Shelby
Circuit Court, CV-18-99; Court of Civil Appeals, 2170867
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS
SELLERS, Justice.
Trinity
Property Consultants, LLC ("Trinity Property"),
petitioned this Court for a writ of certiorari to review the
judgment of the Court of Civil Appeals holding that Trinity
Property failed to meet its burden of demonstrating that
Brittony Mays had been properly served in an eviction and
unlawful-detainer action filed by Trinity Property pursuant
to the Alabama Uniform Residential Landlord and Tenant Act,
§ 35-9A-101 et seq., Ala. Code 1975. See
Mays v. Trinity Property Consultants, LLC, [Ms.
2170867, March 8, 2019]__ So. 3d__ (Ala. Civ. App. 2019).
This Court issued the writ; we now reverse the judgment of
the Court of Civil Appeals and remand the cause to that
court.
Facts
and Procedural History
The
following facts are relevant to our review: On February 5,
2018, the Shelby District Court entered a default judgment
against Mays in the eviction and unlawful-detainer action
filed by Trinity Property. Mays moved the district court,
pursuant to Rule 60(b)(4), Ala. R. Civ. P., to set aside the
default judgment on the basis that she had not been served
with the complaint in the action; that motion was denied.
See Rule 60(dc), Ala. R. Civ. P. Mays appealed the
denial of the Rule 60(b)(4) motion to the Shelby Circuit
Court; that court dismissed her appeal as untimely filed.
Mays moved the circuit court, pursuant to Rule 59(e), Ala. R.
Civ. P., to reinstate the appeal and to stay the execution of
the default judgment. Trinity Property responded and filed
the affidavit of Dale C. Stave, a process server, who
averred, in relevant part:
"1. I am a process server in Shelby County, Alabama.
"2. I have been serving Unlawful Detainer actions for
over 20 years.
"3. On the 25th day of January, 2018, I served a copy of
the Unlawful Detainer Summons and Complaint to [Mays] at the
address listed on the Summons.
"4. In accordance with Ala. Code [1975, ] §
35-9A-461(c), I knocked on the door[;] after I did not
receive a response, I posted a copy of the Summons and
Complaint on the door, then placed a stamped copy in the
first class mail to the same address on the 25th of January,
2018."
In
other words, the process server, fully aware of the statutory
requirements governing his actions, attempted to personally
serve Mays by knocking on the door of her residence, and,
after receiving no response, he posted a copy of the summons
and complaint on the door and, on the same day, mailed the
summons and complaint by first-class mail to the same
address--a method hereinafter referred to as "posting
and mailing." The circuit court denied Mays's Rule
59(e) motion. Mays then filed an appeal with the Alabama
Court of Civil Appeals. In her appeal, Mays again argued that
she was entitled to relief from the default judgment because,
she claimed, the judgment was void because she had not been
served with the complaint in the action. Mays specifically
argued that service by posting and mailing was improper
because, she claimed, Trinity Property failed to make a
reasonable effort to serve her personally. In other words, it
was Mays's position that merely knocking on the door,
without more, was not a "reasonable effort" at
personal service. See § 35-9A-461(c), Ala. Code
1975.
The
Court of Civil Appeals reversed the judgment of the circuit
court and remanded the case, concluding that Mays was
entitled to Rule 60(b)(4) relief from the default
judgment.[1]The Court of Civil Appeals specifically
concluded that Trinity Property failed to meet its burden of
showing valid service pursuant to § 35-9A-461(c) and
§ 6-6-332(b), Ala. Code 1975, because the process
server's affidavit did not include enough information to
support the propriety of service by posting and mailing. The
Court of Civil Appeals cited Eight Associates v.
Hynes, 102 A.D.2d 746, 747, 476 N.Y.S.2d 881, 883
(N.Y.App.Div. 1984)(holding: "Under the facts present
herein, one attempt to serve process during 'normal
working hours' did not satisfy the 'reasonable
application' standard set forth in [Real Property Actions
and Proceedings Law] 735. In so doing we do not rule that
such service during 'normal working hours' would be
insufficient under all circumstances."). The Court of
Civil Appeals then stated:
"In the present case, Stave [the process server] averred
in his affidavit that, on January 25, 2018, which was a
weekday, he 'knocked on the door [and] did not receive a
response.' As Mays points out, however, there is no
evidence concerning the time that Stave knocked on the door
of the residence[, i.e., whether it was during normal working
hours, which may be deemed unreasonable under the
circumstances] nor is there any other evidence concerning the
circumstances of Stave's attempt at service, such as the
number of times he knocked or how long he waited for a
response. 'When the service of process on the defendant
is contested as being improper or invalid, the burden of
proof is on the plaintiff to prove that service of process
was performed correctly and legally.' Ex parte
Volkswagenwerk Aktiengesellschaft, 443 So.2d 880, 884
(Ala. 1983). In this case, after Mays contested the validity
of service, Trinity Property had the burden of showing that
service was proper. Although Trinity Property filed an
affidavit in support of its method of service, we conclude
that that affidavit did not include enough information to
support the availability of service by posting and mailing as
a valid service option. Therefore, Trinity Property failed to
meet its burden of showing valid service pursuant to §
35-9A-461(c) and § 6-6-332(b)."
__So.
3d at__ .
Trinity
Property filed an application for rehearing, arguing that the
Court of Civil Appeals' decision was in conflict with
Greene v. Lindsey, 456 U.S. 444 (1982). The Court of
Civil Appeals overruled the application for rehearing,
concluding that its interpretation of the phrase
"reasonable effort," as that phrase is used in
§§ 35-9A-461(c) and 6-6-332(b), was in complete
harmony with Greene. SeeMaysv. Trinity Prop. Consultants, LLC, [Ms. 2170867, May
3, 2019] __So. 3d__ (Ala. Civ. App. 2019)(opinion on second
application for rehearing). This Court issued the writ of
certiorari to determine whether the Court ...