Ex parte King

• Decision Date: 24 March 2000
• Citation: 776 So.2d 31
• Parties: Ex parte Charles KING, as administrator cum testamento annexo of the estate of Lear Idellar King, deceased. (Re Charles King, as administrator cum testamento annexo of the estate of Lear Idellar King, deceased v. Virginia Dare King Robinson et al.)
• Court: Alabama Supreme Court

776 So.2d 31

Ex parte Charles KING, as administrator cum testamento annexo of the estate of Lear Idellar King, deceased.

(Re Charles King, as administrator cum testamento annexo of the estate of Lear Idellar King, deceased v. Virginia Dare King Robinson et al.)

1981993.

Supreme Court of Alabama.

March 24, 2000.

Rehearing Denied June 30, 2000.

Eric J. Breithaupt of Rives & Peterson, P.C., Birmingham, for petitioner.

Stan Brobston of Brobston & Brobston, P.C., Bessemer, for respondents.

HOOPER, Chief Justice.

Charles King, as adminstrator c.t.a., obtained a default judgment in the Jefferson Circuit Court, Bessemer Division, against Virginia Dare Robinson. Robinson moved to set aside the default judgment, 83 days after it was entered. Judge Dan C. King set aside the default judgment, without a hearing and without giving Charles King an opportunity to be heard on the motion to set it aside. Charles King now petitions this Court for a writ of mandamus directing Judge King to vacate his order setting aside the default judgment. The petition is granted and the writ is issued.

King filed a lawsuit in January 1998, stating claims based on theories of conversion, money had and received, legal malpractice, felonious injury, and conspiracy. The defendants, Virginia Dare Robinson; William G. Vietch; and Robinson's children, Deborah Crafts and Carl Beckman, moved in May 1998 to dismiss the complaint. The motion to dismiss was denied on August 17, 1998, and the defendants were given 30 days to file their answers. The defendants Virginia Dare Robinson and William G. Vietch did not file answers within the 30 days.

In January 1999, Charles King moved for a default judgment against both Vietch and Robinson. Attached to his motion was the required certificate of service by which King certified that he had served both Vietch and Robinson through their attorney, Ralph Armstrong. Vietch filed a pro se answer to the complaint on the same day the default-judgment motion was served, but Robinson did not answer at all. The hearing on the default-judgment motion was set for March 19, 1999. Robinson's attorney was notified of the hearing by a fax communication sent by Judge King; this was the usual method for giving notice of such hearings in Judge King's court. In a letter dated March 9, 1999, Charles King's attorney wrote Ralph Armstrong, asking Armstrong if he still represented Vietch; he asked, he said, because Vietch had filed a pro se answer, but nothing further. This letter also reminded Armstrong of the March 19th hearing.

Neither Robinson nor Armstrong, her attorney, appeared at the March 19, 1999, hearing, and the trial court entered a default judgment in favor of Charles King on April 7, 1999, and in that judgment made a certfication under Rule 54(b), Ala. R. Civ. P., to make that judgment final. The case action summary sheet reflects that a copy of the default judgment was sent to the attorneys involved in the case, and a copy went to Ralph Armstrong, along with a cost bill. Robinson filed a motion to set aside the default judgment on June 29, 1999-83 days after the default judgment had been entered and made final. Robinson's motion was granted, without a hearing, on July 6, 1999.

I.

Because an order setting aside a default judgment is interlocutory and, therefore, not appealable, the proper remedy to review the trial court's action in entering that order is a petition for a writ of mandamus. Ex parte State ex rel. Atlas Auto Finance Co., 251 Ala. 665, 38 So.2d 560 (1948). The standard for issuing a writ of mandamus is well settled:

"Mandamus is an extraordinary remedy requiring a showing that there is: `(1) a clear legal right in the petitioner 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 Edgar,, 543 So.2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)."

Ex parte Johnson, 638 So.2d 772, 773 (Ala. 1994). And see Ex parte Preston Hood Chevrolet, Inc., 638 So.2d 842 (Ala.1994); and Ex parte Liberty Nat'l Life Ins. Co., 631 So.2d 865 (Ala.1993). The standard of review this Court applies when considering a petition asking for a writ of mandamus requiring a judge to vacate an order setting aside a default judgment is whether the judge, in setting aside the default judgment, abused his discretion. See DaLee v. Crosby Lumber Co., 561 So.2d 1086 (Ala. 1990); Hallman v. Marion Corp., 411 So.2d 130 (Ala.1982).

