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Lifestar Response of Alabama12/3/2004
y party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business, his motion to set aside a judgment for default should be denied. Little v. Peevy, [238 Ala. 106, 189 So. 720 (Ala. 1939)].
"'Courts cannot act as guardian for parties who are grossly careless of their own affairs. All must be governed by the laws in force, universally applied, according to the showing made.
"'If judgment be entered against a party in his absence, before he can be relieved of the judgment he must show that it was the result of a mistake or inadvertence which reasonable care could not have avoided, a surprise which reasonable precaution could not have prevented, or a negligence which reasonable prudence could not have anticipated.'"
See also Phillips, 828 So. 2d at 279.
Certainly it would have been apparent to Vanessa Hill, as well as to subsequent recipients of the complaint at Lifestar's home office, that the incident described in the complaint necessarily served to identify Lifestar as the entity intended to be sued. As noted, only a few months before Ms. Lemuel filed her action, the summons and complaint for another wrongful-death action against "Care Ambulance Service of Alabama, Inc." had been served on Vanessa Hill, and Lifestar had answered the complaint, identifying itself as doing business as "Care Ambulance Service" and explaining that it had been "incorrectly designated in the complaint as Care Ambulance Service of Alabama, Inc." Lifestar obviously received and processed Judge Price's May 16 order setting a hearing on damages for May 28. That was established by the explanation in Care's motion to set aside the default judgment and the attached copy of that order bearing imprinted "fax" routing information showing that it had been faxed to Care from the Montgomery office of Lifestar on May 29, 2003. Even if it is assumed that the May 16 order was not forwarded to Lifestar's Montgomery office until after it was filed with the circuit clerk on May 22, Lifestar has made no attempt to account for why it delayed forwarding notice of the hearing to Care until the day after the scheduled hearing. Lifestar took no action other than to have one of its representatives telephone Halstrom on June 3, 2003, to advise him that the default judgment had been taken against the wrong party. When Lifestar finally filed a motion to set aside the judgment, it made no attempt to invoke the Kirtland factors except to argue that Care had a meritorious defense. At the July 22, 2003, hearing, Lifestar offered no evidence in support of the Kirtland factors other than to argue that Lifestar had provided no medical services to Mr. Lemuel. Concerning its supposed lack of culpability, Lifestar argued only that it had never been put on notice that it might be the entity involved in the Lemuel incident.
Given the "great deference" we are obliged to accord Judge Price's decision concerning culpability, we cannot say that he exceeded his discretion in finding as he did.
Having analyzed the application of all three of the Kirtland factors in the context of the development of those factors before Judge Price, we cannot say that Judge Price exceeded his discretion in concluding that Lifestar was not entitled to have the default judgment set aside.
We turn last to Lifestar's contention that the amount of the default judgment was excessive. Lifestar acknowledges that it did not assert excess
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