text:
    MARSHALL AUTO PAINTING & COLLISION, INC. v. PEACH AUTO PAINTING & COLLISION, INC., et al.
    2090090.
    Court of Civil Appeals of Alabama.
    July 16, 2010.

      John W. Parker, Daphne, for appellant.
    Craig W. Goolsby and Regina F. Cash of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Daphne, for appellees.
   BRYAN, Judge.

Marshall Auto Painting & Collision, Inc. (“Marshall”), a plaintiff below, appeals from a summary judgment in favor of the defendants below, Peach Auto Painting & Collision, Inc. (“Peach”), and its employees, Richard Franks, Jeff Adams, Brenda Scott, Don Reynolds, and Albert Ricouard (collectively “Peach’s employees”). We dismiss the appeal.

Marshall and Peach are business competitors in Mobile. On March 11, 2005, Marshall sued Peach and Peach’s employees. Marshall alleged that, in 2004, Peach’s employees, acting on behalf of Peach, had entered Marshall’s premises during business hours without permission and had offered money to some of Marshall’s employees as an inducement to leave their employment with Marshall and accept employment with Peach and to provide Peach with information concerning Marshall’s customer lists, pricing terms, and hourly rates so that Peach could take business away from Marshall. Marshall further alleged that Peach’s employees persisted in that course of conduct despite being told to stop by Marshall’s president and chief executive officer, Wayne Har-tung. In addition, Marshall alleged that the acts of Peach’s employees induced some of Marshall’s employees to leave their employment with Marshall and accept employment with Peach and that, subsequently, Peach’s employees offered those former Marshall employees money to induce them to disclose information concerning Marshall’s contracts with third parties, its customers, its pricing information, and its hourly rates. Marshall also alleged that, when Hartung went to Peach’s premises to reiterate that Peach’s employees should stop entering Marshall’s premises during business hours and soliciting Marshall’s employees, Reynolds caused Hartung to be arrested for criminal trespass, criminal mischief, and assault in order to harm Marshall’s business. Based on those allegations, Marshall stated claims of interference with business contracts, theft of trade secrets, tortious interference with business relations, trespass, negligence, and wantonness.

On April 22, 2005, Peach and Peach’s employees answered Marshall’s complaint. Also on April 22, Peach and Reynolds asserted a counterclaim against Marshall and filed a third-party complaint against Hartung. As the factual basis of their counterclaim and third-party complaint, Peach and Reynolds alleged that Hartung, acting on behalf of Marshall, had come to Peach’s premises, that Hartung had assaulted Reynolds, and that Hartung had damaged work that Peach had performed on an automobile belonging to one of Peach’s customers. Based on those allegations, Peach and Reynolds stated claims of trespass, assault and battery, negligence, and wantonness against Marshall and Har-tung.

On July 24, 2006, Marshall amended its complaint to add Hartung as an additional plaintiff and to add two claims on behalf of Hartung. First, Hartung stated a claim of malicious prosecution against Scott and Reynolds based on allegations that they had caused Hartung to be charged with criminal trespass, criminal mischief, and assault without probable cause to believe that Hartung had committed those crimes and that the prosecution of those criminal charges against Hartung had been terminated in his favor. Second, Hartung stated a claim of abuse of process against Peach and Peach’s employees based on allegations that Peach’s employees had obtained the issuance of writs of arrest against Hartung for criminal trespass, criminal mischief, and assault for the improper purposes of embarrassing Hartung and hurting Marshall’s business.

On December 19, 2007, Peach and Peach’s employees moved for a partial summary judgment with respect to all the claims against them. Thereafter, Marshall and Hartung filed a pleading and a brief in opposition to the partial-summary-judgment motion. The record on appeal does not contain a ruling on the December 19, 2007, summary-judgment motion.

On May 21, 2008, Peach and Peach’s employees filed a renewed partial-summary-judgment motion with respect to all the claims against them. On June 25, 2008, Marshall and Hartung filed a pleading, a brief, and evidence in opposition to the renewed partial-summary-judgment motion. On August 26, 2008, the trial court entered an order granting the renewed partial-summary-judgment motion with respect to Marshall’s claims of theft of trade secrets, trespass, negligence, and wantonness and denying the renewed partial-summary-judgment motion with respect to all the other claims against Peach and Peach’s employees.

On May 8, 2009, Peach and Peach’s employees filed a renewed partial-summary-judgment motion with respect to all the claims still pending against them. On June 9, 2009, Marshall and Hartung responded to the May 8, 2009, renewed partial-summary-judgment motion. Peach and Peach’s employees replied to Marshall and Hartung’s response on June 11, 2009. Following a hearing, the trial court entered an order on July 22, 2009, granting the May 8, 2009, renewed partial-summary-judgment motion and certifying that order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P.

Marshall and Hartung timely filed a postjudgment motion, which the trial court denied on August 26, 2009. Marshall then timely appealed to the supreme court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

If a trial court exceeds its discretion in certifying an order as a final judgment pursuant to Rule 54(b), the order is not a final, appealable judgment. See Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006). Therefore, in the case now before us, we must first determine whether the trial court exceeded its discretion in certifying its June 22, 2009, order as a final judgment pursuant to Rule 54(b).

In Schlarb v. Lee, the supreme court stated:

“This Court looks with some disfavor upon certifications under Rule 54(b).
“ ‘It bears repeating, here, that “ ‘[cjertifications under Rule 54(b) should be entered only in exceptional cases and should not be entered routinely.’ ” State v. Lawhorn, 880 So.2d 720, 725 (Ala.2002) (quoting Baker v. Bennett, 644 So.2d 901, 903 (Ala.1994), citing in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1378 (Ala.1987)). “ ‘ “Appellate review in a piecemeal fashion is not favored.” ’ ” Goldome Credit Corp. [v. Player, 869 So.2d 1146, 1148 (Ala.Civ.App.2003)] (quoting Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So.2d 190, 192 (Ala.Civ.App.1999), quoting in turn Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996)) (emphasis added).’
“Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So.2d 354, 363 (Ala.2004). Also, a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.” ’ Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).”

955 So.2d at 419-20. See also Howard v. Allstate Ins. Co., 9 So.3d 1213, 1215 (Ala.2008).

In the case now before us, Peach’s and Reynolds’s claims of trespass, assault and battery, negligence, and wantonness against Marshall and Hartung remain pending. The issue whether Hartung trespassed on Peach’s premises is material not only to Peach’s pending claim of trespass against Marshall and Hartung but also to Hartung’s adjudicated claims of malicious prosecution and abuse of process insofar as they are based on the charge of criminal trespass that was instituted against him. Likewise, the issue whether Hartung damaged work performed by Peach on a customer’s automobile is material not only to Peach’s pending claims of negligence and wantonness against Marshall and Hartung but also to Hartung’s adjudicated claims of malicious prosecution and abuse of process insofar as they are based on the charge of criminal mischief that was instituted against him. Moreover, the issue whether Hartung assaulted and battered Reynolds is material not only to Reynolds’s pending claim of assault and battery against Marshall and Hartung but also to Hartung’s adjudicated claims of malicious prosecution and abuse of process insofar as they are based on the criminal charge of assault that was instituted against Hartung. Accordingly, we conclude that the claims that remain pending and some of the claims adjudicated by the trial court have issues that “ ‘ “are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results,” ’ ” Schlarb v. Lee, 955 So.2d at 419-20 (quoting Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002), quoting in turn Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)). Moreover, although some of the claims adjudicated by the trial court do not have issues intertwined with those that remain pending, “this case does not represent the kind of ‘exceptional case[ ]’ that warrants immediate appellate review under Rule 54(b).” North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 345 (Ala.2008) (quoting Schlarb v. Lee, 955 So.2d at 419). Therefore, the trial court exceeded its discretion in certifying its July 22, 2009, order as a final judgment pursuant to Rule 54(b). See Schlarb v. Lee, 955 So.2d at 419-20. A nonfinal judgment will not support an appeal. Id. Consequently, we dismiss Marshall’s appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.

      . Hartung has not appealed.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Shirley Diane NICHOLS v. Larry PATE and Carol Pate.
    2090232.
    Court of Civil Appeals of Alabama.
    July 16, 2010.

      Shirley Diane Nichols, pro se.
    Chris Speaks, Clanton, for appellees.
   THOMPSON, Presiding Judge.

This is the second appeal to this court in this action. In this appeal, Shirley Diane Nichols appeals from the judgment of the Chilton Circuit Court ordering specific performance of a contract for the sale of certain real property. For the reasons set forth herein, we affirm the judgment in part and reverse it in part.

On May 20, 2005, Nichols and Larry Pate (“Mr. Pate”) entered into a contract whereby Nichols agreed to sell certain real property located in Chilton County to Mr. Pate (“the property”). The contract provided that Mr. Pate would purchase from Nichols “21 acres, more or less, on County Road 528, less and except approximately 3 acres reserved by seller, a more accurate legal [description] to be obtained,” for $12,000, with $500 paid immediately as earnest money and the balance paid at the closing of the sale. The contract provided that the sale would be closed and the deed to the property delivered on or before June 15, 2005.

