McBrayer v. Hokes Bluff Auto Parts

• Decision Date: 01 November 1996
• Citation: 685 So.2d 763
• Parties: Charles McBRAYER v. HOKES BLUFF AUTO PARTS. 2950472.
• Court: Alabama Court of Civil Appeals

Page 763

685 So.2d 763

Charles McBRAYER v. HOKES BLUFF AUTO PARTS.

2950472.

Court of Civil Appeals of Alabama.

Nov. 1, 1996.

Ralph K. Strawn, Jr. of Henslee, Robertson & Strawn, L.L.C., Gadsden, for Appellant.

Elizabeth R. Howard and Michael L. Roberts of Floyd, Keener, Cusimano & Roberts, P.C., Gadsden, for Appellee.

ROBERTSON, Presiding Judge.

Charles McBrayer appeals from the denial of his Rule 60(b)(4), Ala.R.Civ.P., post-judgment motion seeking to set aside a default judgment.

In 1984, McBrayer purchased an automobile from Hokes Bluff Auto Parts ("Hokes Bluff") for $6,000. According to McBrayer's affidavit testimony, shortly before the purchase, he drove the automobile to Southtrust Bank to get a loan for the purchase price. Before McBrayer drove the car to the bank, he signed a form "so [the salesman] would know he would bring the car back." McBrayer did not receive a copy of this form. McBrayer then borrowed $6,000 from Southtrust to purchase the car. He gave Hokes Bluff a check from Southtrust and received a receipt for the automobile showing that he had paid in full.

On February 14, 1985, Hokes Bluff filed a complaint in the Etowah County District Court, alleging that McBrayer did not pay a promissory note. Hokes Bluff sought an allegedly unpaid balance of $1385, plus interest, attorney fees, and costs. Hokes Bluff tried to serve McBrayer with the summons and complaint by certified mail at a Centre, Alabama, post office box address. The postal service returned the certified letter on April 8, 1985, marked "unclaimed." ¹ The record does not contain any evidence to show that Hokes Bluff attempted personal service by means of a process server.

On April 17, 1985, Hokes Bluff filed a motion requesting the district court to allow service by publication. This motion was accompanied by the affidavit of Hokes Bluff's attorney, which stated, in pertinent part:

"[T]he defendant, Charles A. McBrayer cannot be located by the Sheriff of Etowah County, Alabama; ... the whereabouts of the said Charles A. McBrayer is unknown and cannot be ascertained after reasonable effort, and ... the said defendant is over the age of twenty-one years."

The court granted Hokes Bluff's motion for service by publication, but McBrayer failed to respond to the notices published in the Gadsden Times, a newspaper of general circulation in Etowah County. Hokes Bluff applied for a default judgment and, on October 18, 1985, the district court entered a default judgment against McBrayer for the sum of $1,744.10.

In December 1993, nearly ten years after the purchase of the automobile, McBrayer's son applied for a loan, intending to use a parcel of real property owned by McBrayer as collateral. The lender denied the loan application because it discovered that Hokes Bluff had obtained the default judgment against McBrayer.

Soon after the loan denial, McBrayer hired an attorney to investigate the matter. On May 5, 1995, McBrayer filed a Rule 60(b)(4), Ala.R.Civ.P., motion in the Etowah County District Court seeking to set aside the default judgment. McBrayer alleged that the default judgment was void for lack of proper service. The district court, without holding a hearing, denied McBrayer's motion. McBrayer appealed to the Etowah County Circuit Court. The circuit court also denied McBrayer's motion to set aside the default judgment without holding a hearing. McBrayer appealed to this Court.

The issue on appeal is whether the circuit court erred in denying McBrayer's Rule 60(b)(4) motion. Initially, we address Hokes Bluff's allegation that McBrayer's request for relief pursuant to Rule 60(b)(4) was untimely.

I. Timeliness

A. Rule 60(b)(4) and the Reasonable Time Limit

In 1973, Alabama adapted the Federal Rules of Civil Procedure for use in Alabama Courts. Rule 1, Ala.R.Civ.P. The Alabama Rules and the Federal Rules both provide that a Rule 60(b)(4) motion "shall be made within a reasonable time." Our Supreme Court has noted this time limitation without analysis. Greene v. Connelly, 628 So.2d 346 (Ala.1993); see also Marshall v. Mid-State Homes, Inc., 468 So.2d 131 (Ala.1985) and McNutt v. Beaty, 370 So.2d 998 (Ala.1979). However, we recognize that persuasive authority now indicates that the "reasonable time" limitation should not be applied to actions seeking to set aside void judgments pursuant to Rule 60(b)(4), Ala.R.Civ.P.

