Circuit Court, CV-17-900351
PETITION FOR WRIT OF MANDAMUS
Ward petitions this Court for a writ of mandamus directing
the Shelby Circuit Court to vacate its October 7, 2017, order
setting aside a default judgment entered against Johnathan
Motors, LLC, and its principal Jacques C. Chahla (hereinafter
referred to collectively as "the dealership") and
to enter an order reinstating the default judgment. We grant
the petition and issue the writ.
April 14, 2017, Ward filed a 12-count complaint against the
dealership and fictitiously named defendants alleging, among
other things, that on August 5, 2016, he purchased a vehicle
from the dealership; that he made a down payment on the
vehicle; that he made the first monthly installment payment
on the vehicle; that he maintained full insurance coverage on
the vehicle; but that on September 10, 2016, the dealership
unilaterally voided the sale of the vehicle and unlawfully
repossessed and converted to its own use the vehicle, the
down payment, the monthly installment payment, and the
personal property in the vehicle when it was unlawfully
repossessed. The dealership was served by certified mail on
April 19, 2017; the sufficiency of that service of process
has not been challenged.
August 14, 2017, Ward requested the clerk of the circuit
court to enter a default against the dealership pursuant to
Rule 55(a), Ala. R. Civ. P., based on the dealership's
failure to answer or otherwise to defend in the case; the
clerk subsequently made an entry of default in the case. On
September 9, 2017, the trial court entered a default judgment
against the dealership pursuant to Rule 55(b)(2), Ala. R.
Civ. P., and a hearing to determine the damages was set for
November 21, 2017.
October 3, 2017, the dealership moved the trial court to set
aside the default judgment pursuant to Rule 55(c), Ala. R.
Civ. P., asserting that, although an entry of default had
been made, no final judgment had been entered in the case
because damages had not yet been determined, that it had a
good and meritorious defense to the allegations asserted in
the complaint, and that Ward would not suffer unfair
prejudice if the default judgment was set aside. The
dealership requested in the motion to set aside the default
judgment that it be allowed 14 days in which to
respond to the complaint.
October 7, 2017, the trial court entered an order granting
the dealership's motion to set aside the default
judgment, but requiring the dealership to file an answer
within seven days from the date of that order; the
dealership did not file an answer within seven days as
November 1, 2017, Ward moved the trial court to reconsider
its order setting aside the default judgment, asserting that
the dealership had not responded to the complaint as ordered
and that the dealership had not met its initial burden of
demonstrating the existence of the three factors set forth in
Kirtland v. Fort Morgan Authority Sewer Service,
Inc., 524 So.2d 600 (Ala. 1988).
November 12, 2017, the trial court denied Ward's motion
to reconsider the order setting aside the default judgment.
On November 13, 2017, the dealership filed an answer to the
complaint. Ward thereafter petitioned this Court for a writ
of mandamus directing the trial court to vacate its order
setting aside the default judgment, to enter an order
reinstating the default judgment against the dealership, and
to schedule a hearing on damages.
of Review and Applicable Law
"Because an order setting aside a default judgment is
interlocutory and, therefore, not appealable, the proper
remedy to review the trial court's action in entering
that order is a petition for a writ of mandamus. Ex parte
State ex rel. Atlas Auto Finance Co., 251 Ala. 665, 38
So.2d 560 (1948). The standard for issuing a writ of mandamus
is well settled:
"'Mandamus is an extraordinary remedy requiring a
showing that there is: "(1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty upon
the respondent to perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court." Ex parte
Edgar, 543 So.2d 682, 684 (Ala. 1989); Ex parte
Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991).'
"Ex parte Johnson, 638 So.2d 772, 773 (Ala.
1994). And see Ex parte Preston Hood Chevrolet,
Inc., 638 So.2d 842 (Ala. 1994); and Ex parte
Liberty Nat'l Life Ins. Co., 631 So.2d 865 (Ala.
1993). The standard of review this Court applies when
considering a petition asking for a writ of mandamus
requiring a judge to vacate an order setting aside a default
judgment is whether the judge, in setting aside the default
judgment, [exceeded] his discretion. See DaLee ...