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Ex parte Ward

Supreme Court of Alabama

May 18, 2018

Ex parte Joshua Ward
v.
Johnathan Motors, LLC, et al. In re: Joshua Ward

          Shelby Circuit Court, CV-17-900351

          PETITION FOR WRIT OF MANDAMUS

          SELLERS, Justice.

         Joshua 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.

         Facts

         On 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.

         On 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.

         On 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.

         On 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 ordered.

         On 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).

         On 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.

         Standard 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 ...

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