Limestone Circuit Court, CV-15-900053
PETITION FOR WRIT OF MANDAMUS
Bhones and Diane Bhones, the plaintiffs below, filed a
petition for a writ of mandamus requesting that this Court
order the Limestone Circuit Court to vacate its August 2,
2018, order setting aside the default judgment it had entered
in their favor on March 21, 2018, against Travis Shawn Peete
and Beech Brook Companies, LLC, the defendants below. We
grant the petition and issue the writ.
and Procedural History
February 12, 2015, the Bhoneses sued Beech Brook and Peete,
the sole member of Beech Brook, based on their allegedly
defective construction of the Bhoneses' new home. The
complaint stated claims of breach of contract, breach of
warranty, fraud, fraudulent misrepresentation, and
negligence. The complaint was served on the defendants on
February 19, 2015, but they did not file an answer. On March
13, 2018, the Bhoneses moved for a default judgment. On March
21, 2018, the trial court entered a default judgment in favor
of the Bhoneses.
22, 2018, the defendants filed a motion to set aside the
default judgment pursuant to Rule 60(b)(1) and (6), Ala. R.
Civ. P. On July 31, 2018, the Bhoneses file a response in
opposition to that motion. On August 1, 2018, the defendants
filed an affidavit in support of the motion to set aside the
August 2, 2018, the trial court conducted a hearing on the
motion and response and, afterward, entered an order setting
aside the default judgment. This mandamus petition followed.
is a drastic and extraordinary writ, to be issued only where
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
Perfection Siding, Inc., 882 So.2d 307, 309-10
(Ala. 2003) (quoting Ex parte Integon
Corp., 672 So.2d 497, 499 (Ala. 1995)).
"'A petition for the writ of mandamus is a proper
method for attacking the grant of a Rule 60(b) motion.'
Ex parte A & B Transp., Inc., 8 So.3d 924, 931
(Ala. 2007). 'In general, the decision whether to grant
or to deny a postjudgment motion filed pursuant to ... Rule
60 is within the sound discretion of the trial court, and the
exercise of that discretion will not be disturbed ... unless
the trial court [exceeded] its discretion.'
Comalander v. Spottswood, 846 So.2d 1086, 1090 (Ala.
2002). However, '[a] party seeking relief must both
allege and prove one of the grounds set forth in Rule 60 in
order to be granted relief under that rule.' Ex parte
American Res. Ins. Co., 663 So.2d 932, 936 (Ala. 1995).
Thus, where a 'Rule 60(b) motion offer[s] no proper basis
for granting relief from the judgment, ... the trial
court's granting of that motion [exceeds its]
discretion.' Ex parte Alfa Mut. Gen. Ins. Co.,
681 So.2d 1047, 1050 (Ala. 1996)."
Ex parte Wallace, Jordan, Ratliff & Brandt,
L.L.C., 29 So.3d 175, 177-78 (Ala. 2009).
Bhoneses argue that the trial court exceeded its discretion
in granting the defendants' motion to set aside the
default judgment pursuant to Rule 60(b), which provides, in
"On motion and upon such terms as are just, the court
may relieve a party or a party's legal representative
from a final judgment, order, or proceeding for the following
reasons: (1) mistake, inadvertence, surprise, or excusable
neglect; ... or (6) any other reason justifying relief from
the operation of the judgment. The motion shall be made
within a reasonable time, and for reason (1) ... not more
than four (4) months after the judgment, order, or proceeding
was entered or taken."
"[i]n considering whether to grant a Rule 60(b)(1)
motion to set aside a default judgment, a trial court must
not only consider whether the defendant has established
excusable neglect, but it also must apply the factors
outlined in Kirtland v. Fort Morgan Authority Sewer