from Tuscaloosa Circuit Court (CV-16-900136)
Dzurian DuBose appeals from a default judgment entered
against him by the Tuscaloosa Circuit Court ("the trial
court"), an order denying his Rule 55(c), Ala. R. Civ.
P., motion to set aside the default judgment, and an order
denying his Rule 60(b), Ala. R. Civ. P., motion. See
discussion, infra. We affirm the trial court's
default judgment and orders.
February 2, 2016, Kay McAteer, both individually and as
administrator of the estate of Daniel W. McAteer, deceased,
filed a complaint in the trial court. McAteer alleged that
she individually owned a mobile home and that the estate of
Daniel W. McAteer owned fee-simple title to the land upon
which the mobile home resided ("the property").
McAteer claimed that DuBose had agreed to purchase the mobile
home through a lease-to-own arrangement, which, she claimed,
DuBose had not honored; she also claimed that DuBose had
"trashed" the property and had failed and refused
to vacate the property. McAteer requested that the trial
court order DuBose to vacate the property, to clean the
property, to restore to her the possession of the mobile
home, and to "pay such sums as the court may assess for
damages, mesne profits, and other injury to the land."
March 7, 2016, McAteer filed an application for the entry of
a default judgment; she asserted therein that DuBose had
failed to answer or otherwise defend against the complaint
and that more than 30 days had elapsed since he had been
served with the complaint. In the application, McAteer
demanded possession of the property and the mobile home, but
she did not claim any money from DuBose. The trial court
entered a default judgment against DuBose on March 10, 2016,
awarding possession of the mobile home to McAteer
individually and possession of the property to the estate.
letter to the court dated March 18, 2016, DuBose requested
that the trial court set aside the default judgment; he
asserted that he had been served with the complaint on
February 11, 2016, upon returning home from Texas where he
had worked for several days and that he had believed that an
answer to the complaint would have been timely if it was
filed by March 12, 2016. Beneath his signature on the letter,
DuBose included as his address a post office box located in
Northport ("the Northport address"). The trial
court set his request to set aside the default judgment for a
hearing on March 30, 2016, which DuBose did not attend,
prompting the trial court to enter an order on that date
denying his request to set aside the default judgment.
second letter to the court dated April 11, 2016, DuBose again
requested that the default judgment be set aside; he asserted
that he had not received notice of the March 30, 2016,
hearing. Along with that letter, DuBose filed a request for a
change of address, requesting that all notices be mailed to
him at the Northport address. The trial court entered an
order on April 12, 2016, denying DuBose's April 11, 2016,
request to set aside the default judgment. On May 3, 2016,
the trial court entered an order that stated:
"A default judgment was previously entered in this case.
Subsequently, [DuBose] requested that the judgment be set
aside. Those motions were denied. The clerk's office
today informed the undersigned that the office, through
oversight, failed to change [DuBose's] address in the
court record when requested. This Court will, by separate
order, set a status hearing to review this matter."
same date, the trial court entered a notice indicating that
DuBose's request to set aside the default judgment was
set for a hearing on May 9, 2016, and designating that notice
of the hearing be sent to DuBose at the Northport address. At
the hearing, DuBose's attorney moved that the hearing
date be continued; that motion was denied. DuBose's
attorney filed an affidavit signed by DuBose in which DuBose
asserted that he was rightfully occupying the property
pursuant to a written contract to purchase the property.
McAteer moved to strike the affidavit on May 10, 2016. DuBose
filed a notice of appeal on May 11, 2016.
proceeding further, we must first determine the scope of this
appeal. On March 10, 2016, the trial court entered a default
judgment, which was a final judgment. See McGugin v.
McGugin, 23 So.3d 682 (Ala. Civ. App. 2009). Although
the trial court did not award McAteer any damages as alleged
in the complaint, which ordinarily would prevent the default
judgment from becoming a final judgment, see Ex parte
Family Dollar Stores, Inc., 906 So.2d 892 (Ala. 2005),
McAteer has informed this court that she waived any claim for
damages by applying only for possession of the property and
the mobile home, so the default judgment resolved all the
matters in controversy. See Tidwell v. Tidwell, 496
So.2d 91 (Ala. Civ. App. 1986) (defining a "final
judgment" as "a terminal decision which
demonstrates there has been complete adjudication of all
matters in controversy between the litigants").
March 18, 2016, DuBose filed a letter, which we construe as a
motion to set aside the default judgment under Rule 55(c),
Ala. R. Civ. P., which the trial court denied by an order
entered on March 30, 2016. DuBose filed a letter on April 11,
2016, indicating that he had not received notice of the March
30, 2016, hearing that had been scheduled on his Rule 55(c)
motion and requesting that the trial court reconsider its
order denying that motion. However, because more than 30 days
had elapsed since the entry of the default judgment, the
trial court could not reconsider its denial of the Rule 55(c)
motion to set aside the default judgment, which had become a
final judgment. See R.D.J. v. A.P.J., 142 So.3d 662
(Ala. Civ. App. 2013) (trial court lost jurisdiction after it
denied original motion to set aside default judgment such
that it could not consider motion to reconsider the denial of
trial court could consider the April 11, 2016, letter only as
a motion, pursuant to Rule 60(b), Ala. R. Civ. P., to vacate
the March 10, 2016, default judgment. See Thurmond
v.Parrish, 152 So.3d 358, 360 n.1 (Ala. Civ.
App. 2014). The trial court denied the Rule 60(b) motion by
an order entered on April 12, 2016. Thereafter, the trial
court purported to reconsider its April 12, 2016, order, but
a trial court has no jurisdiction to reconsider an ...