Holland v. MGA, Inc. et al

Filing 129

MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: 1) Barbara Holland's 117 motion for relief from judgment is GRANTED; 2) The 109 Order is VACATED IN PART on grounds that it is VOID IN PART. Specifically, the 109 Order is vacated as void to the extent that the Order enters judgment against Barbara Holland and/or "Barbara Holland d/b/a Choice Video" and in favor of LFP, Inc., in the amount of $1,917.03, in favor of Movie Gallery US, LLC, in the amount of $ 5,614.00, and in favor of Mile High Media, Inc., in the amount of $2,337.00; 3) The 109 judgment remains valid and shall continue in force solely against Malcolm Rance Newman ("Malcolm R. Newman, Esq."), as further set out in order; 4) As to Barbara Holland and/or "Barbara Holland d/b/a Choice Video", Dfts shall make no further attempts to execute on the judgment, as further set out in order; 5) Barbara Holland may request the Clerk of the Court to issue an Amended Cer tificate of Judgment reflecting that the 109 judgment (1) has been vacated in part and is void as to Barbara Holland and/or "Barbara Holland d/b/a Choice Video", (2) that neither Barbara Holland nor "Barbara Holland d/b/a Choice Vide o" is liable to any Dft, including Dfts LFP, Inc., Movie Gallery US, LLC, Mile High Media, Inc., for any amount with respect to the judgment in this case, and (3) that the 109 judgment continues and remains valid solely against Malcolm Rance N ewman ("Malcolm R. Newman, Esq.") and in favor of LFP, Inc., in the amount of $1,917.03, in favor of Movie Gallery US, LLC, in the amount of $5,614.00, and in favor of Mile High Media, Inc., in the amount of $2,337.00; 6) DIR ECTING the Clerk to serve a copy of this order on the following persons at the following addresses by certified mail, return receipt requested, as further set out in order; Copies mailed by CMRRR a directed. Signed by Chief Judge William Keith Watkins on 1/3/2018. (alm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
BARBARA HOLLAND,
d/b/a CHOICE VIDEO,

)
)
)
Plaintiff,
)
)
v.
) CASE NO. 1:05-CV-237-WKW
) [WO]
MGA, INC., and all holding
)
companies and affiliated entities doing )
business as MOVIE GALLERY, et
)
al.,
)
)
Defendants.
)
MEMORANDUM OPINION AND ORDER
Before the court is Barbara Holland’s motion for relief from judgment. (Doc.

# 117). No Defendant opposes Barbara Holland’s request for relief from judgment.
On December 13, 2017, the court held oral argument on the motion. Present at oral
argument were counsel for Defendant LFP, counsel for Barbara Holland, and
Barbara Holland. Malcolm Rance Newman1 was not present.
On March 14, 2005, Malcolm Rance Newman filed this action on behalf of
Barbara Holland d/b/a Choice Video. (Doc. # 1.) At the time he filed the lawsuit,

1

Malcolm Rance Newman is a member of the bar of this court. He has been on suspended
status since April 3, 2009. Attempts by the court and the parties to serve Malcolm Rance Newman
with the pending motions and the order setting oral argument were unsuccessful. (Doc. # 121.)

there was no business entity known as “Barbara Holland d/b/a Choice Video.”2
Malcolm Rance Newman never met or spoke with Barbara Holland. Barbara
Holland had no or limited dealings with the Defendants, and she had no motive or
desire to sue any of them. Until Barbara Holland received Defendant LFP, Inc.’s
motion to revive the judgment in May 2017, she was unaware of the existence of
this case, the filing of the frivolous appeal, the judgment awarding attorney’s fees
and costs for the pursuit of the frivolous appeal, and the liens Defendants had filed
against her personal and business property in an attempt to execute on that
judgment.3

Therefore, based on the clear, uncontradicted evidence and an

independent review of the record, the court finds that Malcolm Rance Newman was

2

Beginning in 1990, Barbara Holland ran a movie rental business called “JPW Enterprises
d/b/a Choice Video.” In May 2005, shortly after the complaint was filed in this case, she formed
an LLC, of which she was a member, and ran the business as BAS Enterprises, LLC, d/b/a Choice
Video. (Doc. # 117-1 at1 ¶ 2.)
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Barbara Holland was unaware of the liens because she was unaware of the judgment in
this case and because she had no other reason to check her property titles. The court notes that,
due to Malcolm Rance Newman’s fraudulent representation of himself as Plaintiff’s attorney, the
Certificates of Judgment that were issued by the Clerk of the Court and filed in probate court did
not include Barbara Holland’s address, but did mistakenly include a certification that “Malcolm
Rance Newman of the Firm Malcolm R. Newman, P.C., P.O. Box 6137, Dothan, AL, 36302-6137”
was Barbara Holland’s attorney of record. (See Doc. # 114-1.) See Ala. Code § 6-9-210. (“The
owner of any judgment entered in any court . . . of the United States held in this state may file in
the office of the judge of probate . . . a certificate of the clerk . . . of the court by which the judgment
was entered, which certificate shall show the style of the court which entered the judgment, the
amount and date thereof, the amount of costs, the names of all parties thereto and the name of the
plaintiff’s attorney . . . . Such certificate shall also show the address of each defendant or
respondent, as shown in the court proceedings.”).
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never authorized to file the complaint or to represent Barbara Holland or any entity
known as Choice Video.
Based on the clear, undisputed evidence, the court finds that Malcolm Rance
Newman acted in bad faith and perpetrated a fraud on the court when he filed this
case in the name of a person who was not his client.4 Barbara Holland bore no
personal responsibility for the frivolous appeal and, but for Malcolm Rance
Newman’s fraudulent representation that Barbara Holland d/b/a Choice video was
his client, Barbara Holland would never have been held liable for attorney’s fees for
that appeal. Solely because of Malcolm Rance Newman’s fraud on the court,
judgment was erroneously entered against Barbara Holland for attorney’s fees
Defendants incurred in contesting the frivolous appeal that Malcolm Rance Newman
filed without Barbara Holland’s knowledge or participation. Thus, the judgment

