author: SHAW, JUSTICE.

text:
    EX PARTE Alabama Secretary of State John MERRILL and Director of Elections Ed Packard
    (In re: Virginia Tuggle et al. v. Alabama Secretary of State John Merrill and Director of Elections Ed Packard)
    1170216
    Supreme Court of Alabama.
    May 18, 2018
    Steve Marshall, atty. gen., and James W. Davis, deputy atty. gen., and Brad Chynoweth, asst. atty. gen.; and Brent Beal, deputy atty. gen., Office of the Alabama Secretary of State, for petitioners.
    Priscilla Black Duncan of P.B. Duncan & Associates, LLC, Montgomery; and Catherine R. Steinwinder of Steinwinder & Ratliff, LLC, Montgomery, for respondents.
   SHAW, JUSTICE.

The defendants below, the Alabama Secretary of State, John Merrill, and a member of his staff, Ed Packard, the director of elections, petition this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate a preliminary injunction and to dismiss for lack of jurisdiction the underlying action seeking injunctive and declaratory relief. We grant the petition and issue the writ.

Facts

On December 7, 2017, Pamela Miles, Dan Dannemueller, Paul Hard, and Victoria Tuggle (hereinafter referred to collectively as "the plaintiffs") filed a civil action in the trial court against Merrill, in his capacity as Secretary of State, and Packard, in his capacity as director of elections (hereinafter referred to collectively as "the defendants"), seeking injunctive and declaratory relief. Specifically, they alleged that certain electronic voting machines used in Alabama elections created digital images of the paper ballots scanned and counted by the machines. Further, according to the plaintiffs, the defendants "do not and will not instruct election officials" to preserve the digital ballot images. Those images, it was argued, are public records that, under Alabama law, must be preserved. The plaintiffs also appeared to allege that federal law, specifically, 52 U.S.C. § 20701, requires that those images be retained. This failure "to require that all election materials" be preserved, the plaintiffs contended, "infringe[d] upon their right to a fair and accurate election." The plaintiffs specifically cited the then upcoming December 12, 2017, special election for United States Senate and argued that the failure to preserve digital ballot images in that election "used for tabulating votes and possible post-election adjudication" would result in such images being "destroyed." The plaintiffs further contended that their action "continues to be ripe through all elections scheduled in 2018."

The plaintiffs sought a temporary restraining order directing the defendants to "inform county election directors to preserve digital ballot images or files" in the December 12 election, requested that a hearing be held and a preliminary injunction be issued, and asked that, upon a final hearing, the trial court render a judgment declaring that the defendants had "a duty to preserve and instruct Alabama county election officials to preserve all digital ballot images and files produced in the State of Alabama." From the materials before us, it does not appear that the complaint was verified or that it included any supporting affidavits or evidence.

The trial court scheduled a hearing for Monday, December 11, 2017, at 9 a.m. Counsel for the plaintiffs and the defendants appeared at the hearing. It does not appear from the materials before us that any evidence was submitted or testimony taken at the hearing.

After the hearing, the defendants filed a motion to dismiss. That motion was stamped as electronically filed at 12:47 p.m. on December 11. In the motion, the defendants argued, among other things, that the plaintiffs had no standing, that the action was filed too late to impact the December 12 special election, and that the plaintiffs could not meet their burden of establishing that they were entitled to injunctive relief. Specifically, the defendants argued that the plaintiffs did not allege how the failure to preserve digital ballot images would deny them the right to a fair and accurate election and that it was speculation that an election contest might occur where such images would be needed, especially given that the actual paper ballots, which would be the "best evidence," would be retained. They further alleged that no injury was fairly traceable to them because local election officials, not the Secretary of State, have authority over voting machines; the Secretary of State, they assert, is empowered by law only to give "uniform guidance" to those officials and could not order those officials to take the actions the plaintiffs requested. Additionally, any order mandating that officials retain digital ballot images would require "reprogramming" the electronic voting machines, which would risk interfering with the election that was to occur the next day. It does not appear that the trial court ruled on the motion to dismiss; instead, the motion was set for a hearing on December 21.

Subsequently, in an order stamped as electronically filed at 1:32 p.m. on December 11, the trial court entered a preliminary injunction. It directed the defendants to communicate with and to send to all probate judges and election officials in the state the following order:

"All counties employing digital ballot scanners in the Dec. 12, 2017 election are hereby ORDERED to set their voting machines to save ALL PROCESSED IMAGES in order to preserve all digital ballot images. This order applies to those machines that have such a setting and does not apply to any machine that does not allow for processed images to be saved."

The trial court's order further set the matter for a "full hearing" on December 21.

At 3:53 p.m. on December 11, the defendants filed in this Court what was styled as a "petition for an emergency writ of mandamus." Within an hour, the defendants filed two "corrected" versions of the petition and a motion to stay the preliminary injunction; the defendants contended in their motion to stay that the preliminary injunction, if not stayed, would "cause confusion among elections officials and be disruptive to an election scheduled for tomorrow." This Court granted the motion to stay and ordered answers and briefs.

Discussion

A. The defendants' challenge to the preliminary injunction

In their petition, the defendants contend that the plaintiffs failed to demonstrate that a preliminary injunction was warranted.

" 'In order for a trial court to grant a preliminary injunction, the plaintiff must show all of the following: (1) that without the injunction the plaintiff would suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff has at least a reasonable chance of success on the ultimate merits of his case; and (4) that the hardship imposed on the defendant by the injunction would not unreasonably outweigh the benefit accruing to the plaintiff.' "

Stephens v. Colley, 160 So.3d 278, 282 (Ala. 2014) (quoting Perley ex rel. Tapscan, Inc. v. Tapscan, Inc., 646 So.2d 585, 587 (Ala. 1994) ). Plaintiffs seeking a preliminary injunction must present evidence to substantiate their pleadings. Blount Recycling, LLC v. City of Cullman, 884 So.2d 850, 855 (Ala. 2003) ("[W]hile Rule 65, Ala. R. Civ. P., 'does not explicitly require that oral testimony be presented at a preliminary injunction hearing, some type of evidence which substantiates the pleadings is implicitly required by subsection (a)(2) of the rule.' " (quoting Bamberg v. Bamberg, 441 So.2d 970, 971 (Ala. Civ. App. 1983) ) ). Further, Rule 65(c), Ala. R. Civ. P., requires that security, such as a bond, see Rule 65.1, Ala. R. Civ. P., be given unless the trial court makes a specific finding, based upon evidence, that one or more of certain exceptions exists. Spinks v. Automation Pers. Servs., Inc., 49 So.3d 186, 191 (Ala. 2010). It does not appear that security was given by the plaintiffs in this case, and the trial court did not state that an exception existed.

According to the defendants, there is no plausible allegation that the failure to preserve digital ballot images would cause the plaintiffs imminent harm because the paper ballots, from which any digital ballot image would be made, will still exist after the election. Further, there is no reasonable chance for success on the merits because the Secretary of State is not empowered to order that electronic voting machines be set in a particular fashion as the plaintiffs requested-instead, the local probate judge is the chief elections official in each county, and the Secretary of State offers only "guidance" to local election officials and could merely request-not order-that local election officials preserve the digital ballot images. See Ala. Code 1975, § 17-1-3 (providing that "[t]he Secretary of State is the chief elections official in the state and shall provide uniform guidance for election activities" and that "[t]he judge of probate is the chief elections official of the county"). Thus, the defendants argue, there is no recourse for any failure to comply with an order issued by the Secretary of State, like the one ordered to be sent by the trial court. Finally, the defendants argue that "equities also weigh against the plaintiffs" because an order by the Secretary of State purporting to direct local election officials "to make major last-minute changes to the machines" the evening before the December 12 election was "likely to cause confusion" and "disrupt election activities" in that such an order would likely be read to require action on their part.

The preliminary injunction directed the defendants to take action regarding the December 12 special election for United States Senate. That election has already occurred. Therefore, the question is whether the defendants' challenge to the merits of that injunction is now moot.

"This Court has often said that, as a general rule, it will not decide questions after a decision has become useless or moot." Arrington v. State ex rel. Parsons, 422 So.2d 759, 760 (Ala. 1982).

