Opinion
No. 2020020.
Decided November 15, 2002.
Appeal from Dallas Circuit Court (CV-96-72).
On January 19, 1996, Edwin Moss, Jim Stallings, Malcolm Thomas, Thomas Hereford, C. Ray Edmonds, Lem Long, Jr., and The Alabama State Association of the Improved Benevolent and Protective Order of the Elks of the World filed a complaint seeking a declaratory judgment, injunctive relief, an accounting, and damages. The plaintiffs named as defendants in that action The Improved Benevolent and Protective Order of the Elks of the World ("IBPOEW"); Donald Wilson, individually and in his capacity as the grand exalted ruler of the IBPOEW; and Alexander Ashley, Hersey Quinn Winford, and Randolph Lloyd Iffil, individually and in their capacities as grand lodge officers of the IBPOEW. The case action summary sheet indicates that the defendants each received service of process.
On April 18, 1996, the plaintiffs sought from the clerk of the circuit court the entry of a default judgment against defendants IBPOEW and Wilson. On that same date, the clerk entered, pursuant to Rule 55, Ala.R.Civ.P., a default against IBPOEW and Wilson. On April 19, 1996, the trial court conducted a hearing on the plaintiffs' motion for a default judgment. The trial court noted in its judgment in this case that during the April 19, 1996, hearing, an attorney appeared on behalf of the defendants and argued various issues, including improper service of process, and that that attorney agreed to accept service of the complaint on behalf of the defendants.
After April 19, 1996, the defendants did not file an answer or respond to the plaintiffs' discovery requests. On August 6, 1996, the plaintiffs again filed in the trial court a motion seeking the entry of a judgment on the clerk's entry of default. On August 12, 1996, the trial court entered a default judgment in favor of the plaintiffs against IBPOEW and Wilson. In that August 12, 1996, default judgment, the trial court granted the plaintiffs certain declaratory relief, ordered that the IBPOEW allow an accounting of its books, and awarded damages to the individual plaintiffs. No appeal was taken from the August 12, 1996, default judgment. The trial court later entered an order dismissing defendants Ashley, Winford, and Iffil.
On September 7, 2001, IBPOEW and Wilson (hereinafter together referred to as "the defendants") filed a motion purportedly pursuant to Rule 60(b)(4), Ala.R.Civ.P., in which they sought relief from the August 12, 1996, default judgment. In that motion, the defendants briefly asserted that the default judgment was void for lack of personal and subject-matter jurisdiction. The trial court denied the defendants' Rule 60(b)(4) motion on May 31, 2002. The defendants appealed. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala. Code 1975.
On appeal, the defendants first argue that the trial court erred in denying their motion for relief from the August 12, 1996, default judgment because, they argue, the trial court did not have personal jurisdiction over them. The defendants argue that the attorney who accepted service of process on their behalf did not do so in compliance with Rule 4(h), Ala.R.Civ.P. However, in the trial court, the defendants contended only generally that the trial court did not have personal jurisdiction over them; the defendants did not seek relief from the default judgment on the basis of the trial court's purported failure to ensure compliance with Rule 4(h), Ala.R.Civ.P. An appellant may not on appeal seek reversal of a trial court's judgment on an argument not presented to the trial court. See Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala. 1988) ("[an appellate court] will not reverse the trial court's judgment on a ground raised for the first time on appeal").
The defendants also argue that the trial court lacked subject-matter jurisdiction because, they allege, the plaintiffs' claims were derivative in nature and that, therefore, its default judgment was void. However, in their brief on appeal, the defendants cited no authority in support of their argument on this issue. This court may not consider an issue that is not property argued and supported by citations to appropriate authority. Rule 28, Ala.R.App.P.; Thomason v. Redd, 565 So.2d 259 (Ala.Civ.App. 1990). We note that in their reply brief, the defendants cite one case for the general proposition that subject-matter jurisdiction cannot be waived and also provide a definition from Black's Law Dictionary. See Baldwin County v. Palmtree Penthouses, Ltd., [Ms. 1001066, Mar. 29, 2002] ___ So.2d ___ (Ala. 2002) (subject-matter jurisdiction cannot be waived). However, an argument may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant's reply brief. Sanders v. Smitherman, 776 So.2d 68, 73 n. 4 (Ala. 2000); C S Family Credit of Alabama, Inc. v. McNairy, 613 So.2d 1232, 1232 n. 1 (Ala. 1992); Pate v. Billy Boyd Realty Constr., Inc., 699 So.2d 186, 189 (Ala.Civ.App. 1997). By failing to properly support their argument with citations to applicable authority, the defendants have given this court nothing to review as to this issue; therefore, we must affirm.
The defendants also argue that the trial court failed to give them proper notice pursuant to Rule 55(b)(2), Ala.R.Civ.P., before entering the default judgment against them. Rule 55(b)(2) provides in part that "[i]f the party against whom judgment by default is sought has appeared in the action, the party . . . shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application." The defendants contend that they first appeared in this matter during the April 19, 1996, hearing, one day after the clerk entered the default against them. The defendants essentially argue that they were entitled to a second notice period of three days before the trial court could again consider entering a default judgment against them.
The plaintiffs filed their motion for a default judgment on August 6, 1996; that motion indicates that it was properly served on the defendants. On August 12, 1996, more than three days after the plaintiffs filed their written application for a default judgment, the trial court entered its default judgment. Further, in that default judgment, the trial court noted that it had declined, given the defendants' arguments at the April 19, 1996, hearing, to enter a default judgment at that time. However, in entering its August 12, 1996, default judgment, the trial court determined that the defendants still had failed, even after over 90 days had passed from the April 19, 1996, hearing on the default judgment, to respond to the complaint or to the plaintiffs' discovery requests. Thus, the evidence supports the trial court's conclusion that the defendants had "failed to plead or otherwise defend as provided by" the Alabama Rules of Civil Procedure, see Rule 55(a), Ala.R.Civ.P.
