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Cochran v. Engelland

Supreme Court of Alabama

January 10, 2020

James Cochran
v.
Pilar Engelland

          Appeal from Calhoun Circuit Court (CV-14-19)

          MITCHELL, Justice.

         James Cochran, the plaintiff in an unsuccessful personal-injury action, challenges the Calhoun Circuit Court's order setting aside a $2, 000, 000 default judgment entered against Pilar Engelland ("Pilar") after she initially failed to respond to his complaint. We affirm.

         Facts and Procedural History

         On April 16, 2012, Cochran was riding his motorcycle westbound on U.S. Highway 278 in Calhoun County when he struck a horse that had entered the road. Cochran suffered significant injuries in the accident, and he states that he has incurred hundreds of thousands of dollars in medical expenses as a result of those injuries.

         Cochran thereafter retained attorney James Shelnutt to pursue legal remedies against any parties responsible for the presence of the horse in the road. Cochran and Shelnutt concluded that the horse struck by Cochran had escaped from a parcel of property extending into both Calhoun and Cherokee Counties that was adjacent to the accident site ("the farm"). The owner of the farm was ultimately identified as Pilar. In approximately May 2013, Shelnutt had telephone conversations with Pilar, her son Joseph Jorge Engelland ("Jorge"), and Jerry Coley, who was leasing the farm from Pilar at the time of Cochran's accident. It appears that the primary purpose of those conversations was to determine whether any insurance policies existed that might provide coverage for Cochran's accident. No such policies were identified, and there is no evidence that there was any more communication between Cochran and Pilar or Jorge after May 2013.

         On April 16, 2014, Cochran sued Pilar and Coley in the Calhoun Circuit Court, alleging that their negligence had caused the April 2012 accident. Cochran attempted to serve Pilar by certified mail sent to the mailing address for the farm on U.S. Highway 278 in Piedmont, but the notice was returned that same month marked "return to sender, not deliverable as addressed, unable to forward." It appears from the case-action summary in the record that Coley was served and that he filed an answer denying liability for Cochran's injuries. Cochran proceeded to litigate his claim against Coley for approximately the next two years until May 31, 2016, when the claim against Coley was dismissed with prejudice. The dismissal of Cochran's claim against Coley is not an issue in this appeal.

         On July 13, 2016, after the case against Coley had been dismissed, Cochran moved the trial court for permission to serve Pilar by publication under Rule 4.3, Ala. R. Civ. P. Cochran supported his motion with an affidavit from one of his attorneys stating that "[Cochran] has unsuccessfully attempted to serve and thereafter locate [Pilar]. Under information and belief, [Pilar] avoided service and her whereabouts are currently unknown." The trial court granted Cochran's motion, and legal notice of his claim against Pilar was published in The Anniston Star, a newspaper of general circulation in Calhoun County, for four consecutive weeks in August and September 2016. Cochran thereafter moved the trial court to enter a default judgment in his favor, and, on March 20, 2017, the trial court granted his motion and entered a $2, 000, 000 judgment against Pilar.

         In March 2018, Cochran obtained a writ of execution based on that default judgment. After Cochran delivered the writ of execution to the Cherokee County Sheriff's Office, the sheriff sent a copy to Pilar at her home in Florida. It is not clear from the record how the sheriff obtained Pilar's Florida address. Pilar promptly obtained counsel and moved the trial court to quash the writ of execution and to set aside the default judgment under Rule 60(b)(4), Ala. R. Civ. P. On June 7, 2018, the trial court conducted a hearing on Pilar's motion at which she argued that the default judgment should be set aside as void because, she claimed, she had not been properly served. See generally Cameron v. Tillis, 952 So.2d 352, 354 (Ala. 2006) (explaining that the failure to effect proper service on a defendant deprives the court of jurisdiction and renders a default judgment void). Pilar specifically argued that service by publication should not have been available to Cochran in her case because, she claimed, she had taken no action to avoid service and Cochran had not exercised reasonable efforts to locate her.

         The trial court also heard ore tenus testimony from Jorge and Shelnutt at the June 7 hearing. Jorge testified that he had handled the finances for the farm since 1994 when his father died. Jorge further testified that Pilar had moved from the farm to Florida in approximately 2001 or 2002 to live with him and that they had since moved within Florida several times, but that they had always notified the revenue commissioners in both Calhoun County and Cherokee County of their change of address to ensure they received property-tax notices for the farm. Jorge acknowledged having a telephone conversation with Shelnutt in 2013 during which he was told about Cochran's accident and was asked about the insurance coverage for the farm, but Jorge states that he and Pilar were never told about a lawsuit being filed and that they had never taken any steps to avoid service. Rather, he testified, they first learned that Cochran had filed a lawsuit in April 2018 when they received a notice from the Cherokee County Sheriff's Office at their address in Florida -- the same address on file with the Cherokee County Revenue Commissioner.

         Shelnutt confirmed during his testimony that he had spoken with Jorge in May 2013 to ask about the insurance coverage for the farm. Shelnutt stated that Jorge denied having knowledge of any insurance policies that might provide coverage for Cochran's accident but that Jorge identified Coley as the tenant of the farm at the time of the accident and provided Shelnutt with Coley's telephone number. Shelnutt testified that he then contacted Coley, who was generally uncooperative and who also disclaimed any knowledge of insurance coverage for the farm. Shelnutt stated that he telephoned Jorge again, who gave him Pilar's telephone number and told him that he should talk to her.

         Shelnutt testified that he then called Pilar, informed her of Cochran's accident, and inquired about any insurance coverage she might have on the farm. Shelnutt stated that, after Pilar indicated there was no insurance coverage, he told her that a lawsuit would be filed and that she should obtain an attorney. Shelnutt testified that the conversation quickly came to an end at this point and that Pilar refused to disclose her address or location. Finally, Shelnutt testified that before the lawsuit was filed he searched the Alacourt database and "several" Web sites that compile public information looking for contact information for Pilar but was unsuccessful. On cross-examination, Shelnutt acknowledged that he never tried to contact Pilar or Jorge again by telephone because he "didn't see the need for it," since they had been told in May 2013 that a lawsuit would be filed.

         On June 8, 2018, the trial court granted Pilar's motion to set aside the default judgment and to quash the writ of execution. Pilar subsequently filed an answer denying the allegations in Cochran's complaint and moved the trial court to enter a summary judgment in her favor. On October 23, 2018, the trial court granted her motion and entered a final judgment in the underlying case. On December 4, 2018, Cochran filed this appeal, specifically challenging the trial court's order setting aside the default judgment entered against Pilar.

         Standard ...


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