" ' "A moot case or question is a case or question in or on which there is no real controversy; a case which seeks to determine an abstract question which does not rest on existing facts or rights, or involve conflicting rights so far as plaintiff is concerned." ' Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala. 2006) (quoting American Fed'n of State, County & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 830-31 (1958) ). 'The test for mootness is commonly stated as whether the court's action on the merits would affect the rights of the parties.' Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993) ). 'A case becomes moot if at any stage there ceases to be an actual controversy between the parties.' Id. (emphasis added) (citing National Collegiate Athletic Ass'n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) ).
"...'A moot case lacks justiciability.' Crawford, 153 S.W.3d at 501. Thus, '[a]n action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.' Case, 939 So.2d at 884 (citing Employees of Montgomery County Sheriff's Dep't v. Marshall, 893 So.2d 326, 330 (Ala. 2004) )."

Chapman v. Gooden, 974 So.2d 972, 983-84 (Ala. 2007).

The December 11 order was directed solely to the December 12 election; that election has taken place. Thus, a reversal of the order on the merits would not affect the rights of the parties. To the extent that the defendants challenge the propriety of the preliminary injunction, their challenge in this Court is moot.

B. The defendants' challenge to the trial court's jurisdiction

The defendants also challenge the trial court's jurisdiction over the plaintiffs' entire action. Although the complaint appears to seek relief primarily regarding the December 12 special election, it also seeks relief regarding future elections, specifically, "all elections scheduled in 2018." All those elections have not yet occurred; therefore, that portion of the action is not moot, and the issue whether the trial court has jurisdiction over the remainder of the action remains ripe for review.

A challenge to a trial court's subject-matter jurisdiction based on the plaintiff's alleged lack of standing is reviewable by a petition for a writ of mandamus. Ex parte HealthSouth Corp., 974 So.2d 288, 292 (Ala. 2007). This Court will issue a writ of mandamus when the petitioner shows: " '(1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' " Ex parte General Motors of Canada Ltd., 144 So.3d 236, 238 (Ala. 2013) (quoting Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala. 2001) ).

The trial court did not, and has not, ruled on the defendants' motion to dismiss. Instead, after the order entering the preliminary injunction was issued, the trial court set a hearing to determine whether the injunction should be made permanent. Because the trial court granted the plaintiffs partial relief and the defendants thus had no choice but to file this petition, and further given that it appears that the trial court does not intend to address this threshold issue before holding a final hearing on the merits of the action, we consider the defendants' challenge.

The concept of "standing" refers to a plaintiff's ability to bring the action; the plaintiff must have a legally sufficient interest in that lawsuit, and, if he or she does not, the trial court does not obtain jurisdiction over the case:

" 'To say that a person has standing is to say that that person is the proper party to bring the action. To be a proper party, the person must have a real, tangible legal interest in the subject matter of the lawsuit.' Doremus v. Business Council of Alabama Workers' Comp. Self-Insurers Fund, 686 So.2d 252, 253 (Ala. 1996). 'Standing ... turns on "whether the party has been injured in fact and whether the injury is to a legally protected right." ' [ State v. Property at] 2018 Rainbow Drive, 740 So.2d [1025, 1027 (Ala. 1999) ] (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo. 1998) (Kourlis, J., dissenting) ) (emphasis omitted). In the absence of such an injury, there is no case or controversy for a court to consider. Therefore, were a court to make a binding judgment on an underlying issue in spite of absence of injury, it would be exceeding the scope of its authority and intruding into the province of the Legislature. See City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala. 2003) ('The power of the judiciary ... is "the power to declare finally the rights of the parties, in a particular case or controversy ...." ' (quoting Ex parte Jenkins, 723 So.2d 649, 656 (Ala. 1998) ) ) ...."

Town of Cedar Bluff v. Citizens Caring for Children, 904 So.2d 1253, 1256 (Ala. 2004).

In determining whether a party has standing in Alabama courts, we are guided by whether the following exist: "(1) an actual, concrete and particularized 'injury in fact'-'an invasion of a legally protected interest'; (2) a 'causal connection between the injury and the conduct complained of'; and (3) a likelihood that the injury will be 'redressed by a favorable decision.' " Alabama Alcoholic Beverage Control Bd. v. Henri-Duval Winery, L.L.C., 890 So.2d 70, 74 (Ala. 2003) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). In their motion to dismiss, the defendants contended that the plaintiffs failed to demonstrate all three of these elements; however, we address primarily one: Whether the complaint sufficiently alleges that the plaintiffs suffered an injury in fact.

" 'Injury will not be presumed; it must be shown.' " Town of Cedar Bluff, 904 So.2d at 1256 (quoting Jones v. Black, 48 Ala. 540, 543 (1872) ). "A party's injury must be 'tangible,' see Reid v. City of Birmingham, 274 Ala. 629, 639, 150 So.2d 735, 744 (1963) ; and a party must have 'a concrete stake in the outcome of the court's decision.' " Kid's Care, Inc. v. Alabama Dep't of Human Res., 843 So.2d 164, 167 (Ala. 2002) (quoting Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala. 1983) ). The plaintiffs "must allege 'specific concrete facts demonstrating that the challenged practices harm [them], and that [they] personally would benefit in a tangible way from the court's intervention.' " Ex parte HealthSouth, 974 So.2d at 293 (quoting Warth v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (footnote omitted) ). At a minimum, they must show that they personally have suffered some actual or threatened injury as a result of the purportedly illegal conduct. Stiff v. Alabama Alcoholic Beverage Control Bd., 878 So.2d 1138, 1141 (Ala. 2003).

In Town of Cedar Bluff, this Court addressed an allegation that the holding of a purportedly illegal election constituted an "injury in fact" for purposes of standing:

"[The plaintiffs] state that citizens and voters have a 'universally accepted' and legally protected right to valid elections. Therefore, they argue, citizens and voters, including [the plaintiffs], suffer an injury when an invalid election is held as the result of an unconstitutional statute. However, this allegation, without more, is insufficient to establish an injury because [the plaintiffs] have failed to state with 'particularity' in what respect they were injured by the fact that the election was held-they have merely made the conclusory allegation that the election caused an injury because it was allegedly unconstitutional."

904 So.2d at 1257.

In the instant case, the plaintiffs' allegations of injury are even less "particularized" than those in Town of Cedar Bluff. " 'By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.' " 904 So.2d at 1257 n.3 (quoting Lujan, 504 U.S. at 560 n.1 ). The plaintiffs state in their complaint that the failure to retain digital ballot images "infringes upon their right to a fair and accurate election." Complaint, ¶ 3. They further state that, "[w]ithout the preservation of these digital ballot images, [their] rights to a fair and accurate election could be denied." Complaint, ¶ 18. These, however, are only "conclusory allegations" and speculative at that. There is no allegation as to how the failure to retain digital ballot images or how the absence of digital ballot images would infringe upon the fairness and accuracy of an election. In fact, the complaint insinuates that there is only a possibility that the absence of any digital images "could" impact the fairness and accuracy of elections. Further, although the complaint mentions "post-election adjudication," which we presume implicates a recount of ballots or an election challenge, it implies only that it is "possible" that the digital ballot images might have some further use. Finally, the complaint acknowledges that these digital ballot images are images of the actual paper ballots. There is no dispute in this mandamus proceeding that all the actual paper ballots are retained.

These allegations do not demonstrate how the "challenged practices harm" the plaintiffs in a concrete way; how they would personally suffer the threatened injury, which is itself described only as a mere speculative possibility; or how they would benefit in a "tangible way" by a judgment in their favor. Ex parte HealthSouth, 974 So.2d at 293, and Stiff, supra. Instead, they allege only that they "could" be harmed. As Town of Cedar Bluff indicates, these allegations are insufficient. Therefore, because the complaint insufficiently alleges that the plaintiffs have standing, the trial court lacks jurisdiction over the action. We therefore direct that the case be dismissed.

PETITION GRANTED; WRIT ISSUED.

Stuart, C.J., and Bolin, Main, Wise, Bryan, Sellers, and Mendheim, JJ., concur.

Shaw, J., concurs specially.

Parker, J., concurs in the result.

SHAW, Justice (concurring specially).

I am the author of the main opinion; I write specially to note the following.

As I have previously written, I do not believe that the test for determining standing under federal law set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), is always applicable to determine whether standing exists for purposes of Alabama law. In my view, " 'standing' under Alabama law exists where the legislature has specifically provided a person with a cause of action ... and where the interests of the parties are sufficiently 'adverse.' " McDaniel v. Ezell, 177 So.3d 454, 459 (Ala. 2015) (Shaw, J., dissenting). Further, "[t]he focus of Alabama law regarding standing, generally, is on whether the parties have a 'sufficient personal stake in the outcome' in the case, whether their interests are sufficiently 'adverse,' and whether the plaintiff is 'so situated' that he or she will bring 'the requisite adverseness' to the proceeding." Ex parte Alabama Educ. Television Comm'n, 151 So.3d 283, 294 (Ala. 2013) (Shaw, J., dissenting).

