McLendon v. Hepburn

• Decision Date: 10 October 2003
• Citation: 876 So.2d 479
• Parties: Huey McLENDON v. Roland L. HEPBURN.
• Court: Alabama Court of Civil Appeals

876 So.2d 479

Huey McLENDON v. Roland L. HEPBURN.

2011070.

Court of Civil Appeals of Alabama.

October 10, 2003.

Gregory B. McAtee, Mobile, for appellant.

Michael F. Braun, Montgomery, for appellee.

MURDOCK, Judge.

Huey McLendon appeals from an order of the Mobile Circuit Court granting defendant Roland Hepburn's motion to cancel the registration of a revived judgment and to abate all proceedings on that judgment. We affirm.

In 1979, McLendon sued Hepburn alleging breach of a contract relating to the construction of a home. Hepburn answered the complaint, but apparently did not otherwise appear before the trial court, and, on April 22, 1981, the trial court entered a default judgment for McLendon and awarded him $25,000. That judgment was never executed.

On December 18, 1997, McLendon filed a motion to revive the April 22, 1981, judgment. The trial court granted the motion on April 24, 1998. McLendon filed a garnishment proceeding against Hepburn on July 25, 2001, and Hepburn was served with notice of the garnishment proceeding on August 2, 2001. The bank that possessed the funds that McLendon sought to garnish filed an answer with the trial court on August 8, 2001, indicating that Hepburn had approximately $334 available. On August 14, 2001, McLendon filed a motion to condemn those funds, and those funds were condemned on September 21, 2001. Those funds were dispersed to McLendon's attorney on October 2, 2001.

On October 5, 2001, however, Hepburn filed a motion styled "Motion to Alter, Amend, or Vacate Order Reviving Judgment as to Defendant Roland Hepburn." The trial court denied Hepburn's motion "pending a hearing scheduled on November 20, 2001 ... for the purpose of presenting evidence, if any, concerning the presumption that the judgment at issue is satisfied as set forth in § 6-9-191 [, Ala. Code 1975]." Neither Hepburn nor his attorney appeared at the hearing; the trial court took testimony from McLendon's previous attorney and heard arguments from his current counsel. After the hearing, the trial court denied Hepburn's motion to alter, amend, or vacate, and affirmed the order reviving the 1981 judgment entered by it on April 24, 1998. No appeal was taken from that judgment, and McLendon discharged the garnishment. McLendon then obtained a certificate of judgment referencing the revived 1981 judgment and proceeded to register that certificate of judgment in the counties of Autauga, Elmore, and Montgomery.

On January 24, 2002, Hepburn filed a motion styled "Motion to Cancel Registration and Abate All Proceedings," in which he requested that the trial court cancel the registration of the revived judgment in each county in which it had been registered and prohibit McLendon from taking any further action on the revived judgment. The motion was briefed and argued by the parties. On March 28, 2002, the trial court issued an order granting Hepburn's January 24, 2002, motion, concluding that "[a]ll actions for writs of garnishments filed by [McLendon] after April 22, 2001 are based on a judgment no longer in existence and [are] conclusively presumed satisfied."

On May 13, 2002, in response to a "motion to reconsider" filed by McLendon, the trial court entered a revised order reciting the same findings of fact and conclusions of law as in its March 28, 2002, order. The court also stated in its May 13 order that that order resolved all matters between the parties, and it certified the order as final pursuant to Rule 54(b), Ala. R. Civ. P. McLendon filed a timely notice of appeal.

The trial court summarized the issue before it in both its March 28, 2002, and its May 13, 2002, orders as follows:

"What is the effect of reviving a judgment, more than ten years but not more than twenty years, after the judgment's entry; in other words, does reviving a judgment more than ten years but not more than twenty years after its entry, grant a plaintiff-creditor more than twenty years from the judgment's entry on which to execute upon the judgment?"

The trial court answered this question in the negative based on its interpretation of the pertinent Alabama statutes and caselaw.

Before evaluating that decision, we must first determine whether the trial court had jurisdiction to enter its order granting the relief requested by Hepburn. "[T]he question of jurisdiction is a question of primary importance in every case, and, if there is an absence of jurisdiction over the subject-matter, this ends the inquiry...." Wilkinson v. Henry, 221 Ala. 254, 256, 128 So. 362, 364 (1930). "We must consider, ex mero motu, questions of jurisdiction; and where a judgment appealed from is void for want of jurisdiction we have no alternative but to dismiss the appeal." City of Huntsville v. Miller, 271 Ala. 687, 689, 127 So.2d 606, 608 (1958).