The property that was the subject of the contract was bordered on the west by County Road 523. Nichols’s mother lived directly across County Road 523 on property that was bordered on the east by that road. Mr. Pate and his "wife, Carol Pate (“Mrs. Pate”), owned property directly north of the property that was the subject of the contract.

For reasons that are in dispute, the parties did not close on the sale and Nichols did not convey the property to Mr. Pate as called for in the contract. On July 21, 2005, the Pates sued Nichols, alleging that Nichols had breached the May 20, 2005, contract. The Pates requested specific performance of the contract or, in the alternative, an award of damages. They also sought an award of attorney’s fees.

The Pates unsuccessfully attempted personal service of process at two separate addresses in Tennessee, where Nichols resided, and, on August 25, 2005, the Pates filed a motion seeking an order permitting them to serve Nichols by publication, which the trial court granted. On November 15, 2005, the Pates filed a motion seeking the entry of a default judgment based on Nichols’s failure to answer the complaint. On December 18, 2005, following a hearing, the trial court entered the requested default judgment and ordered specific performance of the contract. As part of the default judgment, the trial court ordered:

“That the said contract provided for the [Pates] to purchase approximately 21 acres, less approximately three acres to be reserved by [Nichols]. However, the property to be conveyed was only approximately 13 acres. Therefore, one acre shall be reserved for [Nichols], in the area previously discussed by the parties for a ‘garden spot’ for [Nichols]’s mother.”

The trial court ordered the Pates to pay the remainder of the purchase price, $11,500, to the clerk of the circuit court, and it ordered the circuit clerk to disburse $2,907.02 to the Pates’ attorney as an attorney’s fee and to disburse the remaining amount to Nichols. As ordered, the circuit clerk disbursed $8,592.98 to Nichols, who received and deposited that amount into her account.

On January 16, 2007, Nichols filed a motion to set aside the default judgment pursuant to Rule 60(b), Ala. R. Civ. P. Nichols asserted that the Pates’ attempt to serve her by publication had failed because the Pates had not complied with Rule 4.3, Ala. R. Civ. P. The trial court denied Nichols’s motion to set aside the default judgment, and Nichols appealed.

In Nichols v. Pate, 992 So.2d 734 (Ala.Civ.App.2008) (“Nichols I ”), this court determined that the Pates failed to effect proper service of process on Nichols and, as a result, that the trial court did not obtain personal jurisdiction of Nichols. Thus, we concluded, the trial court’s default judgment was void, and we reversed the trial court’s judgment denying Nichols’s motion to set aside the default judgment. We remanded the cause for additional proceedings. Nichols I, 992 So.2d at 736-39.

On July 6, 2009, the trial court held a bench trial. At the trial, Mr. Pate testified that in May 2005 Nichols and he discussed his purchasing the property for $12,000. He stated that, at that time, they believed the property consisted of about 21 acres. He testified that Nichols suggested that they have her attorney draw up the contract for the sale of the property. The attorney did so. Mr. Pate testified that the reason Nichols wanted to reserve three acres from the sale of the property was that she wanted to keep those three acres for her mother. He stated that he did not have an objection to that.

Mr. Pate testified that, before June 15, 2005, he obtained a loan in order to purchase the property. He testified that he spoke with Nichols on May 27, 2005, by telephone and told her that he had obtained the loan. He stated that she responded by indicating that she was going to sell the property to some of her relatives. He testified that he went ahead with the loan and notified her by telephone that he was ready to close on the property. He testified that Nichols did not go through with the closing. He stated that, after the date of the closing passed, he tried unsuccessfully to contact Nichols.

Mr. Pate testified that, upon filing the action for specific performance or damages against Nichols in July 2005, he discovered that the property consisted of 13 acres rather than 21 acres. He testified that, in seeking the default judgment that this court later reversed, he had asked the trial court to reduce the amount of acreage reserved in the contract because he was receiving less property than the 21 acres listed in the contract despite the fact that he was paying the same price for it.

Mr. Pate testified that he had incurred attorney’s fees of $2,907.02 for legal work performed up to the point at which he had obtained the default judgment and that he had incurred legal fees of $4,900 related to the first appeal in the case. Mr. Pate stated that he had incurred attorney’s fees since this court remanded the cause, and his attorney stated that those fees were approximately $8,500. Mr. Pate testified that he believed he should be reimbursed for the cost of those fees, and he stated that he was asking the trial court to order specific performance of the contract between the parties.

Nichols testified that, at the time the parties entered into the contract on May 20, 2005, she did not know the legal description of the property or how many acres it contained. She stated that she objected to preparing a contract at that time because she did not have enough information about the property, but, she stated, Mr. Pate told her that they would “just put down something, just estimate,” so she proceeded with the contract.

Nichols testified that the three acres reserved in the contract contained an orchard of 40 or 50 peach trees and a plum tree that Nichols’s mother, who lived across the street from the orchard, harvested annually. Nichols testified that her intention in reserving the three acres was to maintain ownership of the orchard and to provide a buffer for her mother. She stated that Mr. Pate and she actually measured the area that was to be reserved with a tape measure.

Nichols stated that the closing on the property was supposed to have been held on May 31, 2005, and that the only reason she agreed to sell the property to the Pates was because Mr. Pate had told Nichols that he could obtain the funds to purchase the property within seven days of the execution of the contract, but, she said, he had failed to do so. She stated that, had the Pates been willing to close on the date they had agreed, May 31, 2005, she would have closed on the sale of the property that day. She stated that she had discussed the date of the closing with Mr. Pate over the telephone and that Mr. Pate had attempted to convince her to lower the price of the property or to include the peach orchard in the property to be sold. She stated that she told Mr. Pate that she would not include the peach orchard in the property to be sold. Mr. Pate testified that he did not recall any conversations with Nichols in which he tried to change the terms of their agreement.

Nichols, who resided in Tennessee, testified that when she came to Alabama to close on the sale of the property, Mr. Pate informed her that he did not have the money to purchase the property and that he needed to talk to his banker. She stated that she returned home to Tennessee. She testified that she called Mr. Pate on June 12, 2005, and left him a message indicating that if he wanted to close on the sale of the property, he needed to let her know because the contract called for a closing on or before June 15, 2005. She testified that she did not hear from Mr. Pate, so, on June 17, 2005, she left another message for Mr. Pate by telephone indicating that, because he was apparently not interested in purchasing the property, she was selling the property to one of her cousins.

Nichols testified that she did not know that the trial court had conveyed the property to the Pates by the default judgment until she received the funds that the Pates had paid into the trial court for the purpose of purchasing the property. Those funds, $8,592.98, represented the $11,500 the Pates had paid into court, less $2,907.02 that the trial court had deducted from that sum as an attorney’s fee to be paid to the Pates’ attorney. Nichols testified that she had deposited the $8,592.98 check into her bank account.

On August 18, 2009, the trial court entered a final judgment in favor of the Pates, vesting title to the property in the Pates, excepting from the property only a single acre rather than the three acres reserved in the contract, and awarding the Pates $4,900 for their “cost and expense.” Presumably, Nichols was entitled to keep the $8,592.98 she had previously received from the trial court and the $500 earnest money the Pates had paid to her.

Nichols filed a motion to alter, amend, or vacate the judgment in which she stated, without elaboration, that the final judgment was not supported by the evidence or the law. The trial court held a hearing on Nichols’s motion, following which it denied the motion. The record does not include a transcript of the hearing. Nichols filed a timely appeal to this court.

Nichols contends that the contract for the sale of the property was void because that document did not contain sufficient detail to satisfy the Statute of Frauds. Section 8-9-2, Ala.Code 1975, Alabama’s codification of the Statute of Frauds, provides, in pertinent part:

“In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:
“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller....”

With regard to a sale of real property, a writing does not sufficiently comply with the Statute of Frauds unless it “deseribe[s] the land with such certainty that it can be identified without resort to oral evidence,” although “a general description may be made specific and certain by parol evidence and concurrent facts and circumstances sufficient to that end.” Goodwyn v. Jones, 288 Ala. 71, 75, 257 So.2d 320, 323 (1971).

We need not determine whether the contract into which the parties entered for the sale of the property complied with the Statute of Frauds. The Statute of Frauds is an affirmative defense that is waived if not pleaded. See Campbell v. Campbell, 371 So.2d 55, 58 (Ala.Civ.App.1979) (“It is the long established law in this state that a defense of the Statute of Frauds must be raised below in the pleadings or by motion or it is considered waived.”)- In the present case Nichols did not assert the Statute of Frauds as an affirmative defense to the Pates’ claims, and the issue of the applicability of the Statute of Frauds was not litigated at trial. As a result, Nichols has waived the Statute of Frauds as a defense to the Pates’ action, and her arguments with regard to the Statute of Frauds do not provide this court with a basis on which to reverse the trial court’s judgment.

Nichols next contends that the trial court erred in awarding to the Pates the part of the property containing the peach orchard that was specifically reserved for her in the contract. As previously noted, the contract provided that three acres were reserved for her from the tract to be conveyed to the Pates, and the undisputed testimony at trial indicated that the purpose of that reservation was to preserve for Nichols’s mother the peach orchard that existed on those three acres.

