Rel: September 18, 2026
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) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter.
ALABAMA COURT OF CIVIL APPEALS
SPECIAL TERM, 2026
CL-2025-1072
Michelle Layne DeMike and Zachary Dewayne Hatfield
v.
Lisa Littrell, in her capacity as a Trustee of the Wanda England
Littrell Marital Deduction Trust and the
William K. Littrell Credit Shelter Trust
Appeal from Morgan Circuit Court
(CV-25-900396)
PER CURIAM.
This appeal concerns the propriety of a default judgment the
Morgan Circuit Court entered in a civil action brought on August 26,
2025, by Lisa Littrell, acting by and through her counsel, against
CL-2025-1072
Michelle Layne DeMike (also known as Michelle Kelsoe) and Zachary
Dewayne Hatfield ("the defendants"). In her complaint, Littrell asserted
that she, in her capacity as a trustee of the Wanda England Littrell
Marital Deduction Trust and the William K. Littrell Credit Shelter Trust,
had acquired title to a parcel of real property via a deed executed by
Rebecca Ann DeMike and Gregory J. DeMike that had been recorded on
August 15, 2025, but averred that defendant Michelle DeMike had
claimed an interest in the real property and that the defendants had
refused to vacate it. Littrell sought a judgment declaring that she held
fee-simple title to the real property, a remedy consistent with that
available in a statutory action in the nature of an ejectment action at
common law (see generally Ala. Code 1975, § 6-6-280 et seq.),1 and an
award of damages with respect to the defendants' alleged trespass upon
the property. A copy of the August 15, 2025, deed was attached to
Littrell's complaint, as well as a document identifying Littrell as one of
two trustees for each of the pertinent trusts.
1The origin and perceived necessity for this type of statutory action
was discussed at some length by our supreme court in MacMillan
Bloedell, Inc. v. Ezell, 475 So. 2d 493, 495-97 (Ala. 1985).
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The record indicates that copies of the complaint and the summons
directed to each defendant were served on the defendants on September
15, 2025, by a designated process server, and the return on service as to
each defendant was filed with the clerk of the circuit court on September
17, 2025. On October 16, 2025, approximately one month after service of
the complaint upon the defendants, Hatfield and Michelle DeMike filed
personal letters in the circuit court in which they referred to Littrell's
action by its style and case number, requested an additional 90 days to
respond to the complaint, averred that Michelle DeMike needed foot
surgery, and stated that they had been unable to "find an adequate real
estate attorney that doesn't have a conflict of interest"; in addition, the
defendants filed copies of an October 14, 2025, letter on a primary-care
clinic's stationery, addressed "To Whom It May Concern" and signed by
a nurse practitioner, in which Michelle DeMike was described as "unable
to pursue legal ventures at this time." In response to those letters, the
circuit court entered an order noting the defendants' extension requests
and affording them until November 17, 2025, to respond to the complaint.
However, on that due date the circuit court specified in its order,
the defendants again submitted letters requesting 90-day extensions to
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respond; those letters relied on substantially the same grounds as those
the defendants had asserted in their October 16, 2025, letters, although
Michelle DeMike's foot symptoms were discussed in somewhat greater
detail. On November 18, 2025, the circuit court entered an order denying
the requested second extension. On November 19, 2025, counsel for
Littrell filed in the circuit court a motion for a default judgment in her
favor that was supported by Littrell's own affidavit and that bore a
certificate of service indicating that it had been served by mail upon the
defendants on November 18, 2025; the motion sought a default judgment
awarding Littrell the real property at issue, divesting the defendants of
any right therein, and granting a money judgment of $4,500 (which,
according to Littrell's affidavit testimony, constituted a "reasonable
rental … for the three months which the [d]efendants ha[d] remained in
possession"). On November 24, 2025, four business days after the service
of Littrell's motion (see Rules 5(b) and 6(a)(2), Ala. R. Civ. P.) and three
business days after the filing of that motion, the circuit court entered a
default judgment granting all the relief Littrell requested in her motion;
however, there is no indication in the record, even as supplemented, that
a hearing was scheduled or held on Littrell's motion.
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On December 23, 2025, two notices of appeal to this court from the
default judgment, listing Michelle DeMike and Hatfield as appellants
and signed by Michelle DeMike, were filed; although those appeals were
assigned case numbers CL-2025-1072 and CL-2025-1074 and were
initially consolidated by this court, case number CL-2025-1074 was
subsequently dismissed at the defendants' request. Littrell moved this
court to dismiss Hatfield as a party to this appeal on the basis that he
had not personally signed the notice of appeal; however, this court denied
that motion on the authority of Papaspiros v. Southeast General
Contractors, Inc., 982 So. 2d 1099, 1102 (Ala. Civ. App. 2007), and the
appeal has been submitted on the briefs of the three parties.
