IRA DeMENT, District Judge
This cause is currently before the Court on the Plaintiff's Motion to Renew Judgment. (Doc. #22). After reviewing the Plaintiff's motion, and for the reasons set forth in this order, the Plaintiff's motion is due to be DENIED.
I. Background
A judgment was initially entered in favor of Plaintiff Ronald Cunningham and against Defendants Donald J. Williams, Clarence W. Hellums, and Rex Glenn on or about July 17, 2000 in the amount of $43,212.08. On September 5, 2002, the Plaintiff attempted to satisfy the judgment against Donald J. Williams by applying to the Court for a writ of garnishment against DJW, Inc., an entity that the Plaintiff believed owed or would owe money to Donald J. Williams. (Doc. #2). The Court issued a writ of garnishment, (Doc. #3), and DJW, Inc. failed to file an answer to the writ. (Doc. #6). The Court then entered a judgment against garnishee DJW, Inc. (Doc. #9).
The Plaintiff then attempted to satisfy the judgment against Rex Glenn on August 24, 2009, by applying to the Court for a writ of garnishment against First Community Bank of Central Alabama, an entity that the Plaintiff believed owed or would owe money to Rex Glenn. (Doc. #11). The Court issued the requested writ of garnishment. (Doc. #12). In its answer to the writ of garnishment, First Community Bank of Central Alabama stated that it maintained a checking account for Rex Glenn and that the balance of the account was $53.82. (Doc. #14). The Court ordered that all funds owned by Rex Glenn and held by, or later delivered to, garnishee First Community Bank of Central Alabama be paid over to the attorneys for the Plaintiff. (Doc. #19).
The judgment against Clarence W. Hellums has been fully satisfied. (Doc. #21).
The Plaintiff filed his motion to renew the judgment against Donald J. Williams and Rex Glenn on September 7, 2010. Out of an abundance of caution, after reviewing the Plaintiff's Motion to Renew the Judgment and the accompanying affidavit, the Court ordered the Defendants to show cause why the Plaintiff's motion to renew the judgment should not be granted. (Doc. #23). The Defendants have not responded to that order.
II. Discussion
A. The Presumption of Satisfaction
The first issue the Court must address is whether the judgment at issue in this case is presumed to be satisfied. Under Alabama law, "if 10 years have elapsed from the entry of the judgment without issue of execution or if 10 years have elapsed since the date of the last execution issued, the judgment must be presumed satisfied, and the burden of proving it not satisfied is upon the plaintiff." Ala. Code § 6-9-191 (1975); see Davis Int'l., Inc. ex rel. Patel v. Berryman, 730 So. 2d 242, 245 (Ala. Civ. App. 1999). The presumption of satisfaction will apply after 10 years from entry of the judgment even if the judgment creditor obtained a writ of garnishment during the first 10 years of the life of the judgment. See AmSouth Bank, N.A. v. Bischoff, 678 So. 2d 1102, 1102-03 (Ala. Civ. App. 1995) (holding that Bischoff's garnishment proceedings within the first 10 years did not revive a judgment but that AmSouth's motion to renew the judgment within the first 10 years did revive the judgment).
In this case, the Plaintiff obtained a judgment against the Defendants on July 17, 2000. According to the record, the Plaintiff has made no attempt to execute the judgment from the time it was entered. Instead, the Plaintiff attempted to satisfy the judgment through garnishment proceedings. The Plaintiff obtained writs of garnishment on September 9, 2002 and September 1, 2009. The Plaintiff then filed this motion to renew judgment on September 7, 2010. But, just as Bischoff's garnishment proceedings in AmSouth were insufficient to revive his judgment, the Plaintiff's efforts to collect on the judgment through garnishment do not qualify as an execution on the judgment and are insufficient to prevent the presumption of satisfaction from attaching. Because the Plaintiff waited more than 10 years from the date the judgment was entered to file the motion to renew, and because the writs of garnishment alone are insufficient to revive a judgment, the Court must presume that the judgment has been satisfied.
B. Has the Plaintiff Overcome the Presumption of Satisfaction?
The Court must now decide whether the Plaintiff has overcome the presumption of satisfaction. The Alabama Supreme Court has stated:
It is said that so strong is this presumption of satisfaction which the law raises by lapse of time . . ., it will prevail until overcome by clear and decisive proof to the contrary or by the establishment of facts and circumstances from which nonpayment may be clearly inferred. . . . The evidence to rebut must be strong and convincing to the effect of producing a reasonable conviction that the judgment had not been paid or satisfied.
Gambill v. Cassimus, 22 So.2d 909, 910 (Ala. 1945) (citations omitted). Thus, in order for the Court to renew a judgment more than 10 years after it has been entered, the Court must find strong and convincing evidence that the judgment has not been satisfied.
See id. The Alabama Court of Civil Appeals has held that the testimony of individuals — including attorneys — who are familiar with the books and records of the creditor but whose testimony rests on hearsay and does not account for the many ways in which a judgment may be satisfied, is not sufficient to overcome the presumption of satisfaction.
See Gambill, 22 So. 2d at 910;
see also In re Lefever's Estate,
278 Pa. 196 (Pa. 1923) (cited with approval in
Gambill, and holding that the testimony of a cashier who was familiar with the creditor's books and records that the judgment had not been paid was insufficient to overcome the presumption of payment). In contrast, the Alabama Court of Civil Appeals has held that testimony of a corporate officer who had been an officer since incorporation and who actually kept and maintained the books and records was sufficient to rebut the presumption
of satisfaction.
See Slay v. McKean Paint and Hardware Store, Inc.,
317 So. 2d 326 (Ala. Civ. App. 1975) (finding sufficient evidence to rebut the presumption where the president of the corporation testified that (1) he had been an officer of the corporation since incorporation; (2) he had been president for the previous ten years; (3) he was familiar with the books and records of the corporation (in fact, he kept the books); and (4) that the judgment had not been paid in full).
The only evidence of satisfaction in this case is an affidavit filed by the Plaintiff's attorney. The attorney's affidavit states (1) that he is the attorney in fact for Plaintiff Ronald Cunningham; (2) that he is affiliated with the Plaintiff; (3) that he is familiar with the books and records of the Plaintiff; (4) that he has actual and personal knowledge of the correctness of the Plaintiff's account; (5) that he supervises the keeping and maintenance of the Plaintiff's books and records; and (6) that the "judgment remains unpaid and unsatisfied." (Doc. #22-1).
The position of the Plaintiff's attorney is similar to the attorney in Gambill and the cashier in Lefever who, although familiar with the creditor's books and records, did not actually keep the books and, according to the reviewing courts, had based their testimonies on hearsay. Additionally, unlike the evidence in Slay, nothing in the affidavit of the Plaintiff's attorney indicates how long the attorney has been acquainted with the Plaintiff's books and records. Moreover, instead of being the corporate officer who actually kept the books and records as in Slay, the Plaintiff's attorney claims to have only supervised their keeping and maintenance. The Court concludes that the information in the affidavit of the Plaintiff's attorney is not enough to overcome the presumption of satisfaction. Nevertheless, if the Plaintiff can produce additional evidence that more convincingly rebuts the presumption of satisfaction, then the Court may entertain an additional motion to renew the judgment.
III. Conclusion
For the reasons stated, it is ORDERED that Plaintiff's Motion to Renew Judgment (Doc. #22) be and the same is hereby DENIED.
Done this the 24th day of February, 2011.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c). (b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998). (c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04 2. Time for Filing : The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits: (a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below. (b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. 3. Format of the notice of appeal : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant. 4. Effect of a notice of appeal : A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).