732 So. 2d 1013 | Ala. Civ. App. | 1999
Larry Greathouse, individually and on behalf of a class of similarly situated persons, appeals from a judgment of the Walker County Circuit Court dismissing, among other things, his claims of fraud against Alfa Financial Corporation ("Alfa"). We affirm.
Greathouse filed his complaint in the trial court on January 26, 1998, alleging that he had borrowed money from Alfa and that Alfa had filed a collection action against him in August 1995 supported by an affidavit containing false representations concerning Alfa's licensure status under the Alabama Consumer Credit Act, §
Alfa filed a motion to dismiss, pursuant to Rule 12(b)(6), Ala.R.Civ.P., alleging that the action failed to state a claim upon which relief could be granted. In its motion to dismiss, Alfa asserted and argued that Greathouse's action was a compulsory counterclaim that should have been presented in the collection action, but that it was not presented therein; that his claims were barred by the doctrine of res judicata; that his claims were untimely; and that his claims challenged Alfa's failure to obtain a license under the Mini-Code and were therefore not permissible under the Mini-Code as amended. Greathouse filed a response to Alfa's motion, contending that his complaint was based upon Alfa's alleged fraudulent misrepresentations to the trial court in the collection action rather than Alfa's licensure status at that time. The trial court, in a nine-page judgment, granted Alfa's motion to dismiss; it not only adopted the grounds suggested by Alfa's motion, but also concluded that Greathouse's failure to appear or otherwise defend himself in the collection action constituted a waiver of his right to challenge Alfa's alleged failure to comply with the Mini-Code's licensure requirements.
After his post-judgment motion to alter, amend, or vacate the judgment of dismissal had been denied, Greathouse appealed from this judgment to the Alabama Supreme Court; that court transferred the *1015
appeal to this court, pursuant to §
The applicable standard of review with respect to the trial court's judgment of dismissal is as follows:
"On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief."
Nance v. Matthews,
At the time Alfa filed its collection action against Greathouse, the Mini-Code required all creditors engaging in the business of making consumer loans or taking assignments of consumer credit contracts to obtain a license from the state superintendent of banks for "each location." Section
Greathouse contends that Alfa and the trial court have misconstrued his claims as seeking relief under the Mini-Code for Alfa's failure to obtain a Mini-Code license for each location. He does not contend that the 1996 amendment to §
We agree with Greathouse that, viewed in a light "most strongly in [his] favor" (Nance, 622 So.2d at 299), his complaint does seek equitable relief from the judgment in the collection action and compensatory and punitive damages based upon the falsity of Alfa's affidavit (i.e., its alleged "fraud upon the court"), rather than Alfa's alleged failure to comply with the licensing provisions of the Mini-Code. We note that Rule 60(b), Ala.R.Civ.P., preserves the right of a party to maintain an independent action "to set aside a judgment for fraud upon the court" within three years of the entry of the judgment. Because Greathouse filed this action less than three years after the collection action was filed (and thus necessarily within three years after the default judgment in that action was entered), his action may be *1016 viewed as a timely effort to seek equitable relief based upon Alfa's alleged fraud upon the court.
However, merely because Greathouse has characterized Alfa's conduct as a "fraud upon the court" does not make it so. In Hall v. Hall,
"`Fraud on the court' has been defined as `fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.' 7 J. Moore, Moore's Federal Practice § 60.33 (2nd ed. 1990). Such fraud must be `extrinsic,' that is, perpetrated to obtain the judgment, rather than `intrinsic.' Brown v. Kingsberry Mortgage Co.,
349 So.2d 564 (Ala. 1977). In discussing `fraud on the court,' the Eleventh Circuit Court of Appeals stated:"`Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61,
98 U.S. 61 ,25 L.Ed. 93 (1878); see also Great Coastal Express [v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen Helpers of America], 675 F.2d [1349] at 1358 (4th Cir. 1982); Wood v. McEwen,644 F.2d 797 (9th Cir. 1981). Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co.,261 U.S. 399 ,425 ,43 S.Ct. 458 ,465 ,67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of perjury in the original action."`"Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible . . . . Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, . . . those we cannot necessarily expect to be exposed by the normal adversary process."
"`Great Coastal Express, 675 F.2d at 1357.'
"Travelers Indemnity Co. v. Gore,
761 F.2d 1549 ,1552 (11th Cir. 1985)."We find that the fraud alleged to have been exercised here, that [the personal representative] characterized herself as [the decedent's] widow when in fact she was not, is intrinsic rather than extrinsic and that it could have been brought out in the original action to which [the defendants] chose not to respond."
587 So.2d at 1200-01.
Similarly, the falsity of Alfa's statements concerning its compliance with the Mini-Code could have been exposed in its collection action against Greathouse. However, like the defendants in Hall, Greathouse allowed a default judgment to be taken against him rather than defending the action on the merits. Section
In addition to requesting that the judgment in the collection action be set aside, Greathouse sought compensatory and punitive damages because of Alfa's allegedly false statements in its affidavit. However, our supreme court has recognized that "as a general rule . . . no action lies to recover damages caused by perjury, false swearing, subornation of perjury, or an attempt to suborn." Parker v. Parker,
Based upon the foregoing facts and authorities, we conclude that Greathouse did not state a valid claim upon which relief could be granted. Moreover, because Greathouse's individual claim did not state a cause of action, he is not an adequate representative of the putative class he seeks to represent, and the dismissal was therefore proper as to the class claims as well. See J.M.R. v. County of Talladega,
AFFIRMED.
Yates, Monroe, Crawley, and Thompson, JJ., concur.