July 10, 2015
from Baldwin Circuit Court. (CV-05-987).
Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ.,
THOMPSON, Presiding Judge.
Lovell appeals from a judgment of the Baldwin Circuit Court
(" the trial court" ) denying his motion, filed
pursuant to Rule 60(b)(4), Ala. R. Civ. P., to set aside the
trial court's default judgment entered against him.
August 15, 2005, Allan Costigan filed in the trial court a
complaint alleging that Lovell had borrowed $18,000 from him
and that Lovell had failed to make payments on that loan.
Costigan's attorney attempted to serve Lovell with
process via certified mail. However, that attempted service
was returned with the notation " FORWARDING ORDER
EXPIRED." (Capitalization in original.) The
case-action-summary sheet also contains a notation that
attempted service was unsuccessful because " return not
April 7, 2006, Costigan filed in the trial court a motion
requesting service of process by publication. Costigan
attached to that motion the affidavit of his attorney, which
states, in part:
" The address used [to attempt to serve Lovell] was the
only address known by [Costigan] and it was the last one used
in correspondence to [Lovell]. In the ensuing months,
attempts have been made to ascertain [Lovell's] place of
residence through telephone and internet. It is known that
[Lovell] still resides in this area."
trial court granted Costigan's motion and ordered that
notice of the proceedings be published once a week for four
consecutive weeks in The Foley Onlooker, a weekend newspaper
circulated in Baldwin County. Pursuant to the trial
court's order, notice of the proceedings was published in
The Foley Onlooker on August 12, 2006, August 19, 2006,
August 26, 2006, and September 2, 2006. Lovell never
responded to those notices. Thereafter, the clerk of the
trial court entered a " service notice" indicating
that Lovell had received service of process on September 2,
November 17, 2006, Costigan filed an application for the
entry of a default judgment. The trial court granted that
application on December 18, 2006, and entered a default
judgment against Lovell.
March 16, 2015, Lovell filed a motion to set aside the
default judgment pursuant to Rule 60(b)(4), Ala. R. Civ.
P. In support of his motion, Lovell
argued that Costigan had not properly served him with process
and that, in the absence of proper service of process, the
trial court never obtained personal jurisdiction over him.
Thus, Lovell argued, in the absence of personal jurisdiction,
any judgment entered by the trial court was void and was due
to be vacated. The trial court denied Lovell's motion,
and Lovell timely appealed.
" A trial court's ruling on a Rule 60(b)(4) motion
is subject to de novo review. Bank of America Corp. v.
Edwards, 881 So.2d 403 (Ala. 2003). In Bank of America,
supra, our supreme court stated:
" '" 'The standard of review on appeal from
the denial of relief under Rule 60(b)(4) is not whether there
has been an abuse of discretion. When the grant or denial of
relief turns on the validity of the judgment, as under Rule
60(b)(4), discretion has no place. If the judgment is valid,
it must stand; if it is void, it must be set aside. A
judgment is void only if the court rendering it lacked
jurisdiction of the subject matter or of the parties, or if
it acted in a manner inconsistent with due process.
Satterfield v. Winston Industries, Inc., 553 So.2d
61 (Ala. 1989).'" '
" 881 So.2d at 405, quoting Image Auto, Inc. v. Mike
Kelley Enters., Inc., 823 So.2d 655, 657 (Ala. 2001),
quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar
Ins. Corp., 590 So.2d 209, 212 (Ala. 1991)."
Nichols v. Pate, 992 So.2d 734, 736 (Ala.Civ.App.
axiomatic that " '[a] judgment rendered against a
defendant in the absence of personal jurisdiction over the
defendant is void.'" Campbell v. Taylor,
159 So.3d 4, 11 (Ala. 2014)(quoting Horizons 2000, Inc.
v. Smith, 620 So.2d 606, 607 (Ala. 1993)). It is equally
axiomatic that " '[o]ne of the requisites of
personal jurisdiction over a defendant is " perfected
service of process giving notice to the defendant of the suit
being brought." '" Austin v. Austin, 159 So.3d
753, 759 (Ala.Civ.App. 2013)(quoting Horizons 2000, Inc.
v. Smith, 620 So.2d at 607, quoting in turn Ex parte
Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884 (Ala.
1983)). Thus, for purposes of resolving this appeal, we must
determine whether service of process by publication was
proper so as to give the trial court personal jurisdiction
over Lovell. If service of process was not proper, then the
trial court never obtained personal jurisdiction over Lovell,
and its default judgment would be void and would be due to be
4.3(a)(2), Ala. R. Civ. P., provides, in part, that a
defendant in an action involving legal claims may be served
by publication when that defendant " avoids service of
process as described in subdivision (c) of this rule."
Subdivision (c) of Rule 4.3 provides, in part:
" When a defendant avoids service and that
defendant's present location or residence is unknown and
the process server has endorsed the fact of failure of
service and the reason therefor on the process and returned
it to the clerk or where the return receipt shows a failure
of service, the court may, on motion, order service to be
made by publication. ... The mere fact of failure of service
is not sufficient evidence of avoidance, and the affidavit
required in subdivision (d)(1) of this rule must aver
specific facts of avoidance."
(d)(1) of Rule 4.3 provides, in part:
" Before service by publication can be made in an action
... where the defendant avoids service, an affidavit of a
party or the party's counsel must be filed with the court
averring that service of summons or other process cannot be
made because ... the defendant avoids service, averring facts
showing such avoidance."
