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Ex parte Bhones

Supreme Court of Alabama

March 1, 2019

Ex parte Alvin Bhones and Diane Bhones
v.
Travis Shawn Peete and Beech Brook Companies, LLC In re: Alvin Bhones and Diane Bhones

          Limestone Circuit Court, CV-15-900053

          PETITION FOR WRIT OF MANDAMUS

          WISE, JUSTICE.

         Alvin 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.

         Facts and Procedural History

         On 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.

         On May 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 default judgment.

         On 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.

         Standard of Review

         "'Mandamus 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).

         Discussion

         The 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 part:

"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."

         Also,

"[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 ...

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