Transcall American, Inc. v. Comtel-Birmingham, Inc., COMTEL-BIRMINGHA
Decision Date | 26 October 1990 |
Docket Number | COMTEL-BIRMINGHA,INC |
Citation | 571 So.2d 1051 |
Parties | TRANSCALL AMERICAN, INC. v. 89-1373. |
Court | Alabama Supreme Court |
Joseph B. Mays, Jr., Patricia T. Mandt and Michael S. Denniston of Bradley, Arant, Rose & White, Birmingham, for appellant.
Richard Vincent of Vincent, Hasty & Arnold, Birmingham, for appellee.
This is an appeal from the denial of a Rule 60(b)(6), A.R.Civ.P., motion for relief from a default judgment in the amount of $46,104.43. We affirm.
The record reveals that the plaintiff, Comtel-Birmingham, Inc., entered into a purchase agreement with Transcall American, Inc. ("Transcall"), whereby Transcall would purchase the assets of Comtel. Those assets included certain customer lists and provided that Transcall would pay Comtel a percentage of the revenues earned from the use of those lists during the period from September 1985 through May 1986. In 1988, Comtel filed suit against Transcall for an accounting and for payments to be made following the accounting "as the Court sees fit." After the complaint was filed, Transcall, choosing not to immediately hire an attorney to represent its interest in the case, attempted to negotiate with the attorney for Comtel. Transcall received a letter from that attorney in March 1988 that stated in pertinent part:
Transcall contends that it never received the promised 20-day notice prior to Comtel's motion for a default judgment and, therefore, that it was entitled to relief from that judgment.
The record indicates that following that letter, representatives of the two parties communicated for several months. On August 10, Comtel's attorney sent a letter that stated as follows:
Transcall, thereafter, provided Comtel with a letter purporting to contain an "accounting" of the amounts owed to Comtel. In that letter, dated August 18, Transcall's vice president stated:
In that same letter, Transcall sent a check in the amount of $6,859.46 to Comtel. Subsequently, Transcall received another letter from Comtel's attorney, dated October 11, 1988, which rejected the accounting provided in the August 18 letter and further stated:
No further response came from Transcall, and Comtel moved for a default judgment five months later.
Transcall, contending that it did not receive notice of the default judgment until more than four months after it was entered, filed a Rule 60(b) motion for relief from that judgment. The trial judge denied the motion, citing the four-month rule in 60(b)(1), (2), and (3). 1 No appeal was taken from the denial. Approximately four months later, Transcall filed another Rule 60(b) motion; however, that motion was specifically styled as a Rule 60(b)(6) motion. The motion was, in essence, the same motion that had been ruled on by the trial judge previously.
The sole issue in this case is whether the trial judge appropriately denied Transcall's second Rule 60(b) motion.
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