Roberts v. Wettlin

• Citation: 431 So.2d 524
• Parties: Keith ROBERTS v. David D. WETTLIN and United Plating, Inc. 81-656.
• Decision Date: 22 April 1983
• Court: Supreme Court of Alabama

Page 524

431 So.2d 524

Keith ROBERTS v. David D. WETTLIN and United Plating, Inc.

81-656.

Supreme Court of Alabama.

April 22, 1983.

James T. Baxter, III of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellant.

George R. Stuart, III of Stuart & Ward, Birmingham, and Robert H. King, Gadsden, for appellee David Wettlin.

L. Tennet Lee, III, Harvey B. Morris, and D. Scott McLain of Cleary, Lee, Morris, Evans & Rowe, Huntsville, for appellee United Plating, Inc.

BEATTY, Justice.

Default judgments were entered against defendants Keith Roberts and Huntsville Plating, Inc. The trial court denied the motion by Roberts to set aside the default judgments, and this appeal followed. The question presented for review is whether the trial court abused its discretion in failing to set aside the default judgments. We hold that it did not and affirm.

The record shows that this case was called for trial before the Honorable Daniel B. Banks, Jr., in the Circuit Court of Madison County on January 25, 1982. The trial court's order reads in part:

"This cause being duly scheduled for trial and notice of same having been given to the parties and/or their attorneys and the case being called for trial ... [t]he plaintiff announces ready for trial as to the claim of the plaintiff against the defendants, Huntsville Plating and Keith Roberts. Thereupon, the Honorable Kenan Timberlake withdraws as attorney of record for said defendants. No one appearing to represent said defendants, the Court orders that a default be and the same is hereby entered on the claim of the plaintiff, David D. Wettlin, against the defendants, Huntsville Plating and Keith Roberts. Thereupon the defendant, United Plating Company, Inc., announces ready for trial on its counterclaim or cross-claim against the defendants, Huntsville Plating and Keith Roberts. No one appearing to represent said defendants, it is ORDERED that default be and the same is hereby entered in favor of United Plating Company, Inc., and against the defendants, Huntsville Plating and Keith Roberts, on the counterclaim or crossclaim of the defendant and counterclaimant, United Plating Company, Inc."

Final judgments were entered on January 28, 1982, and Roberts's motion to set aside the default judgment was denied.

Roberts asserts three reasons requiring reversal by this Court. First, he contends that there was an agreement under specified terms to settle the case which relieved him of the duty to appear and comply with the agreement or defend. Next, he claims that the entry of default was erroneous because his lawyer withdrew from representation after appearing at trial ready to defend his case. Finally, Roberts contends it was his understanding that the crossclaim was not set for trial on January 25, 1982.

The facts surrounding the settlement agreement between Roberts and plaintiff's attorney, Mr. King, are in dispute. It is clear from the record, however, that Mr. King asked Roberts's attorney, Mr. Timberlake, if he had the settlement check at 9:00 a.m. on January 25, prior to the case being called for trial. Timberlake stated that he did not, but he was sure it could be obtained through the First Alabama Bank. Timberlake contacted the bank and was told that no arrangements had been made, and that it would take a minimum of 24 hours to transfer funds from an out-of-state bank. This was related to plaintiff's attorney, who advised Timberlake that he considered that this "blew" the settlement.

At this point the judge advised Mr. Timberlake to be prepared to try the case at 1:30 p.m. Timberlake stated that he attempted to contact Roberts at the only telephone number which he had for him and could not reach him. The following dialogue occurred as court convened at 1:30 p.m.:

"THE COURT: Let the record show that this case was duly scheduled for trial and the parties are present before the Court, or at least the respective attorneys are present.

"Does the plaintiff announce ready for trial?

"MR. KING: Yes, Sir.

"THE COURT: I understand that this case is settled insofar as it relates to United Plating.

"MR. KING: Yes, Sir.

"THE COURT: Their attorneys are present?

"MR. LEE: Yes, Sir.

"MR. MORRIS: There is still a cross-claim, Judge.

"THE COURT: You have a claim against Huntsville Plating and Keith Roberts. Mr. Timberlake, you have been representing him. It is my understanding that you no longer represent him.

"MR. TIMBERLAKE: Judge, Mr. Roberts and I talked Friday night and he told me that he had talked to Mr. King before I talked to him and Mr. Roberts told me that he and Mr. King had settled the case on the basis that he would have the money here. He hasn't been in touch with me. I haven't heard anything from him.

"THE COURT: The case is set for trial. Are you ready to proceed?

"MR. TIMBERLAKE: Mr. Roberts has been notified that the case would be tried today if it wasn't settled.

"THE COURT: Are you withdrawing?

"MR. TIMBERLAKE: Yes, Sir.

"MR. KING: Does that also apply to the cross-claim?

"MR. TIMBERLAKE: Are you talking about the third party complaint?

"MR. KING: Yes.

"MR. TIMBERLAKE: I withdraw on that, too.

"THE COURT: Is there anybody here on behalf of Keith Roberts or Huntsville Plating? Let the record show that a default is entered in favor of the plaintiff and against the defendant[s] Huntsville Plating and Keith Roberts.

"Mr. King, you will have leave to submit to the Court testimony to substantiate your claim for damages against those two defendants.

"MR. KING: Yes,...