Rel: February 17, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern 

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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

2

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 medicalmalpractice 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, 
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 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 
1200541 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, 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.
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-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
1200541 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 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.
1200541 and 1200542

7

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 
1200541 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 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 
1200541 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 

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).
1200541 and 1200542

10

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."
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-

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-ofpersonal-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-personaljurisdiction 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 
1200541 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 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 
1200541 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 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 
1200541 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 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 
1200541 and 1200542

16

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 
1200541 and 1200542

17

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 
1200541 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 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. 
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 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.