The trial court's March 28, 2002, and May 13, 2002, orders were entered in response to Hepburn's January 24, 2002, motion styled "Motion to Cancel Registration and Abate All Proceedings." As McLendon correctly points out, the Alabama Rules of Civil Procedure do not provide for such a postjudgment motion; therefore, it must be construed as something else in order for the court to recognize it as legitimate. Hepburn states that while his January 24, 2002, motion "does not cite a specific rule of civil procedure, it is clear that Hepburn's motion complies with the grounds set forth in Rule 60(b)(5) and/or (6)[, Ala. R. Civ. P.]." "An appellate `[c]ourt looks to the essence of a motion, not necessarily its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure.'" Englebert v. Englebert, 791 So.2d 975, 976 (Ala.Civ.App.2000) (quoting Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998)). Thus, the first question we must consider is whether Hepburn's January 24, 2002, motion could properly be construed, and whether it was construed, as a Rule 60(b) motion.

Rule 60(b)(5), Ala. R. Civ. P., states that a "court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" if "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." Hepburn contended in his motion that the April 22, 1981, judgment, which had been revived in 1998, was conclusively presumed to be satisfied after 20 years, and, therefore, Hepburn contended, McLendon's attempts to have the revived judgment executed after the expiration of the 20-year limitation period should not have been honored because the original judgment was no longer enforceable. Hepburn thus contended that the trial court was within its discretion to construe the motion as a Rule 60(b)(5) motion, and we presume that it did so despite the fact that the trial court made no explicit finding to that effect.¹

McLendon contends, however, that Hepburn's October 5, 2001, motion also was a Rule 60(b) motion, and, therefore, he contends, even if Hepburn's January 24, 2002, motion was properly construed as a Rule 60(b)(5) motion, it was Hepburn's second Rule 60(b) motion and such successive Rule 60(b) motions are generally denied. As this court stated in Roark v. Bell, 716 So.2d 1245, 1247 (Ala.Civ.App.1998), "successive Rule 60(b) motions on the same grounds are generally motions to reconsider the original ruling, which Rule 60(b) does not authorize." Similarly, as we stated in Englebert:

"`[T]he Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge's ruling on his own post-judgment motion.... In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal....' Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985). A Rule 60(b) motion cannot be used as a substitute for an appeal."

Englebert, 791 So.2d at 977.

Hepburn counters by arguing that the October 5, 2001, motion appeared on its face to be a Rule 59(e), Ala. R. Civ. P., motion to alter, amend, or vacate the order reviving the 1981 judgment. A Rule 59(e) motion to alter, amend, or vacate a judgment, however, must be filed "not later than thirty (30) days after entry of the judgment." Rule 59(e), Ala. R. Civ. P. The order reviving the 1981 judgment was entered on April 24, 1998; Hepburn's motion styled "Motion to Alter, Amend, or Vacate Order Reviving Judgment" was filed on October 5, 2001, well past the filing deadline for a Rule 59(e) motion. Thus, if the October 5, 2001, motion had been construed as a Rule 59(e) motion, the motion would have been due to be dismissed on procedural grounds. The trial court, however, took briefs from the parties and held a hearing on the motion before denying it definitively; such actions are consistent with a treatment by the trial court of the motion as a Rule 60(b) motion.

Hepburn contends that even if the October 5, 2001, motion is construed as a Rule 60(b) motion, it does not follow that his January 24, 2002, Rule 60(b) motion was due to be denied because, Hepburn argues, the two motions were not made on "the same grounds." See Roark, 716 So.2d at 1247 (noting that Rule 60(b) does not authorize successive motions "on the same grounds"). An examination of the contents of the two motions validates Hepburn's argument.

In his October 5, 2001, motion, Hepburn posited two grounds for relief: "[1] That the plaintiff has not met [the] burden required to revive [the 1981] judgment and [2] the defendant did not receive service [of the motion to revive the judgment]." The first ground was based on § 6-9-191, Ala.Code 1975, which states that a judgment is presumed to be satisfied 10 years from the entry of the judgment, and on § 6-9-190, Ala.Code 1975, which states that a judgment cannot be revived after 20 years from the date of its entry. Because McLendon did not move to revive the 1981 judgment until 17 years after the date of its entry, Hepburn contended in his...