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Keith Sharp And Guardian Brokers, Ltd., Inc. v. Horton

Alabama Court of Civil Appeals

April 7, 2017

Keith Sharp and Guardian Brokers, Ltd., Inc.
v.
Dan Horton d/b/a Heritage Footwear

          Appeal from DeKalb Circuit Court (CV-13-30)

          MOORE, Judge.

         Keith Sharp and Guardian Brokers, Ltd., Inc. ("Guardian Brokers"), appeal from a judgment entered by the DeKalb Circuit Court ("the circuit court") denying Sharp and Guardian Brokers' petition to quash the writ of execution sought by Dan Horton d/b/a Heritage Footwear ("Horton") and denying all other relief requested by Sharp and Guardian Brokers with regard to the actual execution. We reverse the circuit court's judgment.

         Facts and Procedural History

         On September 26, 2012, Horton filed a complaint in the DeKalb District Court ("the district court"), alleging that Keith Sharp, d/b/a Pegasus Partners, had failed to pay certain invoices for services that Heritage Footwear had provided to Pegasus. After Sharp failed to appear, the district court entered, on January 18, 2013, a default judgment against Sharp and awarded Horton "the amount of $9, 577.40 plus court costs, plus $422.60 interest, for which execution may issue."

         On February 21, 2013, Horton obtained a writ of execution regarding certain property in possession of Pegasus. On June 6, 2013, Sharp filed a motion to quash the writ of execution, alleging that the property seized by Horton was not owned by Pegasus but, instead, was owned by Guardian Brokers. On November 21, 2013, the district court entered a judgment adding Guardian Brokers as a party and denying the motion to quash the writ of execution. The district court further ordered:

"The Court orders [Horton] to file with the Court a report of the disposition of the equipment executed on by [Horton] together with an itemization of all expenses, attorney fees and cost of collection within 15 days of the date of this order. The Court further orders that any equipment, not sold by [Horton] or remaining in the possession of [Horton], remain idle and secure where it is presently located until further order of the Court."

         On December 3, 2013, Sharp and Guardian Brokers (hereinafter referred to collectively as "Sharp") filed a notice of appeal to the circuit court.

         The circuit court held a de novo trial on February 25, 2016. At the trial, the parties litigated the ownership of the property seized. Furthermore, Sharp's attorney elicited testimony regarding the actual execution. Specifically, Horton testified that, on the writ-of-execution form, he had checked the box next to "Restore the property to Dan Horton" although, he said, he had never been in possession of the property. Horton also testified that he had taken the property -- specifically, 3 knitting machines and a forklift -- had traveled approximately 15 to 20 minutes away, and had placed the property in a warehouse. He testified that he had not advertised the property for sale but that he had sold the knitting machines to Ron Prestwood for $16, 000, an amount greater than the total judgment amount. He testified that he had kept the entire $16, 000 and the forklift. Horton also testified that he did not know if he had signed the "return of service." Both parties filed posttrial briefs; Sharp argued in its brief, among other things, that, because the execution was irregular, the writ of execution should be quashed.

         On May 12, 2016, the circuit court entered a judgment denying the petition to quash the writ of execution and all other requested relief. On June 10, 2016, Sharp filed a postjudgment motion. On September 6, 2016, the parties filed their consent to extend the time for the circuit court to rule on Sharp's postjudgment motion. On September 23, 2016, the circuit court denied the postjudgment motion. Sharp and Guardian Brokers filed a notice of appeal to this court on November 1, 2016.

         Standard of Review

"'When this Court must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep't of Revenue v. Garner, 812 So.2d 380, 382 (Ala. Civ. App. 2001); see also Ex parte Graham, 702 So.2d 1215 (Ala. 1997).'"

American Res. Ins. Co. v. H & H Stephens Constr., Inc., 939 So.2d 868, 873 (Ala. 2006) (quoting Bean Dredging, L.L.C. v.Alabama Dep't of Revenue, 855 ...


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