A homeowner hired a contractor to install flooring in his house. On August 6, 2007, the homeowner filed a complaint against the contractor in the Jefferson County District Court. The complaint asserted that the contractor had improperly installed hardwood flooring in the homeowner's house and that the contractor had improperly placed a lien on his property. Because the contractor did not answer the complaint, the district court entered a default judgment on September 28, 2007, in favor of the homeowner.
On November 25, the contractor filed a motion to set aside the default judgment. The motion asserted that the district court did not have jurisdiction over the case because it was a "false lien" case that had to be heard by the circuit court, not the district court. The homeowner responded by indicating that his original complaint was not about a false lien, but about a breach of contract. On February 1, 2008, the district court awarded $2,500 in damages to the homeowner. The court advised the parties that they had 14 days to appeal the judgment to the circuit court. Neither party appealed the district court's judgment.
On February 20, 2008, the homeowner filed a complaint against the contractor in the Jefferson County Circuit Court. The complaint indicated that the contractor had slandered the homeowner by filing an improper lien. The complaint also indicated that, although the contractor had tried to file a release of the lien, the court indicated that the release had not been properly executed. Therefore, maintained the homeowner, he had not been able to close on the sale of his house for more than a year and had suffered $24,000 in financial injury.
Once again, the contractor did not appear in court. On February 2, 2009, the circuit court entered a judgment in favor of the landowner, but specifically found that the contractor had been served with process (notified) of the lawsuit. On July 15, 2010, the contractor filed a motion to set aside the judgment. As grounds for his motion, the contractor maintained that he had not, in fact, been served with process. In addition, the contractor maintained that the doctrine of res judicata barred the homeowner from filing another suit against him. The doctrine of res judicata prevents the same parties from relitigating an issue that has already been decided by a court. The circuit court ruled in favor of the contractor, and the homeowner appealed to the Alabama Court of Civil Appeals.
The appeals court reversed the circuit court. Because res judicata is an affirmative defense that must be pleaded by the party raising the defense, a failure to appear in court to assert the defense waives the defense. Because the contractor had not appeared in court to defend the lawsuit when it was filed, he waived the defense and the original judgment awarding damages to the homeowner was affirmed. See Lowe v. Rogers, decided on February 25, 2011.
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