The trial court, in reducing to one acre the three-acre exception from the property to be sold, effectively reformed the parties’ contract and caused Nichols to convey property that she had not contracted to convey. We recognize that reformation of a contract can be an appropriate remedy when the parties to the contract are mutually mistaken as to a material fact, see § 8-1-2, Ala.Code 1975, and we likewise recognize that it could be argued that the parties’ mistaken belief as to the size of the parcel at issue in this case could constitute such a mutual mistake justifying reformation. However, a court, in reforming a contract, must reform it in such a way as to reflect the parties’ intentions; the court is not permitted to create a new contract for the parties. See Federated Guar. Life Ins. Co. v. Painter, 860 So.2d 309, 311 (Ala.1978). In the present case, the trial court, in reducing the property reserved for Nichols in the contract, did not reform the contract in such a way as to reflect the parties’ intentions. Instead, it simply rewrote the parties’ contract. Thus, to the extent that the trial court’s judgment reduces from three acres to one acre the amount of property reserved for Nichols under the contract, the judgment is due to be reversed.

Nichols next contends that she should be awarded compensation for work her cousin performed in improving the property, and she argues that, if the peach orchard is returned to her, she is entitled to compensation for the destruction of the peach orchard and for the value of lost sales of peaches and plums from 2006 to 2010. Nichols did not assert either claim in the trial court, and she did not put on any evidence in support of those claims. “This Court cannot put a trial court in error for failing to consider a matter which, according to the record, was not presented to, nor decided by it.” Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326, 1328 (Ala.1991). Thus, we will not consider Nichols’s claims in this regard.

Finally, Nichols contends that the trial court erred when it awarded an attorney’s fee to the Pates. She argues that there was no legal basis for any such award and that both parties should have borne, respectively, their costs of litigating the matter. Although we agree with Nichols that there was no basis on which the trial court was permitted to award the Pates an attorney’s fee, Nichols did not object below when Mr. Pate testified as to the amount of the attorney’s fee he had incurred litigating the matter, and she did not object to any such award before the trial court. She raises the issue for the first time on appeal, and, as a result, we cannot consider it. See id.

For the reasons set forth above, we affirm the trial court’s judgment in part, reverse it in part, and remand the cause to the trial court for the entry of a judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . The Pates also named Bonnie Caldwell d/b/a Delta Properties, L.L.C., as a defendant. The trial court subsequently dismissed the Pates’ claims against Caldwell. The dismissal of the Pates' claims against Caldwell was not at issue in the first appeal of this action and is not at issue in the present appeal.

      . Although the 42 d day following the trial court’s denial of Nichols’s postjudgment motion was Friday, November 27, 2009, and she did not file her notice of appeal until Monday, November 30, 2009, Nichols’s appeal was timely because Governor Riley ordered the closure of all state offices on Friday, November 27, 2009, in observance of the Thanksgiving holiday. See Rule 26(a), Ala. R.App. P.


text:
    GREEN TREE-AL, LLC v. Jamie BROWN.
    2090390.
    Court of Civil Appeals of Alabama.
    July 16, 2010.
    Gary E. Sullivan and Patrick O. Gray of Sullivan & Gray, LLC, Tuscaloosa, for appellant.
    Daniel E. Boone, Florence, for appellee.
   THOMPSON, Presiding Judge.

Green Tree-AL, LLC (“Green Tree”), appeals from a judgment of the Baldwin Circuit Court awarding it possession of a mobile home and awarding Jamie Brown $10,787.39. For the reasons set forth herein, we dismiss the appeal.

On April 3, 2009, Green Tree sued Mary Lou Childress. In its complaint, Green Tree alleged that its predecessor in interest was assigned a “manufactured home retail installment contract and security agreement,” under which an individual agreed to make monthly payments for the purchase of a mobile home (“the mobile home”). Green Tree alleged that the contract provided to its predecessor a security interest in the mobile home. Green Tree asserted that the individual, who Green Tree did not name as a defendant, had defaulted under the contract and that, as a result of that default, Green Tree was entitled to possession of the mobile home. Green Tree asserted that Mary Lou Chil-dress resided in the mobile home, and it sought a judgment against her for possession of the mobile home. Service of process was attempted on Childress at the location of the mobile home, and the return on service indicated that Childress was no longer at the mobile home but that Jamie Brown claimed ownership of the mobile home.

On April 14, 2009, Green Tree amended its complaint to, in effect, substitute Jamie Brown as a defendant for Childress. The return on service of process that had been issued for Brown indicated that Brown was served with process on April 22, 2009.

On May 13, 2009, Green Tree filed a motion for a summary judgment in which it sought possession of the mobile home that was the subject of the above-noted contract. To its motion, Green Tree attached the affidavit of its collections manager, who attested to the material facts giving rise to Green Tree’s asserted right to possession of the mobile home. Brown, who had not filed an answer to the complaint, did not file a response to Green Tree’s summary-judgment motion.

On June 9, 2009, the trial court entered a summary judgment in Green Tree’s favor. It held that Green Tree was entitled to possession of the mobile home, and it ordered that Brown be removed from the mobile home. The trial court waived the automatic stay of execution provided in Rule 62(a), Ala. R. Civ. P., and indicated that a writ of execution would be issued immediately upon Green Tree’s application for recovery of the mobile home. On June 16, 2009, the trial court issued a writ of execution for the mobile home.

On August 7, 2009, Brown filed a document titled “Motion for Hearing.” That document read:

“COMES NOW [Brown] and moves this Honorable Court to set for hearing a Writ of Execution heretofore issued by the Clerk of this Court on June 16, 2009, which writ seeks possession of a manufactured home, all fixtures, furniture and appliances purchased with the manufactured home. As grounds in support of this Motion, [Brown] shows unto this Court as follows:
“1. That the judgment, upon which the Writ of Execution was issued, states that [Brown] did not respond to [Green Tree’s] Motion for Summary Judgment.
“2. That [Brown] alleges he did respond, pro se, to [Green Tree], alleging that [Brown] was possessing the manufactured home pursuant to orders issue[d] by Judge Reid on September 6, 2005 and February 3, 2006.
“3. That Your Honor’s judgment of June 9, 2009 waived the automatic stay rule of [Rule] 62[ (a) ][, Ala. R. Civ. P.,] and the writ issued without an opportunity for [Brown] to be heard.
“4. That [Brown] has invested substantial funds in improving the manufactured home made the basis of the Writ of Execution, that the manufactured home was placed upon [Brown]’s real property without permission, that no rental payments have been paid to [Brown] and that [Brown] is owed $39,147.89 for improvements and rental charges.
“5. That [Brown] will not dispose of or alter in any form the manufactured home made the basis of the Writ of Execution and that, if [Brown] does dispose of or alter in any form the manufactured home, he will be subject to punishment for contempt of court.
“WHEREFORE, PREMISES CONSIDERED, [Brown] moves the Court to set this matter for hearing and to stay the Writ of Execution until the matter has been heard by Your Honor.”

On September 30, 2009, the trial court held a hearing on Brown’s motion. At the hearing, Brown testified that he owned the property on which the mobile home was placed in 2000. He testified that the owner of the mobile home had failed to pay rent and that he had evicted the owner. As part of the eviction proceedings, Brown had obtained a judgment providing that the mobile home was to remain on the property until the owner paid Brown the rent the owner owed him. Brown testified that the owner never paid Brown as ordered by the court, and after the owner was evicted from the mobile home, Brown began taking care of the mobile home. Brown testified that he spent approximately $30,000 restoring the mobile home and maintaining it. Brown stated that he would not have a problem with Green Tree taking possession of the mobile home if it would pay him for the cost he had incurred restoring and maintaining the mobile home.

On October 7, 2009, the trial court purported to enter a new judgment in which it ordered Green Tree to reimburse Brown $10,787.39 for improvements Brown had made to the mobile home and for maintenance Brown had performed on the mobile home. As it had in the previous judgment, the trial court held that Green Tree was entitled to possession of the mobile home. Green Tree filed a motion to alter, amend, or vacate the judgment, which the trial court denied. Green Tree appeals.

We begin our analysis by reviewing whether this court has jurisdiction over this appeal. In the present case, the trial court entered a final judgment in Green Tree’s favor on June 9, 2009. Brown had 30 days from that date in which to file a postjudgment motion to alter, amend, or vacate that judgment. See Rule 59(e), Ala. R. Civ. P. Brown did not file such a motion, and, as a result, the trial court lost jurisdiction at the expiration of the 30 days following entry of the summary judgment. See George v. Sims, 888 So.2d 1224, 1227 (Ala.2004) (“Generally, a trial court has no jurisdiction to modify or amend a final order more than 30 days after the judgment has been entered, except to correct clerical errors.”). Brown had 42 days from the entry of the summary judgment in which to file an appeal. See Rule 4(a)(1), Ala. R.App. P. Brown did not file an appeal during that period. Instead, Brown waited until August 7, 2009, 59 days after the entry of the summary judgment, to file anything with the trial court.

The motion Brown filed is unclear. However, it appears from the language of the motion that he sought a hearing on the writ of execution that the trial court had issued on June 16, 2009, and that the reason he sought a hearing on the writ was because he had been denied such a hearing by virtue of the trial court’s waiver of the automatic stay of the writ provided by Rule 62(a), Ala. R. Civ. P.

