Tarik Yahia Farrag, M.D. v. Cynthia Diane Dennis Thomas

Rel: February 17, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2022-2023
_________________________
1200541
_________________________
Tarik Yahia Farrag, M.D.
v.
Cynthia Diane Dennis Thomas
_________________________
1200542
_________________________
Tarik Yahia Farrag, M.D.
v.
Cynthia Diane Dennis Thomas
1200541 and 1200542
Appeals from Covington Circuit Court
(CV-18-2 and CV-18-900005)
STEWART, Justice.
These two consolidated appeals arise from judgments entered by
the Covington Circuit Court ("the trial court") in two identical medical-
malpractice actions commenced by Cynthia Diane Dennis Thomas
against Tarik Yahia Farrag, M.D. In appeal no. 1200541, Dr. Farrag
appeals from the trial court's judgment denying his Rule 60(b), Ala. R.
Civ. P., motion seeking relief from a default judgment entered against
him in case no. CV-18-2. In appeal no. 1200542, Dr. Farrag appeals from
the judgment dismissing case no. CV-18-900005. We affirm the judgment
in appeal no. 1200541, and we dismiss appeal no. 1200542.
Facts and Procedural History
On January 12, 2018, Thomas initiated a medical-malpractice
action ("the malpractice action") under the Alabama Medical Liability
Act, § 6-5-480 et seq. and § 6-5-540 et seq., Ala. Code 1975, against Dr.
Farrag and South Otolaryngology-Head and Neck Surgery, LLC ("South
Otolaryngology"). Thomas intended to commence the action in the trial
court but mistakenly commenced it in the Coosa Circuit Court. On
January 17, 2018, Thomas initiated a duplicate action in the trial court,
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which was assigned case no. CV-18-900005 ("the duplicate action"). On
January 19, 2018, Thomas filed a motion to transfer the malpractice
action from the Coosa Circuit Court to the trial court. That motion was
granted on January 23, 2018, and the malpractice action was transferred
to trial court and assigned case no. CV-18-2. Thereafter, all pertinent
pleadings and motions were filed in the malpractice action, i.e., case no.
CV-18-2, and Thomas made no further effort to separately prosecute the
duplicate action.
Thomas made several unsuccessful attempts to serve Dr. Farrag by
certified mail. Thereafter, Thomas retained a process server to attempt
to locate and serve Dr. Farrag. According to Thomas, the process server
spoke with Dr. Farrag, who instructed him to direct service to Patrick
Hays, Dr. Farrag's personal attorney. The summons and complaint in
the malpractice action were personally delivered to Hays's law firm, and,
on September 17, 2019, Hays entered a general appearance on behalf of
Dr. Farrag.
On October 7, 2019, Hays filed a motion on behalf of Dr. Farrag,
arguing that dismissal of the malpractice action was warranted under
Rule 4(b), Ala. R. Civ. P., on the ground that Dr. Farrag had not been
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personally served within 120 days of the filing of the complaint. That
motion stated, in pertinent part:
"… At some point [Thomas] spoke with [Dr. Farrag], and
[Dr. Farrag] instructed [Thomas] to send [the] lawsuit to
[Hays's] firm, [and the summons and complaint delivered to
Hays's firm] was dated August 13, 2019.
"… [Dr. Farrag's] counsel is not the proper party of the
lawsuit. So as of … October 7, 2019, [Dr. Farrag] is yet to be
properly served."
In response to Dr. Farrag's motion to dismiss, Thomas argued that Hays
was Dr. Farrag's agent authorized to accept service and that Dr. Farrag
had waived his argument as to improper service and lack of personal
jurisdiction when Hays had filed a general appearance in the trial court
on Dr. Farrag's behalf. On March 9, 2020, the trial court entered an order
denying Dr. Farrag's motion to dismiss.
On July 23, 2020, the trial court set the malpractice action for a
jury trial to be held on October 19, 2020. On July 30, 2020, Hays moved
to withdraw from his representation of Dr. Farrag, and the trial court
granted that motion on August 20, 2020.1 On October 1, 2020, Thomas
1Hays had filed an earlier motion to withdraw on November 18,
2019, but that motion had not been ruled upon and Hays had continued
to serve as Dr. Farrag's counsel.
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filed in the malpractice action an application for a default judgment
against Dr. Farrag and an entry of default was made by the trial-court
clerk on that date. On October 6, 2020, Dr. Farrag sent a letter to the
trial court asking that the trial scheduled for October 19, 2020, be
postponed for four to five months because he would be out of the State of
Alabama for more than a month and because he needed time to obtain
legal representation. The trial was rescheduled and set for January 25,
2021.
