from Montgomery Circuit Court (CV-16-759)
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 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
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.
and Procedural History
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.
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,
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.
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.
13 minutes after the trial began, Armstrong entered the
courtroom. 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 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.
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.
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.
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 the Armstrong property to retrieve rent
checks (that was done by Armstrong's boyfriend) but that
she had gone to inspect the residence twice and had not seen
any pets on the property.
the trial, the trial court issued an order entering judgment
against Armstrong and McKithen for $75, 000 plus costs. The
order noted that a default judgment had previously been
entered against McKithen but made no mention of a default
judgment against Armstrong. The order contained no findings
of fact or rationale for Armstrong's liability.
January 25, 2018, Armstrong filed what she titled as a
"Motion to Set Aside Judgment." Armstrong argued
that the judgment should be set aside because, she said, Hill
had produced insufficient evidence demonstrating that
Armstrong should have known there were animals on the
Armstrong property, that Armstrong should have known those
animals were dangerous, and that Armstrong had failed to
exercise reasonable care in maintaining the safety of the
Armstrong property. The trial court interpreted
Armstrong's motion as a "motion to vacate or
modify" the judgment and denied the
motion. Armstrong timely appealed.
of the Judgment Below
brief on appeal, Hill contends that the trial court entered a
default against Armstrong and thus relieved Hill of her
obligation to present evidence of liability. According to
Hill, after the trial court entered a default, the only issue
that remained to be determined was the amount of damages to
be assessed. Based on the law and evidence presented,
however, it is clear that no default judgment was ever
entered against Armstrong. Instead, the proceeding below was
a trial that resulted in a judgment on the merits against
and default judgments are generally governed by Rule 55, Ala.
R. Civ. P. This Court has noted the distinction between
defaults and default judgments. See Ex parte Family
Dollar Stores of Alabama, Inc., 906 So.2d 892, 896 (Ala.
2005) ("[I]t is probably helpful to talk in terms of an
entry of 'default' and an entry of a 'judgment by
default,' respectively, to differentiate between the two
events."). The first event that must occur is the entry
of default by the clerk of the trial court. See Rule
55(a), Ala. R. Civ. P. ("When a party against whom a
judgment for affirmative relief is sought has failed to plead
or otherwise defend as provided by [the Alabama Rules of
Civil Procedure], and that fact is made to appear by
affidavit or otherwise, the clerk shall enter the party's
default."); see also Coke v. Family Sec. Credit
Union, [Ms. 2160912, May 4, 2018] So. 3d, (Ala. Civ.
App. 2018) ("'[A] party must first obtain an entry
of default by the clerk or the trial court before he or she
can obtain a default judgment from the trial
court.'" (quoting Griffin v. Blackwell, 57
So.3d 161, 163 (Ala. Civ. App. 2010))). An entry of default
does not constitute a final judgment -- it is an
interlocutory order. See Boudreaux v. Kemp, 49 So.3d
1190, 1194 (Ala. 2010) (citing McConico v. Correctional
Med. Servs., Inc., 41 So.3d 8, 12 (Ala. Civ. App.
2009)); Alfa Auto Sales, L.L.C. v. Miller, 177 So.3d
903, 909 (Ala. Civ. App. 2015) ("We note that the ...
entry of default ... was an interlocutory order subject to
being set aside at any time before a judgment was
an entry of default is an interlocutory order, the procedure
for its entry is governed by Rule 58(c), Ala. R. Civ. P. That
rule provides that an order is not deemed "entered"
until it is input into the State Judicial Information System
("the SJIS"). The absence of any entry of default
in the electronic docket in this case indicates that no
default was entered into the SJIS. Because no entry of default
preceded the ...