Motion for Relief From Judgment – Waiver – Excusable Neglect

Farrag v. Thomas, [Ms. 1200541, Feb. 17, 2023] __ So. 3d __ (Ala. 2023). The Court (Stewart, J.; Parker, C.J., and Wise, Sellers, and Cook, JJ., concur) affirms the Covington Circuit Court’s judgment denying Tarik Yahia Farrag, M.D.’s Rule 60(b), Ala. R. Civ. P., motion seeking relief from a default judgment entered against him in a medical negligence action.

Dr. Farrag’s motion pursuant to Rule 60(b)(1), Ala. R. Civ. P., sought relief from the default judgment and cited "excusable neglect" as the sole ground for relief. The Rule 60(b) motion did not include a challenge to personal jurisdiction or to the sufficiency of service of process under Rule 60(b)(4).

The Court reiterates that “under Alabama law, a party seeking to set aside a default judgment by filing a Rule 60(b) motion forfeits any personal-jurisdiction challenge to the default judgment if such a challenge is not asserted in the Rule 60(b) motion or is unsupported by evidence or citation to authority.” Ms. *10. The Court holds “Dr. Farrag did not raise his improper-service/lack-of-personal-jurisdiction argument in his Rule 60(b) motion …[,] forfeited that challenge to the default judgment,” … [and] cannot now raise this issue for the first time on appeal.” Ms. *11.

The trial court heard oral testimony on the Rule 60 motion and rejected Dr. Farrag’s contention that the default resulted from excusable neglect. Applying ore tenus review, the Court holds, “the trial court was free to conclude, as it did, that Dr. Farrag had not sufficiently established that he ‘was prevented from appearing and defending the suit by 'mistake, inadvertence, surprise, or excusable neglect' that ordinary prudence could not have guarded against.’" Ms. *16, quoting DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1091 (Ala. 1990).

Finally, “because the trial court concluded that Dr. Farrag had not demonstrated that his failure to defend the malpractice action was due to excusable neglect under Rule 60(b)(1), it was not necessary for the trial court to also weigh the Kirtland [v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988)] factors.” Ms. *17.

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