On October 30, 2020, the trial court entered an order in the
malpractice action, setting a hearing on December 1, 2020, for the
purposes of determining damages and entering a final default judgment
in favor of Thomas against Dr. Farrag. At the hearing, Thomas presented
testimony and evidence to the trial court regarding her damages. Dr.
Farrag did not appear at the hearing. On December 2, 2020, the trial
court entered a default judgment in the malpractice action in the amount
of $500,000 in favor of Thomas and against Dr. Farrag.
On January 15, 2021, the trial court entered an order resetting the
malpractice action and the duplicate action for trial on February 22,
2021. On January 21, 2021, Thomas moved to dismiss South
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Otolaryngology from the malpractice action, without prejudice.2 On
January 28, 2021, the trial court entered an order in the malpractice
action, dismissing the claims against South Otolaryngology and directing
the trial-court clerk to mark the malpractice action as having been
disposed of.
On February 19, 2021, Dr. Farrag, represented by new counsel,
filed a motion pursuant to Rule 60(b)(1), Ala. R. Civ. P., seeking relief
from the default judgment entered in the malpractice action and citing
"excusable neglect" as the sole ground for relief. In that motion, Dr.
Farrag asserted that he had not known that a default judgment had been
entered against him and that he had believed that the malpractice action
was set for trial on February 22, 2021. Dr. Farrag stated that it was only
after he had retained new counsel in early February 2021 that he had
discovered the default judgment against him. Dr. Farrag's 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).
2The record indicates that South Otolaryngology had never been
served and had not made an appearance in the malpractice action.
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On April 5, 2021, the trial court conducted an evidentiary hearing
on Dr. Farrag's Rule 60(b) motion, during which Dr. Farrag submitted
testimony and evidence in support of his motion. Dr. Farrag testified
that he had a meritorious defense to Thomas's claims, contending that
Thomas's injuries had been the result of her own conduct in refusing to
return for a critical postoperation appointment. Dr. Farrag claimed that
members of his office staff had made repeated attempts to reach Thomas
after her missed postoperation appointment, and he submitted letters
that he had allegedly sent to Thomas documenting his staff's attempts to
reach Thomas.
Dr. Farrag also admitted that he had been aware of the malpractice
action against him and that he had retained Hays to represent him. He
noted that, at some point, he had terminated Hays's representation of
him. Dr. Farrag claimed that, at the time of that termination, Hays had
informed him that the malpractice action had been dismissed, and Dr.
Farrag stated that he had relied upon that representation. Dr. Farrag
admitted, however, that he had continued to receive at least some court
filings, including a deposition notice and notices of various trial settings.
Dr. Farrag stated that he had retained his new counsel in early February
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2021, for the purpose of representing him at the scheduled February 22,
2021, trial, and he claimed that he had learned of the default judgment
against him only after retaining new counsel. During the hearing on the
Rule 60(b) motion, Dr. Farrag's counsel also noted that the duplicate
action remained pending and made an oral motion to dismiss that action.
On April 7, 2021, the trial court entered an order in the malpractice
action denying Dr. Farrag's Rule 60(b) motion. The trial court also
dismissed the duplicate action. Dr. Farrag filed separate notices of
appeal, challenging the judgment denying his Rule 60(b) motion in the
malpractice action and the judgment dismissing the duplicate action.
The appeal from the malpractice action was assigned appeal no. 1200541;
the appeal from the duplicate action was assigned appeal no. 1200542.
This Court consolidated the appeals.
Analysis
Appeal No. 1200541
On appeal, Dr. Farrag first presents an argument that was not
raised in his Rule 60(b) motion -- that Hays was not authorized to accept
service on Dr. Farrag's behalf and that, therefore, the default judgment
is void because of insufficiency of service of process. Generally, " '[t]he
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failure to effect proper service under Rule 4, Ala. R. Civ. P., deprives the
trial court of personal jurisdiction over the defendant and renders a
default judgment void.' " Boudreaux v. Kemp, 49 So. 3d 1190, 1194 (Ala.
2010) (quoting Nichols v. Pate, 992 So. 2d 734, 736 (Ala. Civ. App. 2008)).
Rule 60(b)(4) provides that, "[o]n motion," a court may relieve a party
from a judgment on the ground that "the judgment is void."
However, unlike subject-matter jurisdiction, personal jurisdiction
is subject to waiver.