Although the procedural basis for Brown’s motion is not clear from its face, we cannot construe it as one seeking relief from the summary judgment pursuant to Rule 60(b), Ala. R. Civ. P. The motion does not request relief under that rule, it does not seek an order setting aside the final judgment, and it does not state which of the enumerated grounds set out in that rule, if any, would permit Brown to proceed thereunder for relief from the final judgment. Instead, the language of Brown’s motion plainly indicates that it is directed at the writ of execution rather than the summary judgment.

At the time that the trial court purported to enter the October 7, 2009, judgment ordering Green Tree to pay Brown $10,787.39, it no longer had jurisdiction over the matter. A judgment entered without subject-matter jurisdiction is void, and a void judgment will not support an appeal. T.B. v. T.H., 30 So.3d 429, 433 (Ala.Civ.App.2009). As a result, we have no alternative but to dismiss the appeal. See id. In so doing, we instruct the trial court to set aside its October 7, 2009, judgment and to reinstate its June 9, 2009, judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Rule 62(a), Ala. R. Civ. P., provides, in pertinent part: “Except as stated herein or as otherwise provided by statute or by order of the court for good cause shown, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of thirty (30) days after its entry."

      . Brown appears to argue in his appellate brief that the motion was filed pursuant to Rule 64(b)(2)(B), Ala. R. Civ. P. Rule 64(b)(2)(B), Ala. R. Civ. P., sets forth the procedures applicable to the prejudgment seizure of property. Because this action does not involve a prejudgment seizure of property, Rule 64(b)(2)(B) has no application.


author: THOMAS, Judge.

text:
    K.C. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2090454, 2090455, 2090456, and 2090457.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Elizabeth Kammer, Birmingham, for appellant.
    Sharon E. Ficquette, chief legal counsel, and Karen P. Chambless, staff atty., Department of Human Resources, for appel-lee.
   THOMAS, Judge.

In October 2008, the Jefferson County Department of Human Resources (“DHR”) filed dependency petitions regarding J.C., I.C., S.P., and Z.P., the children of K.C. (“the mother”). The children had been removed from the mother’s home after the mother’s paramour, Sa.R. (“the paramour”), with whom the mother and the children lived, was involved in a physical altercation with J.C. J.C. reported that the paramour had attempted to “whip” him and that, when J.C. fought the paramour off, the paramour placed his hands around J.C.’s throat. The other children reported that the paramour had disciplined them with a belt at times and that the mother had not intervened on their behalf. The mother admitted that the children were dependent, and a judgment to that effect was entered on October 23, 2008. At that time, J.C. and I.C. were placed in the physical custody of A.O. (“the paternal grandmother”) and S.P. and Z.P. were placed in the custody of S.S. (“the maternal aunt”) and her husband, F.S.

After intermediate dispositional reviews in February and July 2009, the juvenile court held a final dispositional hearing on December 29, 2009. After that hearing, the juvenile court entered a judgment placing permanent physical custody of the children with their respective relative custodians. The judgment further closed the case to judicial review. The mother filed a postjudgment motion, which was denied. She then timely appealed the juvenile court’s judgment to this court.

The evidence at trial indicated that the children did not desire to return to the mother’s custody so long as she remained with the paramour. All four children testified that they did not want to be around the paramour. S.P. testified that she was “tired of it” and complained that the mother was not willing to change and that the mother chose the paramour over her own children.

The family’s DHR caseworker, Pauline Truss, noted that the children had conveyed to her that they were tired of the abuse in the home. Truss reported that the mother had complied with DHR’s requests to undergo psychological testing and use family-support services. Truss further testified that there was nothing the paramour could do to rehabilitate himself. However, she noted that DHR had returned Si.R., the biological child of the mother and the paramour, to the home because the paramour was not considered a safety concern to that child, who Truss said the children had reported was seen as a “golden child.” Thus, it appears that the paramour’s status as a cruel and abusive stepfather figure is at the root of the discord in the family.

The mother testified that she would be the disciplinarian if the children were returned to her custody. However, the evidence overwhelmingly demonstrated that the mother had left most disciplinary matters to be handled by the paramour before the children were removed from her custody. The mother’s testimony attempted to minimize the altercation between J.C. and the paramour; she insisted that she had stepped in to separate the two during the altercation and that she would protect her children from the paramour if necessary. Despite her insistence that the children would be protected, the mother testified that she and the paramour had J.C. leave the home after the altercation instead of requiring the paramour to leave.

Other troubling testimony included testimony from both I.C. and the maternal aunt regarding an altercation the mother had with the maternal aunt when the maternal aunt brought I.C. to the maternal grandmother’s house for the mother to do I.C.’s hair. According to the maternal aunt, she and the mother have had a rocky relationship for some time. The maternal aunt explained that the mother would not telephone the maternal aunt and that she would not answer telephone calls from the maternal aunt, despite the fact that two of her children were in the maternal aunt’s custody. Instead, the maternal aunt explained, the mother would have another family member telephone to convey messages to the maternal aunt. On the date of the altercation, the maternal aunt received a message from J.C. that the mother wanted the maternal aunt to take I.C. to the maternal grandmother’s home instead of the paternal grandmother’s home, as originally planned. Because the plans had changed abruptly, the maternal aunt did not arrive at the maternal grandmother’s home at the expected time. According to both the maternal aunt and I.C., the mother was angry when the maternal aunt arrived and the mother began shouting. Later, once inside the maternal grandmother’s home, the mother began to rant at the maternal aunt and approached the chair in which the maternal aunt was sitting in an aggressive and threatening manner. The maternal aunt said that she stood and told the mother to back away. At that point, both the maternal aunt and I.C. said, I.C. began to cry and yell at her mother that the mother should just do I.C.’s hair as planned and quit making a commotion. The mother and the maternal aunt began a physical altercation, which was concluded when the maternal grandfather forcibly separated the mother and the maternal aunt and made the mother leave the premises.

The record also contains evidence that is favorable to the mother. The testimony indicated that the mother was a good parent to Si.R., who was returned to her custody after DHR determined that the paramour, who is Si.R.’s biological father, was not a threat to his safety. Gloria Halsey, who provided family-support services to the mother for approximately one year, testified that the mother had the skills to properly parent her children. Halsey noted that the mother’s interaction with Si.R. was appropriate, for the most part, but Halsey admitted she had not seen the mother interact with the other children. Halsey admitted that, if the children were returned to the mother’s care, “they” would need parent coaching.

The paramour testified that he had completed anger-management classes at the behest of DHR. He said that he had learned from those classes. Notably, he said that he had learned that he should not simply react to the children if they were disobedient and that he should take the time to listen to the children and to look at things from their perspective. He testified that he would allow the mother to be the primary disciplinarian to the children if they were returned to her custody.

A report from the children’s counselor, Chad Harris, was admitted into evidence. Harris’s report indicated that the children had reported favoritism toward Si.R. in the home, had reported being physically abused, had witnessed domestic violence in the home, and had “expressed intense bitterness, hurt and grief regarding their mother having chosen [the paramour] over them.” He also noted in his report that the children were “terrified of being exposed to [the paramour] and potential abuse in his home”; the report indicated that the children had all expressed that they never wanted to return to the home the mother shared with the paramour. In addition, the report explained that the children “possess varying degrees of ambivalence, distrust and disrespect for their mother, who they view as having chosen an abuser over them.” In his report, Harris recommends that “the matter of reunification be clarified and finalized [so that it could be conveyed to the children] that [reunification] is not a possibility and that the children should no longer fear being forced to return to [the paramour’s] home.” Like Harris’s report, the psychological reports for all the children recommend continuation in their relative placements based upon the children’s stated desire not to return to the paramour’s home.

On appeal, the mother argues that the juvenile court’s judgment should be reversed because, she says, the evidence does not support the juvenile court’s decision to award permanent custody of the children to their respective relative custodians. She argues that DHR did not make reasonable efforts to reunify the family, thus preventing the juvenile court from making a permanent disposition of custody. She also urges this court to equate the permanent disposition of the children with a termination of her parental rights. Finally, she argues that the juvenile court’s refusal to allow her to discharge her appointed counsel on the day of trial forced her to participate in the trial without the effective assistance of counsel; thus, she contends, the juvenile court’s judgment must be reversed because it was entered in violation of her right to effective assistance of counsel.

We will first address the mother’s contention that the juvenile court’s refusal to allow the mother to discharge her appointed counsel on the day of trial deprived the mother of the effective assistance of counsel. Counsel for the mother presented a motion to withdraw to the juvenile court on the day of trial. In his motion, counsel stated that the mother had communicated that she “lacked confidence” in counsel’s legal strategy and that the mother had clearly indicated that she no longer desired counsel’s services. Based on the argument presented to the juvenile court on the day of trial, the mother had contacted her appointed counsel on December 23, 2009, leaving a message indicating that she did not feel that he had been effective in his representation of her; counsel contacted the mother about her message on December 24, 2009. The mother specifically complained at trial that counsel had not made motions regarding certain disputes over visitation and over the mother’s desire for more counseling from DHR. The juvenile court noted that the case had been specially set since December 7, 2009, and that the mother’s motion would require a continuance, which the juvenile court was not inclined to grant. The juvenile court gave the mother the option of proceeding pro se, proceeding pro se with the assistance of counsel, or proceeding with counsel; the mother opted to allow counsel to continue to represent her.

