Novak v. Benn

CourtAlabama Court of Civil Appeals
Citation896 So.2d 513
PartiesRobert NOVAK v. John BENN.
Decision Date02 April 2004

896 So.2d 513

Robert NOVAK

2020466, 2020848.

Court of Civil Appeals of Alabama.

April 2, 2004.

Rehearing Applications Denied July 9, 2004.

Certiorari Denied September 17, 2004

896 So.2d 514
Robert Novak, pro se

John R. Benn, pro se.

Alabama Supreme Court 1031617.


Robert Novak, the defendant in a defamation action brought by John Benn in the Colbert Circuit Court, appeals from a default judgment awarding Benn $50,000 and from a postjudgment order permitting execution upon an Internet domain name ("") and a federally registered trademark ("Pets Warehouse") held by Novak. Because we conclude that the trial court lacked personal jurisdiction over Novak, we reverse both the judgment and the postjudgment execution order.

Benn filed his action in April 2002, naming Novak, Jack Nolan, and various fictitiously named parties (see Rule 9(h), Ala. R. Civ. P.) as defendants and seeking, among other relief, $70,000 in damages. In pertinent part, Benn's complaint alleged that on or about November 28, 2001, a person using the "screen name" (i.e., Internet pseudonym) of "Jackpetsw" posted a message in an electronic forum hosted by the Internet service provider CompuServe for persons interested in the keeping of pet fish. In CompuServe's "Aquaria/Fish Forum," that person wrote about Benn: "No lawyer worth his salt would do what you are doing, which is why a complaint is pending with your state bar"; at that time, no such complaint was pending against Benn. Benn alleged that the statement was false, that it was made maliciously and intentionally, that the statement was defamatory per se, and that the person uttering the statement was acting on behalf of Novak in an employment or agency relationship.

In response to Benn's complaint, Novak removed the case to federal district court and filed an answer that, among other things, alleged the absence of personal jurisdiction as to him and a counterclaim that alleged that Benn's action was frivolous and had been brought to harass and intimidate Novak. The federal district court remanded the case to the trial court because the amount in controversy was less than $75,000 (see 28 U.S.C. § 1332). After the case was remanded, Benn moved to dismiss the counterclaim, moved to strike certain paragraphs of Novak's answer, and amended his complaint to drop Jack Nolan as a defendant.

896 So.2d 515
Although Benn propounded interrogatories, requests for admissions, and requests for production to Novak in June 2002, Novak failed to fully respond to those interrogatories and requests, and Benn filed motions pursuant to Rule 37, Ala. R. Civ. P., to compel Novak to respond. An order compelling Novak to respond was entered in October 2002; however, Novak indicated that he would not further respond to the discovery requests. Benn then filed another motion to compel, which the trial court granted

On November 14, 2002, Benn filed a motion for sanctions against Novak based upon Novak's failure or refusal to fully respond to Benn's discovery requests. In that motion, Benn asked the trial court to render what he termed "an appropriate sanction" under Rule 37(b), Ala. R. Civ. P., such as an order finding "that [Benn] has adequately established personal jurisdiction over Defendant Novak and/or other sanction[s], including entry of default." Five days later, at a docket hearing, Benn withdrew his motion to strike portions of Novak's answer, after which the trial court entered an order dismissing Novak's counterclaim and setting various discovery motions for a hearing on January 14, 2003. Several days before that hearing, Benn filed a fourth motion to compel, which sought an order requiring Novak to respond to a third set of interrogatories; the trial court granted that motion.

After its January 14, 2003, hearing, the trial court entered a judgment granting Benn's motion for sanctions. As a sanction for Novak's conduct in failing to comply with its previous discovery orders, the trial court entered a default judgment in favor of Benn and set a hearing for February 6, 2003, to ascertain Benn's damages; the trial court did not otherwise sanction Novak. Benn filed a second motion for sanctions on January 22, 2003, directed to Novak's failure to respond to the trial court's order granting Benn's fourth motion to compel; that motion was also set for a hearing on February 6, 2003. On February 11, 2003, the trial court entered a "second order granting Rule 37(b) sanctions" in which that court confirmed its previous entry of a default judgment and entered a final judgment awarding Benn $50,000 based upon his testimony at the February 6, 2003, hearing. Novak appealed from the trial court's final judgment on February 26, 2003; this court designated that appeal as case number 2020466.

