Favors v. Skinner's Wholesale Nursery, Inc.

• Decision Date: 04 April 2003
• Citation: Favors v. Skinner's Wholesale Nursery, Inc., 860 So.2d 359 (Ala. Civ. App. 2003)
• Parties: Robert FAVORS d/b/a New Life Lawn Care v. SKINNER'S WHOLESALE NURSERY, INC.
• Court: Alabama Court of Civil Appeals

860 So.2d 359

Robert FAVORS d/b/a New Life Lawn Care v.SKINNER'S WHOLESALE NURSERY, INC.

2020143.

Court of Civil Appeals of Alabama.

April 4, 2003.

John W. Parker, Mobile, for appellant.

Submitted on appellant's brief only.

PITTMAN, Judge.

Robert Favors, an individual doing business under the name New Life Lawn Care, appeals from the denial, as moot, of his motion seeking relief from a Florida default judgment filed in the Mobile Circuit Court by Skinner's Wholesale Nursery, Inc.("Skinner's").We dismiss the appeal as untimely.

In May 1999, Skinner's filed a notice in the Mobile Circuit Court pursuant to Alabama's Uniform Enforcement of Foreign Judgments Act ("UEFJA"), § 6-9-230 et seq., Ala.Code 1975, averring that a valid judgment in favor of Skinner's had been entered against Favors by a Florida court, that the judgment had not been satisfied, and that pursuant to that judgment Favors owed Skinner's $1,502.05 plus court costs.A certified copy of the Florida judgment was attached to the notice; that judgment is labeled a "final judgment after default" and bears a filing date of February 25, 1999.In response to the filing by Skinner's, the clerk of the circuit court issued to Favors a Unified Judicial System Form C-70 ("Notice of Filing of Foreign Judgment") stating that the Florida judgment had been filed of record and informing Favors that that judgment was "subject to the same procedures, defenses and proceedings for reopening, vacating, or staying" as the judgment of an Alabama circuit court and that it "may be enforced or satisfied in like manner."

On August 11, 1999, approximately three months after the Florida judgment was filed in the trial court, Favors filed a "motion to set aside" the judgment and also sought to quash garnishment proceedings based upon the judgment that had been directed to the holder of one of Favors's financial accounts.In that motion, which we construe as a Rule 60(b), Ala. R. Civ. P., motion for relief from the judgment because it was filed more than 30 days after the judgment was entered (see, e.g., Brown v. Foster,777 So.2d 715(Ala.Civ. App.2000)), Favors averred that the Florida judgment was void because, he said, the Florida court had lacked in personam jurisdiction.According to Favors's motion, the contract made the basis of Skinner's claim in the Florida court was entered into in Alabama and shipment of the (purportedly defective) goods made the subject of the contract was made to Favors in Alabama.

In support of his motion, Favors filed an affidavit in which he testified that he did business in Mobile, Alabama, as New Life Lawn Care.Favors averred that he had seen a Skinner's product at a trade show in Mobile and had ordered a certain quantity of that product; however, according to Favors, the product shipped to him did not conform to his order and he rejected the shipment.Favors further testified that Skinner's had reclaimed some, but not all, of the product from him in Mobile, after which Skinner's demanded payment of its bill for the goods; Favors denied owing the sums stated in that bill.Favors also testified that he had never traveled to Florida, that he had not met with any representatives of Skinner's in Florida, and that the entire transaction made the basis of the claim in the Florida court"arose in Alabama based upon a trade show" in Mobile that Skinner's had attended.

On the same day that Favors's motion was filed, the trial court entered an order quashing the garnishment proceedings directed to Favors's credit-union account and set the matter for a hearing "on the allegation that the judgment is void due to lack of in personam jurisdiction over the Defendant, Robert Favors."The trial court's case-action-summary sheet bears a notation dated February 4, 2000, indicating that there would be no hearing on the jurisdictional challenge to the Florida judgment and that the case was set for disposition on March 10, 2000, because the case was "reported settled."However, no such dispositional hearing appears to have taken place.In September 2000 and February 2001, Favors filed motions seeking findings of contempt based upon alleged attempts to enforce the Florida judgment; the first of those motions was "dismissed without prejudice," and the second was denied as "moot."

In July 2001, counsel for Favors, in a letter addressed to the trial court judge, stated that Favors's Rule 60(b) motion remained pending and requested that that motion be set for a evidentiary hearing at the earliest possible time.In November 2001, Skinner's filed a motion to hold a hearing on Favors's Rule 60(b) motion.According to a second letter from Favors's counsel appearing in the record, the case was set for a hearing on February 22, 2002, but was not reached.

On August 13, 2002, Favors filed what was labeled an "objection" to a motion purportedly filed by Skinner's to deem Favors's Rule 60(b) motion as moot.The motion to which that "objection" refers does not appear in the record, and the case-action-summary sheet does not indicate the filing of such a motion.However, on August 15, 2002, the trial court entered an order denying Favors's Rule 60(b) motion as moot and permitting Skinner's to proceed with garnishment proceedings.On August 21, 2002, Favors filed a motion requesting that the trial court"reconsider" its ruling on his Rule 60(b) motion, contending that the matter was not, in fact, moot.On September 23, 2002, the trial court made a handwritten notation on that motion purporting to deny it.Favors filed a notice of appeal on November 4, 2002, seeking review of the August 15 and September 23, 2002, rulings.

"Although neither party has argued this issue to this court, `"[t]he timely filing of a notice of appeal is a jurisdictional act."'Allen v. Independent Fire Ins. Co.,743 So.2d 490, 492(Ala.Civ.App.1999)(quotingRudd v. Rudd,467 So.2d 964, 965(Ala.Civ.App.1985)).Further, `"jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu."`Wallace v. Tee Jays Mfg. Co.,689 So.2d 210, 211(Ala.Civ.App.1997)(quotingNunn v. Baker,518 So.2d 711, 712(Ala.1987)).The failure to appeal within the prescribed time is fatal and requires the dismissal of the appeal."

Brown v. Brown,808 So.2d 40, 42(Ala. Civ. App.2001).

Under the UEFJA, as the Form C-70 sent by the trial court clerk to Favors correctly noted, an authenticated foreign judgment filed in the office of a circuit court clerk "has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner."Ala.Code 1975, § 6-9-232.Under the Alabama Rules of Civil Procedure, once a judgment has been entered for more than 30 days, the proper method for reopening a judgment of a circuit court is by filing a motion pursuant to Rule 60(b), Ala. R. Civ. P. Favors's August 11, 1999, motion, which challenged the validity of the Florida judgment on personal-jurisdiction grounds, is properly construed as a motion seeking relief under subsection (4) of Rule 60(b).SeeGreene v. Connelly,628 So.2d 346, 350(Ala.1993).The trial court's order of August 15, 2002,...