WRIT OF EXECUTION - MOTION TO QUASH - APPELLATE REVIEW - KEITH SHARP AND GUARDIAN BROKERS, LTD., INC. V. DAN HORTON D/B/A HERITAGE FOOTWEAR
Keith Sharp and Guardian Brokers, Ltd., Inc. v. Dan Horton d/b/a Heritage Footwear, [Ms. 2160111, Apr. 7, 2017] __ So. 3d __ (Ala. Civ. App. 2017). The Court reversed the circuit court’s order denying the defendant’s motion to quash a writ of execution executed on a judgment by default entered by the district court. Horton obtained a judgment by default against Sharp in the district court in the amount of $9,577.40.
On de novo appeal from the district court’s refusal to quash the writ of execution, the circuit court conducted an ore tenus proceeding. The evidence showed Horton had checked “restore the property to Dan Horton” although he had admitted the property had never previously been in his possession. The evidence also showed that Horton had taken the seized property and traveled approximately 15 to 20 minutes away from where he had seized it. Horton then sold some of the seized property to a third party for $16,000, an amount exceeding the total amount of the judgment. Horton also retained possession of a forklift seized pursuant to the writ of execution.
After initially noting that “an appeal is the proper method for obtaining review of a judgment concerning a motion to quash a writ of execution,” (Ms. *5) the Court of Civil Appeals reversed the circuit court’s judgment declining to quash the writ of execution and held that
[T]he evidence is undisputed that the violations go beyond mere procedural irregularities and do, in fact, involve injury to Sharp. Indeed, the evidence indicates that Horton completely disregarded the applicable statutory requirements for the conduct of the sale. For example, Horton did not simply give insufficient notice of the sale; instead, he did not attempt to provide notice of the sale or to conduct a statutorily compliant sale. Moreover, Horton retained property and retained the proceeds from the sale above the amount of the judgment. We conclude that the undisputed evidence indicates that the sale in this case was “infected with ... irregularity [and] error to the injury of [Sharp].”