We have explained the heavy burden placed on a party claiming ineffective assistance of counsel. E.S.R. v. Madi son County Dep’t of Human Res., 11 So.3d 227, 238-39 (Ala.Civ.App.2008).

“[T]o prevail on a claim of ineffective assistance of counsel, a party must show (1) that his or her counsel’s performance was deficient and (2) that he or she was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”

Id. at 238. The party seeking to establish the ineffectiveness of his or her counsel “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland Court explained that “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome” of the proceeding. Strickland, 466 U.S. at 694. Merely showing that the errors complained of “had some conceivable effect on the outcome of the proceeding” is not sufficient. Id. at 693. “Judicial scrutiny of counsel’s performance must be highly deferential,” so a trial court must begin its review of an ineffective-assistance-of-counsel claim by “indulging] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Notably, “[a] mere difference of opinion between the appellant and [his or] her trial counsel as to trial strategy is insufficient to render counsel’s performance ineffective under the Strickland test.” Moore v. State, 659 So.2d 205, 209 (Ala.Crim.App.1994) (citing Stone v. State, 579 So.2d 702 (Ala.Crim.App.1991)).

On appeal, the mother argues that counsel should have filed more motions on her behalf and that he should have filed his motion to withdraw sooner than the date of trial. She does not make any argument that the outcome of her case would have been any different if counsel had filed additional motions or if he had filed his motion to withdraw sooner. In addition, she makes no argument concerning her counsel’s effectiveness at trial. Thus, the mother has not presented a convincing argument that the juvenile court’s judgment is due to be reversed on the basis that her counsel was ineffective before trial.

The mother’s other arguments concern the propriety of the juvenile court’s decision to grant permanent custody of the children to their respective relative custodians. She argues that the evidence does not support the conclusion that custody of the children should have been placed with the custodians. Although she concedes that the juvenile court had wide discretion under the best-interest standard to determine the children’s placement upon the finding of dependency, see Ala.Code 1975, § 12-15-314(a), and W.T.H. v. M.M.M., 915 So.2d 64, 70 (Ala.Civ.App.2005) (explaining, under former Ala.Code 1975, § 12-15-71, the predecessor statute to § 12-15-314(a), that the best-interest standard governs the dispositional phase of a dependency proceeding), she also argues that the juvenile court’s permanent placement of the children with relatives is tantamount to a termination of her parental rights. Finally, she argues that DHR failed to make reasonable efforts to reunite the family.

Our review of the juvenile court’s award of custody to the respective relative custodians is limited. Our supreme court has explained the standard of review of a custody award in a dependency case:

“Appellate review is limited in cases where the evidence is presented to the trial court ore tenus. In a child custody case, an appellate court presumes the trial court’s findings to be correct and will not reverse without proof of a clear abuse of discretion or plain error. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991); J.S. v. D.S., 586 So.2d 944 (Ala.Civ.App.1991). This presumption is especially applicable where the evidence is conflicting. Ex Parte P.G.B., 600 So.2d 259, 261 (Ala.1992). An appellate court will not reverse the trial court’s judgment based on the trial court’s findings of fact unless the findings are so poorly supported by the evidence as to be plainly and palpably wrong. See Ex Parte Walters, 580 So.2d 1352 (Ala.1991).”

Ex parte Alabama Dep’t of Human Res., 682 So.2d 459, 460 (Ala.1996). Furthermore, when a juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence. D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1210 (Ala.Civ.App.2005).

We will first dispense with the mother’s argument that we should consider the permanent placement of the children with relatives to be tantamount to a termination of parental rights and apply the two-prong test applied to termination-of-parental-rights cases, which requires a finding of dependency and a showing that no viable alternatives to termination of parental rights exist. See Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990). We cannot agree that a judgment placing a child with a relative custodian and providing for visitation with a natural parent is equivalent to a judgment terminating that parent’s parental rights. The parent whose child has been placed in the permanent care of another has residual rights and responsibilities in and to the child, including the right to continued visitation and the responsibility of support, see Ala. Code 1975, § 12-15-102(23), and may later petition the court for a modification of the custody award. None of those rights inure to a parent whose rights have been terminated; a “termination of parental rights” is defined as “[a] severance of all rights of a parent to a child.” Ala.Code 1975, § 12-15-301(10). Therefore, we will not accept the mother’s invitation to evaluate the juvenile court’s judgment in the present case under the standard set out in Ex parte Beasley.

The mother next argues that the evidence at trial indicates that DHR failed to use reasonable efforts aimed at reuniting the family. She specifically notes that DHR never required her, the children, and the paramour to undergo any type of family counseling to address the issues raised by the paramour’s discipline methods. However, “[w]hether efforts at reunification have been reasonable and whether those efforts have failed or succeeded are questions of fact for the juvenile court to determine.” R.T.B. v. Calhoun County Dep’t of Human Res., 19 So.3d 198, 204 (Ala.Civ.App.2009). Although we do not disagree that family counseling may have been one potential service DHR could have offered to this family, the recommendations of the professional counselors involved in the family’s case indicated that the children had very strong negative feelings toward the paramour and the mother and that any plan to reunite the children with the mother so long as she and the paramour resided in the same home was unwise and unlikely to be successful. DHR could well have determined that family counseling would be fruitless. Although we agree with the mother that, generally, DHR is to provide services that are aimed at reuniting the family, DHR is not required to offer services that appear unadvisable under the circumstances of the individual case or that would not lead to the reunification of the family. See Ala. Code 1975, § 12-15-301(6) (defining “reasonable efforts” as, among other things, those efforts made to “make it possible for a child to return safely to his or her home” but providing that, “[i]n determining the reasonable efforts to be made with respect to a child, and in making those efforts, the health and safety of the child shall be the paramount concern”); see also J.J. v. Lee County Dep’t of Human Res., 979 So.2d 823, 832 (Ala.Civ.App.2007) (plurality opinion) (“[A]ny effort at rehabilitation would only be reasonable if such effort, if successful, could remove the obstacle to family reunification.” (emphasis added)); and J.B. v. Jefferson County Dep’t of Human Res., 869 So.2d 475, 482 (Ala.Civ.App.2003) (plurality opinion) (noting that what constitutes “reasonable efforts” is a “fact-dependent inquiry” and that “the efforts actually required by DHR in each case ... depend on the particular facts of that case ... and the best interests of the child”). In addition, we note that DHR had urged the mother to separate from the paramour to facilitate the children’s return to her custody; although the mother testified at trial that she would do so if her failure to do so meant that her children would not return home, the mother had made no effort to leave her paramour and, indeed, appeared to justify his behavior toward her children. Thus, DHR and the juvenile court could have concluded that the mother was unwilling to satisfy the principal goal of separating from the children’s abuser, thus leading to the failure of DHR’s plans to reunify the family. See J.P. v. S.S., 989 So.2d 591, 601 (Ala.Civ.App.2008) (holding that a father’s failure to satisfy the goal set out for him by DHR could support a conclusion that DHR had made reasonable efforts to reunify him with his children but that they had failed). DHR concluded, and the juvenile court apparently agreed, that the mother would not protect the children from the paramour, thus making the reunification of the family impossible while the mother continued to reside in the same home as the paramour. See, e.g., B.M. v. State, 895 So.2d 319, 334 (Ala.Civ.App.2004) (affirming the termination of a father’s parental rights based on evidence indicating that the father’s refusal to believe that the mother had abused the child would prevent the father from protecting the child from abuse at the hands of the mother).

The juvenile court had before it sufficient evidence to determine that the best interests of the children would be served by continuing placement with their respective relative custodians. The children had all expressed a desire to remain in their placements and a desire not to be placed in the home with the paramour. The mother’s reluctance to separate from the paramour, coupled with the fact that the paramour and the mother have a child together, militated in favor of the juvenile court’s decision to make the custodial arrangement a permanent one. Indeed, DHR is to present and a juvenile court is to consider a permanency plan for a child removed from his or her home within 12 months after removal and no less frequently than every 12 months thereafter. Ala.Code 1975, § 12-15-315. One of the potential permanency plans mentioned specifically in the statute is permanent placement with a relative. § 12-15-315(3). Permanent placement with the children’s respective relative custodians will provide the children permanency and stability, while allowing the mother and the children to continue to visit and to repair their relationships with each other. However, no further action by the State to reunite the family would be warranted under the situation presented here. See M.W. v. Houston County Dep’t of Human Res., 773 So.2d 484, 487 (Ala.Civ.App.2000) (noting, in a termination-of-parental-rights case, that there comes a point when “the child’s need for permanency and stability must overcome the parent’s good-faith but unsuccessful attempts to become a suitable parent”). Thus, we affirm the judgment of the juvenile court placing permanent custody of the children with their respective relative custodians.

AFFIRMED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., concurs in the result, without writing.