In their joint pro se brief, the defendants attack the default
judgment on eight separate grounds. Littrell correctly notes that, as a
general rule, an appealing party may not assert a ground for reversal
that the lower court did not have an opportunity to consider. See Dubose
v. Dubose, 369 So. 3d 1061, 1067 (Ala. Civ. App. 2022) (quoting numerous
earlier cases for the proposition that fairness to all parties requires a
litigant to advance contentions at a time when there is an opportunity to
respond to them factually). That principle arguably has enhanced force
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when the sole filings that appealing parties have made in a lower court -- before having immediately divested that court of jurisdiction by filing a
notice of appeal without seeking postjudgment relief -- assert only
requests for additional time to retain counsel and to file a substantive
response.
However, one notable exception to the principle Littrell has invoked
is that " ' "[a]n appellate court must dismiss an attempted appeal from ...
a void judgment." ' " Alabama Med. Cannabis Comm'n v. Jemmstone
Alabama, LLC, 429 So. 3d 1002, 1004 (Ala. Civ. App. 2025), (quoting
Redbud Remedies, LLC v. Alabama Med. Cannabis Comm'n, 399 So. 3d
1055, 1062 (Ala. Civ. App. 2024), quoting in turn Vann v. Cook, 989 So.
2d 556, 559 (Ala. Civ. App. 2008)). One of the issues the defendants
raised in their brief is whether the default judgment was inappropriately
entered given the absence of notice and a hearing consistent with Rule
55(b)(2), Ala. R. Civ. P. The defendants, citing Cockrell v. World's Finest
Chocolate Co., 349 So. 2d 1117 (Ala. 1977) (overruled on other grounds
by Ex parte Keith, 771 So. 2d 1018 (Ala. 1998)), assert that they
"appeared" in the action within the scope of Rule 55(b)(2), thus requiring
three days' notice of, and the holding of, a hearing before the entry of a
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default judgment. This court has observed that the commentary to the
version of Rule 55 originally promulgated by our supreme court indicates
that the subsection upon which the defendants rely " 'provides for three
days['] notice prior to entry of default judgment[] when the defendant has
once appeared' " and that, under caselaw following Cockrell, a failure to
provide notice of the application for a default judgment renders any
ensuing default judgment " 'void, and not merely voidable.' " Abernathy
v. Green Tree Servicing, LLC, 54 So. 3d 422, 425 (Ala. Civ. App. 2010)
(some emphasis omitted) (quoting, respectively, Rule 55, Ala. R. Civ. P.,
Committee Comments on 1973 Adoption, and Bracknell v. S.E. Belcher,
Inc., 517 So.2d 588, 591 (Ala.1987)).
Rule 55(b)(2), as amended effective May 1, 2023, provides, in
pertinent part:
"[T]he party entitled to a judgment by default shall apply to
the court therefor .... If the party against whom judgment by
default is sought has appeared in the action, the court shall
conduct a hearing on the application for judgment, and the
party (or, if appearing by representative, the party's
representative) shall be served with written notice of the
application for judgment and the hearing thereon at least
three (3) days prior to the hearing on such application,
provided, however, that judgment by default may be entered
by the court on the day the case is set for trial without such
three (3) days' notice."
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(Emphasis added.) As the Committee Comments on that amendment
make clear, "Rule 55(b)(2) now requires [both] that a hearing be
conducted on an application or motion for a default judgment if the
opposing party has appeared" and "that notice of both the application or
motion and the hearing thereon … be served on the opposing party"; that
commentary further "directs practitioners to Progress Industries, Inc. v.
Wilson, 52 So. 3d 500 (Ala. 2010)," for guidance concerning what
constitutes an "appearance" under Rule 55(b)(2). Committee Comments
to Amendment to Rule 55(b)(2) Effective May 1, 2023.