As I discussed in my dissent in Ex parte Alabama Educational Television Commission, 151 So.3d at 293-94 (Shaw, J., dissenting), the standing analysis in Lujan is closely tied to the "case or controversy" provision in Article III of the United States Constitution, but the Alabama Constitution of 1901, Art. VI, § 139 (a), does not have the same language as is found in Article III. Nevertheless, "I believe that in ... general challenges to government action, the Lujan analysis is helpful." Ex parte Alabama Educ. Television Comm'n, 151 So.3d at 294 n.11 (Shaw, J., dissenting). The Lujan decision's guidance regarding the sufficiency of a party's injury is similarly helpful in addressing the lack of standing for purposes of Alabama law in the instant case, where there is a challenge to government action and no specifically tailored recourse has been provided by statute. The Lujan decision, however, does not compel a particular result.

      Contrary to the instruction in the order that the voting machines be "set" to "preserve all digital ballot images," the trial court had indicated at the hearing that it would not order that the machines be reprogrammed. A transcript of the hearing was not completed until December 29, 2017, and was not provided to this Court until January 1, 2018.

      Although the December 11 order is at times described as a temporary restraining order, because notice of the proceedings was given to the defendants and a hearing took place it is actually properly considered a preliminary injunction. See Rule 65, Ala. R. Civ. P., and Patton v. Cumberland Lake Country Club, Inc., 703 So.2d 376, 380-81 (Ala. Civ. App. 1997).

      Generally, an appellate challenge to the merits of a preliminary injunction is by direct appeal; the defendants maintain in their petition that, to the extent that their challenge to the merits of the preliminary injunction should have been brought in an appeal, their petition should be considered as such. See Ex parte B2K Sys., LLC, 162 So.3d 896, 907 (Ala. 2014) (treating a portion of a writ of mandamus challenging the issuance of a preliminary injunction as a direct appeal under Rule 4(a)(1)(A), Ala. R. App. P.).

      Motions, statements in motions, and arguments of counsel are not evidence. Westwind Techs., Inc. v. Jones, 925 So.2d 166, 171 (Ala. 2005). As noted above, it does not appear that any evidence was submitted in the trial court before the preliminary injunction was issued.

      On December 19, after the preliminary injunction was issued and after this Court stayed the proceedings, the defendants filed in the trial court an affidavit by Mark Kelley, "Vice President for Ballot Management Services" for Election Systems and Software ("ES & S"), the vendor of the electronic voting machines. He testified that some machines in the state do not create digital images at all. Some 2,000 machines, however, do have this ability, but "most" machines are "coded" to save only digital images of write-in ballots. The process for changing the digital-image-retention settings on the voting machines would require the machines to be reprogrammed and then tested at a facility in Birmingham, and it would not have been possible to do that in a single day. That affidavit was not before the trial court at the time it issued the preliminary injunction, and it is not properly before this Court. Ex parte Harris, 216 So.3d 1201, 1207 (Ala. 2016) ("On review by mandamus, this Court must look only at the facts and evidence that were before the trial court.").

      The concept of "standing" is generally relevant only in public-law cases, such as the instant action. Gardens at Glenlakes Prop. Owners Ass'n, Inc. v. Baldwin Cty. SewerServ., LLC, 225 So.3d 47, 53 (Ala. 2016).

      The defendants' specific argument in their petition challenging the plaintiffs' standing is limited, but understandably so-this petition had to be filed, and was filed, a few hours after the trial court's order was issued. Nevertheless, this Court may, in considering a mandamus petition, raise on its own issues regarding the trial court's lack of jurisdiction, even if those specific issues are not raised by the parties. Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 n.2 (Ala. 2009) ("Although Progressive does not raise in its petition the precise jurisdictional issue we address, the ' "[l]ack of subject matter jurisdiction may not be waived by the parties and it is the duty of an appellate court to consider lack of subject matter jurisdiction ex mero motu." ' " (quoting Ex parte Berry, 999 So.2d 883, 888 (Ala. 2008), quoting in turn Ex parte Smith, 438 So.2d 766, 768 (Ala. 1983) ) ). See also Ex parte T.C., 63 So.3d 627, 630 (Ala. Civ. App. 2010), superseded on other grounds by statute, as recognized in Ex parte F.T.G., 199 So.3d 82, 86 (Ala. Civ. App. 2015) ("[O]ur review of such questions [regarding the lack of subject-matter jurisdiction] is not limited to grounds specifically raised in a mandamus petition because a lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu.").


source: Caselaw Access Project

author: MAIN, Justice.

license: Public Domain

text:
    EX PARTE Albert DANIELS
    (In re: Albert Daniels v. Morris, Cary, Andrews, Talmadge & Driggers, LLC, et al.)
    1170347
    Supreme Court of Alabama.
    May 18, 2018
    Susan Walker and Slate McDorman of McDorman & Walker, Birmingham, for petitioner.
    Joseph E. Stott of Stott & Harrington, P.C., Birmingham, for respondents.
   MAIN, Justice.

Albert Daniels petitions this Court for a writ of mandamus compelling the Barbour Circuit Court to vacate its order severing and staying Daniels's claims against defendants Joseph Morris, Tracy Cary, and Morris, Cary, Andrews, Talmadge & Driggers, LLC ("the Morris firm") (hereinafter Morris, Cary, and the Morris firm are referred to collectively as the "Morris defendants"), and also to compel the circuit court to enter a default judgment. We grant the petition in part and deny it in part.

I. Facts and Procedural History

This lawsuit was filed by Daniels in the Barbour Circuit Court on September 18, 2015, naming Sherrie Ann Johnson ("Johnson") as the defendant; the complaint was amended in 2017 to add the Morris defendants. In his amended complaint, Daniels alleges the following facts:

Johnson and Daniels are the parents of Alquwon Johnson. On June 4, 2011, Alquwon committed suicide while he was an inmate in the Barbour County jail. At the time of his death, Alquwon was unmarried and had no children.

Johnson engaged the Morris firm to pursue a wrongful-death claim related to Alquwon's death. Johnson petitioned the Barbour Probate Court for letters of administration for Alquwon's estate. The petition, which was prepared by the Morris firm, stated that Johnson was Alquwon's only heir. On July 5, 2011, the Barbour Probate Court granted Johnson letters of administration.

On August 8, 2011, Johnson, as the personal representative of Alquwon's estate, filed a wrongful-death action in the Barbour Circuit Court. Johnson was represented by the Morris defendants in the wrongful-death litigation. The case was removed to federal court. In 2015, the case was settled. The Morris defendants distributed the settlement funds to Johnson; none of the proceeds were paid to Daniels.

In May 2017, Daniels telephoned the Morris firm to inquire about retaining the firm to file a wrongful-death suit related to Alquwon's death. After speaking with an employee of the firm, Daniels was told that the firm had a conflict of interest and could not represent him. He later received a letter from Cary stating that "a lawsuit brought on your behalf would not be economically feasible given the nature, facts and circumstances surrounding your case." The Morris firm did not inform Daniels about the prior lawsuit and that it had settled the case and paid the settlement proceeds to Johnson.

On September 18, 2015, Daniels filed the underlying action against Johnson. The suit alleged that, as Alquwon's father, Daniels was entitled to 50% of the net settlement proceeds but that Johnson had wrongfully retained the entire amount. He asserted against Johnson claims of breach of fiduciary duty and conversion.

On August 29, 2017, Daniels filed his first amended complaint, adding as defendants the Morris defendants and asserting two claims against them. Count three of Daniels's amended complaint asserted a claim of fraud against the Morris defendants. That claim alleged, in part:

"57. Although The Morris Law Firm had actual knowledge that [Daniels] was the father of [Alquwon], The Morris Firm failed:
"a. To obtain a full and accurate list of heirs at law of [Alquwon];
"b. To list [Daniels] as an heir of [Alquwon];
"c. To notify [Daniels] of the opening of the estate;
"d. To notify [Daniels] that at least one lawsuit had been filed on [Daniels]'s son['s] behalf;
"e. To inform [Daniels] that a settlement had been reached regarding the death of [Alquwon];
"f. To apportion settlement proceeds for the § 1983 claims and for the wrongful death claims of [Alquwon];
"g. To interplead one-half of the wrongful death recovery into the Barbour County Circuit Court as recovery for the § 1983 claims for the wrongful death [of Alquwon].
"58. When [Daniels] contacted The Morris Firm to see if they would represent [Daniels] in a wrongful death action on behalf of [Alquwon], The Morris Law Firm:
"a. Suppressed the fact that they had opened the Estate on behalf of Alquwon Johnson;
"b. Suppressed the fact that they had filed a State lawsuit for wrongful death and under § 1983 for civil rights violations;
"c. Suppressed the fact that a settlement had been reached and funds had been paid;
"d. Fraudulently represented that the firm did not believe a lawsuit for [Daniels] was 'economically feasible' although The Morris Law Firm [represented] Sherrie Johnson in the exact same matter for the death of [Alquwon]."

