IMPROVED BENEVOLENT AND PROTECTIVE ORDER OF ELKS v. Moss

• Decision Date: 28 February 2003
• Citation: 855 So.2d 1107
• Parties: The IMPROVED BENEVOLENT AND PROTECTIVE ORDER OF the ELKS of the WORLD and Donald P. Wilson v. Edwin MOSS et al.
• Court: Alabama Court of Civil Appeals

855 So.2d 1107

The IMPROVED BENEVOLENT AND PROTECTIVE ORDER OF the ELKS of the WORLD and Donald P. Wilson v. Edwin MOSS et al.

2020020.

Court of Civil Appeals of Alabama.

February 28, 2003.

Jerry M. Blevins, Montgomery, for appellants.

J.L. Chestnut, Jr., of Chestnut, Sanders, Sanders, Pettaway, Campbell & Albright, L.L.C., Selma, for appellees.

On Application for Rehearing

THOMPSON, Judge.

The opinion of November 15, 2002, is withdrawn, and the following is substituted therefor:

On January 19, 1996, Edwin Moss, Jim Stallings, Malcolm Thomas, Thomas Hereford, C. Ray Edmonds, Lem Long, Jr., and the Alabama State Association of the Improved Benevolent and Protective Order of the Elks of the World filed a complaint seeking a declaratory judgment, injunctive relief, an accounting, and damages. The plaintiffs named as defendants in that action the Improved Benevolent and Protective Order of the Elks of the World ("IBPOEW"); Donald Wilson, individually and in his capacity as the grand exalted ruler of the IBPOEW; and Alexander Ashley, Hersey Quinn Winford, and Randolph Lloyd Iffil, individually and in their capacities as grand lodge officers of the IBPOEW. The case action summary sheet and other documentation contained in the record on appeal indicates that the defendants each received service of process.

On April 18, 1996, the plaintiffs sought from the clerk of the circuit court the entry of a default judgment against defendants IBPOEW and Wilson. On that same date, the clerk entered, pursuant to Rule 55, Ala. R. Civ. P., a default against IBPOEW and Wilson. On April 19, 1996, the trial court conducted a hearing on the plaintiffs' motion for a default judgment. The trial court noted in its judgment in this case that during the April 19, 1996, hearing, an attorney appeared on behalf of the defendants and argued various issues, including improper service of process, and that that attorney agreed to accept service of the complaint on behalf of the defendants.

After April 19, 1996, the defendants did not file an answer or respond to the plaintiffs' discovery requests. On August 6, 1996, the plaintiffs again filed in the trial court a motion seeking the entry of a judgment on the clerk's entry of default. On August 12, 1996, the trial court entered a default judgment in favor of the plaintiffs against IBPOEW and Wilson. In that August 12, 1996, default judgment, the trial court set aside Wilson's election to an office within the IBPOEW, ordered that the IBPOEW allow an accounting of its books, and awarded damages to the individual plaintiffs. No appeal was taken from the August 12, 1996, default judgment. The trial court later entered an order dismissing defendants Ashley, Winford, and Iffil.

In March 1998, the plaintiffs filed a motion seeking to add certain persons as additional defendants to the action. The plaintiffs also moved to have defendants IBPOEW and Wilson held in contempt for their alleged failure to comply with the terms of the August 12, 1996, default judgment. The trial court conducted an evidentiary hearing, and on May 7, 1998, it entered an order requiring the enforcement of its August 12, 1996, default judgment and adding the proposed additional defendants to the action subject to the qualification that the newly added defendants were not subject to liability under the August 12, 1996, default judgment.

On September 7, 2001, IBPOEW and Wilson (hereinafter together referred to as "the defendants") filed a motion purportedly pursuant to Rule 60(b)(4), Ala. R. Civ. P., in which they sought relief from the August 12, 1996, default judgment. In that motion, the defendants briefly asserted that the default judgment was void for lack of personal and subject-matter jurisdiction. The trial court denied the defendants' Rule 60(b)(4) motion on May 31, 2002. The defendants appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, the defendants argue that the trial court lacked subject-matter jurisdiction because, they allege, the plaintiffs' claims were derivative in nature and that, therefore, its default judgment was void. The defendant's September 7, 2001, motion was made pursuant to Rule 60(b)(4), Ala. R. Civ. P., which allows a party to seek relief from a void judgment. A motion made pursuant to Rule 60(b)(4) must be made within a "reasonable time." Rule 60(b), Ala. R. Civ. P.; McNutt v. Beaty, 370 So.2d 998 (Ala.1979); Greene v. Connelly, 628 So.2d 346 (Ala.1993); Bryant v. First Tuskegee Bank, [Ms. 2010817, Nov. 15, 2002] ___ So.2d ___ (Ala.Civ.App.2002). See also Marshall v. Mid-State Homes, Inc., 468 So.2d 131, 133 (Ala.1985)

("The only time limitation with regard to attacking a void judgment is that it be done within a reasonable time."). "`What constitutes a "reasonable time" depends on the facts of each case, taking into consideration the interest of finality, the reason for the delay, the practical ability to learn earlier of the grounds relied upon, and the prejudice to the other parties.' "Bryant v. First Tuskegee Bank, ___ So.2d at ___ (quoting Ex parte W.J., 622 So.2d 358, 361 (Ala.1993)).

