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 ...