Daniels also alleged that the Morris defendants intentionally misspelled Alquwon's and Johnson's names in the estate-administration documents filed in the probate court to hinder attempts to discover that an estate had been opened.

In count six of Daniels's amended complaint-styled as a "third-party beneficiary" claim-he contends that the Morris defendants "had a duty to ascertain the known heirs of Alquwon" but that they "negligently and/or fraudulently failed to identify [Daniels] as an heir at law of [Alquwon]."

On September 12, 2017, Daniels filed a second amended complaint in which he added a count seven, a claim of breach of fiduciary duty, against the Morris defendants. That claim asserted that, "as a result of the attorney-client relationship between [Johnson] and The Morris Law Firm, and pursuant to the laws of Alabama Wrongful Death Act and Alabama Intestate Succession law, [Daniels], as a known heir of [Alquwon], was in a fiduciary relationship with The Morris Law Firm."

On October 10, 2017, the Morris defendants filed a motion to sever the claims against them from the claims against Johnson and to stay the proceedings on the ground that a provision of the Alabama Legal Services Liability Act, § 6-5-571 et seq., Ala. Code 1975 ("the ALSLA"), specifically, § 6-5-579, Ala. Code 1975, requires such a severance of claims. Daniels filed an opposition to the motion to stay and to sever, arguing that the ALSLA did not apply to his claims.

On November 3, 2017, Daniels filed a motion for a default judgment, arguing that it had been more than 30 days since the Morris defendants had been served with the summons and complaint and that they had not filed a responsive pleading.

On December 13, 2017, the circuit court entered an order denying Daniels's motion for a default judgment, bifurcating Daniels's claims against the Morris defendants from those against Johnson, and staying the claims against the Morris defendants, including all discovery, pending the resolution of Daniels's claims against Johnson. This petition followed.

II. Standard of Review

" 'The writ of mandamus is an extraordinary writ that applies "where a party seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable." Rule 21(e)(4), Ala. R. App. P. In order for this Court to issue a writ of mandamus, the petitioner must show: "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Bloodsaw, 648 So.2d 553 (Ala. 1994).' "

Ex parte Alfa Life Ins. Corp., 923 So.2d 272, 273 (Ala. 2005) (quoting Ex parte Turpin Vise Ins. Agency, Inc., 705 So.2d 368, 369 (Ala. 1997) ).

III. Analysis

Daniels first contends that the circuit court erred in applying the ALSLA to bifurcate his claims against the Morris defendants from his claims against Johnson and to stay the action as to his claims against the Morris defendants. Specifically, Daniels contends that the circuit court incorrectly applied § 6-5-579(a) to his claims against the Morris defendants because (1) the Morris defendants did not render legal services to him, and, thus, he says, the ALSLA is not applicable, and (2) his claims against Johnson are not an "underlying action" as defined by the ALSLA. We agree.

In Cunningham v. Langston, Frazer, Sweet & Freese, P.A., 727 So.2d 800 (Ala. 1999), this Court reviewed the language and purpose of the ALSLA and concluded that "the ALSLA does not apply to an action filed against a 'legal service provider' by someone whose claim does not arise out of the receipt of legal services." 727 So.2d at 804. Stated another way, "the ALSLA applies only to lawsuits based on the relationship between 'legal service providers' and those who have received legal services." 727 So.2d at 805. See also Brackin v. Trimmier Law Firm, 897 So.2d 207, 229 (Ala. 2004) ("An attorney-client relationship is an essential element of a claim under the [ALSLA]."); Robinson v. Benton, 842 So.2d 631 (Ala. 2002). Here, it is undisputed that the Morris defendants did not provide legal services to Daniels. Accordingly, his claims against the Morris defendants are not governed by the ALSLA.

Nor does the specific provision of the ALSLA relied upon by the Morris defendants and the circuit court, § 6-5-579(a), appear to apply in this situation. Section 6-5-579(a) provides:

"If the liability to damages of a legal services provider is dependent in whole or in part upon the resolution of a underlying action, the outcome of which is either in doubt or could have been affected by the alleged breach of the legal services provider standards of care, then, in that event, the court shall upon the motion of the legal services provider, order the severance of the underlying action for separate trial."

The ALSLA defines the term "underlying action" as

"the legal matter concerning the handling of which it is alleged that the legal services provider breached the applicable standard of care. The term is applicable in legal service liability actions in which the legal service provider's liability is dependent in part upon or derived from the legal service provider's acts or omissions concerning the handling of the underlying action."

§ 6-5-572(5), Ala. Code 1975.

Section 6-5-579(a) appears to be a recognition that, under Alabama law, " '[i]n a legal malpractice case, the plaintiff must show that but for the defendant's negligence he would have recovered on the underlying cause of action ... or must offer proof that the outcome of the case would have been different.' " Independent Stave Co. v. Bell, Richardson & Sparkman, P.A., 678 So.2d 770, 772 (Ala. 1996) (quoting McDuffie v. Brinkley, Ford, Chestnut & Aldridge, 576 So.2d 198, 199-200 (Ala. 1991) ). In this case, Daniels's claims against the Morris defendants are not joined to an "underlying action." Accordingly, the provision § 6-5-579(a) requiring severance for separate trials is not applicable.

Further, we note that, other than the mistaken claim that § 6-5-579(a) requires it, neither the Morris defendants nor the circuit court has provided any justification for ordering a separate trial against the Morris defendants. Although we have recognized that a trial court has broad discretion to "shape the order of trial" and to order severance or separate trials, Ex parte Humana Medical Corp., 597 So.2d 670, (Ala. 1992), that discretion is not unbounded. Generally, an order for severance or separate trials must be in furtherance of "expedition and economy" or to avoid prejudice. See Rule 42, Ala. R. Civ. P.; Fox v. Hollar Co., 576 So.2d 223, 225 (Ala. 1991). In this case, there is no suggestion that judicial economy or avoidance of prejudice support bifurcating Daniels's claims against the Morris defendants from those against Johnson and staying the claims against the Morris defendants. Accordingly, we conclude that the order doing so is due to be vacated.

We emphasize that this opinion is not a statement as to the merits or viability of Daniels's claims against the Morris defendants; it holds only that the ALSLA does not require that the adjudication of those claims await separate resolution of Daniels's claims against Johnson.

Finally, as to Daniels's contention that he is entitled to a default judgment against the Morris defendants, we deny the petition. This Court has recognized that a movant is not entitled to a default judgment as a matter of right, and "it is well settled that an entry of a default judgment under Rule 55(b)(2), Ala. R. Civ. P., is a matter entrusted to the sound discretion of the trial court." City of Gulf Shores v. Harbert Int'l, 608 So.2d 348, 357-58 (Ala. 1992). Based on the information before us, Daniels has not established a clear legal right to a default judgment against the Morris defendants.

IV. Conclusion

We conclude that the ALSLA does not require that Daniels's claims against the Morris defendants be bifurcated and stayed pending resolution of his claims against Johnson. Accordingly, the circuit court is directed to vacate its order bifurcating and staying Daniels's claims against the Morris defendants. Daniels, however, has not established a clear legal right to a default judgment against the Morris defendants. Thus, as to the request for a default judgment, the petition is denied.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Stuart, C.J., and Bolin, Parker, Wise, Bryan, Sellers, and Mendheim, JJ., concur.

Shaw, J., concurs specially.

SHAW, Justice (concurring specially).

A trial court has discretion in deciding whether to separate claims and parties for trial: "In short, Rule 42 [, Ala. R. Civ. P.,] authorizes the trial court to bifurcate trials in furtherance of convenience or to avoid prejudice or when separate trials will be conducive to expedition and economy." Certain Underwriters at Lloyd's, London v. Southern Natural Gas Co., 142 So.3d 436, 452 (Ala. 2013). But, although the Committee Comments on the 1973 Adoption of Rule 42 indicate that Rule 42"gives the trial court a virtually unlimited freedom to order separate trials of claims, issues, or parties, as may seem dictated by convenience and the desire to avoid prejudice," they also state that

"separate trials are to be ordered only where needed 'in furtherance of convenience or to avoid prejudice.' Separate trials are not to be granted merely because the matters involved would have been tried separately before the rules were adopted, or because some of the parties might prefer separate trials. It is the interest of efficient judicial administration which is to be considered, rather than the wishes of the parties."

