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Lifestar Response of Alabama12/3/2004
nted and the default judgment is set aside." 828 So. 2d at 278. We concluded:
" hen a party files a motion to set aside a default judgment, the movant has the initial burden of making a prima facie showing that the plaintiff will not be unfairly prejudiced if the default judgment is set aside. If the movant makes a prima facie showing that the plaintiff will not be unfairly prejudiced, the burden then shifts to the plaintiff to present facts showing that the plaintiff will be unfairly prejudiced if the default judgment is set aside."
828 So. 2d at 278.
In its motion to set aside the default judgment, Care asserted in conclusory form, "There is no evidence that was available prior which is not available now. No witness is believed to have died in the meantime between the entry of the judgment and the time when additional and thorough and comprehensive discovery would be conducted on the merits of the allegations of the complaint." In Lifestar's motion to set aside the default judgment, it took no note whatsoever of this Kirtland factor. At the July 22, 2003, hearing, neither Care nor Lifestar offered any evidence or argument relating to the issue of prejudice to the plaintiff by the setting aside of the default judgment. Accordingly, we have no basis for concluding that Judge Price exceeded his discretion in concluding that Lifestar had failed to make the requisite showing of this factor.
"In this case, the defendants' motion to set aside the default judgment makes no statement that [the plaintiff] would not be unfairly prejudiced if the default judgment was set aside. In light of Phillips [v. Randolph, 828 So. 2d 269 (Ala. 2002),] we conclude that the defendants failed to meet their initial burden of showing that [the plaintiff] would not be prejudiced by setting aside the default judgment and thus failed to make the requisite showing under the second Kirtland factor."
Triple D Trucking Co., Inc., 840 So. 2d at 874.
3. Whether the default judgment was the result of the defendant's own conduct.
In addition to the general proposition noted in Kirtland that " n review, a trial court's decisions should be looked upon with great deference," 524 So. 2d at 608, we explained in Jones v. Hydro-Wave of Alabama, Inc., 524 So. 2d 610, 616 (Ala. 1988), and reaffirmed in Phillips, 828 So. 2d at 279, that "due to the trial judge's superior vantage point, the trial court is the more suitable arbiter for determining with accuracy the culpability of the defaulting party's conduct, and, for this reason, we will show great deference toward the trial court's decision with respect to such culpability."
In Kirtland we stated: "Conduct committed willfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient. ... Willful and bad faith conduct is characterized by incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness."
524 So. 2d at 607-08. A defaulting party's "reasonable explanation for inaction and noncompliance may preclude a finding of culpability." 524 So. 2d at 608.
Lifestar acknowledges that the summons and complaint were routed to its home office but simply says that "from there" it is unclear where they went. In DaLee v. Crosby Lumber Co., 561 So. 2d 1086, 1091 (Ala. 1990), we stated:
"In McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So. 2d 499, 503 (1946), the Court set out the duty of a party when legal process is duly served upon him:
"'It is the duty of ever
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