 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lifestar Response of Alabama12/3/2004
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. [Ex parte] Illinois Central Gulf [R.R., 514 So. 2d 1283 (Ala. 1987)]; Hritz v. Woma Corp., 732 F.2d 1178 (3d Cir. 1984)."
524 So. 2d at 605 (footnote omitted).
We now discuss and apply those three factors, originally stated in Kirtland and expounded upon in subsequent cases, as follows: 1. Whether the defendant has a meritorious defense.
In order to demonstrate a meritorious defense, the defendant need not satisfy the trial court that it will necessarily prevail at trial on the merits, only that it is prepared to present a plausible defense, which is a viable legal theory supported by factual basis. Kirtland, 524 So. 2d at 605; Summit Photographix, Inc. v. Scott, 763 So. 2d 956, 959 (Ala. 2000). The articulation of the plausible defense must present more than bare legal conclusions without factual support; the statement must set forth relevant legal grounds substantiated by a credible factual basis. Kirtland, 524 So. 2d at 606; Sampson v. Cansler, 726 So. 2d 632, 634 (Ala. 1998); Phillips v. Randolph, 828 So. 2d 269, 273 (Ala. 2002).
As noted, the only assertion Lifestar made in its motion to set aside the default judgment relating to a meritorious defense was that Lifestar, not Care, had provided " he ambulance transportation" to Mr. Lemuel, so that Care "has a very meritorious defense." In Bryan's accompanying affidavit, he stated that he had inferred from the records he referenced and attached to the affidavit that the Lifestar employees had not rendered the medical services to Mr. Lemuel, but rather those medical services had been rendered by "Montgomery Fire Department Fire Medics" who supposedly were "on the scene at the time of arrival" of the Lifestar employees. Bryan's affidavit referenced "Ordinance 25-98, City of Montgomery," but neither his affidavit nor the motion itself quoted the text of that ordinance. Lifestar argued at the July 22 hearing that the Montgomery Fire Department medics were on the scene, that they were "the ones that called us," that they were "the ones that rode in the ambulance with the patient to the hospital," and that they were the ones "who by ordinance exclusive control and jurisdiction over the situation." Even in its briefs to this Court, however, Lifestar does not quote Ordinance 25-98. The plaintiff argues that neither the trial court nor this Court can take judicial notice of the ordinance. (Lemuel's brief, p. 40.) In its reply brief, Lifestar argues, without citation to authority, that because Bryan referenced the ordinance in his affidavit, the trial court could take judicial notice of it. At no time during the July 22 hearing was the text of the ordinance quoted to Judge Price or was he asked to take judicial notice of it. "A circuit court, in the absence of statutory authority, cannot take judicial notice of a municipal ordinance." General Motors Acceptance Corp. v. City of Red Bay, 825 So. 2d 746, 749-50 (Ala. 2002).
Section 11-45-11, Ala. Code 1975, provides that " ll courts of the state of Alabama shall take judicial notice of all municipal ordinances of each Class 1 Municipality." Class 1 municipalities are those with a population of 300,000 inhabitants or more. Ala. Code 1975, § 11-40-12. We take judicial notice of the fact that the population of the City of Montgomery as of the last federal decennial census, taken in the year 2000, was 201,568. See Meadows v. City of Birmingham, 582 So. 2d 603 (Ala. Crim. App. 1991). Accordingly, Judge Price could not take judicial notice of the ordinance under § 11-45-11. Section 12-21-95, Ala. Code 1975, allows for the i
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|