McCONICO v. Corr. Med. Serv. INC.

• Decision Date: 25 September 2009
• Docket Number: 2071001 and 2080067.
• Parties: James McCONICO, Jr. v. CORRECTIONAL MEDICAL SERVICES, INC.
• Court: Alabama Supreme Court

41 So.3d 8

James McCONICO, Jr. v. CORRECTIONAL MEDICAL SERVICES, INC.

2071001 and 2080067.

Court of Civil Appeals of Alabama.

June 19, 2009.

Rehearing Applications Denied September 25, 2009.

Certiorari Denied January 15, 2010 Alabama Supreme Court 1090052.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

James McConico, Jr., pro se.

William Anthony Davis III, Philip G. Piggott, and Kelley M. Tynes of Starnes & Atchison LLP, Birmingham, for appellee.

On Application for Rehearing

THOMAS, Judge.

The opinion of March 27, 2009, is withdrawn, and the following is substituted therefor.

In November 2000, James McConico, Jr., an inmate incarcerated in the Alabama prison system, sued Correctional Medical Services, Inc. ("CMS"), and others, alleging that certain defendant doctors had failed to properly diagnose his bleeding ulcers and alleging that CMS had negligently trained and supervised its employee doctors. According to the summons in the record, McConico had CMS served by certified mail delivered to 950 22d Street North, Suite 620, Birmingham, Alabama 35203. The return receipt from the certified mail indicates that the certified mail was signed for by G. Johnson on July 9, 2001.

CMS never appeared in the action, and McConico sought an entry of default on August 13, 2001. Although a notation on McConico's application for an entry of default indicates that the clerk intended to enter the default as requested, the default was not entered on the case-action-summary sheet and is not reflected on the State Judicial Information System ("SJIS"). See former Rule 58(c), Ala. R. Civ. P. (requiring that an order be "noted" on the civil docket or that an order on separate paper be "filed" to constitute entry of a judgment); see also Rule 58(c), Ala. R. Civ. P. (effective September 19, 2006) (prescribing the input of an order on the State Judicial Information System as the act of entry of a judgment or order). McConico later moved for the entry of a default judgment against CMS, which the trial court denied.

In March 2008, McConico filed what he entitled a "Motion for a Hearing to Enforce Default Judgment and Clarification of Damages as Demanded in Civil Complaint in the Amount of $500,000 Dollars Against [CMS]." McConico mailed a copy of this motion to CMS at 12647 Olive Boulevard, St. Louis, Missouri 63141-6345. CMS responded to McConico's motion by moving to vacate, purportedly pursuant to Rule 60(b)(4), Ala. R. Civ. P., the "default judgment" that McConico was attempting to enforce. CMS specifically argued that it had not been properly served in 2001 and that the "default judgment" McConico sought to enforce was void on that basis. In support of its motion, CMS attached a copy of the 2001 certified-mail receipt and the affidavit of Larry Linton, a regional vice president of CMS who was responsible for CMS's operations in Alabama in 2001. In his affidavit, Linton stated that CMS's corporate offices were located at 12647 Olive Boulevard, St. Louis, Missouri 63141; that CMS had been located at that address for 16 years; and that the address to which McConico had directed service of his complaint, 950 22d Street North, Suite 620, Birmingham, Alabama 35203, was not a valid business address for CMS in July 2001, when the complaint was served at that address.

The trial court set a hearing on CMS's purported Rule 60(b)(4) motion for May 6, 2008. On May 1, 2008, McConico filed a motion seeking a continuance of the May 6, 2008, hearing until discovery was complete and requesting the right to conduct discovery related to determining whether CMS had operated out of the Birmingham-area address during the relevant period. According to the SJIS, the trial court denied this motion on May 6, 2008. After the hearing, the trial court entered an order purporting to grant CMS's purported Rule 60(b)(4) motion and purporting to set aside the "default judgment" that McConico was attempting to enforce. On May 13, 2008, at the request of CMS, the trial court entered a second order indicating that the "default judgment" had been vacated by the trial court and further dismissing the claims against CMS with prejudice. McConico filed a postjudgment motion on May 16, 2008, and, on May 21, 2008, he filed a motion to permit discovery during the pendency of the appeal, pursuant to Rule 27, Ala. R. Civ. P. The trial court entered an order denying McConico's postjudgment motion and his motion for discovery pending appeal on June 3, 2008. McConico filed two notices of appeal to the Alabama Supreme Court, one on June 11, 2008, and one on July 22, 2008; that court transferred both appeals to this court, pursuant to Ala.Code 1975, § 12-2-7(6). We consolidated the appeals. Although the July 22, 2008, notice of appeal was docketed as a separate appeal, the SJIS reflects that the July 22, 2008, notice of appeal, which was docketed in this court as appeal number 2071001, was a corrected notice of appeal and was not intended to be a separate notice. We therefore dismiss the appeal in case number 2071001 and consider McConico's arguments in appeal number 2080067.

On appeal, McConico challenges the trial court's determination that CMS was not properly served. He also argues that CMS's purported Rule 60(b)(4) motion was untimely. Finally, he argues that the trial court erred by failing to grant his motion for discovery pending appeal. Because McConico's argument relating to the denial of his motion seeking discovery pending appeal is properly reviewable by a petition for the writ of mandamus, see Vesta Fire Ins. Corp. v. Liberty Nat'l Life Ins. Co., 893 So.2d 395, 411 (Ala.Civ.App.2003), we elect to treat that portion of his appeal as a petition for the writ of mandamus. Vesta Fire Ins. Corp., 893 So.2d at 411.

As noted above, no default judgment was ever entered against CMS. At best, McConico had secured an entry of default against CMS in August 2001 [(and even that is doubtful because the case-action summary does not reflect such an entry)]. At all times relevant to these appeals, Rule 55, Ala. R. Civ. P., read:¹

"(a) Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default.

"(b) Judgment. Judgment by default may be entered as follows:

"(1) By the Clerk. When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not a minor or incompetent person.

"(2) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered (A) against a minor, or (B) against an incompetent person, unless the minor or the incompetent person is represented in the action by a general guardian or other representative as provided in Rule 17(c)[, Ala. R. Civ. P.,] who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application, provided, however, that judgment by default may be entered by the court on the day the case is set for trial without such three (3) days notice. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury pursuant to the provisions of Rule 38[, Ala. R. Civ. P.].

"(c) Setting Aside Default. 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 thirty (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."

Pursuant to Rule 55(c), the trial court had the discretion to set aside an entry of default at any time before a judgment was entered against CMS. Because the "[e]ntry of default pursuant to Rule 55(a) is not equivalent to the entry of default judgment under Rule 55(b)," McBride v. McBride, 380 So.2d 886, 889 (Ala.Civ.App.1980), a trial court's decision to set aside an entry of default is not equivalent to a decision to set aside a default judgment. See Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 896-97 (Ala.2005). In fact, because 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) regardless of when the request is made. Ex parte Family Dollar Stores of Alabama, 906 So.2d at 897. In addition, a trial court's decision to set aside a default judgment that determines liability, but not damages, is also interlocutory in nature; it is not a final judgment and is therefore not appealable. Id.

In Ex parte Family Dollar Stores, our supreme court considered whether the trial court had abused its discretion by failing to set aside what the supreme court called an interlocutory default judgment, which is a default judgment entered by the court on liability with leave to prove damages. Id. at 896-97. The court held that, until a trial court enters a judgment assessing damages, a default judgment on liability remains interlocutory and...