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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