Boudreaux v. Kemp

• Decision Date: 16 April 2010
• Docket Number: 1080309.
• Parties: Deborah Ann Stevens BOUDREAUX et al. v. Mendal KEMP and Thomasine Kemp Edwards.
• Court: Alabama Supreme Court

49 So.3d 1190

Deborah Ann Stevens BOUDREAUX et al.

v.Mendal KEMP and Thomasine Kemp Edwards.

1080309.

Supreme Court of Alabama.

April 16, 2010.

Matthew G. Weathers and Juliet V. Crawford of Crawford & Weathers, LLC, Birmingham, for appellants.

Jack Floyd, Gadsden, for appellees.

SHAW, Justice.

Deborah Ann Stevens Boudreaux, Shelia Joy Stevens, Janie Dena Harper Stallings, Melinda Luanne Merritt Nix, Michael John Stevens, Craig Allen Stevens, Charles Edmond Harper, James Richard Harper, Sherry Jean Harper Shows, Mariann Merritt Holder, Warren Thomas Stevens, Rachel Jonnette Stevens Thrasher, and Paula L. Tidwell, the purported heirs of Frank E. Stevens (hereinafter collectively referred to as "the appellants"), appeal from an order of the Cherokee Circuit Court denying their motion for relief from a default judgment in favor of Mendal Kemp and Thomasine Kemp Edwards, the plaintiffs below, in Kemp and Edwards's action seeking to enforce an alleged oral contract to devise. We reverse and remand.

Facts and Procedural History

Kemp and Edwards are the nephew and niece of Bernice Stevens and the nephew and niece by marriage of Bernice's husband, Frank E. Stevens. According to Kemp and Edwards, in or around 1995, Bernice and Frank, who were childless, orally agreed to devise their entire estate to Kemp and Edwards in exchange for the promise to care for Bernice and Frank until their respective deaths. Bernice died in June 1997. Kemp and Edwards allege that, immediately before her death, Bernice reminded them of their promise, and,following her death, Frank renewed the aforementioned oral agreement, again allegedly promising "that in consideration for [Kemp and Edwards's] looking after [Frank] during the remainder of his natural life, ... [Frank] would transfer to [Kemp and Edwards] all the money and property he owned at the time of his death." According to Kemp and Edwards, at all times pertinent hereto, they acted in accordance with and fully performed the terms of the alleged oral agreement.

Frank died in March 2007, leaving a will executed in 1973. Frank's will left nothing to Kemp and Edwards; instead, he bequeathed his entire estate to Bernice. Frank's will contained no provision for the disposal of his assets should Bernice precede him in death.

In May 2007, Frank's will was submitted for probate to the Cherokee Probate Court; Tim Burgess was named personal representative of Frank's estate. A guardian ad litem for any potential heirs was appointed by the probate court. The guardian ad litem retained a genealogist to discover any potential heirs, and on July 9, 2007, the guardian ad litem filed a report in the probate court, identifying a total of 15 grandnieces and grandnephews of Frank. The report listed addresses for the 15 identified heirs, all of whom were not residents of Alabama, and specifically included the appellants.

In September 2007, Kemp and Edwards filed a claim against Frank's estate in the probate court and also filed the underlying action in the Cherokee Circuit Court seeking a judgment declaring that under the alleged oral contract to devise, "the remaining money assets and property of the estate of Frank E. Stevens are the property of [Kemp and Edwards]." The complaint named as defendants Burgess, in his capacity as personal representative of Frank's estate, five alleged heirs by name,¹ and any remaining unknown heirs. It did not, however, reference or include the remaining heirs identified in the genealogy report filed in the proceeding in the probate court. Upon motion of Kemp and Edwards, filed on September 21, 2007, and accompanied by an affidavit attesting to their inability after "diligent inquiry" to determine the names and addresses of Frank's heirs, Kemp and Edwards were permitted by the court to serve the five named heirs and any remaining unknown heirs by publication. ² Thereafter, beginning September 27, 2007, notice of the declaratory-judgment action was published in the Cherokee County Herald, a local newspaper, for four consecutive weeks.

On October 8, 2007, Burgess filed an answer to Kemp and Edwards's complaint denying the existence of an oral contract to devise and averring that, if Kemp and Edwards's allegations were true, their claims would be barred by the Statute of Frauds.³ Burgess's answer admitted thatFrank was not survived by his parents or grandparents, by any siblings, or by any nieces and nephews; however, in that pleading, Burgess specifically stated that "affidavits of heirship of Frank E. Stevens have been filed in the Probate Court ... which ... set forth the names and addresses of the heirs at law of Frank E. Stevens."