"[U]nder certain circumstances the lack of personal
jurisdiction is subject to waiver, i.e., 'defects in personal
jurisdiction … can be waived,' which distinguishes personal
jurisdiction from subject-matter jurisdiction, which ' "may not
be waived; a court's lack of subject-matter jurisdiction may be
raised at any time by any party and may even be raised by a
court ex mero motu." ' J.T. v. A.C., 892 So. 2d 928, 931 (Ala.
Civ. App. 2004) (quoting C.J.L. v. M.W.B., 868 So. 2d 451, 453
(Ala. Civ. App. 2003)). See also Kingvision Pay-Per-View, Ltd.
v. Ayers, 885 So. 2d 45 (Ala. 2003) (holding that insufficient
service of process may be waived); Hall v. Hall, 122 So. 3d 185,
190 (Ala. Civ. App. 2013) (' "A defense alleging a lack of
personal jurisdiction because of insufficiency of service of
process, however, can be waived if the defendant submits
himself or herself to the jurisdiction of the trial court." '
(quoting Klaeser v. Milton, 47 So. 3d 817, 820 (Ala. Civ. App.
2010))); and Rule 12(h)(1), Ala. R. Civ. P. ('A defense of lack of
jurisdiction over the person … is waived … if it is neither
made by motion under this rule nor included in a responsive
pleading or an amendment thereof. …')."
Campbell v. Taylor, 159 So. 3d 4, 11 (Ala. 2014).
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Indeed, 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. See Campbell, 159 So. 3d at 13 (affirming denial of motion
brought under Rule 60(b)(4) when movant failed to present authority
showing that circuit court lacked personal jurisdiction over movant); and
Pruitt v. Palm, 671 So. 2d 105 (Ala. Civ. App. 1995) (affirming denial of
motion brought under Rule 60(b)(4) when material facts supporting
motion were not established in record on appeal). A federal circuit court,
construing analogous federal rules, has explained this forfeiture rule as
follows:
"This forfeiture rule reflects the functional similarity between
a personal jurisdictional challenge to a default judgment and
a motion to dismiss for lack of jurisdiction under [Rule
12(b)(2), Fed. R. Civ. P.]. A defense of lack of jurisdiction is
forfeited if not asserted in a timely motion to dismiss under
Rule 12 or a responsive pleading or amendment of such as
provided by Rule 15[, Fed. R. Civ. P.] Fed. R. Civ. P. 12(h);
Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 2105, 72 L.Ed.2d
492 (1982). A motion to vacate under Rule 60(b), [Fed. R. Civ.
P.,] for lack of jurisdiction is essentially equivalent to a Rule
12(b)(2) motion to dismiss for lack of jurisdiction."
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Swaim v. Moltan Co., 73 F.3d 711, 718 (7th Cir. 1996) (holding that "in
personam jurisdictional challenges to default judgments are forfeited if
not asserted in a Rule 60(b)[, Fed. R. Civ. P.,] motion, if such a motion is
made").3 See also In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1299-
1300 (11th Cir. 2003) (holding that movant seeking to set aside default
judgment waived his lack-of-service-of-process argument when that
argument was not asserted in his motion filed pursuant to Rule 60(b)(1)
and (b)(6), Fed. R. Civ. P.); and State v. All Real Prop., 95 P.3d 1211,
1215-16 (Utah Ct. App. 2004) (holding that party seeking to set aside
default judgment waived his insufficiency-of-service claim by failing to
include that argument in his first Rule 60(b), Utah R. Civ. P., motion).
Here, Dr. Farrag did not raise his improper-service/lack-of-
personal-jurisdiction argument in his Rule 60(b) motion seeking relief
from the default judgment. Accordingly, Dr. Farrag forfeited that
challenge to the default judgment. Additionally, Dr. Farrag cannot now
raise this issue for the first time on appeal. Clements v. Clements, 990
3"It is well settled that federal decisions regarding the Federal
Rules of Civil Procedure are highly persuasive when this Court is called
upon to construe the Alabama Rules of Civil Procedure because the
Alabama Rules of Civil Procedure are modeled upon the Federal Rules of
Civil Procedure." Allsopp v. Bolding, 86 So. 3d 952, 959 n.4 (Ala. 2011).
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So. 2d 383, 396 (Ala. Civ. App. 2007) (holding that lack-of-personal-
jurisdiction argument made for the first time on appeal was waived).
Similarly, Dr. Farrag raises several other arguments for the first
time on appeal -- specifically, that he did not receive proper notice of
Thomas's filing of her application for a default judgment and that the
damages awarded to Thomas are excessive. As with his argument
regarding personal jurisdiction, these arguments were not properly
preserved for appellate review. Andrews v. Merritt Oil Co., 612 So. 2d
409, 410 (Ala. 1992) ("[An appellate court] cannot consider arguments
raised for the first time on appeal; rather, [the appellate court's] review
is restricted to the evidence and arguments considered by the trial
court.").
