set to be heard at 10 a.m. on Thursday (June 18) in Room 600 of the Jefferson County Courthouse. Judge Don Blankenship has postponed the hearing twice, on his own motion, but it looks like the hearing actually will take place this time.
Our guess is that Blankenship will hear oral argument and issue a ruling at a later date. But it should not be a complicated matter to decide.
Attorney Davy Hay, of Prattville, has filed a Motion to Vacate Default Judgment on my behalf, and he lays out multiple grounds for reversal. (You can view the motion at the end of this post.) Perhaps most importantly, default judgments have long been disfavored under Alabama law "because such judgments preclude a trial on the merits." Oliver v. Sawyer, 359 So. 2d 368 (Ala., 1978).
Bill Baxley, attorney for Garrison, has filed no written response to our motion, so it will be interesting to see what argument he makes directly to the court. If his client has a solid case for defamation, you might expect her to welcome a trial on the merits.
Despite whatever arguments Baxley comes up with, the facts and law already point to the default judgment being void, based on a case styled Abernathy v. Green Tree Servicing, (Ala. Civ. App., 2010). Abernathy focuses on the notice required for parties seeking default judgments. From the ruling:
Abernathy contends, among other things, that Green Tree did not provide her with appropriate notice of its November 12, 2009, application for a default judgment and that, as a result, the trial court erred when it entered the November 13, 2009, default judgment. Specifically, she argues that Rule 55(b)(2), Ala. R. Civ. P., required that her attorney be given three days' written notice before the entry of the November 13, 2009, default judgment and that the failure to provide such notice constitutes reversible error. We agree.
The court then turns to the language in Rule 55(b)(2):
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.
That indicates the party against whom default is sought must be served and receive actual notice of the application--just putting the document in the U.S. mail and hoping it's received does not appear to be good enough. Evidence shows I never received notice of the Garrison default application, largely because I was unlawfully incarcerated due to the Rob Riley case for five months, and immediately upon release, walked into a foreclosure that forced my wife, Carol, and me to move from our home of almost 25 years. Our address changed during all of that upheaval, and the record indicates Baxley knew it had changed. But he moved forward with the default-judgment process anyway, even though it was clear I never received actual notice, as required by law.
What is the legal fallout from that? The Abernathy case spells it out:
Rule 55(b)(2) relegates the entry of the default judgment to the court in all other cases. This portion of the rule provides for three days notice prior to entry of default judgment, when the defendant has once appeared." (Emphasis added.) The failure to provide the notice of the application for a default judgment as required by Rule 55(b)(2) renders the default judgment "void, and not merely voidable," Bracknell v. S.E. Belcher, Inc., 517 So. 2d 588, 591 (Ala. 1987), and "requires a vacation of the default judgment," Southworth v. University of South Alabama Med. Ctr., 637 So. 2d 896, 898 (Ala. Civ. App. 1994).
Under the law, which we know often is ignored in Alabama courtrooms, Jessica Garrison's $3.5-million, get-rich-quick order is "void," which "requires a vacation of the default judgment." Bill Baxley surely will squawk about it, but his client's default judgment should be dead on arrival Thursday morning.
What actually happens will say a lot about Judge Don Blankenship, and whether he stands for the proposition that justice is possible for regular folks in Jefferson County, Alabama.