second and third Kirtland factors in Alabama

2009Phillips v. Randolph, supra; Triple D Trucking, Inc., supra. The defendants also contend on appeal that the trial court erred in awarding punitive damages, and they argue that the trial court erred in allegedly refusing to conduct a hearing on the issue whether the punitive-damages award was excessive under Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).

2006In Phillips v. Randolph, [ 828 So.2d 269 (Ala.2002),] ... all three of the Kirtland factors weighed in favor of denying the defendant’s motion for relief from the default judgment. ... [A] failure to demonstrate that one or both of the second and third Kirtland factors supports the granting of relief from a default judgment is not necessarily fatal to a motion for such relief.... [[Image here]] “In Ex parte Gilliam, 720 So.2d [902] at 906 [ (Ala.1998) ], the Supreme Court found fault with the nonmovant for not presenting concrete facts indicating that any witnesses had become unavailable or th

2009In this case, the defendants demonstrated the existence of a meritorious defense, which is the first factor to be considered under Kirtland, supra. However, based upon our conclusions that the defendants failed to demonstrate the absence of substantial prejudice or culpable conduct, we cannot say that they have demonstrated that the trial court exceeded its discretion in denying their motion to set aside the default judgment based upon the second and third Kirtland factors.

2008Kirtland , 524 So.2d at 607 . "[A] failure to demonstrate that one or both of the second and third Kirtland factors supports the granting of relief from a default judgment is not necessarily fatal to a motion for such relief." Sumlin v. Sumlin , 931 So.2d at 48 .

2011In addressing the first Kirtland factor, i.e., whether there is a meritorious defense, the defaulting party made only a bare legal conclusion unsupported by evidence, which is an insufficient showing under Kirtland. 6 So.3d at 467-68 .

2009Phillips v. Randolph, supra; Triple D Trucking, Inc., supra. The defendants also contend on appeal that the trial court erred in awarding punitive damages, and they argue that the trial court erred in allegedly refusing to conduct a hearing on the issue whether the punitive-damages award was excessive under Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).

2007Because Bennett bears the "initial burden of demonstrating the existence of the Kirtland factors," Rudolph , 909 So.2d at 203 , and because he failed to make at least a prima facie showing as to these factors, the trial court did not exceed its discretion in denying Bennett's motion to set aside the default judgment.

2006Also, in Sampson v. Cansler, 726 So.2d 632 (Ala.1998), the Supreme Court indicated its favorable disposition toward a defendant’s motion for relief from a default judgment on the ground that ‘Ms. Can-sler [the nonmovant] has not argued prejudice except in the form of delay and increased costs.’ 726 So.2d at 635 .

2006Also, in Sampson v. Cansler, 726 So.2d 632 (Ala.1998), the Supreme Court indicated its favorable disposition toward a defendant’s motion for relief from a default judgment on the ground that ‘Ms. Can-sler [the nonmovant] has not argued prejudice except in the form of delay and increased costs.’ 726 So.2d at 635 .

2005In Aldridge v. Hamilton, 708 So.2d 194 (Ala.Civ.App. 1997), this court held that the trial court had erred in failing to set aside a default judgment despite the fact that both the second and third Kirtland factors weighed against granting relief: "[W]ith deference to the diligent and well-meaning trial court, we conclude that the default judgment should have been set aside.

2005In Aldridge v. Hamilton, 708 So.2d 194 (Ala.Civ.App.1997), this court held that the trial court had erred in failing to set aside a default judgment despite the fact that both the second and third Kirtland factors weighed against granting relief: "[W]ith deference to the diligent and well-meaning trial court, we conclude that the default judgment should have been set aside.

2005In Rooney v. Southern Dependacare, Inc., 672 So.2d 1 (Ala. 1995), our supreme court stated as follows regarding the factor of the defendant's culpable conduct: "`[T]his Court has held that if there is a dispute as to liability and damages, even avoidance of service or ignoring service is not sufficient grounds for the trial court to refuse to set aside a default judgment.

2005In Rooney v. Southern Dependacare, Inc., 672 So.2d 1 (Ala. 1995), our supreme court stated as follows regarding the factor of the defendant's culpable conduct: "`[T]his Court has held that if there is a dispute as to liability and damages, even avoidance of service or ignoring service is not sufficient grounds for the trial court to refuse to set aside a default judgment.