4

He also violated Alabama state law, the Alabama Rules of Professional conduct, and the
local rules of this court. See Ala. Code 1975 § 34-3-22 (“Any attorney appearing for a person
without being employed must, on conviction, be fined not less than $500 and shall be incompetent
to practice in any court of this state.”); Alabama Rule of Professional Responsibility 1.2(a) (“A
lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall
consult with the client as to the means by which they are to be pursued.”); Alabama Rule of
Professional Responsibility 8.5) (“It is professional misconduct for a lawyer to: . . [c]ommit a
criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer
in other respects; [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or]
[e]ngage in conduct that is prejudicial to the administration of justice.”); L.R. 83.1(g) (“Attorneys
admitted to practice before this Court shall adhere to this Court’s Local Rules, the Alabama Rules
of Professional Conduct, the Alabama Standards for Imposing Lawyer Discipline, and, to the
extent not inconsistent with the preceding, the American Bar Association Model Rules of
Professional Conduct. Attorney misconduct, whether or not occurring in the course of an
attorney/client relationship, may be disciplined by disbarment, suspension, reprimand, monetary
sanctions, removal from this Court’s roster of attorneys eligible for practice before this Court, or
such other sanction as the Court may deem appropriate.”).
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against Barbara Holland is the product of Malcom Rance Newman’s fraud on this
court (and on the Eleventh Circuit Court of Appeals).5 Moreover, because Barbara
Holland was never a party to this case and did not appear in the case prior to entry
of the judgment, the judgment is void as to her.
Therefore, the court finds (1) that Barbara Holland is entitled to relief from
the judgment awarding attorneys’ fees and costs for that appeal; (2) that the judgment
is void as to Barbara Holland because she was never a party to this lawsuit; and (3)
in any event, as to Barbara Holland the judgment is due to be vacated on grounds
that it is solely the product of Malcolm Rance Newman’s fraud on this court and that
this lawsuit was a fraud. See Fed. R. Civ. P. 60(b)(4),(6) (“On motion and just terms,
the court may relieve a party or its legal representative from a final judgment, order,
or proceeding” on grounds that “the judgment is void” or for “any other reason that
justifies relief” not listed in Rule 60(b)(1)-(5)); Fed. R. Civ. P. 60(d)(3) (providing
that a court may “set aside a judgment for fraud on the court”); Chambers v. NASCO,
Inc., 501 U.S. 32, 44 (1991) (noting the court’s “inherent power . . . to vacate its own

5

By appearing on behalf of Barbara Holland, Malcolm Rance Newman fraudulently
presented himself as her authorized representative, and he fraudulently represented her as a
plaintiff in this lawsuit. Because he was not her attorney, the entire action was a fraud. See 28
U.S.C. § 1654 (providing that lawsuits in the courts of the United States may be pleaded and
conducted by the parties, either personally or by “counsel as, by the rules of such courts . . . are
permitted to manage and conduct causes therein”); Fed. R. Civ. P. 11(b) (providing that an attorney
who presents a pleading, written motion, or other paper signed in accordance with Rule 11
represents that the signed document is warranted by existing law); L.R. 83.1(f) (“Unless disbarred
or suspended, attorneys shall be held at all times to represent the parties for whom they appear of
record.”). (See also, e.g., Doc. # 1 at 5 (signed “Malcolm R. Newman, Attorney for the Plaintiff”).)
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judgment upon proof that a fraud has been perpetrated upon the court”).6 Cf. Ala.
Code § 34-3-22 (“If it is alleged by a party for whom an attorney appears that he or
she does so without authority, the court may at any stage of the proceedings, upon
proof of the allegation, relieve the party for whom the attorney has assumed to appear
from the consequences of his or her acts.”).
Accordingly, and for the reasons stated at oral argument, it is ORDERED as
follows:
1.

Barbara Holland’s motion for relief from judgment (Doc. # 117) is

GRANTED.
2.

