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Unified Judicial System
State of Alabama
AlaFile E-Notice
38-CV-2015-900261.00
To: Jerry Michael Blevins
ATTYJMBlev@LawOfficeOfJerryMBlevins.com
Judge: Henry D. “Butch” Binford
NOTICE OF ELECTRONIC FILING
In the Circuit Court of Houston County, Alabama
Plaintiff
v.
Brian Ralph Beasley
38-CV-2015-900261.00
The following matter was Filed on 3/27/2017 9:50:07 AM
C001
Motion to Vacate or Modify
[Filer: Blevins Jerry Michael]
Notice Date: 3/27/2017 9:50:07 AM
Carla H. Woodall
Circuit Court Clerk
Houston County, Alabama
P.O. Drawer 6406
Dothan, AL 36302
334-677-4859
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DOCUMENT 51
In the Circuit Court of Houston County, Alabama
Plaintiff
v.
Beasley Brian Ralph
Defendant
Civil Action No.: CV-2015-900261
MOTION TO ALTER OR AMEND JUDGMENT
COMES NOW the Plaintiff, by and through his undersigned counsel, and respectfully moves the Court to alter or amend the judgment previously rendered in this cause, and in support thereof says as follows:
Relevant Procedural History
1. On May 12, 2015, Plaintiff filed his Complaint in this cause seeking damages stemming from an assault and battery committed on his person by Defendant on or about February 9, 2015
2. On July 2, 2015, Defendant filed his answer
3. On February 21, 2017, a bench trial occurred at which Defendant failed to attend in-person or through counsel
The only testimony presented at trial was Plaintiff’s, which was uncontroverted by other admissible evidence
4. On February 23, 2017, the Court rendered a final judgment in favor of Defendant
Discussion
5. Plaintiff contends that pursuant to Rule 55, Ala.R.Civ.P., because Defendant failed to appear at trial in-person or through counsel, he was entitled to a default judgment against Defendant on the assault and battery claim
See Seventh Wonder v. Southbound Records, Inc.,
364 So.2d 1173 (Ala. 1978)
(A party who fails to appear on the day the case is set for trial is in default);
and
Cassioppi v. Damico,
536 So.2d 938 (Ala. 1988)
(A judgment entered after one party fails to appear at trial is treated as a default judgment)
6. Plaintiff further contends that because his trial testimony was uncontroverted by other
1
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admissible evidence, he was entitled to an award of damages stemming from the assault and battery
7. Plaintiff contends the Court erred in not granting him a judgment, and in not awarding appropriate damages, on the assault and battery claim
WHEREFORE Plaintiff requests that the Court alter or amend the judgment previously entered in this cause, and grant him a default judgment against Defendant, and award him damages in the sum of $30,000.00, on the assault and battery claim, for the reasons set forth herein
Jerry M. Blevins
(BLE003)
Attorney for Plaintiff
OF COUNSEL:
Law Office of Jerry M. Blevins
Carr, Riggs and Ingram Building
7550 Halcyon Summit Drive, Suite 100
Montgomery, Alabama 36117
(334) 262-7600 (Voice)
(334) 262-7644 (Fax)
E-Mail: ATTYJMBlev@LawOfficeOfJerryMBlevins.com
2
Filing
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DOCUMENT 51
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing upon:
Mr. Brian Ralph Beasley
368 Hanchey Field Road
Daleville, Alabama 36322
via electronic transmission and / or by depositing a copy of the same in the U.S. Mail, postage prepaid this 27th day of March, 2017
Jerry M. Blevins
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Alabama Rules of Civil Procedure (ARCP) VII. JUDGMENT Rule 55.
………………………………………………..
(a) Entry
(b) Judgment
(1) By the Clerk
Committee Comments on 1973 Adoption
The rule eliminates the requirement of notice prior to entry of judgment by default when the default arises from failure to appear on the day the case is set for trial
Rule 55(a) authorizes the clerk to enter defaults upon the civil docket when the party fails to plead or otherwise defend
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Seventh Wonder v. Southbound Records, Inc.
364 So. 2d 1173
(Ala. 1978)
77-602
………………………………………………..
Alabama Supreme Court
December 1, 1978
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http://www.ecases.us/case/ala/c1102643/wonder-v-southbound-records-inc
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(A party who fails to appear on the day the case is set for trial is in default)
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https://www.courtlistener.com/opinion/1102643/wonder-v-southbound-records-inc/
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http://law.justia.com/cases/alabama/supreme-court/1978/364-so-2d-1173-1.html
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Cassioppi v. Damico
536 So. 2d 938
(Ala. 1988)
87-965
………………………………………………..
Alabama Supreme Court
November 18, 1988
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https://www.courtlistener.com/opinion/1932665/cassioppi-v-damico/
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(A judgment entered after one party fails to appear at trial is treated as a default judgment)
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https://casetext.com/case/cassioppi-v-damico
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Henry D. “Butch” Binford, Houston County Circuit Court, 20th Judicial Circuit Judge, Dothan, Alabama (since February 12 2008) Huntingdon College (@HuntingdonColl) University of Alabama School of Law (@UALawSchool) former Veteran Prosecutor, in the Assault and Battery Civil case: Plaintiff v. Brian Ralph Beasley, Defendant (of Daleville, Dale County, Alabama) WHO FAILED TO APPEAR on the DAY the CASE (38-CV-2015-900261.00) WAS SET FOR TRIAL (February 21 2017) on February 23, 2017, espoused a NEW LEGAL THEORY when he ENTERED JUDGMENT for the DEFENDANT CONTRARY to Alabama Rules of Civil Procedure (ARCP) VII. JUDGMENT Rule 55: The rule eliminates the requirement of notice prior to entry of JUDGMENT BY DEFAULT when the DEFAULT arises from FAILURE TO APPEAR on the day the case is set for trial
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http://wp.me/p5tuFO-1rB
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