None of the appellants or the other heirs appeared or answered in response to Kemp and Edwards's service by publication, and, on February 5, 2008, Kemp and Edwards applied for the entry of default and a default judgment. On that same date, the circuit clerk executed an "entry of default" against the heirs of the estate-both named and unnamed.⁴

On February 20, 2008, the circuit court conducted a bench trial. No heirs appeared or moved to set aside the pretrial entry of default. However, as noted by Kemp and Edwards, the record does reflect that "several" of the appellants attended the trial. Except for the testimony of Melissa O'Neal Harper, the wife of James Richard Harper, Frank's grandnephew, which was presented by the personal representative, no heirs and none of the appellants actually participated or were heard by the circuit court during the bench trial. At the close of the evidence, the circuit court took the matter under submission.

On July 8, 2008, the circuit court entered a judgment in favor of Kemp and Edwards, concluding that Kemp and Edwards had demonstrated by clear and convincing evidence that "the agreement alleged by [Kemp and Edwards] existed and that they [had] performed in accordance with the agreement." In its order, as requested in the trial brief filed by Kemp and Edwards, the circuit court further imposed a constructive trust in favor of Kemp and Edwards on the assets of Frank's estate, subject to payment of the debts of the estate, if any, and the expenses of administration of the estate.

On August 7, 2008, Burgess filed a motion to vacate the judgment or, in the alternative, for a new trial. On that same date, the appellants also filed a postjudgment motion for a new trial and an accompanying motion seeking to stay the execution of the circuit court's judgment. In their motion, the appellants argued, among other things, that the default judgment was improper and that they were entitled to a new trial because, they said, service by publication was improper under the circumstances.⁵

Kemp and Edwards moved to strike any pleadings filed by the appellants on grounds that the appellants were dispensable, unnecessary parties, that they lacked standing to pursue the requested relief because their interests were being represented by Burgess, as personal representativeof Frank's estate, and that they had failed to move to intervene under Rule 24, Ala. R. Civ. P. Following a hearing, the circuit court struck the appellants' pleadings on grounds that they had failed to intervene, and because, it concluded, their interests were adequately represented by Burgess. The circuit court also denied Burgess's postjudgment motion. This appeal followed.⁶

Discussion

The appellants allege four separate grounds of error with regard to the circuit court's judgment in favor of Kemp and Edwards. Initially, we address their argument that service by publication was improper. Our resolution of this issue is determinative of the appeal.

Although filed more than six months after the entry of default by the circuit clerk and styled as a motion for a new trial, we construe the appellants' August 7, 2008, postjudgment motion as a Rule 55(c), Ala. R. Civ. P., motion to set aside the default judgment because it was timely filed within 30 days after the default judgment became final. See Hallman v. Marion Corp., 411 So.2d 130, 132 (Ala.1982) ("A judgment by default, rendered in advance against one of several defendants, is interlocutory until final disposition is made as to all the defendants." (citation omitted)); Ford Motor Credit Co. v. Carmichael, 383 So.2d 539, 542 (Ala.1980) ("[A] judgment by default, rendered in advance against one of several defendants, is interlocutory, until final disposition is made as to all the defendants."); McConico v. Correctional Med. Servs., Inc., 41 So.3d 8, 12 (Ala.Civ.App.2009) (" [B]ecause an entry of default is no more than an interlocutory order, it is not a final judgment, and relief from such an order is available under Rule 55(c)[, Ala. R. Civ. P.,] regardless of when the request is made."); and Lawler Mobile Homes, Inc. v. Ellison, 361 So.2d 1092, 1094 (Ala.Civ.App.1978) (noting both that "the default judgment ... because of the operation of Rule 54(b), [Ala. R. Civ. P.,] was not a final judgment and did not become final and appealable until the entry of the judgment dismissing the remaining defendant ...." and that "defendant had thirty days thereafter to file a motion to set aside the default judgment").

In Cameron v. Tillis, 952 So.2d 352, 353 (Ala.2006), this Court set out the following standard of review applicable to an order refusing to set aside a default judgment:

" 'The standard of review in the case of an order setting aside, or refusing to set aside, a default judgment proceeds on the basis that the trial judge has great discretion, and his judgment will not be disturbed unless he has clearly [exceeded] such discretion.' Roberts v. Wettlin, 431 So.2d 524, 526 (Ala.1983). However, '[w]hen the grant or denial [of a request for relief from a judgment] turns on the validity of the judgment, discretion has no place for operation. If the judgment is void, it is to be set aside; if it is valid, it must stand.' Smith v. Clark, 468 So.2d 138, 141 (Ala.1985)."

Applying the foregoing standard to the facts of the...