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Armstrong v. Hill

Supreme Court of Alabama

May 10, 2019

Emma Armstrong
v.
Betty Hill

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

          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 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 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 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.

         Following 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.

         On 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.[4] Armstrong timely appealed.

         Nature of the Judgment Below

         In her 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.[5] 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 Armstrong.

         Defaults 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 entered.").

         Because 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.[6] Because no entry of default preceded the ...


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