Slocumb Law Firm, LLC v. Greenberger

• Decision Date: 24 July 2020
• Docket Number: 2190038
• Parties: SLOCUMB LAW FIRM, LLC v. Raya E. GREENBERGER
• Court: Alabama Court of Civil Appeals

332 So.3d 903

SLOCUMB LAW FIRM, LLC

v.Raya E. GREENBERGER

2190038

Court of Civil Appeals of Alabama.

July 24, 2020

Rehearing Denied September 11, 2020

Certiorari Denied February 12, 2021

Alabama Supreme Court 1191060

Roy C. Dumas and Morgan E. Chappell of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant.

Yuri R. Linetsky and Caryn A. Roseman of Civil Law Clinic, The University of Alabama School of Law, Tuscaloosa, for appellee.

THOMPSON, Presiding Judge.

Slocumb Law Firm, LLC ("the law firm"), appeals from a judgment of the Tuscaloosa Circuit Court ("the trial court") entered in favor of Raya Greenberger in her legal-malpractice action against the law firm.

This is the second time these parties have appeared before this court in connection with this action. In Ex parte Slocumb Law Firm, LLC, 304 So. 3d 748 (Ala. Civ. App. 2020), this court denied the law firm's petition for a writ of mandamus in which the law firm asked us to vacate the trial court's order compelling it to respond to Greenberger's postjudgment discovery requests.

The record in this case indicates that Greenberger filed an action against the law firm in May 2016 alleging that it had violated the Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala. Code 1975, in connection with its representation of her as the plaintiff in an underlying personal-injury action. A default judgment was entered in favor of Greenberger on December 13, 2016 ("the 2016 default judgment"). On March 20, 2018, the law firm filed a motion to set aside the 2016 default judgment on the ground that service of the summons and complaint had not been perfected and, therefore, that the trial court never obtained jurisdiction over the law firm. A hearing was held on the law firm's motion, and on October 14, 2018, the trial court entered an order setting aside the 2016 default judgment. The trial court gave Greenberger 30 days from the date of the order to perfect service.

On March 1, 2019, Greenberger filed a renewed motion for a default judgment. In that motion, Greenberger stated that a process server had served a copy of the summons and complaint on an employee at the law firm's Auburn office on October 18, 2018. According to the affidavit of Catherine McCown, which was attached as an exhibit to the renewed motion for a default judgment, she served on October 18, 2018, the summons and complaint on Brittany Whitehead, who told McCown she was authorized to receive service for the law firm. In his affidavit, Mike Slocumb, the law firm's founder, denied that Whitehead was authorized to receive service. Specifically, Slocumb asserted that Whitehead was not an employee of the law firm but of Slocumb Advertising Services, LLC.

After a hearing on the issue of service, the trial court, on March 29, 2019, entered a new default judgment against the law firm as to liability ("the March 2019 default judgment") and scheduled a hearing as to damages for April 18, 2019. On April 26, 2019, the trial court entered a default judgment in favor of Greenberger in the amount of $30,000 ("the final default judgment").

On April 18, 2019, before the trial court entered the final default judgment, the law firm filed a "motion to reconsider" the default judgment. Although, based on the timing of its filing, the law firm's motion to reconsider was originally directed to the nonfinal March 2019 default judgment, the trial court and the parties, without objection, ultimately treated the motion as though it were directed to the final default judgment entered on April 26, 2019. See, e.g., McIntyre v. Satch Realty, Inc., 961 So. 2d 135 (Ala. Civ. App. 2006) (noting that defendant's motion to set aside nonfinal default judgment was treated by trial court, without objection from the parties, as if it was directed to the final default judgment, rather than the nonfinal judgment, once the final default judgment was entered). Therefore, although the law firm's motion to reconsider was filed before the final default judgment was entered, that motion was properly considered by the trial court as a postjudgment motion addressed to the trial court's final default judgment. See, e.g., Tanner v. Tanner, 146 So. 3d 15, 19 (Ala. Civ. App. 2013) (relying on McIntyre, supra).

On September 2, 2019, the trial court denied the motion to reconsider. On October 10, 2019, the law firm filed its notice of appeal.

Before we can consider the merits of the issues raised in the law firm's appeal, this court must determine whether the notice of appeal was timely filed. The issue of timeliness is jurisdictional, and this court may take notice of the issue ex mero motu. Nunn v. Baker, 518 So. 2d 711, 712 (Ala. 1987) ; J.C.T. v. Mobile Cty. Dep't of Human Res., 142 So. 3d 705, 707 (Ala. Civ. App. 2013). On February 11, 2020, this court entered an order instructing the parties to address the issue of timeliness in their appellate briefs. The parties have complied with that instruction.