It does not appear to me that the circuit court ordered separate trials on the basis of convenience, to avoid prejudice, or for purposes of economy, one of which factors must exist for the trial court to have "virtually unlimited freedom to order separate trials." Specifically, arguments regarding such factors were not made to the circuit court in the motion to "sever and stay." Further, the circuit court's order does not evidence that such considerations were the basis of its decision. Instead, it was argued that Ala. Code 1975, § 6-5-579(a), essentially required a severance/separation of claims and parties in this case-that there was no discretion for the circuit court to exercise. Because, as the main opinion shows, that premise was incorrect, the only basis of the motion to "sever and stay"-and presumably the circuit court's decision-was without merit.

In this petition for the writ of mandamus, "[t]he burden of establishing a clear legal right to the relief sought rests with the petitioner." Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala. 2007). The respondents thus have no burden to provide justification for the circuit court's actions. That said, if the circuit court exercised its discretion to serve the permissible purposes for a separation of the parties and claims identified above, such purposes are simply not evidenced in the materials before us. See Ex parte Duncan Constr. Co., 460 So.2d 852, 854 (Ala. 1984) ("We find no factual or legal grounds supporting the trial court's conclusions. We are constrained, therefore, to hold that the court's severance of all third-party claims ... amounts to an abuse of that court's discretion.").

      The Morris defendants' motion requested that the claims be "severed," and the parties use the term "severance" to describe the order. The circuit court's order, however, states only that the claims are "bifurcated"; there is no indication that the circuit court intended that the claims against the Morris defendants be made an independent action. Accordingly, we treat the order as an order separating trials under Rule 42(b), Ala. R. Civ. P., rather than a true severance under Rule 21, Ala. R. Civ. P.


author: THOMPSON, Presiding Judge.

text:
    Vanessa Genise WISE v. Bruce Edward WISE, Jr.
    2170022
    Court of Civil Appeals of Alabama.
    May 18, 2018
    Rachelle Greczyn of Legal Services Alabama, Inc., Dothan, for appellant.
    Joshua J. Holcomb, Ozark, for appellee.
   THOMPSON, Presiding Judge.

Vanessa Genise Wise ("the mother") appeals from a default judgment entered by the Dale Circuit Court ("the trial court") divorcing her from Bruce Edward Wise, Jr. ("the father"), dividing the parties' marital property, and awarding the father custody of the parties' three minor children ("the children") subject to the mother's visitation.

The record indicates the following. The father is in the United States Army. He and the mother married in Hawaii in October 2010. The parties' oldest child was born before the marriage; the younger two children were born during the course of the marriage. At some point, the father was stationed at Fort Rucker, and the family moved to Dale County. In October 2016, the mother and the children moved to Missouri and began living in a house the parties owned there.

On May 18, 2017, the father filed a complaint for a divorce in the trial court. He attempted to perfect service of the summons and complaint by certified mail, which was left unclaimed, and by personal service through a private process server and a law-enforcement agency in Missouri. Attempts to serve the mother were unsuccessful. Ultimately, on June 21, 2017, the father requested that he be permitted to serve the mother by first-class mail. The trial court granted the father's request on June 22, 2017, stating that, upon notification of the mailing of the summons and complaint being placed in the record, the mother would be deemed served. On June 23, 2017, the father notified the court that he had mailed the summons and complaint to the mother via the United States Postal Service.

The mother did not answer the complaint. On July 31, 2017, the father filed an application for an entry of default against the mother, and he filed an amended application on August 7, 2017. The trial judge signed an order titled "entry of default," finding the mother to be in default, on August 8, 2017. That same day, the trial court entered a default judgment divorcing the parties ("the divorce judgment"), stating that, in doing so, it relied on the complaint, the father's written testimony, and the default of the mother. In the judgment, among other things, the trial court awarded the father custody of the children subject to the mother's visitation.

On August 24, 2017, the mother filed an unverified motion seeking to set aside the divorce judgment and requesting an immediate hearing. She filed an amended motion to set aside on August 31, 2017, in which she also claimed that the divorce action was due to be dismissed for lack of personal jurisdiction, pursuant to Rule 12(b)(2), Ala. R. Civ. P. The amended motion, too, was unverified. No affidavits or other evidentiary submissions were attached to either of the motions to set aside. In the motions, the mother claimed that she never received notice of certified mail having been sent to her, and she denied that she had attempted to avoid service. She also said that she had a "pending" order of protection from a court in Missouri and that she had had a "no contact order" from the Department of the Army since April 2017.

Furthermore, in her amended motion to set aside the divorce judgment, the mother averred that she had always been the primary caregiver for the children and that it was in the best interests of the children for her to have primary physical custody of them. She also claimed that she was the "fit and proper person to continuously care for the children's needs."

The father filed an opposition to the mother's initial motion to set aside, saying that the mother's claim that she was unaware of the divorce proceeding was "doubtful."

An evidentiary hearing was held on the mother's amended motion on September 5, 2017. At the hearing, the mother testified that she and the children had moved to St. Louis, Missouri, in October 2016 because, she said, the father was "to go to Honduras on a tour which was cancelled." She said that the father had encouraged their move to Missouri.

The mother also testified that she had never been served with the divorce complaint. She said that she did not ignore people knocking on her door and that, to her knowledge, no deputy or private process server had ever come to her house. She also testified that she never received any notices for certified mail. She said that she believed that the father had had her mail in Missouri forwarded to him in Alabama. She also stated that she had never attempted to avoid service of the complaint.

On cross-examination, the father introduced evidence of two tracking receipts that indicated that notice of certified mail had been left at the correct address at the house where the mother lived in Missouri. The mother acknowledged that she received the divorce judgment at that address. A change-of-address form for the father, individually, requesting that his mail be forwarded from the house in Missouri to Fort Rucker was also submitted into evidence.

The mother also testified that she had called "the courts quite often," apparently regarding this matter. She said that she had asked the father's attorney to send information to her and to her attorney but that "I have emails stating he refused to send" any information. In response to a question from the trial judge, the mother said that she had been aware of the divorce proceeding when she telephoned the court seeking information about the action.

The mother attempted to testify regarding certain conduct of the father. The father's attorney objected to the testimony on the ground that it was not relevant to the mother's amended motion to set aside the divorce judgment, and the trial court sustained the objection.

After the hearing, the trial court entered an order denying the mother's amended motion to set aside the divorce judgment and to dismiss the divorce action pursuant to Rule 12(b), Ala. R. Civ. P. The mother timely appealed the judgment to this court.

On appeal, the mother contends that the trial court abused its discretion in refusing to set aside the divorce judgment.

" 'A trial court has broad discretion in deciding whether to grant or deny a motion to set aside a default judgment. Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988). In reviewing an appeal from a trial court's order refusing to set aside a default judgment, this Court must determine whether in refusing to set aside the default judgment the trial court exceeded its discretion. 524 So.2d at 604. That discretion, although broad, requires the trial court to balance two competing policy interests associated with default judgments: the need to promote judicial economy and a litigant's right to defend an action on the merits. 524 So.2d at 604. These interests must be balanced under the two-step process established in Kirtland.
" 'We begin the balancing process with the presumption that cases should be decided on the merits whenever it is practicable to do so. 524 So.2d at 604. The trial court must then apply a three-factor analysis first established in Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala. 1987), in deciding whether to deny a motion to set aside a default judgment. Kirtland, 524 So.2d at 605. The broad discretionary authority given to the trial court in making that decision should not be exercised without considering the following factors: "1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct." 524 So.2d at 605.' "
" Zeller v. Bailey, 950 So.2d 1149, 1152-53 (Ala. 2006)."

Brantley v. Glover, 84 So.3d 77, 80-81 (Ala. Civ. App. 2011) (emphasis added). All three factors set out in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988), must be considered, but there is no requirement that all three must be resolved in favor of the movant for the default judgment to be set aside. Sumlin v. Sumlin, 931 So.2d 40, 45 (Ala. Civ. App. 2005).

