Alabama Appellate Watch : Alabama Litigation Lawyer & Attorney : Lightfoot Franklin & White : Appellate, Alabama Supreme Court (Supreme Court of Alabama)

The ex-wife instituted an action against the ex-husband for contempt for failure to pay child support.  The trial court rendered a default judgment after the ex-husband failed to appear for a hearing.   After the trial court rendered the default judgment, but before the default was entered, the ex-husband appeared and filed a Rule 55(c) motion to set aside the default and filed a counterclaim.  The trial court never ruled on the Rule 55(c) motion, but rather tried the case.  The ex-wife appealed from the ultimate ruling of the trial court.

The Court of Civil Appeals dismissed the appeal as being from a void judgment.  First, because the Rule 55(c) motion was filed before the default was entered, it was held in abeyance and considered filed on the date the default was entered.  Pursuant to Rule 59.1, the trial court had 90 days to rule on the motion to set aside default or else it would be denied by operation of law.  The trial court never ruled on the motion.  After the Rule 55(c) motion was denied by operation of law, the trial court lost jurisdiction to act on the case and, therefore, its orders and judgment made after that date were void.

The counterclaim filed by the ex-husband did not prevent the default judgment from becoming final.  "After an entry of default, the defaulting party 'loses his standing in court, cannot appear in any way, cannot adduce evidence and cannot be heard at the final hearing.'"  Slip Op. p. 5, quoting Dorcal, Inc. v. Xerox Corp., 398 So. 2d 665, 670 (Ala. 1981).  Thus, because the default was never set aside, the counterclaim was never properly in the case.

One interesting aspect of the opinion is the court's finding that a "gentleman's agreement" between attorneys that no appearance was necessary provided a sufficient basis for the trial court to conclude that the default judgment was not as a result of the defendant's own culpable conduct.

The circuit court ultimately affirmed summary judgment granted to the defendant co-employees after the default was set aside, finding that a fire extinguisher was not a "safety device on a machine" and was not covered by Ala. Code sec 25-5-11(c)(2).

The husband in this divorce suit suffered a default judgment. This judgment was entered on February 26, 2008. Two days later, the husband moved to set it aside. The trial court denied this motion on May 27. The husband then (on May 28) filed a Rule 59(e) motion to alter, amend or vacate the judgment. The appellate court does not record whether the lower court acted on this motion. On July 3, 2008, the husband appealed.

The Court of Civil Appeals made two initial points of post-judgment procedure. First, it explained that the Rule 59(e) motion of May 28 was ineffective. If that motion was aimed at the default judgment of February 26, 2008, it came well outside the 30-day deadline of Rule 59(e), and was untimely. If it was directed at the May 27 denial of the husband’s motion to set aside the default judgment, then it breached the rule against successive post-judgment motions. The court explained: “Successive post-judgment motions by the same party, seeking essentially the same relief, are not allowed.” “[I]n either case, the husband’s motion to alter, amend, or vacate was of no effect.”

Second, the husband’s appeal was timely. That appeal was not from the Rule 59(e) motion, which the circuit court lacked jurisdiction to consider. (Though, again, the opinion does not say whether the lower court even addressed that motion.) The only order that would support an appeal was the May 27 denial of the husband’s motion to set aside the default judgment. The appeal from this order was timely. Motions to set aside a default judgment toll the running of the deadline for appeal; “time for filing begins to run again only when the trial court enters an order granting or denying the motion.”

The Court of Civil Appeals went on to reverse the denial of the husband’s motion to set aside the default judgment.

In Carroll, the trial court entered a default judgment against Carroll in favor of Williams on a cross-claim.  Carroll filed a Rule 55 motion seeking to have the default judgment set aside, arguing only that he had a meritorious legal defense.  Carroll, however, provided no evidence other than a copy of a release from a related claim and argument.  The trial court failed to rule on the motion within 90 days, and it was denied by operation of law.

Carroll argued on appeal that the trial court erred by failing to apply the analysis required by Kirtland v. Fort Morgan Authority Sewer Service, Inc,, 524 So. 2d 600 (Ala. 1988).  Under Kirtland, a trial court has broad discretion whether to set aside a default judgment, and must consider (1) whether the defendant has a meritorious defense, (2) whether the plaintiff will be unfairly prejudiced if the default is set aside, and (3) whether the default was the result of the defendant's own culpable conduct.  Slip Op. p. 8.

The Court noted that the default party has the initial burden of demonstrating the Kirtland factors.  Here, the only Kirtland factor addressed by the defaulting party was the meritorious defense element.  Carroll did not argue that the plaintiff would not be prejudiced or that the default was not the result of its own culpable conduct.  Thus, the only relevant factor was whether Carroll had a meritorious defense.

With regard to the meritorious defense, the defaulting party must show that the "allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury." Slip. Op. p. 9, quoting Kirtland, 524 So. 2d at 606 (emphasis added by Court).  Further, the allegations "in the answer and in the motion must be more than mere bare legal conclusions without factual support." Slip. Op. p. 9, quoting Kirtland, 524 So. 2d at 606 (emphasis added by Court).

The Court found that the submission filed by Carroll failed to meet its initial burden under Kirtland.  Thus, because Carroll had not met its initial burden, the Court declined to hold the trial court in error for failing to engage in a Kirtland analysis.