Next, Dr. Farrag argues that he is entitled to relief from the default
judgment on the basis of "excusable neglect" and that the trial court,
therefore, erred in denying his Rule 60(b) motion. Rule 60(b)(1) provides
that a "court may relieve a party … from a final judgment … for …
mistake, inadvertence, surprise, or excusable neglect."
"It is well established that the decision to grant or to
deny relief pursuant to a Rule 60(b)(1) motion is within the
trial court's discretion. In reviewing the trial court's ruling on
such a motion, we cannot disturb the trial court's decision
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unless the trial court abused that discretion. DaLee v. Crosby
Lumber Co., 561 So. 2d 1086, 1089 (Ala. 1990). Additionally,
under Rule 60(b)(1), a party seeking to set aside a default
judgment not only must prove excusable neglect but also must
satisfy the trial court that the other factors enunciated in
Kirtland[ v. Fort Morgan Authority Sewer Service, Inc., 524
So. 2d 600 (Ala. 1988),] weigh in favor of setting aside the
judgment. Marks v. Marks, 181 So. 3d 361, 364 (Ala. Civ.
App. 2015). See also DaLee, 561 So. 2d at 1091. Those factors
include a showing that the defaulting party has a meritorious
defense, that the plaintiff will not be unfairly prejudiced if the
default judgment is set aside, and that the default judgment
was not a result of the defaulting party's own culpable
conduct. Brantley v. Glover, 84 So. 3d 77, 80-81 (Ala. Civ.
App. 2011) (citing Kirtland, 524 So. 2d at 605)."
J.N.M.-R. v. M.D.L.-C., [Ms. 2210294, Oct. 21, 2022] ___ So. 3d ___, ___
(Ala. Civ. App. 2022). Furthermore, "where there are disputed issues of
fact to be resolved and the trial court has received ore tenus evidence, the
ore tenus rule is applicable to our review of a ruling on a Rule 60(b)[]
motion." Ex parte A & B Transp., Inc., 8 So. 3d 924, 932 (Ala. 2007).
In describing what constitutes "excusable neglect" warranting the
setting aside of a default judgment under Rule 60(b)(1), this Court has
explained:
" 'It is the duty of every party desiring to resist an action
or to participate in a judicial proceeding to take timely and
adequate steps to retain counsel or to act in his own person to
avoid an undesirable judgment. Unless in arranging for his
defense he shows that he has exercised such reasonable
diligence as a man of ordinary prudence usually bestows upon
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important business, his motion to set aside a judgment for
default should be denied. Little v. Peevy, [238 Ala. 106, 189
So. 720 (1939)].
" 'Courts cannot act as guardian for parties who are
grossly careless of their own affairs. All must be governed by
the laws in force, universally applied, according to the
showing made.
" 'If judgment be entered against a party in his absence,
before he can be relieved of the judgment he must show that
it was the result of a mistake or inadvertence which
reasonable care could not have avoided, a surprise which
reasonable precaution could not have prevented, or a
negligence which reasonable prudence could not have
anticipated.' "
DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1091 (Ala. 1990) (quoting
McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So.
2d 499, 503 (1946)).
In the malpractice action, Dr. Farrag was initially represented by
Hays, who filed a motion to dismiss the action on Dr. Farrag's behalf.
The motion to dismiss was denied on March 9, 2020, and Dr. Farrag did
not thereafter file an answer. Dr. Farrag claimed that at some point he
terminated Hays's representation of him. Indeed, on July 30, 2020, Hays
moved to withdraw as counsel for Dr. Farrag, claiming that he and Dr.
Farrag were at an impasse on how to defend the case. The trial court
granted that motion on August 20, 2020. Dr. Farrag testified that, at the
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time he terminated Hays's representation of him, Hays had told him that
the malpractice action had been dismissed. Dr. Farrag argues on appeal
that his reliance on that purported representation by Hays constitutes
excusable neglect warranting relief from the default judgment.