The June 5, 2007 Order (Doc. # 109) is VACATED IN PART on

grounds that it is VOID IN PART. Specifically, the June 5, 2007 Order (Doc. # 109)
is vacated as void to the extent that the Order enters judgment against Barbara
Holland and/or “Barbara Holland d/b/a Choice Video” and in favor of LFP, Inc., in
the amount of $1,917.03, in favor of Movie Gallery US, LLC, in the amount of
$5,614.00, and in favor of Mile High Media, Inc., in the amount of $2,337.00. This

6

The fraud at issue does not fall under Rule 60(b)(3) of the Federal Rules of Civil
Procedure because it does not concern “fraud . . . misrepresentation, or misconduct by an opposing
party.” Fed. R. Civ. P. 60(b)(3) (emphasis added). Moreover, Rule 60 “does not limit a court’s
[inherent] power to . . . set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3).
Therefore, the one-year time limitation contained in Rule 60(c)(3) is inapplicable to Barbara
Holland’s motion to vacate.
5

Order relieves Barbara Holland and “Barbara Holland d/b/a Choice Video” from any
and all liability to any Defendant for the judgment in this case.
3.

The June 5, 2007 judgment (Doc. # 109) remains valid and shall

continue in force solely against Malcolm Rance Newman (“Malcolm R. Newman,
Esq.”). Malcolm Rance Newman (“Malcom R. Newman, Esq.”) shall continue to
remain liable for the June 5, 2007 judgment (Doc. # 109) against him and in favor
of LFP, Inc., in the amount of $1,917.03, in favor of Movie Gallery US, LLC, in the
amount of $5,614.00, and in favor of Mile High Media, Inc., in the amount of
$2,337.00.
4.

As to Barbara Holland and/or “Barbara Holland d/b/a Choice Video,”

Defendants shall make no further attempts to execute on the judgment.7 Defendants
shall provide any reasonable cooperation necessary to relieve Barbara Holland
and/or “Barbara Holland d/b/a Choice Video” of any and all liens Defendants
previously filed in attempt to execute on the judgment in this case.
If Barbara Holland or any Defendant reasonably incurs attorney’s fees or costs
in conjunction with state court proceedings to remove liens or otherwise relieve
Barbara Holland and/or “Barbara Holland d/b/a Choice Video” of liability for the
judgment, they may, if they wish, move this court for an order requiring Malcolm

7

This Order does not preclude Defendants from executing on the June 5, 2007 judgment
as to Malcolm Rance Newman (“Malcolm R. Newman, Esq.”), or, to the extent provided by
applicable law, as to his successors, heirs, and assigns.
6

Rance Newman to reimburse the attorney’s fees and costs incurred in those state
court proceedings.8 Reasonable attempts shall be made to serve any such motion on
Malcolm Rance Newman, along with a copy of this Order. The movants shall file
written notice with the court if they are unable, with reasonable effort, to serve
Malcolm Rance Newman. If Defendants or Barbara Holland are unable, with
reasonable diligence, to serve Malcolm Rance Newman with their motions for
attorney’s fees and costs and a copy of this Order, or if Malcolm Rance Newman
does not file a response on or before 14 days after being served with such a
motion and a copy of this Order, then he will be deemed to have waived his right
to contest the imposition and amount of the award for attorney’s fees and costs
incurred in state court.
5.

Barbara Holland may request the Clerk of the Court to issue an

Amended Certificate of Judgment reflecting that the June 5, 2007 judgment (Doc. #
109) (1) has been vacated in part and is void as to Barbara Holland and/or “Barbara
Holland d/b/a Choice Video;” (2) that neither Barbara Holland nor “Barbara Holland
d/b/a Choice Video” is liable to any Defendant, including Defendants LFP, Inc.,
Movie Gallery US, LLC, Mile High Media, Inc., for any amount with respect to the
judgment in this case; and (3) that the June 5, 2007 judgment continues and remains

8

The purpose of awarding those fees and costs is to remediate reasonably foreseeable
damages proximately caused by Malcolm Rance Newman’s fraud on this court. This Order does
not preclude the parties from choosing instead to file a motion in state court for costs and attorney’s
fees.
7

valid solely against Malcolm Rance Newman (“Malcolm R. Newman, Esq.”) and in
favor of LFP, Inc., in the amount of $1,917.03, in favor of Movie Gallery US, LLC,
in the amount of $5,614.00, and in favor of Mile High Media, Inc., in the amount of
$2,337.00.
6.

The Clerk of the Court is DIRECTED to serve a copy of this order on

the following persons at the following addresses by certified mail, return receipt
requested:
W. Clarkson McDow, Jr.
United States Trustee
738 Myrtle Drive
Rock Hill, SC 29730
Robert Van Arsdale
Assistant United States Trustee
701 East Broad Street
Suite 4304
Richmond, Va. 23219
The Alabama State Bar
Disciplinary Commission
P.O. Box 671
Montgomery, AL 36101
Malcolm Rance Newman
219 Crawford Street
Dothan, AL 36301
Malcolm Rance Newman
P.O. Box 6137
Dothan, AL 36302

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Malcolm Rance Newman
694 Willa Street
Ozark, AL 36360
Malcolm Rance Newman
2912 Peachtree Drive
Dothan, AL 36303
DONE this 3rd day of January, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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