from Clarke Circuit Court (CV-17-8)
Rule 28(a)(10), 53(a)(1) and (a)(2)(F), Ala. R. App. P.; Rule
4(i)(2)(C), Ala. R. Civ. P; White Sands Group,
L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058
(Ala. 2008); Ex parte Flexible Prod. Co., 915 So.2d
34, 41 (Ala. 2005); City of Gulf Shores v. Harbert
Int'l, 608 So.2d 348, 357-58 (Ala. 1992);
Premier Health Mgmt., Inc. v. Sherling, 100 So.3d
561, 564 (Ala. Civ. App. 2012); Griffin v.
Blackwell, 57 So.3d 161, 163 (Ala. Civ. App. 2010);
Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ.
App. 1996); and McBride v. McBride, 380 So.2d 886,
888 (Ala. Civ. App. 1980).
Thompson, P.J., and Pittman and Moore, JJ., concur.
Thomas, J., concurs specially.
THOMAS, Judge, concurring specially.
Adjustment Service ("Merchants") filed in the
Clarke District Court, acting as a small-claims court
("the district court"), four separate complaints
seeking recovery of debts allegedly accumulated by Kordesia
Williams, Darryl Williams, Benjamin F. Harper, and Aretha
Taylor. In each action, Merchants requested service by
certified mail. See Rule 4(i)(2), Ala. R. Civ. P.;
see also Rule 4(dc)(providing that Rule 4 applies in
the district courts).
receipts were returned to the district court in each action.
Each certified-mail receipt had been signed by an individual
other than the named defendant; however, each individual had
indicated on the certified-mail receipt that the individual
was the "agent" of the named defendant. After the
defendants failed to answer or otherwise defend the actions,
Merchants filed, in each action, a motion seeking the entry
of a default judgment. The district court concluded that
Kordesia, Darryl, and Harper had not been properly served and
entered an order in each of those actions denying
Merchants' motion for a default judgment. Although the
district court entered a continuance in the action against
Taylor, it entered an order consolidating all four actions
for purposes of appellate review.
filed a petition for the writ of mandamus in the Clarke
Circuit Court ("the circuit court"), requesting
that the circuit court order the district court to vacate its
orders denying its requests for default judgments and to
enter a default judgment in each action because, Merchants
argued, the four defendants had been properly served. The
materials submitted to the circuit court for review revealed
that, in each action, Merchants had argued to the district
court that it had complied with two methods of serving an
individual pursuant to Rule 4(c). That is, according to
Merchants, it had complied with Rule 4 by causing each
summons and complaint to be left "at the
individual's dwelling house or usual place of abode with
some person of suitable age and discretion then residing
therein, " Rule 4(c)(1), and by causing the
"deliver[y] [of] a copy of the summons and the complaint
to an agent authorized by appointment or by law to receive
service of process." Id. The circuit court
determined that the district court had not abused its
discretion by determining that the four defendants had not
been properly served; thus, the circuit court entered an
order denying Merchants' mandamus petition. Merchants
filed a timely notice of appeal to this court. Premier
Health Mgmt., Inc. v. Sherling, 100 So.3d 561, 564 (Ala.
Civ. App. 2012)(explaining that an appeal was the proper
method for review of a judgment denying a petition for a writ
concur to affirm the circuit court's refusal to grant
mandamus relief to Merchants regarding the actions against
Kordesia, Darryl, and Harper, see Johnson v. Hall,
10 So.3d 1031, 1037 (Ala. Civ. App. 2008), and I also concur
to affirm the circuit court's refusal to grant mandamus
relief to Merchants regarding the action against Taylor.
Ex parte Flexible Prods. Co., 915 So.2d 34, 41 (Ala.
2005)(citing Ex parte Vance, 900 So.2d 394, 398-99
(Ala. 2004)). However, I write specially to point out that
this appeal illustrates what is surely unintended confusion
created by certain language in Rule 4.
4(i)(1) provides for service of a summons and compliant by a
process server. A process server "shall deliver a copy
of the process and accompanying documents to the defendant or
other person who may be served under the provisions of Rule
4(c)." Rule 4(i)(1)(C). Thus, subject to certain
exceptions, a process server may leave documents "at the
individual's dwelling house or usual place of
abode." Rule 4(c)(1). Rule 4(i)(2) provides for service
of a summons and complaint by certified mail. Service by
certified mail is effective when delivered to "the named
addressee or the addressee's agent." Rule
4(i)(2)(C). I cannot fathom why service is effective when a
process server leaves a summons and complaint with an
individual of suitable age and discretion but service is
ineffective if the same individual signs a certified-mail
receipt. That distinction, whatever it is, does not serve to
"simplify service requirements under Alabama law and to
facilitate service of process." See Committee
Comments to August 1, 1992, Amendment to Rule 4(c)(1).
opinion, clarity could be brought to Rule 4 by amending the
rule to create separate subsections for individuals and for
entities for which agency considerations appear more apt. For
example, an "agent, " as defined by Rule
4(i)(2)(C), is "a person or entity specifically
authorized by the addressee to receive the addressee's
mail and to deliver that mail to the addressee." The
distinction has application in the context of an entity,
see, e.g., LVNV Funding, LLC v.
Boyles, 70 So.3d 1221 (Ala. Civ. App. 2009), and perhaps
in the context of some individuals; however, in this appeal,
the summons and complaints had been delivered by certified
mail to the homes of the defendants. In one action, the
certified-mail receipt clearly demonstrated that it had been
received by the defendant's wife who signed as
"agent" of her husband. Regardless, the district
court determined that the husband had been properly served,
and Merchants could not avail itself of mandamus relief
because it could not show that the wife had had authority as
an agent to accept service for her husband because he did not
"acknowledge actual ...