Scrutiny of the granting or denial of default judgments is even greater in cases involving the custody of children. The strong bias in favor of deciding cases upon the merits identified by the Kirtland court is particularly strong in domestic-relations cases. Sumlin v. Sumlin, supra ; DeQuesada v. DeQuesada, 698 So.2d 1096 (Ala. Civ. App. 1996) ; and Evans v. Evans, 441 So.2d 948, 950 (Ala. Civ. App. 1983) ; see also Buster v. Buster, 946 So.2d 474, 478 (Ala. Civ. App. 2006).

This court has written that

"a particularly 'strong bias' exists for deciding domestic-relations cases on the merits. Buster v. Buster, 946 So.2d 474, 478 (Ala. Civ. App. 2006). As this court stated in DeQuesada [v. DeQuesada, 698 So.2d 1096 (Ala. Civ. App. 1996) ], ' "[w]e think that especially in the divorce context, a court should be particularly reluctant to uphold a default judgment (and thereby deprive a litigant of his day in court) because it means that such important issues as child custody, alimony, and division of property will be summarily resolved." ' 698 So.2d at 1099 (quoting Evans v. Evans, 441 So.2d 948, 950 (Ala. Civ. App. 1983) ).
"Furthermore, this court has previously stated that ' "we can envision no species of case in which the 'strong bias' in favor of reaching the merits ... could be any stronger than in a case such as this involving custody of a minor child." ' Buster, 946 So.2d at 478 (quoting Sumlin v. Sumlin, 931 So.2d 40, 44 (Ala. Civ. App. 2005), quoting in turn Kirtland, 524 So.2d at 605 )."

Bates v. Bates, 194 So.3d 976, 978-79 (Ala. Civ. App. 2015).

After applying the presumption that a case should be tried on its merits whenever practicable, courts are to consider the second prong of the Kirtland analysis. The first of the Kirtland factors the trial court was required to consider was whether the mother had a meritorious defense. Kirtland, 524 So.2d at 605.

" ' "To present a meritorious defense, for Rule 55(c)[, Ala. R. Civ. P.,] purposes, does not require that the movant satisfy the trial court that the movant would necessarily prevail at a trial on the merits, only that the movant show the court that the movant is prepared to present a plausible defense." ' B.E.H., Jr. v. State ex rel. M.E.C., 71 So.3d 689, 693 (Ala. Civ. App. 2011) (quoting Sampson v. Cansler, 726 So.2d 632, 634 (Ala. 1998) ). Moreover, the defense offered 'must be of such merit as to induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeably alter the outcome of the case.' Kirtland, 524 So.2d at 606."

Bates, 194 So.3d at 979.

The Kirtland court provided guidance for analyzing what constitutes a meritorious defense, writing:

"Although the showing of a meritorious defense is a necessary and practical requirement, the quantum of evidence needed to show a meritorious defense has caused some controversy. For this reason, we now establish a standard that will be both workable and consistent with our policy objectives. The defense proffered by the defaulting party must be of such merit as to induce the trial court reasonably to infer that allowing the defense to be litigated could foreseeably alter the outcome of the case. To be more precise, a defaulting party has satisfactorily made a showing of a meritorious defense when allegations in an answer or in a motion to set aside the default judgment and its supporting affidavits, if proven at trial, would constitute a complete defense to the action, or when sufficient evidence has been adduced either by way of affidavit or by some other means to warrant submission of the case to the jury."

Kirtland, 524 So.2d at 606.

In Harkey v. Harkey, 166 So.3d 126, 127-28 (Ala. Civ. App. 2014), this court considered what constituted a meritorious defense in a domestic-relations context, stating:

"From our review of the record, it appears that the wife presented a meritorious defense by asserting that the husband was not a suitable person to have custody of the children, that she was the children's primary caretaker, and that it would serve the children's best interests for her to remain as their custodian. See Loupe v. Loupe, 594 So.2d 155, 156 (Ala. Civ. App. 1992) (holding that the first factor of Kirtland had been met because the father had 'alleged that he [was] the fit and proper person to be awarded custody of the children' and '[i]t [was] foreseeable that the father could produce evidence on th[ose] points that could change the outcome of the trial court's judgment')."

In this case, in her amended motion to set aside the divorce judgment, the mother averred that she was the children's primary caregiver, that she was the "fit and proper person to continuously care for the children's needs," and that it was in the children's best interests for her to have primary physical custody of the them. She also stated that she had an order of protection "pending" against the father in Missouri and a "no contact order" issued to the father from the Department of the Army. Admittedly, the mother did not submit a supporting affidavit or other documentary evidence with her motions to set aside the divorce judgment. However, at the hearing on the amended motion, the mother's testimony regarding the reason for her move to Missouri, i.e., that the father had orders to report to serve in Honduras, conflicted with the father's contention that the mother had "absconded with the children" to Missouri without telling him.

At the hearing, the mother also attempted to testify to the father's alleged domestic violence and threatening behavior, saying that she had called police when the father attempted to kick in the door to the house where she was living with the children in Missouri. As mentioned, the father objected to this line of testimony, claiming that it was not relevant. The trial court sustained the father's objections.

Based on our review of the record, the mother's averments in the amended motion to set aside the divorce judgment and the testimony she was able to present at the hearing demonstrate that it was foreseeable that the mother could present evidence at trial that could change the outcome of the judgment, especially as it regards the custody of the children. Accordingly, we conclude that the mother successfully demonstrated that she had a meritorious defense.

Our review of the record indicates that the mother presented little to no evidence regarding whether the father will be unfairly prejudiced if the divorce judgment is set aside. As to this factor, however, we note that

" 'delay alone is not a sufficient basis for establishing prejudice. Rather, it must be shown that delay will "result in the loss of evidence, create increased difficulties of discovery, or provide greater opportunity for fraud and collusion." ' (Citations omitted.) Davis v. Musler, 713 F.2d 907, 916 (2d Cir. 1983) (cited with approval in Kirtland, 524 So.2d at 607 )."

Owens v. Owens, 626 So.2d 640, 642 (Ala. Civ. App. 1993). Because the mother filed her initial motion to set aside slightly more than two weeks after the "entry of default" and the divorce judgment were entered, it is unlikely that the father would suffer undue prejudice of the type contemplated in Kirtland. See Harkey, 166 So.3d at 128 (noting that it seemed that no undue prejudice would befall the husband by setting aside the default judgment because the wife had filed her first motion to set aside the default judgment only a week after its entry, so the evidence material to the divorce should still have been available).

Finally, as to whether the divorce judgment was entered as a result of the mother's culpable conduct, the mother testified at the hearing that she did not attempt to avoid service. Thus, she argues, she was not guilty of any culpable conduct warranting the denial of her amended motion to set aside the divorce judgment.

"Conduct committed wilfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient. Willful and bad faith conduct is conduct characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness."

Kirtland, 524 So.2d at 607-08 (citations omitted). The Kirtland court went on to explain: "However, a defaulting party's reasonable explanation for inaction and non compliance may preclude a finding of culpability. See [ Ex parte] Illinois Central Gulf [R.R., 514 So.2d 1283] at 1288 [ (Ala. 1987) ]; see, also, Annot., 29 A.L.R. Fed 7, § 5." Id. at 608.

In Fuller v. Fuller, 991 So.2d 285 (Ala. Civ. App. 2008), this court held that the trial court had abused its discretion when it denied the wife's motion to set aside the default judgment that had been entered in that case. The facts in Fuller are similar to those in this case. The husband filed a complaint for a divorce and sought custody of the parties' children. When the wife did not respond to the complaint, the husband moved for a default judgment. The trial court entered a default against the wife, then entered a default judgment divorcing the parties and awarding the husband "full-time" custody of their children. Id. at 286-87.

The wife, who was a resident of Mississippi, filed a motion to set aside the default judgment, claiming that she never received service of the complaint. The trial court denied the wife's motion. Id. at 286-87. This court reversed the trial court's refusal to set aside the default judgment. In discussing the issue of the wife's culpable conduct, we wrote:

"The implicit finding that the wife refused service of process is sustainable on the record, as discussed above. However, we note that, pursuant to our Kirtland analysis, the wife advanced the reasonable explanation that she had not received service of process, had not refused service of process, and had acted promptly in seeking relief from the default judgment. In Fries Correctional Equipment, Inc. v. Con-Tech, Inc., 559 So.2d 557 (Ala. 1990), our supreme court applied a Kirtland analysis to reverse a trial court's judgment denying a motion to set aside a default judgment. In Con-Tech, Inc., the supreme court acknowledged that there was a finding of refusal to accept service, but it noted that, because the claims were so much in dispute, the movant's 'avoidance of service might be grounds for imposition of costs or other sanctions, but should not be grounds for a refusal to set aside such a large default judgment.' 559 So.2d at 563."

