extent the arguments the law firm makes on appeal are intended to demonstrate that the trial court abused its discretion in entering the final default judgment, this court does not have jurisdiction to consider those arguments. Flannigan v. Jordan, 871 So. 2d 767, 770 (Ala. 2003)("A court must dismiss an appeal for lack of jurisdiction if a party does not appeal within the time prescribed by statute."). 11 2190038 "'"The failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the trial court of personal jurisdiction over the defendant and renders a default judgment void."' Boudreaux [v. Kemp], 49 So. 3d [1190] at 1194 [(Ala. 2010)] (quoting Nichols v. Pate, 992 So. 2d 734, 736 (Ala. Civ. App. 2008))." Ex parte LERETA, LLC, 226 So. 3d 140, 144 (Ala. 2016). "'When the service of process on the defendant is contested as being improper or invalid, the burden of proof is on the plaintiff to prove that service of process was performed correctly and legally.' Ex parte Volkswagenwerk Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983)." Cain v. Cain, 892 So. 2d 952, 956 (Ala. Civ. App. 2004). Records from the office of the Alabama Secretary of State, copies of which are included in the record, indicate that the law firm is a domestic limited-liability company. Rule 4(c)(6), Ala. R. Civ. P., provides that service of process upon a limited-liability company is made "by serving an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized appointment or by law to receive service of process." "[S]ince P.,] has is to be managing August 2004[, Rule 4(c)(6), Ala. R. Civ. specified that service upon a corporation accomplished 'by serving an officer, ... a or general agent, or any agent authorized 12 by 2190038 by appointment or by law to receive service of process.' Although Rule 4(c)(6) formerly permitted certified-mail service upon corporations 'at any of their usual places of business,' the August 1, 2004, amendment to Rule 4 eliminated that provision, and '[n]ow personal or certified mail service must be directed to the registered or appointed agent or to a specific person, such as an "officer"' of the corporation. Committee Comments to Amendment to Rule 4 Effective August 1, 2004 (emphasis added)." Med-Call, Inc. v. Livingston, 64 So. 3d 1051, 1054 (Ala. Civ. App. 2010). This court explained in Med-Call that the only way that the corporate defendant in that case could have been served was if the summons and a copy of the complaint had been provided to one of the persons specified in Rule 4(c)(6). We held that, because the record in that case did not reflect that the person to whom the process server may have provided a summons and a copy of the complaint was an officer or an agent of Med–Call, that service of process was ineffective as to Med–Call. Id. In Johnson v. Hall, 10 So. 3d 1031, 1035 (Ala. Civ. App. 2008), this court noted that, simply because a summons and complaint are delivered to the proper address does not necessarily compel the conclusion that the proper person was served. We explained: 13 2190038 "Pursuant to statute, every corporation doing business in Alabama must maintain with the Alabama secretary of state a registered agent and a registered address. See § 10–2B–5.01, Ala. Code 1975. This 'registered agent' is, as a matter of Alabama law, the corporation's agent 'for service of process, notice, or demand required or permitted by law to be served on the corporation.' § 10–2B–5.04(a), Ala. Code 1975." 10 So. 3d at 1034. "'Strict compliance regarding service of process is required,' Aaron v. Aaron, 571 So. 2d 1150, 1151 (Ala. Civ. App. 1990)." Austin v. Austin, 159 So. 3d 753, 759 (Ala. Civ. App. 2013); see also Ex parte Pate, 673 So. 2d 427, 429 (Ala. 1995)(same). Moreover, "'[d]efault judgments are not favored by the courts, and [the] discretion to grant [a default judgment] should be resolved in favor of the defaulting party when there is doubt as to the propriety thereof.' Colvin v. Colvin, 628 So. 2d 802, 803 (Ala. Civ. App. 1993). See also Montgomery County Bd. of Educ. v. Addison, 3 So. 3d 885, 886 (Ala. Civ. App. 2008) (concluding that service of process had not been properly made on school board because no evidence was presented indicating that the employee served was an agent of the school board authorized to receive service; as a result, this court concluded that the trial court had erred in denying school board's motion to set aside default judgment)." Johnson, 10 So. 3d at 1037. In this case, McCown, the process server, testified by deposition that she made several attempts to serve someone at 14 2190038 the law firm before she was finally able to give the summons and complaint to Whitehead, who, McCown said, told McCown that she was authorized to receive service for the law firm. However, in his affidavit, Mike Slocumb testified that Whitehead was an employee of Slocumb Advertising Services, LLC, and was never an employee of the law firm. Additionally, Slocumb testified, Whitehead was not authorized to accept service for either the law firm or the advertising firm. The documents from the Secretary of State's office indicate that Mike Slocumb was the only registered agent for the law firm. There is no evidence in the record indicating that Whitehead was an officer of the law firm. Keeping in mind that strict compliance with the rules regarding service of process is required, we conclude that, based on the record before us, Greenberger has failed to meet her burden of demonstrating that Whitehead was the proper person to receive service for the law firm. Cain, supra. Accordingly, based on the authorities cited herein, we reverse the trial court's denial of the law firm's Rule 60(b)(4) motion to set aside the final default judgment, and we remand the cause for further proceedings. 15 2190038 REVERSED AND REMANDED. Moore, Edwards, and Hanson, JJ., concur. Donaldson, J., recuses himself. 16

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