To begin our analysis regarding the timeliness of the appeal, we must first determine the character of the law firm's "motion to reconsider." The Alabama Rules of Civil Procedure do not provide for a "motion to reconsider." The motion itself did not indicate the rule pursuant to which it was filed. Rule 55(c), Ala. R. Civ. P., provides that, within 30 days of the entry of a default judgment, a party may move to set aside that judgment. Rule 60(b)(4), Ala. R. Civ. P., permits a party to move for relief from a judgment on the ground that the judgment is void because the trial court rendering it lacked jurisdiction over the parties or the subject matter or on the ground that the trial court acted in a manner inconsistent with due process. Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So. 2d 209, 212 (Ala. 1991).

It is well settled that this court looks to the essence of a motion and not to its title to determine how the motion is to be considered under the Alabama Rules of Civil Procedure. Ex parte Johnson, 715 So. 2d 783, 785–86 (Ala. 1998). "The ‘character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.’ " Ex parte Alfa Mut. Gen. Ins. Co., 684 So. 2d 1281, 1282 (Ala. 1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So. 2d 503, 505 (1969) ).

In Ex parte R.S.C., 853 So. 2d 228, 233–34 (Ala. Civ. App. 2002), this court explained that

"the 90–day period [under Rule 59.1, Ala. R. Civ. P.] for pending postjudgment motions applies only to motions filed under Rules 50, 52, 55, and 59, [Ala. R. Civ. P.] and that it does not apply to Rule 60(b) [, Ala. R. Civ. P.,] motions to set aside a judgment. Conway v. Housing Auth. of Birmingham Dist., 676 So. 2d 344 (Ala. Civ. App. 1996). A Rule 60(b) motion does not bring up for review the merits of the underlying judgment and is instead a collateral attack on the judgment. It does not affect the finality of a judgment or suspend its operation."

We recently applied the rationale of R.S.C. in Jackson v. Jackson, 308 So. 3d 524 (Ala. Civ. App. 2020), to determine the character of the postjudgment motion filed in that case. In Jackson, we observed that the basis of a portion of the postjudgment motion filed by the mother in that case, within 30 days of the entry judgment, was that the judgment was void for lack of subject-matter jurisdiction.

"Such an assertion does not challenge the merits of that judgment; it is a collateral attack on the judgment. Accordingly, we conclude that, even though the mother's postjudgment motion was filed within 30 days of the entry of the judgment, that motion, insofar as it challenged the trial court's jurisdiction to rule on issues of child custody in the ... judgment, was not a Rule 59 motion subject to Rule 59.1 but, rather, a Rule 60(b)(4) motion to set aside the judgment as void, to which Rule 59.1 does not apply."

Jackson, 308 So. 3d at 529.

In Ali v. Williamson, 308 So. 3d 898 (Ala. 2019), our supreme court considered the character of a motion filed after the entry of a default judgment under circumstances similar to those in this case. Our supreme court wrote:

"On September 22, 2017, Ali filed a motion to set aside the default-judgment order. Ali argued that he was not served with Williamson's March 28, 2017, amended complaint; that Williamson did not follow the proper procedures for service by publication; that the default judgment was entered without having provided notice of the default-judgment hearing to Ali; and that, although he had participated in the arbitration proceedings, he was not a party to the trial-court action. Although Ali's motion to set aside the default judgment was filed within 30 days of the entry of the default judgment as required by Rule 55(c), Ala. R. Civ. P., we construe Ali's motion to be one requesting the trial court to set aside a void judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. Hughes v. Cox, 601 So. 2d 465, 467 n.3 (Ala. 1992) (‘Insofar as [a motion to set aside a default judgment] argued that the default judgment was void we will construe it as a motion under Rule 60(b)(4), Ala. R. Civ. P.; insofar as it sought to have the default judgment set aside on other grounds, we will construe it as a motion under Rule 55(c), Ala. R. Civ. P.’). Accordingly, Ali's motion was not subject to the 90-day period prescribed by Rule 59.1, Ala. R. Civ. P., and his motion was not denied by operation of law."

308 So. 3d at 902.

In this case, the sole basis of the "motion to reconsider" was the law firm's contention that the trial court did not have jurisdiction over it because, it alleged, it had not been served with the summons and complaint. Therefore, the law firm maintained, the default judgment was void. Because that was the only argument raised in the motion to reconsider, we conclude that motion was not a Rule 55 motion but, rather, a Rule 60(b)(4) motion to set aside the judgment as void. See Jackson, 308 So. 3d at 528.

" ‘[T]he denial of a ...