On March 18, 2003, Benn filed a "Motion for Issuance of Special Writ of Execution" in which he asserted that Novak had not posted a supersedeas bond as to the February 11, 2003, final judgment; that Novak's property interests in the Internet domain name "" and the federally registered trademark "Pets Warehouse" were subject to execution under § 6-9-40, Ala.Code 1975; and that the trial court should direct the Internet domain-name registry "Bulkregister, LLC" and the United States Patent and Trademark Office to turn over Novak's interests in the domain name and the trademark to the sheriff of Colbert County. Novak objected, arguing that the domain name and trademark were intangible property located outside of Alabama and were not amenable to execution by the trial court. After a hearing, the trial court issued a "special writ of execution" on May 1, 2003, in which it noted that the registration of the domain name "" had been transferred to a Canadian company (Tucows, Inc.) and in which it directed Tucows, Inc., and the United States Patent and Trademark Office to surrender custody and control of, respectively, the Internet domain name "" and the trademark "Pets Warehouse" to the sheriff of Colbert County for levy and sale. Novak filed a separate notice of appeal from the trial

896 So.2d 516
court's May 1, 2003, order; that appeal was docketed in this court under case number 2020848. Both of Novak's appeals have been consolidated for briefing and decision

On appeal, both parties have elected to represent themselves, as they did in the trial court. Novak's brief asserts that the trial court never acquired personal jurisdiction over him because, he alleges, he did not have sufficient contact with Alabama for the trial court to properly enter a judgment against him consistent with the Due Process Clause of the Fourteenth Amendment to the United States Constitution; he also contends that he did not defame Benn and, therefore, the trial court's default judgment was erroneous and that the trial court erred in issuing a writ of execution as to his interests in the Internet domain name and the trademark. Benn contends that the trial court's default judgment was valid and correct and that the trial court's writ of execution was proper.

It is a well-settled principle of law that for a trial court to render a valid judgment, it must have jurisdiction to do so. "`The question of jurisdiction is always fundamental, and if there is an absence of jurisdiction over either the person, or the subject matter, a court has no power to act.'" Mobile & Gulf R.R. v. Crocker, 455 So.2d 829, 831 (Ala.1984) (quoting Norton v. Liddell, 280 Ala. 353, 356, 194 So.2d 514, 517 (1967)). Here, the trial court, an Alabama trial court of general jurisdiction (see generally § 12-11-30, Ala.Code 1975), had subject-matter jurisdiction to hear Benn's action, and Novak raised no specific objection to the trial court's subject-matter jurisdiction in his answer. However, the issue of personal jurisdiction over Novak (the absence of which Novak did specifically plead) is not so simply addressed.

Our Supreme Court has noted that "Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of Alabama courts to the limits of due process under the federal and state constitutions." Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.2002). Because "the due process guaranteed under the Alabama Constitution [is] coextensive with the due process guaranteed under the United States Constitution," 830 So.2d at 730, Alabama courts look to decisions interpreting the breadth of the Due Process Clause of the Fourteenth Amendment to the United States Constitution in determining whether Alabama courts may properly exercise jurisdiction over defendants, such as Novak, who are not physically present in Alabama. Elliott aptly summarizes the pertinent legal principles:

"The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient `minimum contacts' with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant's contacts is whether the contacts are such that the nonresident defendant' "should reasonably anticipate being haled into court"' in

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3 cases
  • Ex Parte Gregory, 1050425.
    • United States
    • Supreme Court of Alabama
    • 30 June 2006
    ...he timely presented his challenge to the exercise of personal jurisdiction in his answer to the complaint. See also Novak v. Benn, 896 So.2d 513, 520 The Lennartzes' final procedural argument in support of the trial court's denial of Gregory's summary-judgment motion is that the trial court......
  • Kauffman Racing Equip., L.L.C. v. Roberts, 2008 Ohio 1922 (Ohio App. 4/18/2008), 07-CA-14.
    • United States
    • United States Court of Appeals (Ohio)
    • 18 April 2008
    ...audience). {¶43} This conclusion is supported by other cases addressing Internet activity and long-arm jurisdiction. See, Novak v. Benn, 896 So.2d 513 (Ala. Civ. App 2004) (defendant's disparaging comments about the plaintiff, a resident of Alabama, in an Internet forum did not subject him ......
  • Greenberger v. Slocumb Law Firm, LLC (Ex parte Slocumb Law Firm, LLC), 2190297
    • United States
    • Alabama Court of Civil Appeals
    • 13 March 2020
    ...he timely presented his challenge to the exercise of personal jurisdiction in his answer to the complaint. See also Novak v. Benn, 896 So. 2d 513, 520 (Ala. Civ. App. 2004)."Likewise, in this case, Slocumb has timely presented its challenge attacking the propriety of the service of process.......

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