Opinion
2961014.
November 7, 1997.
Appeal from the Jefferson Circuit Court, No. CV-93-8025, Jack D. Carl, J.
Carolyn Rankins Shields, Birmingham, for appellants.
Mark H. Elovitz, Birmingham, for appellees.
Margaret Alexander and Eddie Chambers appeal from the trial court's denial of their motion for relief from a judgment.
Alexander, a certified master plumber, sued James and Dorothy Washington, seeking to recover expenses she claimed she was owed for work done at the Washingtons' home. The Washingtons filed a counterclaim against Alexander and a third-party complaint against Chambers, who worked under Alexander. The same attorney represented both Alexander and Chambers.
Alexander, Chambers, and their attorney did not appear on the day of trial because, according to the attorney, they did not have notice of the trial. On March 10, 1997, the day scheduled for trial, the trial court heard testimony from the Washingtons and entered a judgment against Alexander and Chambers for $3,000. The judgment also rendered null and void a lien Alexander had recorded against the Washingtons' property.
On March 14, 1997, Alexander and Chambers filed a motion for relief from the judgment pursuant to Rule 60(b), Ala. R. Civ. P. The trial court held a hearing on the motion, then denied the requested relief on April 2, 1997. An amended Rule 60(b) motion, which corrected errors in the original Rule 60(b) motion, was filed on April 2; the trial court denied that motion on May 1, 1997. Alexander and Chambers appealed on June 10, 1997.
An order denying a Rule 60(b) motion is appealable. Cockrell v. World's Finest Chocolate Co., 349 So.2d 1117 (Ala. 1977). A ruling on a Rule 60(b) motion is subject to a motion to alter, amend, or vacate the judgment (see Rule 59, Ala. R. Civ. P.), often inaccurately referred to as a "motion to reconsider." The filing of a motion to alter, amend, or vacate the ruling on a Rule 60(b) motion tolls the running of the time during which a party can appeal from the ruling on the Rule 60(b) motion. Vaughan v. Vaughan, 539 So.2d 1058 (Ala.Civ.App. 1988), cert. denied, 539 So.2d 1060 (Ala. 1989). The amended Rule 60(b) motion filed by Alexander and Chambers is essentially a motion to alter, amend, or vacate the order denying the first Rule 60(b) motion. The amended motion was denied on May 1, 1997; therefore, Alexander's notice of appeal, filed June 10, 1997, is timely.
Alexander and Chambers argue here, as they did in the trial court, that the judgment entered against them should be treated as a default judgment that should be set aside pursuant to Rule 55(c) because, they say, they have a meritorious defense. They also argue that the judgment should be set aside because of mistake, specifically, because they did not receive notice of the trial.
At the hearing on the original Rule 60(b) motion, the attorney for Alexander and Chambers tried to argue that the judgment should be treated as a default judgment, and she cited authority for that argument. However, the record shows that the trial court was adamant in the view that the judgment was a judgment on the merits and was not a default judgment. The trial court made it clear that it would not consider the attorney's argument that the judgment entered was a default judgment.
A judgment entered after one party fails to appear at trial is treated as a default judgment. See Cassioppi v. Damico, 536 So.2d 938 (Ala. 1988) (default judgment entered when defendants failed to appear at trial); Holsonback v. Holsonback, 518 So.2d 146 (Ala.Civ.App. 1987) (default judgment entered against wife who failed to appear at divorce trial); Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173 (Ala. 1978) (parties failing to appear on the day the case was set for trial were in default); see also, Rule 55, Ala. R. Civ. P., Committee Comments.
A Rule 60(b) motion can be used to set aside a default judgment if the motion is filed within four months of the entry of the judgment. Rooney v. Southern Dependacare, Inc., 672 So.2d 1 (Ala. 1995). In determining whether to set aside a default judgment pursuant to Rule 60(b), the trial court must apply the same analysis it applies in determining whether to set aside a default judgment pursuant to Rule 55(c). Id. That analysis includes consideration of the following three 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." Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600, 605 (Ala. 1988).
The trial court denied both the original Rule 60(b) motion and the amended motion with short notations on the case action summary sheet, and it gave no explanation for the denials. The record shows that the trial court clearly did not consider this judgment a default judgment, and the attorney for Alexander and Chambers was cut off when she attempted to make her case for why the judgment should be set aside.
From the record, it appears that the trial court gave no consideration to the factors that are to be applied in determining whether to set aside a default judgment. Therefore, we reverse the judgment of the trial court denying Alexander and Chambers relief from the judgment against them, and we remand this cause for the trial court to determine whether the judgment should be set aside. In making that determination, the trial court is to apply the Kirtland factors. We make no determination as to whether Alexander and Chambers are entitled to have the judgment set aside, only that they must be given the opportunity to argue their motion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
YATES and THOMPSON, JJ., concur.
ROBERTSON, P.J., concurs in the result.
CRAWLEY, J., dissents.
While I cannot agree with the majority that Chambers and Alexander's amended Rule 60(b) motion requested the trial court, pursuant to Rule 59(e), to alter, amend, or vacate its order denying their initial Rule 60(b) motion from relief from judgment, I agree with the majority that this court nevertheless has jurisdiction to review the trial court's order denying their amended Rule 60(b) motion in this case. The denial of a second Rule 60(b) motion that states new or additional grounds for relief from a judgment than those stated in a previous Rule 60(b) motion is appealable. See, e.g., Hines v. Seaboard Air Line R.R., 341 F.2d 229 (2d Cir. 1965). Therefore, I concur in the result reached by the majority.
Alexander and Chambers's amended Rule 60(b), Ala. R. Civ. P., motion is merely a motion to reconsider the denial of their original Rule 60(b) motion. A motion to reconsider the denial of a Rule 60(b) motion is not authorized where, as here, the second motion presents facts that were known at the time the original motion was filed. Ex parte Dowling, 477 So.2d 400 (Ala. 1985); Brown v. Martin, 394 So.2d 375 (Ala.Civ.App. 1980), cert. denied, 394 So.2d 377 (Ala. 1981). Although Alexander and Chambers attached to the amended motion an affidavit of their attorney that was not attached to the original motion, the affidavit does not present facts that were not known when the original motion was filed. The appeal time ran from the denial of the original motion on April 2, 1997, and Alexander and Chambers's June 10, 1997, notice of appeal is untimely.