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    United States v. Sam Fiorella, Katherine Fiorella, Shades Ridge Holding Company, Inc., Melina Fiorella, Grace Tortomasi, Pritchard, McCall & Jones, A Partnership, 869 F.2d 1425, 11th Cir. (1989)

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    This document summarizes a court case in which the United States sought to revive a 1968 judgment against Sam Fiorella for unpaid taxes. The district court had previously granted one motion to revive in 1978, extending the judgment until 1988. In 1987, the US filed a second motion to revive, seeking to extend the judgment until 1998. The district court denied this motion, finding it would violate Alabama law, which prohibits reviving judgments after 20 years. The appeals court affirmed, finding that Alabama law controlled and barred further revival of the 1968 judgment. However, the court did not rule on whether the underlying tax lien remained enforceable.

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    United States v. Sam Fiorella, Katherine Fiorella, Shades Ridge Holding Company, Inc., Melina Fiorella, Grace Tortomasi, Pritchard, McCall & Jones, A Partnership, 869 F.2d 1425, 11th Cir. (1989)

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    101 views4 pages
    This document summarizes a court case in which the United States sought to revive a 1968 judgment against Sam Fiorella for unpaid taxes. The district court had previously granted one motion to revive in 1978, extending the judgment until 1988. In 1987, the US filed a second motion to revive, seeking to extend the judgment until 1998. The district court denied this motion, finding it would violate Alabama law, which prohibits reviving judgments after 20 years. The appeals court affirmed, finding that Alabama law controlled and barred further revival of the 1968 judgment. However, the court did not rule on whether the underlying tax lien remained enforceable.

    Original Description:

    Filed: 1989-04-10 Precedential Status: Precedential Citations: 869 F.2d 1425 Docket: 87-7717

    Original Title

    United States v. Sam Fiorella, Katherine Fiorella, Shades Ridge Holding Company, Inc., Melina Fiorella, Grace Tortomasi, Pritchard, McCall & Jones, a Partnership, 869 F.2d 1425, 11th Cir. (1989)

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    This document summarizes a court case in which the United States sought to revive a 1968 judgment against Sam Fiorella for unpaid taxes. The district court had previously granted one motion to revive in 1978, extending the judgment until 1988. In 1987, the US filed a second motion to revive, seeking to extend the judgment until 1998. The district court denied this motion, finding it would violate Alabama law, which prohibits reviving judgments after 20 years. The appeals court affirmed, finding that Alabama law controlled and barred further revival of the 1968 judgment. However, the court did not rule on whether the underlying tax lien remained enforceable.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    101 views4 pages

    United States v. Sam Fiorella, Katherine Fiorella, Shades Ridge Holding Company, Inc., Melina Fiorella, Grace Tortomasi, Pritchard, McCall & Jones, A Partnership, 869 F.2d 1425, 11th Cir. (1989)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which the United States sought to revive a 1968 judgment against Sam Fiorella for unpaid taxes. The district court had previously granted one motion to revive in 1978, extending the judgment until 1988. In 1987, the US filed a second motion to revive, seeking to extend the judgment until 1998. The district court denied this motion, finding it would violate Alabama law, which prohibits reviving judgments after 20 years. The appeals court affirmed, finding that Alabama law controlled and barred further revival of the 1968 judgment. However, the court did not rule on whether the underlying tax lien remained enforceable.

    Copyright:

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    of 4

    869 F.

    2d 1425

    UNITED STATES of America, Plaintiff-Appellant,


    v.
    Sam FIORELLA, Katherine Fiorella, Shades Ridge Holding
    Company, Inc., Melina Fiorella, Grace Tortomasi,
    Pritchard, McCall & Jones, a
    partnership, Defendants-Appellees.
    No. 87-7717.

    United States Court of Appeals,


    Eleventh Circuit.
    April 10, 1989.

    Frank W. Donaldson, U.S. Atty., Sharon D. Simmons, Asst. U.S. Atty.,


    Birmingham, Ala., Gary R. Allen, Chief, William S. Rose, Jr., Appellate
    Section, Tax Div., Dept. of Justice, Washington, D.C., for plaintiffappellant.
    Richard A. Meelheim, Vowell, Meelheim & McKay, P.C., Birmingham,
    Ala., for defendants-appellees.
    Appeal from the United States District Court for the Northern District of
    Alabama.
    Before RONEY, Chief Judge, JOHNSON and SMITH * , Circuit Judges.
    EDWARD S. SMITH, Circuit Judge:

    In this judgment revival case, the United States District Court for the Northern
    District of Alabama, in an order dated September 29, 1987, denied the United
    States' (Government) motion to revive a January 3, 1968, district court
    judgment against Sam A. Fiorella (Fiorella). We affirm.Issue

    The sole issue on appeal is whether the district court erred by denying the
    Government's motion to revive the judgment of January 3, 1968.