"[Our Supreme Court has] said that since the Alabama Rules of Civil Procedure are modeled on the Federal Rules of Civil Procedure, federal decisions are highly persuasive when we are called upon to construe the Alabama rules. Assured Investors Life Ins. Co. v. National Union Associates, 362 So.2d 228 (Ala.1978)." City of Birmingham v. City of Fairfield, 396 So.2d 692, 696 (Ala.1981). The Court has also said that "[t]he Alabama Rules of Civil Procedure are based upon, and are virtually identical to, the Federal Rules of Civil Procedure. A presumption therefore, arises that cases construing the federal rules are authority for construing the Alabama Rules." Alabama Federal Savings and Loan Assoc. v. Howard, 534 So.2d 609 (Ala.1988).

Review of the federal law applying Rule 60(b)(4), Fed.R.Civ.P., shows that the majority of federal circuits have rejected a literal application of the language in Rule 60(b) and held that the rule does not impose a time limitation on actions to set aside void judgments. The United States Courts of Appeals for the First, Fifth, Seventh, Ninth, Tenth, Eleventh, and District of Columbia Circuits have held that the time for bringing a Rule 60(b)(4) motion is not constrained by reasonableness. See Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th Cir.1994), and 11 C. Wright & A. Miller, Federal Practice and Procedure § 2862 (1973).

The rationale expressed in 11 C. Wright & A. Miller, supra, is the usual basis for the federal interpretation that Rule 60(b)(4) is not subject to a reasonable time limitation.

"[T]here is no time limit on an attack on a judgment as void. The one-year limit applicable to some Rule 60(b) motions is expressly inapplicable, and even the requirement that the motion be made within a 'reasonable time,' which seems literally to apply to motions under Rule 60(b)(4), cannot be enforced with regard to this class of motion. A void judgment cannot acquire validity because of laches on the part of the judgment debtor."

Id. at 200.

In addition to the federal authority, we note that several states have used a similar rationale to hold that there is no limit on the time to commence an action to set aside a void judgment. See, e.g., Allred v. Tucci, 85 N.C.App. 138, 354 S.E.2d 291 (1987); Falkner v. Amerifirst Federal Savings and Loan Assoc., 489 So.2d 758 (Fla.Dist.Ct.App.1986); Garcia v. Garcia, 712 P.2d 288 (Utah 1986); Reynaud v. Koszela, 473 A.2d 281 (R.I.1984); and Barkley v. Toland, 7 Kan.App.2d 625, 646 P.2d 1124 (1982).

Finally, we recognize that before the enactment of the Alabama Rules of Civil Procedure, a party seeking to vacate a void judgment could file a request for relief "at any time subsequent to its rendition". In Hodges v. Archer, 286 Ala. 457, 241 So.2d 324 (1970), our Supreme Court stated:

"Where it appears on the face of the record that a judgment is void, either from want of jurisdiction of the parties or subject matter, it is the duty of a court on application of a party having an interest immediately involved to vacate the void order, judgment, or decree at any time subsequent to its rendition."

286 Ala. at 459, 241 So.2d 324 (citing McDonald v. Lyle, 270 Ala. 715, 121 So.2d 885 (1960)(emphasis added)). See also Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184 (1907). ² Further, in Robinson Co. v. Beck, 261 Ala. 531, 533, 74 So.2d 915, 917 (1954), the Court stated:

"It is settled that where it appears on the face of the record that the judgment or decree is void, it is the duty of the court upon application thereto by the party having rights or interests immediately involved, to vacate such judgment or decree at any time subsequent to its rendition;.... Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184; Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116 [1943].

"In the case of Ford v. Ford, 218 Ala. 15, 117 So. 462, 463 [1928], ... the court said:

" 'A court of record has inherent power to vacate a decree or other record when void upon its face--this to preserve the dignity of its own records, prevent injustice, and abuse of process. This may be done by original motion at any time .... Sweeney v. Tritsch, 151 Ala. 242, 44 So. 184.' "

(Emphasis added.)

These decisions are based on the well-settled premise that "[A] void court order is a complete nullity." Hodges, 286 Ala. at 459, 241 So.2d 324. See also Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725 (1961); Aiello v. Aiello, 272 Ala. 505, 133 So.2d 18 (1961); and Louisville & N.R. Co. v. Tally, 203 Ala. 370, 83 So. 114 (1919). As a nullity, a void judgment had no effect and was subject to attack at any time. Hodges, supra. Even after the adoption of the rules of civil procedure, the rationale of Hodges and its progeny is still persuasive, and as noted above, many jurisdictions with rules similar to Rule 60(b)(4) have adopted that rationale.

B. Application of the Reasonable Time Limit

Although there are jurisdictions which do not impose a "reasonable time" limitation in actions filed to set aside a void judgment, our decisions are governed by the decisions of our Supreme Court. § 12-3-16, Ala.Code 1975. The precedent set by our Supreme Court after the adoption of Rule 60(b)(4), Ala.R.Civ.P., recognizes that Rule 60(b)(4) motions must be filed within a reasonable time. See Greene, Marshall, and McNutt, supra. Consequently, we are governed by these decisions.

" 'What constitutes a reasonable time depends on the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability to learn earlier of the grounds relied upon, and prejudice to...