The trial court, however, was not obligated to believe Dr. Farrag's
testimony that he had relied on a purported representation by Hays that
the malpractice action had been dismissed. Indeed, there was an
abundance of evidence indicating that Dr. Farrag knew that the case
remained active and was progressing toward trial. Hays's motion to
withdraw -- which, according to the certificate of service, was mailed to
Dr. Farrag -- indicated that the case was continuing and had not been
dismissed. Furthermore, numerous other court filings bear a certificate
of service indicating that they were mailed to Dr. Farrag between the
time of Hays's withdrawal and the entry of the default judgment, each of
which also would have alerted Dr. Farrag that the case was ongoing. For
example, Dr. Farrag testified that he had received a notice of deposition
filed by Thomas on August 28, 2020, for a witness deposition scheduled
for September 22, 2020. Dr. Farrag was also aware that the case had
been set for trial on October 19, 2020, and he wrote the trial court on
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October 6, 2020, to obtain a postponement, citing, among other reasons,
his need to retain legal representation. On October 30, 2020, the trial
court entered an order setting a December 1, 2020, hearing on Thomas's
application for a default judgment. The trial court verified that that
order was mailed to Dr. Farrag. Dr. Farrag, however, did not appear for
the hearing, and the trial court entered the default judgment in the
malpractice action on December 2, 2020. Dr. Farrag did not seek to
defend the malpractice action until after he had retained new counsel in
early February 2021.
Considering the record before us, 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." DaLee, 561 So. 2d at 1091. There was
evidence before the trial court indicating that Dr. Farrag had known that
the case was ongoing but, nevertheless, had waited months to defend
against the action, thus demonstrating that Dr. Farrag was not
prevented from appearing and defending the action due to excusable
neglect. Accordingly, Dr. Farrag has not demonstrated that the trial
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court exceeded its discretion in denying Dr. Farrag's Rule 60(b) motion.
See J.N.M.-R., ___ So. 3d at ___ (affirming circuit court's denial of motion
brought under Rule 60(b)(1) because the trial court could have found that
defendant's testimony supporting motion was not credible, when other
testimony indicated that defendant had been grossly careless of his own
affairs and had history of ignoring the other orders of the circuit court);
and Taylor v. Williams, 455 So. 2d 893, 894 (Ala. Civ. App. 1984) (holding
that trial court did not abuse its discretion in denying motion brought
under Rule 60(b)(1) when there was conflicting evidence regarding
whether moving party had received notice of hearing).
Furthermore, Dr. Farrag argues that the trial court erred in failing
to specifically address the three factors identified in Kirtland v. Fort
Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988). To
obtain relief from the default judgment under Rule 60(b), a movant is
required to show not only that that the Kirtland factors weighed in his or
her favor, but also that one of the grounds for relief under Rule 60(b)
exists -- in this case, Dr. Farrag was required to show that his failure to
defend was the result of "excusable neglect" under Rule 60(b)(1). See
DaLee, 561 So. 2d at 1091 (noting that to set aside default judgment
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under Rule 60(b) the defaulting party not only must establish that the
Kirtland factors weigh in favor of setting aside the judgment "but must
also demonstrate the ground under Rule 60(b) justifying relief from the
final judgment"), and Fountain v. Permatile Concrete Prods. Co., 582 So.
2d 1069, 1072 (Ala. 1991) (holding that to obtain relief under Rule
60(b)(1) the movant must have established not only that the Kirtland
factors weighed in his favor, but also that the requirements of Rule
60(b)(1) were satisfied). Here, 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 factors. See
J.N.M.-R., ___ So. 3d at ___ (holding that, because the trial court
concluded that defendant had failed to establish excusable neglect under
Rule 60(b)(1), there was no need to discuss Kirtland factors).
Appeal No. 1200542
Regarding the appeal from the judgment dismissing the duplicate
action, we note that the judgment in that action was wholly in Dr.
Farrag's favor. Furthermore, Dr. Farrag has made no arguments on
appeal directed toward that judgment. We, therefore, dismiss the appeal.
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See Ex parte Jefferson Cnty. Sheriff's Dep't, 13 So. 3d 993, 996 (Ala. Civ.
App. 2009) (quoting Personnel Bd. of Jefferson Cnty. v. Bailey, 475 So.
2d 863, 865-66 (Ala. Civ. App. 1985)) (" '[W]here a judgment is wholly in
a party's favor and there is nothing prejudicial in the judgment no appeal
lies to the prevailing party.' "); Rule 2(a)(2)(C), Ala. R. App. P. (providing
that this Court may dismiss an appeal when it determines that there is
an obvious failure to prosecute an appeal).
Conclusion
In appeal no. 1200541, the judgment denying Dr. Farrag's Rule
60(b) motion is affirmed. Appeal no. 1200542 is dismissed.
1200541 -- AFFIRMED.
1200542 -- APPEAL DISMISSED.
Parker, C.J., and Wise, Sellers, and Cook, JJ., concur.
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