      . At that time, DHR also filed a dependency petition regarding Si.R., another of the mother’s children. However, Si.R. was returned to the mother’s custody, and the judgment on the dependency petition as to him is not at issue in this appeal.

        . We note, however, that the only other date counsel could have filed the motion to withdraw was December 28, 2009, the day before trial. The courthouse was closed on December 24, 2009, because the Chief Justice had granted administrative leave to all Administrative Office of Court employees for that date, December 25 was a State holiday, December 26 was a Saturday, and December 27 was on Sunday. It appears to this court unlikely that one day would have impacted the juvenile court’s decision to deny the motion to withdraw and grant a continuance.


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    ALABAMA DEPARTMENT OF HUMAN RESOURCES ex rel. Tammy YANCEY v. Ronald YANCEY.
    2090470.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, legal counsel, Department of Human Resources, for appellant.
   THOMPSON, Presiding Judge.

The Alabama Department of Human Resources (“DHR”), on behalf of Tammy Yancey (“the mother”), appeals from a judgment reinstating the commercial driver’s license of Ronald Yancey (“the father”). The father’s driver’s license had been suspended because of his failure to pay child support.

The record indicates the following. On September 23, 2008, the father was found in contempt for willful failure to pay child support. He was sentenced to jail, but the sentence was stayed provided the father paid his monthly child-support obligation of $466 plus $90 a month toward his ar-rearage. A little more than a year later, on October 28, 2009, DHR filed a petition on behalf of the mother seeking to lift the stay of incarceration. In the petition, DHR alleged that the father had failed to pay his child support as ordered and that his arrearage had reached $46,157.45. Because the father had failed to pay his child support for more than six months, DHR had suspended his driver’s license, as authorized by § 30-3-171, Ala.Code 1975.

On October 29, 2009, the trial court lifted the stay and ordered that the father be arrested and incarcerated pending a court order. The order provided that the father could purge himself of contempt and be released from jail if he paid the arrearage in full. The father was arrested and placed in jail on November 3, 2009.

On January 14, 2010, an evidentiary hearing was held on the issue of the father’s contempt. At that time, his arrear-age was approximately $48,000, and his last child-support payment had been made in March 2009. The father had been approved for work release while he was in jail; however, no work was available.

The father testified that he previously had been employed in construction but that he had not had recent communication with the company for which he had worked. A DHR caseworker identified in the record only as “Ms. Morris” told the trial court that she had spoken with the father’s former employer, who did not know whether there would be work available for the father. The father said he had been doing odd jobs before he was arrested. He worked as a truck driver in 2008, he said, but he lost that job when his driver’s license was suspended because of his failure to pay child support.

The trial court noted that the father’s “ability to earn income is much greater if [he was] driving a truck ... and that [he] cannot drive a truck so long as [his] license is suspended.” Morris informed the trial court that the father’s license would be reinstated if he paid $1,112 — equal to two months’ child support and two payments toward his arrearage — and made his current child-support and arrearage payments. Morris said that the father also would have to pay the Department of Public Safety, the State agency responsible for issuing drivers’ licenses, $200 to have his license reinstated. If the father failed to keep up with his child-support and arrear-age payments, Morris said, his driver’s license would be suspended again.

At the hearing, the trial court said it would order DHR “to do whatever is necessary to reinstate [the father’s] license and ... orderf ] [the father] to come up with that money immediately and do the part that [he has] to do.” The attorney for DHR then told the trial court that reinstatement of a driver’s license suspended for nonpayment of child support was “purely administrative” and that suspension was automatic for anyone whose child support was in arrears more than six months. She pointed out that the father had not made use of the administrative remedies available to him for having his license reinstated and that the trial court did not have the authority to reinstate his license. The trial court responded as follows:

“I understand your position; however, the [DHR] and child are not going to get a dime if [the father] can’t work, and if he doesn’t have his license and he’s just going from one little job to another hoping construction is going to open up, [DHR] and the child are not going to get any money, and I see no benefit to continue to hold him in jail.”

The attorney for DHR asked the trial court to clarify whether it was ordering the father to pay the two months’ child support and arrearage payments that, pursuant to administrative regulations, he was required to pay before his license could be reinstated. The trial court stated that the father did not have the money to make the required payment and that the court was “not going to order him to pay it.”

On January 25, 2010, the trial court entered a written order providing that DHR “is to immediately release [the father’s] commercial driver’s license” and denying DHR’s “request” that the father pay two months’ child support and arrearage payments. The trial court also ordered that the father be released from jail. DHR, on behalf of the mother, appeals.

DHR, on behalf of the mother, contends that the trial court erred as a matter of law when it ordered DHR to reinstate the father’s driver’s license. Specifically, DHR argues, the trial court did not have the authority to reinstate the father’s driver’s license. Because the father’s license had been suspended pursuant to administrative regulations, DHR says, the administrative procedures for reinstatement had to be followed.

Whether the trial court had the authority to order DHR to reinstate the father’s driver’s license in this case is a question of statutory construction and, thus, purely a question of law. “Because the issue before us presents a pure question of law, we review the matter de novo, without any presumption of correctness.” Ex parte Byrom, 47 So.3d 791, 794 (Ala.2010) (citing Simcala, Inc. v. American Coal Trade, Inc., 821 So.2d 197, 200 (Ala.2001)).

This court’s inquiry into questions of statutory construction involves the following considerations:

“ ‘[I]t ⅛ this Court’s responsibility in a case involving statutory construction to give effect to the legislature’s intent in enacting a statute when that intent is manifested in the wording of the statute. Bean Dredging[, LLC v. Alabama Dep’t of Revenue], 855 So.2d [513] at 517 [ (Ala.2003) ]. ... “ ‘If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ ” ’ ” Pitts v. Gangi, 896 So.2d 433, 436 (Ala.2004) (quoting DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270, 275 (Ala.1998), quoting in turn earlier cases). In determining the intent of the legislature, we must examine the statute as a whole and, if possible, give effect to each section. Employees’ Retirement Sys. of Alabama v. Head, 369 So.2d 1227, 1228 (Ala.1979).’
“Ex parte Exxon Mobil Corp., 926 So.2d 303, 309 (Ala.2005). Further,
“‘when determining legislative intent from the language used in a statute, a court may explain the language, but it may not detract from or add to the statute. Siegelman v. Chase Manhattan Bank (USA), Nat’l Ass’n, 575 So.2d 1041, 1045 (Ala.1991). When the language is clear, there is no room for judicial construction. Employees’ Retirement System, [v. Head], 369 So.2d [1227,] 1228 [ (Ala.2002) ].’
“Water Works & Sewer Bd. of Selma, 833 So.2d 604, 607 (Ala.2002).”

Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala.2009). Further, our supreme court has said recently of statutory construction:

“ ‘Our inquiry is governed by settled principles of statutory construction:
“ ‘ “ ‘The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956).’ ” ’

“Bright v. Calhoun, 988 So.2d 492, 497 (Ala.2008) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006), quoting in turn Darks Dairy, Inc. v. Alabama Dairy Comm’n, 367 So.2d 1378, 1380 (Ala.1979) (emphasis omitted)).

“To determine legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, then there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001).”

Fluker v. Wolff, 46 So.3d 942, 953 (Ala.2010).

The statutes at issue in this case involve the Legislature’s authorizing DHR to suspend or revoke a person’s driver’s license for failure to pay child support. § 30-3-171, Ala.Code 1975. The procedure for the review of DHR’s decision to suspend or revoke the license of a person who has failed to pay child support, referred to as the “obligor” in the statute, is set forth in § 30-3-172, Ala.Code 1975, which reads as follows:

“(a) Upon receipt of a request for a hearing, [DHR] shall schedule a hearing for the purpose of determining if withholding, restricted use, or suspension of the obligor’s license is appropriate. [DHR] shall stay withholding, restricted use, or suspension of the license pending the outcome of the hearing. The hearing shall be for the purpose of contesting the determination of [DHR] of all of the following: (1) That the obligor is at least six months delinquent in child support payments. (2) That the obligor has not entered into a payment plan approved by [DHR], (3) If appropriate, that the obligor has failed to comply with a warrant or subpoena relating to a paternity or child support case. (4) That the withholding, restricted use, or suspension of the license is appropriate. No evidence with respect to the appropriateness of the support order or the ability of the obligor to comply with the support order shall be received or considered at the hearing.
“(b) If the obligor fails to respond to the notice of intent to withhold, restrict the use of, or suspend a license, fails to timely request a hearing, or fails to appear at a scheduled hearing, the obli-gor’s defenses, objections, or request for a payment plan shall be considered to be without merit and [DHR] or its agent shall enter a final decision accordingly. “(c) If [DHR] or its agent determines that the obligor is delinquent in making support payments and that the obligor has not entered into a payment plan, or that the obligor has failed to comply with subpoenas or warrants relating to paternity or child support proceedings, [DHR] or its agent shall notify the obli-gor of [DHR’s] decision and the obligor’s right to seek judicial review of the decision pursuant to the Alabama Administrative Procedure Act by filing a notice of appeal and a cost bond with [DHR] within 30 days of receipt of the agency’s decision. A petition for review shall be filed in the Circuit Court of Montgomery County or the circuit court of the county where a party resides. The filing of a notice of appeal "will result in an automatic stay of withholding, restricted use, or suspension of the obligor’s license pending the outcome of the appeal.
“(d) If the requirements for seeking judicial review are not met within 30 days, [DHR] shall send a notice to the licensing authority instructing it to suspend the obligor’s license. A determination of [DHR] is independent of any proceeding of the licensing authority to withhold, restrict use of, suspend, revoke, deny, terminate, renew, or issue a license.”