991 So.2d at 291-92. See also Harkey, 166 So.3d at 128 ("[T]he trial court may have determined that the wife consciously or unreasonably failed to answer the complaint and participate in the litigation, but that circumstance alone has been deemed insufficient to deny a motion to set aside a default judgment in a child-custody case.").

In this case, the trial court did not set forth findings of fact in its order denying the mother's amended motion to set aside the divorce judgment. However, as Fuller and Harkey both indicate, even if the trial court had found that the wife intentionally avoided service, as the father claims, the mother has disputed the father's assertion, and her " 'avoidance of service might be grounds for imposition of costs or other sanctions, but should not be grounds for a refusal to set aside' " a default judgment when the custody of the parties' children is at stake. Fuller, 991 So.2d at 292 ; see also Sumlin, 931 So.2d at 49.

Considering the presumption that a trial on the merits is preferable and the "strong bias" in favor of deciding cases concerning child custody on the merits, and giving consideration to the mother's demonstration of a meritorious defense and the harshness of denying a trial on the merits when the custody of the children is at stake, in balancing the equities presented in this case we conclude that the trial court abused its discretion in denying the mother's amended motion to set aside the "entry of default" and the ensuing default judgment divorcing the parties. Accordingly, the "entry of default" and the divorce judgment are reversed, and the cause is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

Pittman, Thomas, and Donaldson, JJ., concur.

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


author: THOMAS, Judge. MOORE, Judge, dissenting.

text:
    Deronyo TOLBERT v. Francesca G. ERVIN
    2170025
    Court of Civil Appeals of Alabama.
    May 18, 2018
    Earl P. Underwood, Jr., of Underwood & Riemer, P.C., Fairhope, for appellant.
    Submitted on appellant's brief only.
   THOMAS, Judge.

Deronyo Tolbert appeals from a judgment entered by the Baldwin Circuit Court ("the circuit court") in favor of Francesca G. Ervin on his claim alleging that Ervin owed $2,846 for landscaping performed by Tolbert. Tolbert originally sued Ervin in the Baldwin District Court ("the district court"); Ervin answered and counterclaimed, seeking damages for breach of contract and for negligence. After a trial, the district court entered a judgment in favor of Tolbert on his claim and on Ervin's counterclaims. According to Ervin, she filed a notice of appeal indicating her desire to appeal the district court's judgment to the circuit court. Tolbert moved to dismiss Ervin's action in the circuit court, arguing that Ervin had not properly perfected her appeal. The circuit court denied that motion, and the case was tried; the circuit court then entered a judgment in favor of Ervin on Tolbert's claim and in favor of Tolbert on Ervin's counterclaims, and Tolbert appealed. On appeal, Tolbert argues only that the circuit court erred in denying his motion to dismiss Ervin's appeal.

Tolbert contends that the record does not contain a copy of the notice of appeal filed in the district court. He also notes that the State Judicial Information System case-action-summary sheet from the district court does not reflect that Ervin filed a notice of appeal in the district court. Thus, he argues, the circuit court never acquired subject-matter jurisdiction over the attempted appeal.

However, the case-action-summary sheet from the circuit-court appeal indicates that the circuit-court clerk had in its possession a copy of the notice of appeal, copies of which were provided with a notice that was served on both parties on March 28, 2017. Thus, the record reflects that Ervin filed her notice of appeal on or before that date, rendering it timely. Furthermore, a copy of the fee sheet from the circuit court reflects that Ervin paid in the circuit court the fee for the appeal and the appeal bond set by the district court.

Tolbert appears to be arguing that the notice of appeal was improperly filed with the circuit-court clerk, as opposed to the district-court clerk, rendering the filing of the notice of appeal ineffective. However, we note that the clerk of the circuit court acts as the ex officio clerk of the district court. See Ala. Code 1975, § 12-17-160 ("Except as otherwise provided in this article, the clerk of the circuit court shall be ex officio clerk of the district court within the circuit and shall have administrative responsibility for and supervision of the records and clerical services of the district court in accordance with applicable general laws and rules."). Although, pursuant to Ala. Code 1975, § 12-17-161(a) and (b), our supreme court has the authority to authorize "the operation of a separate clerk's office for the district court of a county" and the Administrative Director of Courts has the authority to appoint a clerk of the district court in such circumstances, Baldwin County has no district-court clerk, and, as of April 10, 2018, our supreme court has abolished the office of district-court clerk. Thus, because a circuit-court clerk is, in effect, also the district-court clerk, a filing in the "wrong" court is deemed to have been properly filed. See Ex parte Higgins, 423 So.2d 227, 228 (Ala. 1982) (construing former Ala. Code 1975, § 26-12-2, which required that a notice of appeal from a paternity judgment be filed in both the circuit court and the juvenile court, as having been satisfied by the filing of one notice of appeal with the circuit-court clerk in a circuit in which no district-court clerk had been appointed pursuant to § 12-17-161 ); and Upton v. Mississippi Valley Title Ins. Co., 469 So.2d 548 (Ala. 1985) (concluding that the filing of postjudgment motions in the office of the district-court clerk instead of the office of the circuit-court clerk was an effective and timely filing of the postjudgment motions because the circuit-court clerk was the ex officio clerk of the district court).

The dissent argues, based on Brock v. Stimpson, 253 Ala. 138, 43 So.2d 133 (1949), and the cases cited therein, that the absence of a copy of the notice of appeal from the district court to the circuit court in the record compels dismissal of this appeal. However, the statutory provisions applicable at the time Brock and the cases cited therein were decided were applicable only to appeals to the Alabama Supreme Court and (1) did not necessarily require the filing of a written notice of appeal, see Ala. Code 1940, Tit. 7, § 766; Ala. Code 1923, § 6101; Riddle v. Adams, 231 Ala. 596, 165 So. 848 (1936) (noting that the appeal was initiated by the filing of an appeal bond ); and McLeod v. Turner, 230 Ala. 673, 673, 162 So. 309, 310 (1935) (noting that "[t]he appeal was taken ... by the filing of an appeal bond"), (2) required that the clerk, upon the taking of appeal, "issue a citation to the adverse party ... notifying him of the appeal," see Ala. Code 1940, Tit. 7, § 801; Ala. Code 1923, § 6140; and Ala. Code 1907, § 2881, and (3) required that the clerk deliver to the appellant with the appellate record "his certificate that the appeal was taken, and the time when, and when returnable, and the citation and a copy of the appeal bond, if any was given ...." Ala. Code 1940, Tit. 7, § 767; Ala. Code 1923, § 6106; and Ala. Code 1907, § 2848. In Brock and in each case upon which it relied, the appeal was dismissed because the record contained either no citation of appeal from the clerk or because that citation had not been properly served on the appellee. Brock, 253 Ala. at 139, 43 So.2d at 134 (dismissing the appeal because no citation of appeal had been served on the appellee); Riddle, 231 Ala. at 597, 165 So. at 848 (dismissing the appeal because the attempted service of the citation on the appellee by registered mail was improper); McLeod, 230 Ala. at 673, 162 So. at 310 (dismissing the appeal because the record did not indicate that a citation of appeal had been served on the appellee and because the record lacked a certificate of appeal issued by the clerk); and State ex rel. Lynne v. Gurley, 217 Ala. 666, 666-67, 117 So. 297, 297-98 (1928) (dismissing the appeal because the record did not reveal that the appellee had been served with a citation of appeal or other notice of the existence of the appeal). Thus, those cases do not stand for the proposition that the lack of a copy of the notice of appeal in the record requires the dismissal of an appeal from the district court to the circuit court. Instead, those cases appear to focus on whether the appellee had been given due notice of the existence of the appeal and was therefore a party in the appellate court.

Based on the information contained in the record, we are not convinced that Ervin did not timely and properly file her notice of appeal. Although the district-court case-action-summary sheet should reflect the notice of appeal, the fact that it does not is not compelling, in light of the fact that the circuit court case-action-summary sheet shows that a copy of the notice of appeal was provided to both parties by the circuit court within the 14-day period for appeal and that payment for the appeal and the appeal bond were accepted during that same period. Cf. Ex parte Riverchase Galleria Mall, 192 So.3d 404, 405 (Ala. Civ. App. 2015) (indicating that a notice of appeal was timely filed when stamped by the clerk within the applicable 14-day period for appeal). That information, coupled with the circuit court's denial of Tolbert's motion to dismiss, see Ex parte Higgins, 423 So.2d at 228 (noting that the circuit court in that appeal had denied a motion to dismiss based upon the argument that the postjudgment motions had not been filed with the clerk of the circuit court but, instead, had been filed with the clerk of the district court), supports the conclusion that a timely notice of appeal was properly filed by Ervin. Accordingly, because Tolbert makes no argument pertaining to the propriety of the judgment in favor of Ervin, we affirm the judgment of the circuit court.

