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11/18/94 BARGAINTOWN HOMES v. CRESTPOINTE FINANCIAL

November 18, 1994

BARGAINTOWN HOMES
v.
CRESTPOINTE FINANCIAL SERVICES, INC.



Appeal from Jefferson Circuit Court. (CV-93-1951). Jack D. Carl, TRIAL JUDGE.

Rehearing Denied January 6, 1995. S.C. Quashed Writ of Cert. May 31, 1996. Released for Publication August 29, 1996.

Holmes

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

This is an appeal from the trial court's denial of a Rule 60(b), A.R. Civ. P., motion.

At the outset we note that the issue on appeal from the denial of a Rule 60(b) motion is not the correctness of the underlying judgment, but whether the denial of the motion is an abuse of discretion on the part of the trial court. Ex parte Morton, 403 So. 2d 235 (Ala. 1981); Marsh v. Marsh, 338 So. 2d 422 (Ala. Civ. App. 1976). Further, it is well settled that a Rule 60(b) motion cannot be used as a substitute for an appeal. Pitts v. Henley, 384 So. 2d 1105 (Ala. Civ. App. 1980).

Our review of the record reveals the following: Crestpointe Financial Services, Inc. (Crestpointe), obtained a default judgment against Jim Tierce and other defendants on August 31, 1993, in the amount of $20,273.86. Crestpointe filed a writ of garnishment on October 28, 1993, against Tierce's employer, Bargaintown Homes (Bargaintown). Bargaintown filed an answer on November 15, 1993, which stated, in pertinent part, that "at this time, [Tierce] is not employed by us."

Crestpointe filed a motion contesting the garnishee's answer. A hearing was held on January 25, 1994. No one was present at the hearing on behalf of Bargaintown, and there is no transcript of the proceedings contained in the record on appeal. The trial court issued an order dated February 3, 1994, wherein the trial court determined that Bargaintown's answer was untrue and that judgment was due to be rendered in favor of Crestpointe in the amount of $20,273.86, plus costs and attorney fees of $400.00.

On May 31, 1994, Bargaintown filed a motion to set aside the judgment pursuant to Rule 60(b)(1) and (b)(3). A hearing was held on the motion, but the record on appeal does not contain a transcript of the proceedings. Thereafter, the trial court issued an order, which provided, in pertinent part:

"The court finds that [Bargaintown] received actual notice of all hearings involving it in this case, both by the proper service of the pleadings and telephone conversations with counsel for [Crestpointe] and that it wilfully and intentionally disregarded the proceedings of the court to such an extent that not only did it fail to respond, but it waited until it was required to file a Rule 60(b) motion instead of a Rule 59 motion. The court finds that there was nothing excusable about [Bargaintown's] negligence, and no fraud was practiced on [Bargaintown].

"It is, therefore, ORDERED, ADJUDGED, and DECREED by the court that the 'Motion To Set Aside Judgment Pursuant to A.R.C.P., 60(b)(1) and 60(b)(3)' is denied."

Bargaintown appeals. This case is before this court pursuant to Ala. Code 1975, § 12-2-7(6).

The dispositive issue is whether the trial court abused its discretion when it denied the Rule 60(b) motion filed by Bargaintown.

When seeking to determine whether the trial court abused its discretion when it denied the motion, this court should look to the grounds presented in the motion, as well as to the matters presented to the court in support of the motion. Boles v. ...


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