Furthermore, DHR — or its agent — is the only entity the Legislature has authorized to reinstate a suspended or revoked driver’s license under these statutes. The procedure for reinstatement is as follows:

“(a) When, following the withholding, restricted use, or suspension of a license, [DHR] or its agent determines that the support debt or support obligation has been paid in full or a satisfactory payment plan has been negotiated, or the obligor has complied with subpoenas or warrants relating to paternity or child support proceedings, [DHR] or its agent, at the request of the obligor, shall send notice requesting reinstatement of the license to the licensing authority and the obligor. Notice to the licensing authority to reinstate the license shall not limit the ability of [DHR] or its agent to issue a new decision and notice in the event of another delinquency.
“(b) When a license has been revoked pursuant to Section 30-3-173 [dealing with multiple delinquencies], the obligor may obtain a new license only if [DHR], upon request of the obligor, makes a determination and notifies the licensing authority that the obligation has been paid in full or a satisfactory payment plan is in place and the obligor is complying with the plan or the obligor has complied with subpoenas or warrants relating to paternity or child support proceedings. Upon receipt of the notification, the licensing authority may issue a new license pursuant to the statutes or regulations governing the reissuance of a license by the licensing authority.”

§ 30-3-175, Ala.Code 1975.

We find nothing ambiguous in the statutes at issue regarding the bounds of the circuit court’s authority. The Legislature clearly granted DHR or its agent the authority to make all decisions regarding whether to suspend or revoke an obligor’s driver’s license when he or she has failed to pay child support for at least six months and to reinstate the obligor’s driver’s license when the arrearage has been paid or a payment plan acceptable to DHR has been reached. There is no provision in the applicable statutes that allows a circuit court to override the decision of DHR except as part of a judicial review conducted in accordance with the Alabama Administrative Procedure Act (“AAPA”). § 30-3-172(c). From the record, it appears that the father never requested an administrative review of the suspension of his driver’s license. Clearly, the issue was not before the trial court pursuant to the AAPA. Instead, the record shows, the issue arose when, during a hearing on DHR’s petition seeking to lift the stay on the father’s sentence of incarceration because of his continued failure to pay child support, the father mentioned that his driver’s license had been suspended. Thus, whether to reinstate the father’s driver’s license was not an issue that the trial court could properly consider.

Furthermore, we note that although § 3-3-172(a) applies to administrative hearings, it does set forth the type of evidence the Legislature intended to exclude in a determination of whether the suspension or revocation of a driver’s license was appropriate. Section 30-3-172(a) provides that “[n]o evidence with respect to ... the ability of the obligor to comply with the support order shall be received or considered at the hearing” to determine whether the suspension or revocation of the license was appropriate. Despite that explicit prohibition, the trial court apparently considered such evidence when it ordered DHR to reinstate the father’s license, stating from the bench that it was ordering reinstatement of the license, because otherwise, “[DHR] and [the] child are not going to get a dime if [the father] can’t work, and if he doesn’t have his license and he’s just going from one little job to another hoping construction is going to open up, [DHR] and the child are not going to get any money.”

The trial court exceeded its authority in ordering DHR to reinstate the father’s driver’s license. Indeed, to allow the trial court to exercise authority in lieu of DHR in this case would violate the separation of powers mandated by the Alabama Constitution of 1901, as DHR points out. Article III, § 43 of the Alabama Constitution of 1901, provides as follows:

“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

As an administrative agency, DHR is an agency of the executive branch of government.

“The word ‘administrative’ is synonymous with the word ‘executive.’ The word administrative ‘[cjonnotes of or pertains to administration, especially management, as by managing or conducting, directing, or superintending, the execution, application or conduct of persons or things.’ Black’s Law Dictionary 45 (6th ed. 1990) (emphasis added). Thus, ‘[ajdministrative acts’ are ‘[tjhose acts which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body’ Id. (emphasis added). In fact, it is common to use the two words in tandem. See, e.g., Point Props., Inc. v. Anderson, 584 So.2d 1332, 1338 (Ala.1991) (‘Although absolute immunity from § 1983 actions is available to government officials performing legislative functions at the municipal level, generally only qualified or “good faith” immunity has been extended to government officials performing discretionary functions that are characteristically executive or administrative.’ (emphasis added)); Roberts v. Baldwin County Comm’n, 733 So.2d 406, 408 (Ala.Civ.App.1998) (‘ “the actual exercise of [the power to prevent] the destruction of a public roadway is in the nature of an executive or administrative function” ’) (quoting Point Props., Inc., 584 So.2d at 1337-38) (emphasis added); Tischer v. Housing & Redevelopment Auth. of Cambridge, 693 N.W.2d 426, 429 (Minn.2005) (‘Separation of powers requires that [discretionary decisions of an executive body] be granted deference by the judiciary to avoid usurpation of the executive body’s administrative prerogatives.’ (emphasis added)).

McInnish v. Riley, 925 So.2d 174, 185-86 (Ala.2005).

The Legislature granted authority to DHR to suspend, revoke, or reinstate the driver’s license of one who is delinquent in his or her child-support obligation.

“Courts should not under the guise of existing judicial power usurp merely administrative functions by setting aside a lawful administrative order upon the court’s conception as to whether the administrative power has been wisely executed.
“The judicial branch of government was not intended to be and will not presume to act as a super agency to control, revise, modify or set at naught the lawful acts of administrative agencies. It is under restraint (§ 43, [Ala.] Constitution 1901) from imposing its methods or substituting its judgment for that of the executive and legislative branches of the government.”

Finch v. State, 271 Ala. 499, 504, 124 So.2d 825, 830 (1960). In this case, the trial court’s order prevents DHR from carrying out its legislative mandate, and, thus, it violates the separation-of-powers provision of the Alabama Constitution of 1901.

For the reasons set forth above, the judgment is reversed, and the cause is remanded to the trial court for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

MOORE, J., concurs in part and concurs in the result, with writing, which BRYAN, J., joins.

MOORE, Judge,

concurring in part and concurring in the result.

Because, in my opinion, the discussion and application of the separation-of-powers provision of the Alabama Constitution of 1901 is unnecessary to a resolution of the appeal in this case, I do not join that aspect of the main opinion. I concur in all other aspects of the main opinion.

BRYAN, J., concurs.

      “5 The definition of ‘administrative’ was not carried forward with the seventh or eighth edition of Black’s Law Dictionary.”


text:
    Cheryl ABERNATHY a/k/a Cheryl Bush v. GREEN TREE SERVICING, LLC.
    2090488.
    Court of Civil Appeals of Alabama.
    July 23, 2010.

      Neil Taylor, Jr., Russellville, for appellant.
    Gary E. Sullivan of Sullivan & Gray, LLC, Tuscaloosa, for appellee.
   THOMPSON, Presiding Judge.

Cheryl Abernathy a/k/a Cheryl Bush (“Abernathy”) appeals from a default judgment entered by the Franklin Circuit Court in favor of Green Tree Servicing, LLC (“Green Tree”). For the reasons set forth herein, we reverse the default judgment and remand the cause for additional proceedings.

Green Tree filed an action against Abernathy on June 16, 2009. Green Tree alleged that Abernathy had defaulted on payments that she owed under a retail installment contract by which she had purchased a mobile home. Green Tree alleged that Abernathy’s debt to it was secured by the mobile home. Green Tree sought a judgment from the court vesting it with possession of the mobile home.

Abernathy did not file an answer. On July 24, 2009, Green Tree filed a motion for a default judgment. On the same day, the trial court granted that motion and entered the requested default judgment. The judgment awarded possession of the mobile home to Green Tree.

On August 24, 2009, Abernathy filed a motion pursuant to Rules 59 and 60(b), Ala. R. Civ. P., seeking relief from the July 24, 2009, default judgment. She argued that the summons and complaint had been left with her mother by a sheriffs deputy but that she had been unable to locate the papers left with her mother and did not realize that Green Tree had sued her. She also argued that she had continued to make payments on the mobile home. On September 1, 2009, counsel for Green Tree wrote counsel for Abernathy and informed him that Green Tree would not oppose Abernathy’s motion seeking relief from the July 24, 2009, default judgment because Abernathy had made an effort to bring her payments on the mobile home current. On September 2, 2009, the trial court entered an order granting Abernathy’s motion and setting aside the July 24, 2009, default judgment. The trial court ordered Abernathy to file an answer within 14 days. Abernathy failed to do so.