" [s]ections (a)(2), (c), and (d)(1) of Rule 4.3 permit
service of a resident defendant by publication only when the
defendant avoids service. The committee comments to Rule 4
... support this conclusion. The committee comments to Rule
" '[M]ore than mere inability to find the defendant
is required because of
the use of the term " avoidance" of service.
Without this element of culpability on the part of the
defendant when plaintiff has failed to obtain service other
than by publication, substantial constitutional questions may
be posed by the obtaining of an in personam judgment by
McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763,
768 (Ala.Civ.App. 1996)(footnote omitted).
Hokes Bluff, the plaintiff filed a motion requesting service
of process by publication after it unsuccessfully attempted
to serve the defendant by certified mail. The affidavit
accompanying the plaintiff's motion stated, in part:
" '[T]he defendant ... cannot be located by the
Sheriff of Etowah County, Alabama; ... the whereabouts of the
said [defendant] is unknown and cannot be ascertained after
reasonable effort....'" Hokes Bluff, 685
So.2d at 764. The trial court in that case granted the
plaintiff's motion and, after the defendant failed to
respond to the published notices, entered a default judgment
against the defendant. The defendant filed a Rule 60(b)
motion in which he alleged that the default judgment was void
for lack of personal jurisdiction; that motion was denied.
appeal, this court held that, because the affidavit submitted
in support of the plaintiff's motion did not show that
the defendant was avoiding service, service of process had
not been proper and that, as a result, the trial court in
that case never obtained personal jurisdiction over the
defendant. Id. at 768. Accordingly, we reversed the
judgment denying the defendant's Rule 60(b) motion and
remanded the cause for the trial court in that case to enter
a judgment vacating the default judgment. Id.
in Wagner v. White, 985 So.2d 458 (Ala.Civ.App.
2007), White filed a motion requesting service of process by
publication. Before filing that motion, White had
unsuccessfully attempted to serve Wagner at two different
Alabama addresses and had also, without success, employed two
separate process servers to attempt to serve Wagner in Texas
and Oregon, where Wagner was found to have had addresses.
White's attorney submitted an affidavit indicating the
efforts made to serve Wagner and stating that "
Wagner's residential moves amounted to avoidance of
service." Id. at 460. However, that affidavit
set forth no facts indicating that Wagner had relocated at
any time for the purpose of avoiding personal service. The
trial court in that case entered a default judgment against
Wagner. Wagner filed a Rule 60(b) motion seeking relief from
the default judgment on the ground that the trial court in
that case lacked personal jurisdiction over him; that motion
appeal, this court held that the trial court in that case had
erred in denying Wagner's Rule 60(b) motion because the
judgment had been entered in the absence of personal
jurisdiction over Wagner. Wagner, 985 So.2d at 462 .
Although we recognized the " diligent efforts of
White's counsel" to locate Wagner, we held that
" our Rules of Civil Procedure, in mandating that
'avoidance' of service be shown, simply require more
from a party seeking service by publication than a mere
showing that a defendant is quite difficult to
locate...." Id. at 461-62. Thus, as we did in
Hokes Bluff, we reversed the judgment denying Wagner's
Rule 60(b) motion and remanded the cause with instructions
for the trial court to vacate the default judgment.
present case, Costigan's attorney's affidavit states
that he attempted to serve Lovell with process at
Lovell's only known address and that he had made attempts
to ascertain Lovell's residence via telephone and the
Internet. It may be, though we cannot know with certainty,
that Costigan's attorney, as did White's attorney in
Wagner, went to great lengths to locate Lovell. However, even
if he did, there is simply no allegation that Lovell
attempted to avoid service of process, nor are there any
facts set forth in Costigan's attorney's affidavit
that would support such a finding. Our caselaw and Rule 4.3
are clear that an affidavit submitted in support of a motion
requesting service of process by publication must set forth
facts showing that the defendant has avoided service. Service
of process by publication is not proper simply because the
defendant may be difficult to locate; there must be some
element of culpability on the part of the defendant, and that
culpability must be shown by facts set forth in an affidavit
submitted in support of a motion requesting service of
process by publication. Hokes Bluff, 685 So.2d at
768. See also Nichols v. Pate, 992 So.2d 734, 737
there is no evidence showing that Lovell avoided service of
process, we hold that service of process by publication was
improper and, thus, that the trial court never acquired
personal jurisdiction over Lovell. In the absence of personal
jurisdiction, the default judgment entered by the trial court
is void and should have been set aside pursuant to
Lovell's Rule 60(b) motion. Accordingly, we reverse the
trial court's judgment denying Lovell's Rule 60(b)
motion and remand the cause for the trial court to enter a
judgment granting the motion and vacating the default
AND REMANDED WITH INSTRUCTIONS.
Thomas, Moore, and Donaldson, JJ., concur.
 Rule 60(b)(4) provides that a court may
relieve a party from a final judgment if that judgment is
void. Although Lovell did not file his Rule 60(b) motion
until more than eight years after the trial court had entered
the default judgment, Rule 60(b)'s " reasonable-time
limitation is not applicable to actions seeking to set
aside a void judgment pursuant to Rule 60(b)(4), Ala. R. Civ.
P." Ex parte Full Circle Distrib., L.L.C., 883
So.2d 638, 642 (Ala. 2003).