from Baldwin Circuit Court (CV-17-901321)
THOMPSON, PRESIDING JUDGE.
Von Alvensleben appeals from an order of the Baldwin Circuit
Court ("the trial court") denying her motion to set
aside a default judgment entered against her and in favor of
Michael Von Cassiner Dubuisson. Both parties appeared pro se
before the trial court.
record indicates that on November 16, 2017, Dubuisson, who
was incarcerated in the Baldwin County jail, filed a
complaint alleging that he was entitled to $18, 000 that, he
said, his aunt, Von Alvensleben, had made from the sale of
certain property ("the property") in Baldwin
County. Von Alvensleben lives in California. Dubuisson
claimed that the property belonged to Frances Marian Styron
Dubuisson ("Frances"), and, he said, he was "a
living Heir" and "a legal child" of
Frances's. He claimed there was a "living will"
pertaining to the property. Therefore, Dubuisson asserted, he
had "a right to a fair amount from" the sale of the
subsequent filing in the trial court, Dubuisson said that he
had been adopted by Frances. He also amended the amount of
money he was seeking, asserting that he was entitled to $8,
900 as his share of the proceeds from the sale of the
property and that he was seeking an additional $2, 000
because, he said, Von Alvensleben had sold the property
without his signature and without notifying him.
to the State Judicial Information System ("SJIS")
case-action summary, Von Alvensleben was served with the
summons and complaint on December 13, 2017. On January 11,
2018, Dubuisson filed a motion for default. On January 16,
2018, the trial court granted the motion for default and
rendered a default judgment in favor of Dubuisson in the
amount of $18, 000, plus court costs. The default judgment
was entered in SJIS on January 18, 2018.
January 23, 2018, Von Alvensleben wrote a letter asking the
trial court to set aside the default judgment. The trial
court treated the letter, which was filed January 29, 2018,
as a motion to set aside the default judgment. In the letter,
Von Alvensleben apologized to the trial court and explained
that she had "misread" an order, believing that she
was required to appear in court in May. She also explained
that, since December, she had been caring for her brother and
sister-in-law, both of whom were seriously ill.
Alvensleben contended that, in 2006, she visited Alabama and
learned that Dubuisson had had Frances revoke the power of
attorney she had given Von Alvensleben. Von Alvensleben also
claimed that Dubuisson was forwarding Frances's Social
Security checks to one of his friends because, she said,
Dubuisson was returning to prison. Frances was suffering from
Alzheimer's disease and Parkinson's disease, Von
Alvensleben said, so Von Alvensleben had Frances placed in a
secure nursing home in Foley. By that time, Von Alvensleben
said, Dubuisson had "spent all [of Frances's]
money," Frances's mobile home was apparently being
repossessed, and, Von Alvensleben said, Dubuisson and others
"took all her rent and paid no bills."
Alvensleben attached to her letter a warranty deed that
appears to be dated May 31, 1990, in which Frances and her
husband, Andrew, conveyed the property to Von Alvensleben.
According to the deed, Frances and Andrew retained a life
estate in the property. Dubuisson's name does not appear
on the deed. Von Alvensleben also provided the trial court
with a copy of letters of guardianship/conservatorship
concerning Frances. The letters were dated August 2006.
January 30, 2018, the trial court summarily entered an order
that said, in its entirety: "Motion to Set Aside Default
filed by Von Alvensleben ... is hereby DENIED." Von
Alvensleben filed a timely notice of appeal to this court.
dispositive issue on appeal is whether the trial court abused
its discretion in failing to hold an evidentiary hearing on
Von Alvensleben's motion to set aside the default
judgment and in failing to apply the factors set forth in
Kirtland v. Fort Morgan Authority Sewer Service,
Inc., 524 So.2d 600 (Ala. 1988), to determine whether
the default judgment was due to be set aside.
"Rule 55(c), Ala. R. Civ. P., provides, in pertinent
part, that a trial court may 'set aside a judgment by
default on the motion of a party filed not later than thirty
(30) days after the entry of the judgment.' The husband
filed his motion to set aside two days after the trial
court's entry of the default judgment; thus, the
husband's motion to set aside was a timely filed Rule
"'In Kirtland v. Fort Morgan Auth. Sewer Serv.,
Inc., 524 So.2d 600 (Ala. 1988), this Court held that
the trial court has broad discretion in determining whether
to grant or to deny a defendant's motion to set aside a
default judgment, but that that discretion is not boundless.
The trial court must balance two competing policy interests
associated with default judgments--judicial economy and the
defendant's right to defend on the merits.
Kirtland, 524 So.2d at 604. These interests must be
balanced under the two-step process set out in
"'Under Kirtland, the trial court must
first presume that cases should be decided on the merits
whenever it is practicable to do so. This presumption exists
because the right to have a trial on the merits ordinarily
outweighs the need for judicial economy. Second, the trial
court must apply a three-factor analysis in determining
whether to set aside a default judgment: it must consider
"1) whether the defendant has a meritorious defense; 2)
whether the plaintiff will be unfairly prejudiced if the
default judgment is set aside; and 3) ...