In this case, the record indicates that the defendants were properly served via certified mail and that an attorney also later agreed to accept service on their behalf. The August 12, 1996, default judgment awarded the individual plaintiffs money damages; set aside the election of defendant Wilson to an office within the IBPOEW; and required the IBPOEW to allow an accounting or an audit of its financial records. On May 7, 1998, the trial court entered an order that, among other things, required the enforcement of its August 12, 1996, default judgment. The May 7, 1998, order specifically addressed the conduct of the defendants after the entry of the August 12, 1996, default judgment.

We note that in their brief on original submission, the defendants cited no authority in support of their argument on this issue, in contravention of Rule 28(a)(10), Ala. R.App. P. On application for rehearing, the defendants contend that because this court may take notice of a lack of subject-matter jurisdiction ex mero motu they were not required to properly argue the issue before this court. We need not decide that issue, however. There is no evidence in the record indicating, and the defendants have made no argument, that the five-year delay between the entry of the August 12, 1996, default judgment and their September 7, 2001, motion for relief from that judgment was reasonable.

In their brief on application for rehearing, the defendants contend that they filed their Rule 60(b) motion within a reasonable time of the May 7, 1998, order. However, in their Rule 60(b) motion, the defendants did not purport to be seeking relief from the May 7, 1998, order. Also, the May 7, 1998, order, as it applied to the defendants IBPOEW and Wilson, simply enforced the provisions of the August 12, 1996, default judgment. Therefore, we reject the defendants' argument that the May 7, 1998, order somehow rendered reasonable the timing of their Rule 60(b)(4) motion seeking relief from the August 12, 1996, default judgment. Further, the defendants' argument pertaining to the May 7, 1998, order has been impermissibly raised for the first time in the defendants' brief on application for rehearing. See Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala.1985)

("New supporting arguments presented for the first time on rehearing generally will not be considered."); Schulte v. Smith, 708 So.2d 138, 141 n. 2 (Ala.1997) ("this argument was raised for the first time on application for rehearing, and therefore will not be considered").

In Bryant v. First Tuskegee Bank, supra, this court determined that a motion made pursuant to Rule 60(b)(4) and filed more than two years after the entry of a default judgment was, under the facts of that case, not filed within a reasonable time. In reaching that holding, the court cited Ashley v. State ex rel. Brooks, 668 So.2d 7 (Ala.Civ.App.1994). Bryant v. First Tuskegee Bank, ___ So.2d at ___, In Ashley, supra, this court held that a Rule 60(b)(4) motion filed two years after the entry of a consent judgment was not filed within a reasonable time.

Even assuming, without deciding, that the plaintiffs' claims were derivative and did not vest jurisdiction in the trial court, we conclude that because the defendants waited five years to file the Rule 60(b)(4) motion, that motion was not filed within a reasonable time. Therefore, we affirm the trial court's denial of that part of the defendants' Rule 60(b) motion that addressed the issue of subject-matter jurisdiction.

The defendants also argue that the trial court erred in denying their motion for relief from the August 12, 1996, default judgment because, they argue, the trial court did not have personal jurisdiction over them; they argue that the default judgment is void for that reason. See Bryant v. First Tuskegee Bank, supra (a judgment is void if the trial court lacked personal jurisdiction over the parties). As discussed previously, a Rule 60(b)(4) motion alleging a judgment is void must be filed within a reasonable time. See Rule 60(b), Ala. R. Civ. P.; McNutt v. Beaty, supra; Greene v. Connelly, supra; Bryant v. First Tuskegee Bank, supra; Marshall v. Mid-State Homes, Inc., supra. We have already determined that given the facts of this case, the defendants' Rule 60(b)(4) motion was not filed within a reasonable time of the August 12, 1996, default judgment from which the defendants sought relief. Therefore, the trial court's denial of the defendants' motion seeking relief from judgment on the basis of lack of personal jurisdiction is due to be affirmed.

Even assuming that this court could reach the personal-jurisdiction issue, we would affirm on the merits. The defendants argue that the attorney who accepted service of process on their behalf did not comply with Rule 4...