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Ex parte Trinity Property Consultants, LLC

Supreme Court of Alabama

August 30, 2019

Ex parte Trinity Property Consultants, LLC
v.
Trinity Property Consultants, LLC In re: Brittony Mays

          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 ...


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