John Folds v. Hilton Cooper Contracting, Inc. (Appeal from Barbour Circuit Court: CV-09-900007). Affirmed. No Opinion.
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REL: 03/18/2011 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 2290649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter. SUPREME COURT OF ALABAMA OCTOBER TERM, 2010-2011 ____________________ 1081774 ____________________ John Folds v. Hilton Cooper Contracting, Inc. Appeal from Barbour Circuit Court (CV-09-900007) STUART, Justice. 1 AFFIRMED. NO OPINION. See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P. 1 This case was originally assigned to another Justice on this Court; it was reassigned to Justice Stuart on February 15, 2011. 1081774 Cobb, C.J., and Woodall, Bolin, Parker, Shaw, Main, and Wise, JJ., concur. Murdock, J., dissents. 2 1081774 MURDOCK, Justice (dissenting). Approximately 90 days following the service of a summons and complaint granted a in the motion Contracting, Inc., underlying filed for defendant, John Folds. 2 by a the action, the plaintiff, default judgment trial Hilton court Cooper against the Eleven days later, Folds filed a motion under Rule 55(c), Ala. R. Civ. P., seeking relief from that judgment. Folds's motion addressed the three factors outlined in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988). As to the first Kirtland factor, Folds alleged a meritorious defense (that he personally was not a party to the construction contract upon which Hilton Cooper's claim was based); as to the third Kirtland factor, Folds made a sufficient showing that his failure to answer the complaint was not a result of willful conduct or conduct committed in bad faith. 2 The amount awarded appears to include the gross amount that was to have been paid for all work that was to have been performed under a construction contract, together with interest. Folds allegedly defaulted after receiving Hilton Cooper's initial invoice for a relatively small portion of the work. 3 1081774 As to the second Kirtland factor, whether the plaintiff will be prejudiced if the default judgment is set aside, Folds's motion stated only that Hilton Cooper "will not be substantially aside." prejudiced if the default judgment is set Hilton Cooper responded in the trial court, and has responded in this Court, by asserting only that it will be prejudiced by having to expend the effort and money litigate the case if the default judgment is set aside. to Under the circumstances presented, I do not believe Folds's failure to have made a more substantial showing as to why Hilton Cooper will not be prejudiced should be considered fatal to his appeal from the trial court's denial of his motion for relief from that default judgment. See Sumlin v. Sumlin, 931 So. 2d 40, 45-49 (Ala. Civ. App. 2005). 4
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