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Lovell v. Costigan

Alabama Court of Civil Appeals

July 10, 2015

Larry Lovell
v.
Allan Costigan

          Appeal from Baldwin Circuit Court. (CV-05-987).

         THOMPSON, Presiding Judge. Pittman, Thomas, Moore, and Donaldson, JJ., concur.

          OPINION

Page 1131

          THOMPSON, Presiding Judge.

         Larry 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.

         On 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 found."

         On 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."

         The 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, 2006.

         On 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.

         On March 16, 2015, Lovell filed a motion to set aside the default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P.[1] 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:

Page 1132

" '" '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 ...

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