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Alvensleben v. Dubuisson

Alabama Court of Civil Appeals

July 27, 2018

Shiela Von Alvensleben
v.
Michael Von Cassiner Dubuisson

          Appeal from Baldwin Circuit Court (CV-17-901321)

          THOMPSON, PRESIDING JUDGE.

         Shiela 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.

         The 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 property.

         In a 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.

         According 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.

         On 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.

         Von 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."

         Von 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.

         On 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.

         The 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 55(c) motion.
"'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 Kirtland.
"'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) ...

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