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

- 06 50 ), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter

. 

# 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 Thomas1200541 and 1200542

2 Appeal s from Covington Circuit Court ( CV

- 18

- 2 and CV

- 18

- 900005 ) STEWART, Justice. These two consolidate d appeals arise from judgment s 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 n o. CV

- 18

- 2 . In appeal no. 1200542, Dr. Farrag appeals from the judgment dismissing case no. CV

- 18

- 900005

. W e affirm the judgment in appeal n o. 120054 1, and we dismiss appeal n o. 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 Otolaryngolog y - Head and Neck Surgery, LLC ("South Otolaryngology "). Tho mas 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 ,1200541 and 1200542

3 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 c ourt . That motion was granted on January 23, 2018, and the malpractice action was transferred
to trial court and assigned case n o. 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 attempt s to serve Dr. Farrag b y certified mail . T hereafter, 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

. T he 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 moti on on behalf of Dr. Farrag , arguing that dismiss al of the malpractice action was warranted under Rule 4(b), Ala. R. Civ. P. , on the ground that Dr. Farrag had not been1200541 and 1200542

4 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, Thoma s 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 re presentation of Dr. Farrag, and the trial court granted that motion on August 20, 2020. 1 On October 1, 2020, Thomas

1 Hays 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.1200541 and 1200542

5 filed in the malpractice action an application for a default judgment against Dr. Farrag and an entry of default was made by the trial

- cou rt 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 S tate 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 det ermining 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 fo r trial on February 22,
2021. On January 21, 2021, Thomas moved to dismiss South1200541 and 1200542

6 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 again st South Otolaryngology and direct ing 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 a sserted 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 disc overed 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).

2 The record indicates that South Otolaryngology had never been served and had not made an appearance in the malpractice action.1200541 and 1200542

7 On April 5, 2021, the trial court conducted a n evidentiary hearin g

on Dr. Farrag's Rule 60(b) motion, during which Dr. Farrag submit ted 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 al legedly 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 th at 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 February1200541 and 1200542

8 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 c ounsel also noted that the duplicate action rema ined pending and made an oral motion to dismiss th at 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 dismiss ed the duplicate action. Dr. Farrag filed separa te 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] he1200541 and 1200542

9 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 f

rom 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 subje ct 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 pa rty 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 defe ndant 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).1200541 and 1200542

10 Indeed, u nder Alabama law, a party seek ing 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 un supported by evidence or citation to authority

. See Campbell , 159 So. 3d at 13 (affirming denial of motion brough t under Rule 60(b)(4) whe n 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 brou gh t under Rule 60(b)(4) whe n material fact s 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 funct ional 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 t o 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) ; Ins urance Corp

. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 703, 102 S.Ct. 2099, 2105, 72 L.Ed.2 d 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."1200541 and 1200542

11 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

- 13 00 (11th Cir. 2003) (holding that movant seeking to set aside default judgment waived his lack

- of

- service

- of

- process argument whe n 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 1 211,
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. Farra g did not raise his improper

- service/ lack

- o f

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).1200541 and 1200542

12 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 fir st 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 argumen ts 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 jud gment 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 n eglect." "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 decision1200541 and 1200542

13 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 t he 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 DaL ee , 561 So. 2 d at 1091. Those factors include a showing that the defaulting party has a meritorious defense, that the plaintiff will not be un f airly prejudiced if the default judgment is set aside, and that the default judgment was not a result of the def aulting 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 rul ing 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" warrant ing 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 upon1200541 and 1200542

14 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 re lieved 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 th e 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. Th e trial court granted that motion on August 20, 2020. Dr. Farrag testified that , at the1200541 and 1200542

15 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 th at purported representatio n by Hays constitutes excusable neglect warranting relief from the default judgment. The trial court, however, was not obligated to believe Dr. Farrag's testimony th at he had relied on a purported representation by Hays that the malpractice action had be en dismissed . Indeed, t here was an abundance of evidenc e indicating that Dr. Farrag knew that the case remained active and was progressing toward trial. Hays's motion to withdraw

-- whic h , according to the certificate of service , was mailed to Dr. Farrag

-- indicated that the case was continuing and had not been dismissed. Furthermore, n umerous other court filings bear a certificate of service indicating that they were mailed to Dr. Far r ag 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 Augu st 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 on1200541 and 1200542

16 October 6, 2020, to obtain a postponement , citing , among other reas ons, his need to retain legal representation. On October 3 0 , 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 th at order was mailed to Dr. Farrag. Dr

. Farrag , however, did not appear for the hearing , and the trial court entered the default judgmen t 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 e xcusable neglect' that ordinary prudence could not have guarded against." DaLee , 561 So. 2d at 1091. There was evidence before the trial cour t indicat ing that Dr. Farrag had known that the case was ongoing but , nevertheless, had waited months to defend

a gainst 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 trial1200541 and 1200542

17 court exceeded its discretion in denying Dr. Farrag's Rul e 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, whe n 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 th ree 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 i s required to show not only that that the Kirtland factors weighed in his o r 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 t hat to set aside default judgment1200541 and 1200542

18 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 j udgment") , 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 establish ed not only that the Kirtland factors weighed in his favor, but also that the requi rements of Rule 60(b)(1) were satisfied)

. Here, b ecause 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 c ourt 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

. W e, therefore, dismiss the appeal.1200541 and 1200542

19 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 prevail ing 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. A ppeal n o. 1200542 is dismissed.
1200541

-- AFFIRMED.
1200542

-- APPEAL DISMISSED. Parker, C.J., and Wise, Sellers, and Cook, JJ., concur.