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Armstrong v. Hill

Supreme Court of Alabama

May 10, 2019

Betty HILL.

          Appeal from Montgomery Circuit Court (CV-16-759)

Page 412

          M. Andrew Gable of Keith Rodgers & Associates, L.L.C., Montgomery, for appellant.

          Christina D. Crow of Jinks, Crow & Dickson, P.C., Union Springs, for appellee.

         PER CURIAM.

         This is a dog-bite case that is procedurally unique. Betty Hill sued Emma Armstrong and another defendant after Hill was bitten by three dogs. When Armstrong and her trial counsel failed to appear at trial at the appointed time, the trial court declared from the bench that a default would be entered against Armstrong for liability and that Hill would have an opportunity to put on evidence of

Page 413

damages. Approximately 13 minutes after the trial began, however, Armstrong appeared in the courtroom (her trial counsel never arrived). When the trial court noted Armstrong's appearance, it proceeded to hold a nonjury trial on the merits — though the conditions under which evidence would be taken were never made clear. The trial court thereafter entered a judgment in favor of Hill and against Armstrong in the amount of $75,000. This appeal followed.

         We have been asked by Armstrong to determine whether the evidence presented at trial was sufficient to sustain the judgment against her. Based on our review of the applicable law and the evidence taken at trial, it is clear, even under a standard of review that is deferential to the trial court, that the evidence presented was insufficient to support the judgment. Accordingly, we reverse the judgment of the trial court and remand the cause with instructions for the trial court to enter a judgment in favor of Armstrong.

         Facts and Procedural History

         Armstrong owned a house on Kelly Lane in Montgomery ("the Armstrong property"), which she leased to Michelle McKithen. Hill lived across the street from the Armstrong property. On May 21, 2016, Hill was watering plants outside her house when she noticed dogs barking at children in the vicinity of the Armstrong property. She yelled to the children, warning them to stay away from the dogs. Three dogs then ran across the street and attacked her. The attack caused injuries to Hill's right hand and left elbow, requiring surgery and physical therapy. On December 8, 2016, Hill sued Armstrong and McKithen, asserting negligence, wantonness, and premises-liability claims.[1]

         On December 4, 2017, the Montgomery Circuit Court held a nonjury trial. When the trial began, neither Armstrong nor her attorney was present. Although there is no indication in the record that Hill moved for a default against Armstrong,[2] the trial court announced: "No one having appeared for Ms. Armstrong, I will grant [Hill's] motion for a default against Ms. Armstrong." The trial court then told those present: "If [Hill] want[s] to create some record as to the damages associated with the injuries, we can do that at this time, and I think that will probably conclude the proceeding." After the trial court gave those instructions, Hill took the witness stand.

         Hill testified that three dogs resembling pit bulls approached her from the vicinity of the Armstrong property and attacked her in her yard. She introduced a deed from 2008 showing that Armstrong was the owner of the Armstrong property and a humane-society animal-bite incident report. In accordance with the trial court's instruction, all other evidence that Hill presented went to the issue of damages.

         Approximately 13 minutes after the trial began, Armstrong entered the courtroom.[3] Armstrong's trial attorney was not with her and never appeared at trial. When Hill's direct testimony concluded, the trial court discovered that Armstrong had entered the courtroom. The trial court welcomed Armstrong but never informed her

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of its entry of default against her or that the only issue before the court was the issue of damages. The trial court told Armstrong that she had "the right to come forward and ask Hill any questions that [she] want[ed]." The trial court did not tell Armstrong that she should limit her cross-examination of Hill to the issue of damages.

         Armstrong proceeded to cross-examine Hill. Hill testified that she knew that the Armstrong property was being rented and that the tenant kept dogs on the property. Hill admitted that she did not know to whom the dogs belonged. Counsel for Hill did not object to any portion of Armstrong's cross-examination of Hill and at no point requested that the scope of the cross-examination be limited to damages.

         Following Hill's testimony, the trial court explained to Armstrong her options: "Now, Ms. Armstrong, that was their witness that they called to prove their case. Now it's your turn.... If you want to take the stand and tell your side of the story, you are welcome to sit in the [witness] box." Armstrong was reluctant, stating that she did not "really have a side of the story." The trial court then reminded her twice that it was her "day in court." It explained to Armstrong that "the purpose of this lawsuit is to determine whether or not you ... are at fault and if you are at fault, what are the damages.... [S]o that's the purpose of this day." Armstrong then took the witness stand.

         Armstrong testified that she was not aware of any dogs being kept at the Armstrong property. She entered into the record her lease with McKithen, which states: "No animal ... of any kind shall be kept on or about the premises, for any amount of time, without obtaining the prior written consent and meeting the requirements of [Armstrong]." On cross-examination by Hill's counsel, Armstrong testified that she had owned the Armstrong property for six or seven years and that she knew McKithen prior to leasing her the house. According to Armstrong, McKithen had resided at the Armstrong property with McKithen's boyfriend and her two children for about seven months before the dog attack. Armstrong testified that she never went to ...

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