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Dubose v. McAteer

Alabama Court of Civil Appeals

May 5, 2017

Jack Dzurian DuBose
v.
Kay McAteer, individually and as administrator of the estate of Daniel W. McAteer, deceased

         Appeal from Tuscaloosa Circuit Court (CV-16-900136)

          MOORE, Judge.

         Jack 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.

         Procedural History

         On 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."

         On 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.

         In a 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.

         In a 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."

         On that 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.

         Issues on Appeal

         Before 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").

         On 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 that motion).

         The 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 ...


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