    Background
    3

    The facts are not disputed. On July 1, 1964, the Government commenced an
    action in district court against Fiorella, Fiorella's wife, and Shades Ridge
    Holding Company. The Government sought, inter alia, both to recover income
    taxes assessed against Fiorella for the 1956 through 1958 tax years and to
    foreclose the federal tax liens on all property and rights of property of Fiorella
    and Fiorella's wife. On January 3, 1968, the district court, pursuant to a
    settlement between the parties involved in the action, entered judgment against
    Fiorella in the amount of $286,727.75 and directed that Fiorella's prior cash
    payment of $107,500 be credited to the judgment.1

    On January 19, 1978, the Government, asserting that $179,227.75 remained


    unpaid, filed a motion to revive the judgment of January 3, 1968.2 The district
    court, in an order dated February 17, 1978, granted the Government's motion to
    revive the January 3, 1968, judgment so as to give the judgment life until
    January 3, 1988.3

    Approximately 10 years later, the Government filed a second motion to revive


    the judgment of January 3, 1968, which would extend the life of the judgment
    until January 3, 1998. In an order dated September 29, 1987, the district court
    denied the Government's second motion to revive, holding that it would be a
    violation of Alabama law to extend the life of the judgment beyond January 3,
    1988.4 For the reasons set forth below, we hold that the district court did not err
    in denying the Government's second motion to revive the judgment of January
    3, 1968.

    Analysis
    6

    It is well settled that Alabama law controls the procedure on the execution of a
    judgment rendered in a district court located in Alabama.5 Further, Alabama
    Code Sec. 6-9-190 provides that a judgment cannot be revived after the lapse of
    20 years from its entry.6 The district court, in its denial of the Government's
    motion to revive judgment, held that it would be a violation of Alabama law to
    continue the vitality of the January 3, 1968, judgment beyond January 3, 1988.
    We agree.

    Generally, the United States is not subject to local statutes of limitations.7


    However, Alabama Code Sec. 6-9-190, which effectively limits the time for
    issuing executions on judgments, is not a statute of limitation and operates the
    same against the United States as it operates against private parties.8

    The Government's principal contention is that the underlying tax lien continues
    to exist independently of the January 3, 1968, district court judgment. The
    Government argues that, since the tax lien continues until it is satisfied, the act
    of reducing the tax lien to judgment does not subject the tax lien to state
    limitations on the enforcement of judgments. We do not decide this issue. Here,
    the sole issue properly before this court is whether the January 3, 1968,
    judgment is now capable of being revived under Alabama law. We agree with
    the trial court that it is not. We do not decide whether the tax lien underlying
    the January 3, 1968, judgment remains enforceable.

    Conclusion
    9

    In view of the foregoing, we hold that the district court properly applied
    Alabama law and properly denied the Government's motion to revive the
    judgment of January 3, 1968. However, we decline to consider the
    enforceability of the underlying tax lien since this issue is not properly before
    this court.

    10

    AFFIRMED.

    Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting
    by designation

    United States v. Fiorella, No. 64-391 (N.D.Ala. Jan. 3, 1968)

    The January 3, 1968, judgment had become dormant by operation of Ala.Code


    Sec. 6-9-192 (1975) (no execution shall issue on a judgment on which an
    execution has not been sued out within 10 years of its entry until the same has
    been revived by appropriate motion or action)

    United States v. Fiorella, No. 64-391 (N.D.Ala. Feb. 17, 1978)

    United States v. Fiorella, No. CV64-391-S (N.D.Ala. Sept. 29, 1987)

    Fed.R.Civ.P. 69(a) (1982) ("[t]he procedure on execution [of district court


    judgments], in proceedings supplementary to and in aid of a judgment * * *
    shall be in accordance with the practice and procedure of the state in which the
    district court is held, existing at the time the remedy is sought, except that any
    statute of the United States governs to the extent that it is applicable")

    Ala.Code Sec. 6-9-190 (1975); see Henry v. State ex rel. Rambow, 16 Ala.App.
    670, 81 So. 190 (1919)

    United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 308, 81 S.Ct.
    1, 5, 5 L.Ed.2d 1 (1960); United States v. Summerlin, 310 U.S. 414, 416, 60
    S.Ct. 1019, 1020, 84 L.Ed. 1283 (1940)

    Custer v. McCutcheon, 283 U.S. 514, 519, 51 S.Ct. 530, 531, 75 L.Ed. 1239
    (1931)

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