Even assuming that the defendants are correct that they should have received three days' notice before the entry of default, their motion seeking relief from the judgment under Rule 60(b)(4), Ala.R.Civ.P., must have been made within a "reasonable time." Rule 60(b), Ala.R.Civ.P.;Marshall v. Mid-State Homes, Inc., 468 So.2d 131 (Ala. 1985). The defendants filed their Rule 60(b) motion seeking relief from the trial court's August 12, 1996, default judgment on September 7, 2001, over five years after the trial court entered the default judgment. We must conclude that under the facts of this case the defendants did not file their motion seeking relief from the August 12, 1996, default judgment within a reasonable time. This court may affirm a judgment that is correct for any reason, even a reason upon which the trial court did not rely. Cove Props., Inc. v. Walter Trent Marina, Inc., 702 So.2d 472 (Ala.Civ.App. 1997). Therefore, we affirm the trial court's judgment.
AFFIRMED.
Yates, P.J., and Pittman, J., concur.
Murdock, J., concurs specially.
Crawley, J., concurs in the result.
The defendants attempt to use Rule 60(b)(4), Ala.R.Civ.P., to obtain relief from a default judgment they claim was entered without the three days' notice provided for in Rule 55(b)(2), Ala.R.Civ.P. Rule 60(b)(4) provides that a party may obtain relief from a judgment that is "void." InWelch v. GFC Credit Corp., 336 So.2d 1346 (Ala.Civ.App. 1976), this court recognized that an issue existed as to whether a violation of the provisions of Rule 55(b)(2) would render a judgment void, but found it unnecessary to resolve that issue. No Alabama case decided since Welch has found it necessary to resolve this issue. Compare, e.g., Planet Corp. v. Sullivan, 702 F.2d 123 (7th Cir. 1983) (explaining that Rule 60(b)(4), Fed.R.Civ.P., which is for the most part identical to our Rule 60(b)(4), is generally considered to be inapplicable when the only ground for asserting that the judgment is void is the failure to give notice pursuant to Rule 55(b)(2), and thus, a default entered without written notice is voidable, not void); Martha Stewart Living Omnimedia, L.L.C. v. Beers Flower Shop, Inc. (No. 98-Civ. 3398) (S.D.N.Y., September 21, 1998) (not published in F. Supp.) (explaining that rather than determining that a default judgment is void when there has been a failure to give notice, the more sensible rule is to consider the criteria ordinarily consulted when evaluating a Rule 60 motion); Traveltown, Inc. v. Gerhardt Investment Group, 577 F. Supp. 155, 157 (N.D.N.Y. 1983) ("Where the 3 day notice requirement of Rule 55(b)(2) has not been complied with, the default judgment is generally regarded as voidable under Rule 60(b)(6) rather than void under Rule 60(b)(4)."). See generally Osborn v. Roche, 813 So.2d 811 (Ala. 2001) (a judgment is void under Rule 60(b)(4) only if the court that rendered the judgment lacked subject-matter jurisdiction or personal jurisdiction or if it acted in a manner inconsistent with due process); R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751 (Ala. 1998) (Rule 60(b) is not intended as a substitute for appellate correction of errors).
In concurring in the majority opinion, I express no view, and I do not read the majority opinion as expressing a view, as to whether a failure to comply with the notice provision of Rule 55(b)(2) renders a default judgment void. I simply agree that, even if Rule 60(b)(4) (as opposed to Rule 55(c) or some other provision of Rule 60(b)) is the proper vehicle for obtaining relief for the alleged violation of Rule 55(b)(2) in this case, the defendants have not filed such a motion within a reasonable time.
I concur in the result reached by the majority in this case because I am constrained to agree that under the facts of this case the Rule 60(b)(4), Ala.R.Civ.P., motion was not filed within a reasonable time.See Greene v. Connelly, 628 So.2d 346 (Ala. 1993). Our supreme court has said on several occasions that the reasonable-time limitation contained in Rule 60(b) applies to a Rule 60(b)(4) motion. However, I agree with the discussion of the application of that time limit to challenges of void judgments in McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763, 765 (Ala.Civ.App. 1996). In McBrayer, this court stated that "persuasive authority now indicates that the `reasonable time' limitation should not be applied to actions seeking to set aside void judgments pursuant to Rule 60(b)(4), Ala.R.Civ.P." McBrayer, 685 So.2d at 765. That persuasive authority includes the federal courts and sister states. See id. (citingHertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126 (11th Cir. 1994),Allred v. Tucci, 85 N.C. App. 138, 354 S.E.2d 291 (1987); Faulkner v. AmeriFirst Fed. Savings Loan Assoc., 489 So.2d 758 (Fla.Dist.Ct.App. 1986); Garcia v. Garcia, 712 P.2d 288 (Utah 1986);Reynaud v. Koszela, 473 A.2d 281 (R.I. 1984); Barkley v. Toland, 7 Kan. App. 2d 625, 646 P.2d 1124 (1982); and 11 C. Wright A. Miller,Federal Practice and Procedure § 2862 (1973)). Because our supreme court has yet to adopt the federal approach, I must concur in affirming the denial of the Rule 60(b)(4) motion.