Kingvision Pay-Per-View, Ltd. v. Ayers

• Decision Date: 21 November 2003
• Citation: 886 So.2d 45
• Parties: KINGVISION PAY-PER-VIEW, LTD. v. Lester AYERS.
• Court: Alabama Supreme Court

886 So.2d 45

KINGVISION PAY-PER-VIEW, LTD. v. Lester AYERS.

1012384.

Supreme Court of Alabama.

November 21, 2003.

Rehearing Denied February 13, 2004.

Michael C. Niemeyer and Julie H. Ralph of Lyons, Pipes & Cook, P.C., Mobile, for appellant.

Rhonda P. Chambers of Taylor & Taylor, Birmingham; and Bill Thomason of Thomason & Shores, LLC, Bessemer, for appellee.

JOHNSTONE, Justice.

The defendant Kingvision Pay-Per-View, Ltd. ("Kingvision"), appeals the denial of a Rule 60(b), Ala. R. Civ. P., motion to vacate a default judgment. We affirm.

Facts

Kingvision, a Delaware corporation headquartered in Florida and the owner of the exclusive right to broadcast the June 28, 1997, fight between Evander Holyfield and Mike Tyson, employed Coral Springs, Florida attorneys Scott Salomon and Barry Mittelberg (collectively "Salomon & Mittelberg") to pursue claims against the plaintiff Lester Ayers and others in Alabama for the unlicenced interception of the broadcast. Salomon & Mittelberg, in turn, employed Andrew Nelms ("Nelms"), a Montgomery attorney, to act as Alabama counsel for Kingvision in the pursuit of these claims. Before filing a lawsuit against the plaintiff, Salomon & Mittelberg attempted to collect money from the plaintiff by means of telephone calls and letters.

In response to the collection efforts of Salomon & Mittelberg, the plaintiff sued Kingvision for invasion of privacy and felonious injury, in the Bessemer Division of the Jefferson County Circuit Court in November 1997. The plaintiff served Kingvision by sending the summons and complaint by certified mail to Salomon & Mittelberg rather than by serving either Kingvision itself or CT Corporation, the registered agent of Kingvision for service of process. Salomon & Mittelberg, on behalf of Kingvision, moved the circuit court for additional time to respond to the plaintiff's complaint. The motion stated that "Defendant was served with the instant action seeking damages on or about December 5, 1997." The motion did not assert that the service of process on Kingvision was insufficient. After Salomon & Mittelberg obtained additional time to respond to the complaint, Nelms, on behalf of Kingvision, simultaneously filed both a Rule 12(b), Ala. R. Civ. P., motion to dismiss and an answer. The Rule 12(b) motion sought dismissal of the plaintiff's complaint on the grounds that the "complaint... fail[ed] to state a claim ... upon which relief [could] be granted" and that the plaintiff's claims were "barred by personal jurisdiction." The motion did not assert that the service of process on Kingvision was insufficient. Similarly, while the answer asserted that the trial court "lack[ed] ... jurisdiction," it did not assert that the service of process on Kingvision was insufficient. After the trial court denied the motion to dismiss, Salomon & Mittelberg and Nelms filed a separate lawsuit against the plaintiff for recovery of damages for the unauthorized interception of the broadcast, in the United States District Court for the Northern District of Alabama. Subsequently, Nelms amended the answer of Kingvision in the plaintiff's state court lawsuit to assert a statute of limitations defense that Nelms had omitted from the original answer. This amended answer, like the previously filed Rule 12(b) motion and the original answer, failed to assert that the service of process on Kingvision was insufficient.

In the summer of 2000, Nelms withdrew as attorney of record for Kingvision in the plaintiff's lawsuit. Salomon & Mittelberg then employed Birmingham attorney James Ward ("Ward") and his law firm, Corley, Moncus & Ward, P.C. ("Corley"), to defend Kingvision against the plaintiff's claims. Corley, on behalf of Kingvision, deposed the plaintiff in October 2000. In December 2000, Ward and Corley, withdrawing as attorneys of record for Kingvision, requested that the trial court send copies of the order granting their motion to withdraw and send future notices to Kingvision in care of Salomon & Mittelberg.

The trial court called the plaintiff's lawsuit for trial on September 24, 2001. When Kingvision failed to appear, the trial court entered a default against Kingvision. In December 2001, after the plaintiff presented evidence of damages, the trial court entered a default judgment against Kingvision in the amount of $65,000.

