|Judge J. Scott Vowell|
Imagine going to a doctor who did not know how to take your temperature. You would expect to see such a clod have his license yanked in short order, right?
That's not how it works in the legal "profession," at least here in my home base of Alabama. Gross incompetence seems to be openly tolerated among lawyers. In some cases, it is rewarded by giving a lawyer the title of "judge."
Consider Circuit Judge J. Scott Vowell of Jefferson County, which includes Birmingham. He has been presiding judge since 1995, which means he is largely responsible for our area having one of the nation's most corrupt domestic-relations courts. Vowell has sat idly by while certain judges and lawyers used several notorious hunting clubs as sites to fix divorce cases. Even after the scandal became known, thanks to several federal lawsuits, Vowell still has taken no noticeable corrective actions.
My wife and I recently learned that Vowell is more than just an inept administrator; he also is an inept judge. We filed a legal-malpractice complaint against Darrell Cartwright and Allan Armstrong, the two lawyers who intentionally undermined our case against unethical debt collectors. Two Jefferson County judges, Robert Vance Jr. and Tom King, recused themselves from our case, so it wound up in Vowell's lap.
How has he handled it? Well, the veteran judge apparently cannot even read a docket report and tell whether a complaint has been served or not. This is one of the first steps that happens in most any lawsuit, and the docket report should make it clear whether the defendants have or have not been served.
It's the legal equivalent of a doctor taking your temperature. That's one of the first things to happen when you get a health checkup, and it doesn't take much skill to complete the task. The same thing applies to the issue of service in a lawsuit; it happens right up front, and even the most incompetent judge should know when the step has been completed.
But that apparently is beyond J. Scott Vowell because he recently issued an order dismissing our case, without prejudice, "for lack of service." That order, dated November 26, came even though the docket sheet shows that service was completed--or "perfected," as lawyers like to say--more than four months ago.
To make matters more mind boggling, my wife and I are pro se litigants, so we don't have the advantage of checking the electronic file via alacourt.com. We have to rely on the U.S. mail to receive copies of documents in the case. At least two of Vowell's orders regarding service, either by accident or design, never reached us. That means I only learned about a supposed problem with service when I visited the Jefferson County Courthouse a few weeks back and happened to check our file on a public computer.
Service of a complaint should be relatively simple, but it can get tricky when you have a couple of defendants who happen to be lawyers and know how to avoid being served. That's the case with Cartwright and Armstrong, and it appears that Vowell is doing his best to help them get away with playing legal dodge ball.
How is the judge doing that? Well, he's claiming service has not been completed, when a simple check of the docket report shows that it has been completed. That's like being asked to read an eye chart that clearly says "H-O-R-S-E," only to have your optometrist claim it says "F-E-N-C-E."
Let me explain:
The service of process is covered under Rule 4 of the Alabama Rules of Civil Procedure (ARCP). The rule is long because it attempts to cover all sorts of potential scenarios and complications, but for most in-state cases, the procedure should go smoothly.
The No. 1 method for in-state service is for the plaintiff to pay a fee to have a sheriff's deputy deliver a copy of the summons and complaint to each defendant. That should take care of it. But with Cartwright and Armstrong, the deputy returned the material as undelivered.
Perhaps the No. 2 method for in-state service is to have the court designate a process server. We tried that method, and the server made multiple trips to the Armstrong and Cartwright homes, when they clearly were home, but service was refused.
That led us to Rule 4(e), which allows the clerk to send the summons and complaint by ordinary mail in cases where the designated server states that process has been refused. Rule 4(e) states: "Service shall be deemed complete when the fact of mailing is entered of record."
I delivered to the clerk on July 19 a copy of an alias summons, along with a signed statement from the server that process had been refused. The appropriate papers were stamped on that date, and a docket entry for July 19 states: "Clerk sent by regular mail to Darrell Cartwright" on one line, followed by "Clerk sent by regular mail to Allan Armstrong" on the next line.
Per Rule 4(e), "the fact of mailing" was "entered of record" on July 19, 2012--which is more than four months ago--and that means "service shall be deemed complete." And yet, I hold in my hand an order from Scott Vowell saying the case has been dismissed for "lack of service."
The dismissal is "without prejudice," which means the case can be reinstated--and you can rest assured that it will be. But why are we having to jump through such absurd hoops?
That question leads to this question: Is Scott Vowell really that incompetent or is he corrupt, intentionally ignoring simple rules in order to provide cover for a couple of rogue members of the legal tribe?
You probably can guess which answer to that question I would pick.
Following are documents related to service in this case. The first includes Judge Vowell's Order of Dismissal, plus papers that were filed to have service completed under Rule 4(e) ARCP. The second is a motion that includes an explanation of the facts and relevant law regarding service:
Cartwright Vowell Dismissal
Cartwright Default Judgment