On November 12, 2009, Green Tree again filed a motion for a default judgment. On November 13, 2009, the trial court granted that motion and entered the requested default judgment, again awarding Green Tree possession of the mobile home. On November 16, 2009, Abernathy filed an objection to the November 13, 2009, default judgment, as well as a supplement to that objection, in which she argued that she had a meritorious defense to Green Tree’s claim based on the fact that she was continuing to make payments on the mobile home. We construe Abernathy’s objection as a motion to set aside the default judgment pursuant to Rule 55(c), Ala. R. Civ. P. On November 19, 2009, Abernathy filed an answer to the complaint. On December 4, 2009, she filed a motion that she styled an “additional motion to set aside default judgment” in which she stated, among other things: “Defendant’s attorney did not receive copy of second motion for default. It was sent to the client.”

On January 5, 2010, the trial court denied Abernathy’s motion to set aside the November 13, 2009, default judgment. Abernathy filed a timely appeal to this court.

Abernathy contends, among other things, that Green Tree did not provide her with appropriate notice of its November 12, 2009, application for a default judgment and that, as a result, the trial court erred when it entered the November 13, 2009, default judgment. Specifically, she argues that Rule 55(b)(2), Ala. R. Civ. P., required that her attorney be given three days’ written notice before the entry of the November 13, 2009, default judgment and that the failure to provide such notice constitutes reversible error. We agree.

We begin our analysis by pointing out what we have affirmatively acknowledged in many cases: default judgments are disfavored because “‘such judgments preclude a trial on the merits.’ ” Stanfield v. Stanfield, 2 So.3d 873, 876 (Ala.Civ.App.2008) (quoting Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 604 (Ala.1988)). Rule 55(b) provides, in relevant part:

“Judgment. Judgment by default may be entered as follows:
“(1) By the Clerk. When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not a minor or incompetent person.
“(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor.... If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party’s representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.... If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury pursuant to the provisions of Rule 38[, Ala. R. Civ. P.].”

(Emphasis added.) The Committee Comments on 1973 Adoption of Rule 55 provide, in pertinent part: “Rule 55(b)(2) relegates the entry of the default judgment to the court in all other cases. This portion of the rule provides for three days notice prior to entry of default judgment, when the defendant has once appeared.” (Emphasis added.) The failure to provide the notice of the application for a default judgment as required by Rule 55(b)(2) renders the default judgment “void, and not merely voidable,” Bracknell v. S.E. Belcher, Inc., 517 So.2d 588, 591 (Ala.1987), and “requires a vacation of the default judgment,” Southworth v. University of South Alabama Med. Ctr., 637 So.2d 896, 898 (Ala.Civ.App.1994).

In the present case, it is undisputed that Abernathy made an appearance by virtue of her postjudgment motion seeking relief from the July 24, 2009, default judgment. As a result, Green Tree was required to give three days’ written notice to her representative of its November 12, 2009, application for a default judgment. It is undisputed that Green Tree failed to do so. As a result, Green Tree violated the notice provision of Rule 55(b)(2), and the trial court erred when it entered the November 13, 2009, default judgment.

Green Tree argues that Abernathy did not raise in the trial court her contention that Green Tree failed to provide her with written notice of its November 12, 2009, application for a default judgment, and, as a result, that she has waived consideration of that contention on appeal. However, in her December 4, 2009, supplemental motion to set aside the November 13, 2009, default judgment, Abernathy argued in the trial court that her attorney had not been served with a copy of the application for a default judgment. In our view, this argument was sufficient to preserve for appeal the contention she now raises.

In support of the trial court’s judgment, Green Tree also argues that the trial court did not exceed its discretion in failing to set aside the November 13, 2009, default judgment because Abernathy failed to demonstrate the so-called Kirtland factors, i.e., that she failed to demonstrate (1) that she had a meritorious defense to Green Tree’s claim, (2) that Green Tree would not be prejudiced by the setting aside of the default judgment, and (3) that the entry of the default judgment was not the result of her own culpable conduct. See Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d at 605. Although, as a general rule, a trial court must consider the Kirtland factors when determining whether to set aside a default judgment, such evidence was not required in the present case. Our supreme court has stated that, when the three-day notice provision of Rule 55(b)(2) is violated, a trial court is “without discretion in the matter” and errs to reversal if it refuses to set aside the default judgment. Bracknell, 517 So.2d at 591. Moreover, our supreme court has written that the failure to provide the notice required by Rule 55(b)(2) “requires vacation of the default judgment regardless as to whether defendant has shown a meritorious defense or not.” Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117, 1120 (Ala.1977) (emphasis added). See also Southworth, 637 So.2d at 898 (“This court’s decision in Dial [v. State, 374 So.2d 361 (Ala.Civ.App.1979),] and our Supreme Court’s decision in Cock-rell dictate that the failure to give notice requires a vacation of the default judgment, irrespective of whether Southworth alleged a meritorious defense in his motion for relief....” (emphasis added)).

Green Tree next argues, in effect, that a trial court is not required to hold a hearing on an application for a default judgment and that, when, as in this case, the trial court does not hold such a hearing, the requirement that notice of the application be provided to the nonmoving party is not triggered. In support of this argument, Green Tree points out that the language of Rule 55(b)(2) ties the provision of notice of the application for a default judgment to the time at which the trial court holds the hearing by providing that such notice must be served on the party or his representative “at least three (3) days prior to the hearing on such application.”

Green Tree’s interpretation of Rule 55(b)(2) as providing for notice of the application for a default judgment only if the trial court decides to hold a hearing on the application is too narrow. The portion of the rule on which Green Tree relies does not speak to whether notice must be given but, instead, to the time by which notice of the application must be given. That notice must be given can be assumed from the language of the rule. Admittedly, the language of the rule is difficult to apply when a trial court does not hold a hearing on an application for a default judgment. However, given the purpose of providing notice of an application for a default judgment against a party that has appeared in the case, the requirement that notice be provided cannot hinge on whether the trial court holds a hearing on the application, especially given that the notice to be given is that an application for a default judgment has been sought, not that a hearing has been scheduled on that application. Indeed, the authors of Rule 55 understood that the notice called for in Rule 55(b)(2) was necessary before the entry of a default judgment when, in the Committee Comments, they stated that “[t]his portion of the rule provides for three days notice prior to entry of default judgment, when the defendant has once appeared.” Rule 55, Committee Comments on 1973 Adoption (emphasis added). Other jurisdictions that have addressed the issue have arrived at the same conclusion. See, e.g., Webster v. Cape (In re Lary), 331 B.R. 493, 496 (Bankr.M.D.Ga.2005) (“[The plaintiff] served his motion for entry of judgment by default on May 12, 2005. The Court signed the default judgment on Sunday, May 15, 2005. The Court is not persuaded that Defendant had the three days notice to which Defendant was entitled. The Court is persuaded that Defendant is entitled to relief from the judgment by default.”); and In re Marriage of Neneman, 217 Mont. 155, 159-60, 703 P.2d 164, 166-67 (1985) (reversing default judgment when notice of application for default judgment was not provided as required by Rule 55(b), despite the fact that trial court entered default judgment without hearing).

Green Tree also argues that Rule 55(b)(2) was not applicable to this action because Green Tree sought only possession of the mobile home and that, as a result, the default judgment could have been entered by the circuit clerk under the provisions of Rule 55(b)(1). However, Rule 55(b)(1) applies only to defendants who have “been defaulted for failure to appear.” In the present case, Abernathy was defaulted for having failed to file an answer as ordered by the trial court in its order setting aside the July 24, 2009, default judgment; she was not defaulted for failing to appear in the case. As a result, Rule 55(b)(2), rather than Rule 55(b)(1), is applicable to this action.

Green Tree last contends in support of the default judgment that the entry of the default judgment without notice having been provided as required by Rule 55(b)(2) was, at most, harmless error. Green Tree admits that the caselaw interpreting Rule 55(b)(2) provides that “the defaulting party is automatically entitled to vacation of a default judgment that was entered without notification of any hearing regarding the application for default.” Green Tree’s brief at 24-25 (citing Southworth, 637 So.2d at 897-98). However, Green Tree argues, Abernathy filed a motion to set aside the default judgment and the trial court held a hearing on that motion. The trial court’s holding a hearing on that postjudgment motion, Green Tree argues, was sufficient to provide Abernathy with the process she was due under Rule 55(b)(2), even if she was not given proper notice of the application for a default judgment before it was granted. We disagree.

The trial court’s entry of the November 13, 2009, default judgment resulted in Abernathy’s having to resort to post-judgment remedies. Had Abernathy been given notice of the application for default judgment, her burden after the entry of the default judgment would have been to demonstrate, through evidence, a meritorious defense, a lack of prejudice to Green Tree by setting aside the default judgment, and that the entry of the default judgment was not because of her own culpable conduct. See Kirtland, supra. She was not under a burden to provide such evidence before the November 13, 2009, entry of the default judgment. Thus, to argue, as Green Tree does, that the fact that Abernathy was given a hearing after the default judgment was entered cured the harm, if any, caused by the erroneous entry of the default judgment simply ignores the very different litigation position Abernathy found herself in as a result of the entry of the default judgment. We cannot say, as a result, that she was not harmed by the erroneous entry of the default judgment.

Based on the foregoing, we reverse the November 13, 2009, default judgment and remand the cause to the trial court for additional proceedings consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.