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C.L. Smith Auto Sales, LLC v. David Bulger, Inc.

Alabama Court of Civil Appeals

May 11, 2018

C.L. Smith Auto Sales, LLC, and Leisa Smith
v.
David Bulger, Inc.

          Appeal from Autauga Circuit Court (CV-14-87)

          THOMPSON, PRESIDING JUDGE.

         C.L. Smith Auto Sales, LLC, and Leisa Smith ("the defendants") appeal from an order of default the Autauga Circuit Court ("the trial court") entered against them and a subsequent judgment ordering them to pay damages to David Bulger, Inc. ("Bulger"), in the amount of $59, 847.37. The defendants appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

         The record indicates the following. Bulger filed a complaint against the defendants on September 6, 2013, in the Montgomery Circuit Court. On November 18, 2014, the action was transferred to the trial court "due to the defendant's residency." On February 17, 2016, the trial court entered a scheduling order setting the cause for trial on October 24, 2016, and ordering the parties to mediate in good faith before the scheduled trial date. The February 17, 2016, scheduling order also set a pretrial conference for October 11, 2016.

         On April 15, 2016, before the mediation, the attorney for the defendants filed a motion to withdraw at the defendants' request. The trial court granted the motion on April 19, 2016. The parties unsuccessfully mediated the cause as scheduled on April 27, with the defendants appearing pro se.[1] On October 15, 2016, the trial court entered an order of default against the defendants. In that order, the trial court explained that, when the case was called for the pretrial conference on October 11, 2016, Bulger was present with counsel but the defendants were not present and no attorney appeared on their behalf. The trial court then stated:

"The foregoing being considered by the Court, it is ORDERED as follows:
"1. That Default is entered in favor of [Bulger] and against the Defendant[s], and testimony on the issue of damages shall be taken before the Court at 9:00 a.m. on November 21, 2016."

         The defendants' former attorney reentered the case on November 18, 2016. That same day, the defendants filed a motion to set aside the October 15, 2016 order or, in the alternative, to alter, amend, or vacate the "judgment" on the ground that the default was improperly entered as a sanction against the defendants for what they claimed was the "unintentional failure to attend" the pretrial conference. Apparently, the trial court did not conduct the damages hearing on November 21, 2016. On March 5, 2017, Bulger filed in the trial court a response to the defendants' motion. As part of its response, Bulger sought to dismiss the defendants' motion as being untimely filed. On March 6, 2017, after a hearing, the trial court denied the defendants' November 18, 2016, motion.

         On May 4, 2017, the trial court held an evidentiary hearing on the issue of damages. On May 9, 2017, the trial court entered a final judgment directing the defendants to pay Bulger $59, 847.37 in damages. On June 8, 2017, the defendants filed a timely "verified motion to alter, amend, or vacate or in the alternative, for a new trial, " challenging both the award of damages and the entry of the default judgment and seeking a trial on the merits. The postjudgment motion was denied by operation of law on September 6, 2017. The defendants filed their notice of appeal on September 8, 2017.

         Before addressing the merits of the defendants' arguments on appeal, we first address Bulger's contention, made both before the trial court and in its brief on appeal, that the defendants' motion to set aside the October 15, 2016, order of default or, in the alternative, to alter, amend, or vacate that order was untimely. In its appellate brief, Bulger argues that the defendants' motion was not filed within 30 days of the date the trial court entered the October 15, 2016, order. Therefore, Bulger argues, the "postjudgment" motion was untimely.

         Bulger's argument is not persuasive in light of authority to the contrary. This court's research has revealed no authority to support Bulger's proposition that the motion to set aside the order of default had to be filed within 30 days of its entry. Instead, Rule 55(c), Ala. R. Civ. P., provides that, "[i]n its discretion, the court may set aside an entry of default at anytime before judgment." In discussing Rule 55(c), our supreme court has held:

"'A judgment by default with leave to prove damages is interlocutory and can be set aside at any time until entry of judgment on assessment of damages. It then becomes a final judgment.' Maddox v. Hunt, 281 Ala. 335, 339, 202 So.2d 543, 545 (1967). 'A default judgment that reserves the assessment of damages is interlocutory and may be set aside at any time; once the trial court assesses damages on the default judgment, the judgment becomes final. Rule 55(c), Ala. R. Civ. P.; Maddox v. Hunt, 281 Ala. 335, 202 So.2d 543 (1967).' Keith v. Moone, 771 So.2d 1014, 1017 (Ala. Civ. App. 1997), rev'd on other grounds, Ex parte Keith, [771 So.2d 1018 (Ala. 1998)]."

Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 896 (Ala. 2005)(emphasis added).

         In this case, the defendants' motion to set aside the order of default was submitted months before the trial court entered its final judgment assessing damages. At the time the motion was filed, the October 15, 2016, order remained interlocutory. Within 30 days after the final judgment awarding damages was entered, the defendants filed another motion to alter, amend, or vacate the final judgment in which they challenged the entry of the default judgment, among other things. Therefore, the ...


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