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Johnson v. Emerson

Alabama Court of Civil Appeals

July 10, 2015

George H. Johnson and Gloria J. Johnson
v.
Heath Emerson and Danny Adcock

          Appeals from Limestone Circuit Court. (CV-97-134).

         DONALDSON, Judge. Thompson, P.J., and Pittman, Thomas, and Moore, JJ., concur.

          OPINION

Page 1121

          DONALDSON, Judge.

         Rule 77(d), Ala. R. Civ. P., provides a procedure whereby a party claiming lack of timely notice of the entry of an appealable order or judgment may seek an extension of time to appeal. This case presents an unusual procedural scenario in which the Limestone Circuit Court (" the trial court" ) granted George H. Johnson and Gloria J. Johnson relief pursuant to Rule 77(d) by extending the time to appeal from a judgment permitting a writ of execution to be issued against them in favor of Heath Emerson and Danny Adcock. This court docketed that appeal as appeal no. 2130842. After that appeal was docketed, Emerson and Adcock filed a motion in the trial court essentially asking the trial court to rescind the order extending the time to appeal. Following a hearing, the trial court entered an order rescinding the order granting the extension of time to appeal. The Johnsons appealed from that order, and this court docketed that appeal as appeal no. 2130974. In appeal no. 2130974, we affirm the decision of the trial court rescinding the extension of time to appeal, and we dismiss appeal no. 2130842 as being untimely filed.

         Facts and Procedural History

         The unusual circumstances of this case present a procedural quagmire. On April 1, 1997, Redstone Federal Credit Union (" Redstone" ) sued the Johnsons in the trial court alleging that the Johnsons had defaulted on payments required to be made under a credit agreement. The trial court entered a consent judgment against the Johnsons on June 9, 1997, in favor of Redstone in the amount of $27,715.08, plus interest and court costs. Redstone recorded the certificate of judgment in the Limestone Probate Court.

         The judgment was not paid, and on May 3, 2007, Redstone filed a motion in the trial court to revive the judgment pursuant to § 6-9-192, Ala. Code 1975, which provides, in pertinent part, that " [n]o execution shall issue on a judgment ... on which an execution has not been sued out within 10 years of its entry until the [judgment] has been revived." The trial court granted the motion to revive the judgment on May 9, 2007. On June 26, 2007, Redstone recorded

Page 1122

the certificate of the revived judgment in the Limestone Probate Court.

         On July 25, 2013, Redstone assigned the judgment to Emerson and Adcock. A document providing notice of the transfer was filed in the trial court and recorded in the probate court. On July 29, 2013, Emerson and Adcock filed a motion for a writ of execution of the judgment against real property owned by the Johnsons. Emerson and Adcock sought execution of the judgment in the amount of $74,457.11, which they claimed was the amount due with the accrual of postjudgment interest and after applying any credits. On August 5, 2013, the trial court granted the motion seeking a writ of execution. The Johnsons filed a petition for relief in the United States Bankruptcy Court for the Northern District of Alabama, and the writ of execution was stayed.

         The stay was later lifted, and Emerson and Adcock proceeded with collection efforts. On December 18, 2013, the trial court entered an order on the Johnsons' claim of exemption and directed that the real property not subject to exemption to be sold.

         On January 15, 2014, the Johnsons filed a motion that they styled as being filed pursuant to Rule 60(b), Ala. R. Civ. P., seeking to set aside the order granting the motion for a writ of execution. In that motion, the Johnsons argued that the June 9, 1997, judgment should be considered satisfied or discharged and that the order reviving the judgment was void. On March 3, 2014, the sheriff filed a return of execution indicating that the designated real property had been sold contingent upon the ruling of the trial court on the Johnsons' pending Rule 60(b) motion. The trial court held a hearing on the Johnsons' motion on April 2, 2014. On May 20, 2014, the trial court entered an order denying the Johnsons' motion and confirming the sheriff's sale of the Johnsons' property.

         On July 3, 2014, 44 days after entry of the May 20, 2014, order, the Johnsons filed a notice of appeal in the trial court. Although they had been represented by counsel during some or all of the aforementioned proceedings, the Johnsons filed the notice of appeal without counsel, and only Gloria Johnson signed the notice of appeal.[1] The notice of appeal did not contain a completed certificate of service; however, a notation on the case-action summary indicates that the trial-court clerk sent the notice of appeal to all counsel and all parties on July 9, 2014. The notice of appeal was docketed in this court on July 14, 2014, and assigned appeal no. 2130842.

         On the same day the notice of appeal was filed, the Johnsons filed a copy of the notice of appeal in the trial court along with a document stating: " We, George H. and Gloria J. Johnson respectfully request a motion to accept out of time appeal. We were not made aware of a ruling by the judge for almost 2 weeks after it was entered due to attorney neglect." The document did not contain a certificate of service.

         On July 15, 2014, the trial-court clerk docketed the Johnsons' July 3 document attached to the notice of appeal as a " motion to accept an out-of-time appeal." On July 22, 2014, new counsel entered an appearance for the Johnsons in the trial court. On that same day, the trial court entered an order stating as follows: " Ordered, MOTION TO ACCEPT OUT OF TIME APPEAL filed by ...


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