II.

The default judgment against Virginia Dare Robinson was made final pursuant to Rule 54(b), Ala. R. Civ. P. Robinson had not answered, and she did not appear at the hearing on the motion for a default judgment. The trial judge found that she was in default and, based on its findings of facts, found that there was no just reason for delaying the entry of a judgment pending the determination of the case against Vietch.

Robinson argues that the judgment against her is not in fact final and will not become final until the claims against William Vietch are disposed of, because the two are codefendants. Robinson cites Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L.Ed. 60 (1872), claiming that where the theory of recovery is one of joint liability, a recovery is not effective unless it is granted against all defendants. Robinson also relies on Aetna Casualty & Surety Co. v. McIntyre, 555 So.2d 87 (Ala. 1989), in which this Court held that a default judgment could not be entered against one defendant for failure to appear, where that defendant's liability was based on a codefendant's liability. This Court stated:

"To find Frank liable when his liability would have to be based on Rhonda's liability, and Rhonda has been determined to have no liability, would be inequitable. See generally Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L.Ed. 60 (1872). `Frow stands for the narrow rule that a default judgment may not be entered against one of several defendants (1) where the theory is one of true joint liability, such that, as a matter of law, no one defendant may be liable unless all defendants are liable, or (2) where the nature of the relief demanded is such that, in order to be effective, it must be granted against each and every defendant.'"

555 So.2d at 88.

The case of Vietch and Robinson does not present a situation where, as a matter of law, neither defendant may be liable unless both are liable. In order to illustrate this point, we must examine the allegations underlying the claims. Apparently, Robinson's mother, Lear King, left Robinson and her brother, Troy King, property from her estate. Robinson received their mother's house, worth $40,000. Troy King received certificates of deposit worth between $10,000 and $20,000. Troy King never transferred those certificates into his name. Troy King died. Robinson agreed to deliver the certificates of deposit to the estate of Troy King but never did. Charles King, as administrator of Troy King's estate, moved to reopen Lear King's estate. Acting on behalf of the estate of Lear King, Charles King then went to the bank that had issued the certificates of deposit, only to discover that the certificates had been paid out.

Charles King, in his complaint, alleges that Virginia Robinson went to the bank and, either by "posing as Lear I. King or by other fraudulent means, statements, or representations obtained a check payable to Lear Idellar King." The complaint further alleges that she then endorsed the check, delivered it to William Vietch, who also endorsed it and then deposited the funds into his attorney's trust account. The complaint alleges that Virginia Robinson then went back to the bank and told the bank that the certificates of deposit that had belonged to King had been misplaced and had the bank "reissue certificates of deposit in the name of Virginia Robinson and/or deposit them into accounts in the name of Virginia Robinson and/or her children, Deborah K. Crafts and Carl Beckman."

The trial court, in its default judgment, held that Robinson's actions, alone and without the assistance of Vietch, were sufficient to support the claims against her. This Court has recognized that a default judgment against one of several defendants is not a final order, unless it is made final by a certification pursuant to Rule 54(b), Ala. R. Civ. P. See Foster v. Greer & Sons, Inc., 446 So.2d 605 (Ala.1984) (overruled on other grounds by Ex parte Andrews, 520 So.2d 507 (Ala.1987)); Ford Motor Credit Co. v. Carmichael, 383 So.2d 539 (Ala.1980). The trial court found that there was no just reason for delaying the entry of a final judgment against Robinson and entered the Rule 54(b) certification making the default judgment final, on April 7, 1999.

According to Rule 55(c), Ala. R. Civ. P.:

"In its discretion, the court may set aside an entry of default at any time before judgment. The court may on its own motion set aside a judgment by default within 30 days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment."

The trial court did not set aside the entry of default before certifying the default judgment as final, nor did the court on its own motion set aside the judgment within 30 days after making that judgment final. Robinson's motion to set aside the default judgment was filed 83 days after the entry of the default judgment. Therefore, the trial court lost its discretion to set aside the judgment pursuant to Rule 55(c) at the end of the 30th day after the court made the default judgment final.

However, Robinson's motion to set aside the default judgment could be, and should have been, construed as a Rule 60(b) motion for relief from judgment. See Ala. R. Civ. P., comments to Rule 55(c) (Rule 60 becomes available when more than 30 days have passed since...