In Progress Industries, a worker who had allegedly been injured by
a defective product sued, among other parties, several corporations
identified as having been "the alleged designers, manufacturers,
distributors, and/or installers" of the injurious product and was joined as
a plaintiff by his spouse, who sought an award of damages for loss of
consortium; the president of one of those corporations subsequently sent
a letter to the plaintiffs' counsel asserting that his corporation had not
designed, manufactured, sold, or installed the machine or related parts
causing the injury at issue, and he forwarded a copy of that letter to the
clerk of the trial court, who stamped it as having been filed and docketed
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it as an answer denying liability. 52 So. 3d at 502. Notwithstanding that
filing, following the failure of any representative of the corporation to
appear at status-review conferences, the trial court summarily entered a
default judgment against the corporation on the issue of the corporation's
liability and (over the objections of later-retained counsel for the
corporation) entered a judgment awarding damages of over $5 million,
which judgment was later made final pursuant to Rule 54(b), Ala. R. Civ.
P. Id. at 503-04.
Our supreme court, in reversing the trial court's default judgment
in favor of the plaintiffs and against the corporation, held that the letter
of the corporation's president, despite his lack of a license to practice law,
amounted to an "appearance" under Cockrell and its progeny, noting that
the letter "included the correct style of the case and the correct case
number" and indicated an "intent to submit to the jurisdiction of the court
and to defend the action" such that "notice [was] a condition precedent to
the entry of a valid default judgment against" the corporation. Progress
Indus., 52 So. 3d at 507. In doing so, our supreme court analogized the
correspondence filed by the corporation's president to the letter held by
this court to have constituted an "appearance" by a defendant in Evans
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CL-2025-1072
v. Evans, 441 So. 2d 948, 949 (Ala. Civ. App. 1983), which letter had
indicated that the defendant was " 'answering the summons' " in a divorce
action brought by the defendant's spouse and that she was " 'trying to
retain' " an attorney and " 'intend[ed] to respond to the" complaint.
Although we deem sound Littrell's contentions on appeal that the
defendants had indeed " 'failed to plead or otherwise defend' " and that
there was no "procedural bar" to her default-judgment motion afforded
by subsection (a) of Rule 55, Ala. R. Civ. P., (Littrell's brief, p. 23 (citation
omitted)) we nonetheless believe that, with respect to the separate
inquiry of whether subsection (b) of that rule was satisfied, the letters
the defendants filed on October 16, 2025, and November 17, 2025, are
substantially similar to the letters in Progress Industries and Evans that
were held to qualify as an "appearance," i.e., "some submission or
presentation to the court by which [the defendants] show[ed an] intention
to submit [themselves] to the jurisdiction of the court" (Cockrell, 349 So.
2d at 1120). Each of the defendants' letters in this case indicated the
pertinent case style and number, stated reasons why the defendants
deemed themselves unable to substantively respond to the complaint,
and sought affirmative relief from the circuit court in the form of requests
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cognizable under Rule 6(b)(1), Ala. R. Civ. P., as to "act[s that] may or
must be done within a specified time," such as filing an answer or a
motion to dismiss within 30 days after service of the summons and
complaint pursuant to Rule 12(a), Ala. R. Civ. P. Although the circuit
court certainly retained the discretion under the Alabama Rules of Civil
Procedure to adjudicate each defendant's requests by granting the first
and denying the second, see Rule 6(b)(1), that court was not free to
disregard the effect of those letters in considering and ruling upon
Littrell's subsequent default-judgment motion. We conclude that the
defendants had, at the time that Littrell moved for a default judgment in
her favor, made an "appear[ance]" within the scope of Rule 55(b)(2), as
revised in 2023, triggering that rule's obligations to schedule and hold a
hearing on Littrell's motion and, at least three days before holding that
hearing, to serve written notice upon the defendants of both the
application for a default judgment and the hearing. The failure of the
circuit court to meet those obligations renders the resulting default
judgment void. See Abernathy, 54 So. 3d at 425.
The appeal brought by the defendants is due to be dismissed by this
court ex mero motu as having been taken from a void judgment. See, e.g.,
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Colburn v. Colburn, 14 So. 3d 176, 179 (Ala. Civ. App. 2009). Consistent
with our holding in Southworth v. University of South Alabama Medical
Center, 637 So. 2d 896, 898 (Ala. Civ. App. 1994), that a failure to comply
with the notice provisions of Rule 55(b)(2) "requires a vacation of the
default judgment, irrespective of whether" a "meritorious defense" has
been alleged, we instruct the circuit court to vacate its default judgment
upon the issuance of this court's certificate of judgment (see generally
Rule 41, Ala. R. App. P.). In so ruling, we express no opinion regarding
any of the other issues the defendants raised in their brief in this appeal.
APPEAL DISMISSED WITH INSTRUCTIONS.
All the judges concur.
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