Royal Bldg. Prods. (U.S.) v. Whisenant Constr.
| Decision Date | 15 April 2022 |
| Docket Number | 2200862 |
| Parties | Royal Building Products (USA), Inc. v. Whisenant Construction, LLC |
| Court | Alabama Court of Civil Appeals |
Appeal from Etowah Circuit Court (CV-20-900625)
Royal Building Products (USA), Inc., appeals from a judgment entered by the Etowah Circuit Court ("the trial court") denying its Rule 60(b), Ala. R. Civ. P., motion to set aside the default judgment entered against it by the trial court. We reverse the trial court's judgment.
On October 30, 2020, Whisenant Construction, LLC, filed a complaint against Royal, alleging that Whisenant had purchased "Celect Cellular Composite Siding" for installation on a house, that Royal is the manufacturer of that siding, that Royal had issued to Whisenant a warranty in connection with the purchase of the siding, and that Royal had thereafter breached that warranty. Whisenant requested a judgment against Royal in the amount of $38, 404, plus interest and costs.
On December 30, 2020, Whisenant filed an application to the clerk of the trial court for the entry of default against Royal, along with a supporting affidavit and an affidavit regarding service. Collectively, the affidavits indicated that Whisenant had served Royal via a special process server and that the process server had left a copy of the notice of electronic filing, the summons, the complaint interrogatories, and requests for production of documents with "Shiftd Sohata, Shift Supervisor, an adult person who appeared to be in control or management for [Royal] at the time of service, at the place of business" in Woodbridge, Ontario, in Canada. Whisenant asserted that despite its having been served with process, Royal had failed to answer the complaint.
Whisenant's application for the entry of default was granted on December 30, 2020. On January 20, 2021, Whisenant filed a motion seeking the entry of a final judgment and an assessment of damages in the amount of $46, 706.82. Whisenant also filed an affidavit in support of that motion. Also on January 20 2021, the trial court entered a default judgment in favor of Whisenant and against Royal in the amount of $46, 706.82.
On May 17, 2021, Royal filed a motion for relief from the judgment, pursuant to Rule 60(b), Ala. R. Civ. P. Royal sought relief under Rule 60(b)(4), asserting that the judgment was void because, it said, Whisenant had failed to comply with Rule 4(c)(6), Ala. R. Civ. P., which provides that service upon a corporation or other entity must be on "an officer, a partner (other than a limited partner), a managing or general agent, or any agent authorized by appointment or by law to receive service of process." Royal attached an affidavit of Richard Kroger, the assistant general counsel for Westlake Chemical Corporation, in support of its motion. Kroger averred that the siding at issue had been manufactured by Royal, a subsidiary of Westlake Chemical Corporation, in the Woodbridge facility. Kroger asserted that the Woodbridge facility has no employee named Shiftd Sohata. He further asserted that there is a shift supervisor for production at that facility named Mohinder Sohata; however, he further asserted that Mohinder Sohata is not authorized to accept service of process on behalf of Royal and that Sohata had no memory of accepting process. According to Kroger, Sohata does not manage or control the Woodbridge facility.
In its motion, Royal also asserted that it was entitled to have the judgment set aside under Rule 60(b)(1) because, it said, its failure to answer the complaint was based on mistake, inadvertence, or excusable neglect. Royal specifically asserted that the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988) ("the Kirtland factors"), weigh in favor of granting relief from the judgment. Kroger stated in his affidavit that the summons and complaint had eventually been delivered to the human-resources manager for the Woodbridge facility[1] who, he said, then transferred the documents to a customer-care supervisor. Kroger averred that the customer-care supervisor had attempted to transfer the documents to Kroger, but, he said, that transfer had been unsuccessful.
On June 2, 2021, Whisenant filed a response to Royal's motion to set aside the default judgment. Whisenant argued that Sohata met the definition of a "general agent," see Rule 4(c)(6), Ala. R. Civ. P., as defined in Jim Fox Enterprises, Inc. v. Air France, 664 F.2d 63 (5th Cir. 1981) (). Specifically, Whisenant argued that the fact that Sohata had transferred the summons and complaint to the human-resources manager indicated that Sohata had exercised independent judgment and discretion such that he could be considered a general agent. Notably, Whisenant did not attach any evidentiary material speaking to the issue of service of process. Whisenant also argued that the Kirtland factors weighed in favor of not granting relief from the judgment.
On June 17, 2021, Royal filed a reply to Whisenant's response. Royal attached supplemental evidentiary material, including an affidavit from the human-resources manager for the Woodbridge facility stating, among other things, that Sohata "performs his work, both in terms of scope and manner of execution, as asked or directed by his supervisors and under their supervision."
The trial court entered an order on July 1, 2021, denying Royal's motion to set aside the default judgment. Royal filed its notice of appeal on July 30, 2021.
On appeal, Royal argues that the trial court erred in denying that part of its motion filed pursuant to Rule 60(b)(4) because, it says, service of the summons and complaint was improper and, therefore, the default judgment entered against it was void. Royal also argues that the trial court erred in denying that part of the motion filed pursuant to Rule 60(b)(1) based on mistake, inadvertence, or excusable neglect. We find Royal's first argument dispositive.
This court has explained:
"Johnson [v. Hall], 10 So.3d [1031] at 1037 [(Ala. Civ. App. 2008)]." Slocumb Law Firm, LLC v. Greenberger, 332 So.3d 903, 908-09 (Ala. Civ. App. 2020).
We initially note that Whisenant asserted, without dispute, that Royal did not have a registered agent for service of process in the State of Alabama.[2] Section 10A-1-5.35, Ala. Code 1975, provides:
As noted previously, in Jim Fox Enterprises, Inc. v. Air France, 664 F.2d at 64, the Fifth Circuit Court of Appeals explained...
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