In July 2002, Kingvision moved the trial court under Rule 60(b), Ala. R. Civ. P., to vacate the default judgment because, Kingvision said, the default judgment was void and Kingvision had a meritorious defense to the plaintiff's claims. Kingvision asserted that the default judgment was void because: (1) the service of process was insufficient and (2) this insufficiency deprived the trial court of in personam jurisdiction over Kingvision. Kingvision did not assert that the trial court lacked in personam jurisdiction because of a lack of contacts between Kingvision and the State of Alabama or because of any reason other than the insufficiency of the service of process on Kingvision. In support of the Rule 60(b) motion, Kingvision submitted an affidavit from Donna K. Westrich. In pertinent part, Westrich testified:

"1. I am vice president of Kingvision Pay-Per-View, Ltd. (`Kingvision').

"2. [A June 10, 2002, letter from the plaintiff's attorney] is the first time that I was made aware that this lawsuit was pending against Kingvision, much less that a judgment against Kingvision had been taken. To my knowledge, no other employee or agent of Kingvision was ever notified about this lawsuit prior to my receipt of [the plaintiff's attorney's] letter.

"....

"5. Sometime after June 28, 1997, Kingvision retained the law firm Salomon & Mittelberg to pursue Kingvision's claims against various individuals and/or commercial establishments that violated Kingvision's licensing and broadcasting rights with respect to the June 28, 1997 Holyfield/Tyson fight. One of the claims that Salomon & Mittelberg was hired to pursue was Kingvision's claims against [the plaintiff]. The scope of Salomon & Mittelberg's representation of Kingvision was limited to the prosecution of Kingvision's claims against [the plaintiff] resulting from the illegal act of broadcasting the Holyfield/Tyson fight. The scope of Salomon & Mittelberg's representation of Kingvision was further limited in that, if a lawsuit was to be filed on behalf of Kingvision's behalf, it was to be filed in federal court under the applicable federal anti-piracy laws and regulations. It was never contemplated by Kingvision that Salomon & Mittelberg would represent Kingvision in any lawsuit filed against Kingvision in state court."

The plaintiff noticed the deposition of the Rule 30(b)(6), Ala. R. Civ. P., representative of Kingvision on the subject of the authority of Salomon & Mittelberg to represent Kingvision. When Kingvision refused to submit a witness for deposition voluntarily, the plaintiff moved the trial court to strike Westrich's affidavit and to compel Kingvision to make Westrich available for deposition. In pertinent part, the motion stated:

"3. The affidavit of Ms. Westrich states her conclusions as to what Salomon & Mittelberg, a law firm that Kingvision admits that it employed, were authorized to do but she does not show the basis of her opinion or include any detailed description of Kingvision's dealings with the law firm."

Moving for a protective order, Kingvision asserted that it should not be compelled to submit a witness for deposition until the trial court vacated the default judgment.

The trial court heard the Rule 60(b) motion of Kingvision without ruling on either the plaintiff's motion to strike Westrich's affidavit and to compel her deposition or the motion of Kingvision for a protective order. Nelms and Ward testified at the hearing that they were employed by Salomon & Mittelberg, that all of their communications were with Salomon & Mittelberg, and that they had not communicated directly with Kingvision. Nelms opined that Salomon & Mittelberg had apparent authority to act as a general agent for Kingvision in the collection of monies owed Kingvision for the unlicenced interception of the broadcast of the Holyfield-Tyson fight. Following the hearing, the trial court ordered:

"Motion for protective order of defendant Kingvision Pay-Per-View, Ltd. is denied. The Court finds that Salomon & Mittelberg P.A. had a dual role, that of attorney for Kingvision and collection agent in the State of Alabama. All actions by them in this State pointed to the fact that they were acting as agents for Kingvision in this State. Therefore, their failure to answer the complaint and the subsequent entry of default against them on September 24, 2001, is not due to be set aside. Their motion to set aside the default is denied."

On appeal, Kingvision again asserts that it was entitled to relief from the default judgment under Rule 60(b)(4) because, Kingvision says, the default judgment is void because: (1) the service of process was insufficient and (2) this insufficiency deprived the trial court of in personam jurisdiction over Kingvision.¹ The plaintiff asserts that "Salomon & Mittelberg exercised such control over Kingvision's activities in Alabama that the court could find that Salomon & Mittelberg were Kingvision's agents upon [whom] service of process could be made." Appellee's Brief, p. 18.

Issue

The dispositive issue is whether Kingvision overcame the presumption² that Nelms was authorized to file the Rule 12(b) motion, answer, and amended answer that failed to assert the insufficiency of the service of process on Kingvision.

Standard of Review

In reviewing the ruling of a trial court on a Rule 60(b) motion to vacate a default judgment on the ground that the default judgment is void, this Court applies a de novo standard of review:

"`"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

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