AFFIRMED.

Thompson, P.J., and Pittman and Donaldson, JJ., concur.

Moore, J., dissents, with writing.

MOORE, Judge, dissenting.

Under Ala. Code 1975, § 12-12-70(a), a party appealing from a civil judgment of a district court must file a timely and proper notice of appeal "in the district court" in order to invoke the appellate jurisdiction of the supervising circuit court. I agree with the main opinion that a notice of appeal can be filed "in the district court" by filing it with the clerk of the circuit court when the clerk of the circuit court acts as an ex officio clerk of the district court, as is the case in Baldwin County. However, in this case, the record contains no copy of the notice of appeal that was allegedly filed in the office of the clerk of the Baldwin Circuit Court.

In a line of cases predating the promulgation of the Alabama Rules of Appellate Procedure, our supreme court held: "Due service of citation of appeal on the adverse party, his attorney or solicitor, is necessary to invoke the jurisdiction of this court, and without the record so showing, the appeal is subject to dismissal." Brock v. Stimpson, 253 Ala. 138, 139, 43 So.2d 133, 134 (1949) (citing Riddle v. Adams, 231 Ala. 596, 165 So. 848 (1936) ; McLeod v. Turner, 230 Ala. 673, 162 So. 309 (1935) ; and State ex rel. Lynne v. Gurley, 217 Ala. 666, 117 So. 297 (1928) ) (emphasis added). Considering that the more liberal Alabama Rules of Appellate Procedure now in place do not apply to appeals from a district court to a circuit court, see Finch v. Finch, 468 So.2d 151 (Ala. 1985), it would seem that that old line of cases would apply equally to appeals from the district court to the circuit court such that, in the absence of a record showing that a timely and proper notice of appeal had been filed, the appeal would be subject to dismissal.

In this case, the main opinion essentially holds that the record contains sufficient indicia from which the Baldwin Circuit Court could have inferred that Francesca G. Ervin did, in fact, file a timely and proper notice of appeal with the clerk of the Baldwin Circuit Court. Because the filing of a notice of appeal is a jurisdictional act requiring strict compliance, see Singleton v. Graham, 716 So.2d 224, 226 (Ala. Civ. App. 1998), I am inclined to believe that the record should contain a copy of the date-stamped notice of appeal and that any lesser evidence would not suffice to prove that the notice of appeal had, in fact, been timely and properly filed. By relaxing this requirement, I believe that the main opinion sets a dangerous precedent that could lead to confusion and uncertainty as to the proper methods for invoking the appellate jurisdiction of the circuit courts.

This court has received some information in this case that indicates that the notice of appeal may have been lost. If so, Ervin should have moved the Baldwin Circuit Court to substitute a copy of the notice of appeal. See Ala. Code 1975, § 12-20-26 ("All courts have the inherent power, if original papers or records pertaining to matters of civil jurisdiction or to civil actions which are pending or which have been determined are lost, mislaid, destroyed or mutilated, to cause a substitution thereof, and the substituted paper or record is of equal validity with the original."). The record indicates, however, that Ervin did not make any motion for substitution. As a result, the record contains no copy of the notice of appeal, and, in my opinion, that jurisdictional defect renders the appeal to the Baldwin Circuit Court ineffective.

In the absence of a record of the notice of appeal, the Baldwin Circuit Court never acquired appellate jurisdiction. All of its orders and judgments are therefore void, and this appeal should be dismissed with instructions to the Baldwin Circuit Court to vacate its judgment. See Singleton, supra. Because the main opinion concludes otherwise, I respectfully dissent.


text:
    P.H. v. BUTLER COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170380 2170381 2170382
    Court of Civil Appeals of Alabama.
    May 18, 2018
    T. Brandon Simmons, Greenville, for appellant.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

On March 7, 2017, the Butler County Department of Human Resources ("DHR") filed in the Butler Juvenile Court ("the juvenile court") three petitions, each seeking to terminate the parental rights of P.H. ("the mother") and F.M., Jr. ("the father"), to one of their three minor children. The mother filed answers opposing DHR's petitions and asserted counterclaims in which she sought the return of custody of each of the three children. DHR moved for the entry of a default judgment against the father in each of the termination actions.

The juvenile court scheduled a November 8, 2017, hearing. On that same date, the mother executed and filed in the juvenile court three documents consenting to the termination of her parental rights.

On November 17, 2017, the juvenile court entered judgments terminating the parents' parental rights. On November 28, 2017, the juvenile court entered "amended orders" in each action, again determining that the parents' parental rights were terminated. The only discernable difference between the November 17, 2017, judgments and the November 28, 2017, amended judgments is a change to reflect a different date on which those judgments were signed by the juvenile-court judge. The judgments entered on November 17, 2017, contain a handwritten notation indicating that those judgments were signed on November 13, 2017. The November 28, 2017, amended judgments indicate that those amended judgments were signed by the juvenile-court judge on November 8, 2017.

The record contains no indication of the reason the judgments were amended to change the date on which the juvenile-court judge signed the judgments. However, it is clear that the date on which the juvenile-court judge signed the judgments did not affect the substance of those judgments; therefore, the November 28, 2017, amended judgments appear to correct a clerical error. See Rule 60(a), Ala. R. Civ. P. ("Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders."). "The effect of a Rule 60(a) amendment is a correction of the original judgment to reflect the original intention of the trial court. There was no change in the actual judgment. The amendment relates back to the original judgment and becomes a part of it." Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 829 (Ala. Civ. App. 1997). "A Rule 60(a) correction has no bearing on the timeliness of an appeal from the original uncorrected judgment." J.S. v. S.W., 702 So.2d 169, 171 (Ala. Civ. App. 1997).

On December 8, 2017, the mother filed a single motion that was applicable to each case seeking to withdraw her consent to the termination of her parental rights and to set aside the November 28, 2017, "amended orders." That motion, which was made pursuant to Rule 59(e), Ala. R. Civ. P., was not timely filed within 14 days of the entry of the November 17, 2017, judgments. See Rule 1(B), Ala. R. Juv. P. ("All postjudgment motions ... must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days ...."). Thus, the December 8, 2017, motion did not operate to extend the time for appealing from the November 17, 2017, judgments. C.B. v. D.P.B., 80 So.3d 918, 920 (Ala. Civ. App. 2011).

The juvenile court purported to grant that December 8, 2017, motion and scheduled a "review docket/hear" for December 18, 2017. On December 28, 2017, the juvenile court purported to enter judgments in which it stated that DHR's actions had been "retried based on the granting of [the mother's] request to withdraw her consent to termination." In those judgments, the juvenile court again purported to grant DHR's petitions to terminate the parents' parental rights.

On December 29, 2017, the mother filed a motion that was applicable to each case, purportedly pursuant to Rule 59, Ala. R. Civ. P., and, on that same date, she filed three separate notices of appeal to this court. This court consolidated the appeals.

We conclude that the mother's notices of appeal were untimely filed. In the absence of a timely filed postjudgment motion, the mother had 14 days following the entry of the November 17, 2017, judgments in which to timely appeal those judgments. J.J. v. R.R., 159 So.3d 84, 86 (Ala. Civ. App. 2014) ; K.Y.W. v. Jefferson Cty. Dep't of Human Res., 167 So.3d 368, 370 (Ala. Civ. App. 2014) ; see also Rule 4(a)(1)(E), Ala. R. App. P. (providing that a party has 14 days to appeal a judgment entered in a juvenile action). The mother's untimely December 8, 2017, postjudgment motion did not suspend the time for filing a notice of appeal, and, therefore, her notices of appeal, which were filed more than 14 days after the entry of the November 17, 2017, judgments, were untimely. F.G. v. State Dep't of Human Res., 988 So.2d 555, 557 (Ala. Civ. App. 2007). An untimely appeal does not invoke this court's jurisdiction; therefore, we must dismiss these appeals. K.Y.W. v. Jefferson Cty. Dep't of Human Res., supra ; and Rule 2(a)(1), Ala. R. App. P. ("An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.").

2170380-APPEAL DISMISSED.

2170381-APPEAL DISMISSED.

2170382-APPEAL DISMISSED.

Pittman, Thomas, Moore, and Donaldson, JJ., concur.