Mays v. Trinity Prop. Consultants, LLC

Full title: Brittony Mays v. Trinity Property Consultants, LLC

Court: ALABAMA COURT OF CIVIL APPEALS

Date published: Mar 8, 2019

308 So. 3d 29 (Ala. Civ. App. 2019)

Opinion

2170867

03-08-2019

Brittony MAYS v. TRINITY PROPERTY CONSULTANTS, LLC

MOORE, Judge.

On Application for Rehearing

This court's opinion of January 11, 2019, is withdrawn, and the following is substituted therefor.

Brittony Mays appeals from an order of the Shelby Circuit Court ("the circuit court") dismissing her appeal from an order entered by the Shelby District Court ("the district court") denying her Rule 60(b)(4), Ala. R. Civ. P., motion to set aside a default judgment entered against her in an eviction and unlawful-detainer action. We reverse the circuit court's judgment.

Relevant Procedural History

On January 24, 2018, Trinity Property Consultants, LLC, filed in the district court a "Statement of Claim" for "Eviction/Unlawful Detainer" against Mays. Trinity Property demanded possession of certain property located in Birmingham, as well as "3556.67 plus court costs ... consisting of unpaid rent and late charges, plus attorney's fees (if applicable) and other charges." Proof of service upon Mays was filed on January 26, 2018. On February 2, 2018, Trinity Property filed an application for the entry of a default judgment against Mays. On February 5, 2018, the district court entered a default judgment in favor of Trinity Property and against Mays. That judgment provided, in part:

"This case came before the Court on [Trinity Property's] application for default judgment on the Unlawful Detainer possession count of the complaint. [Trinity Property] is entitled to possession as claimed in the complaint and default is hereby entered and default judgment is hereby entered in favor of [Trinity Property] and against [Mays] on the Unlawful Detainer [count]. The Court hereby orders and adjudges that the ... property ... be restored to [Trinity Property].

"....

"Rent is ascertained to be $925.00 per month due on the 1st of the month. Rent in the amount of $925.00 has accrued since date of filing to date. Pursuant to Rule 54(b)[, Ala. R. Civ. P.,] and in order to make this a final order, the Court specifically finds that there is no just reason for delay and specifically directs the immediate entry of judgment as to [Mays] for property sued for and costs of court with leave to prove damages against [Mays] on the money claim."

On February 22, 2018, Mays filed in the district court a Rule 60(b)(4) motion seeking to set aside the default judgment (see Rule 60(dc), Ala. R. Civ. P.), alleging that she had not been served with the complaint in the action. That motion was denied on February 27, 2018.

On March 5, 2018, Mays filed her notice of appeal to the circuit court. On March 12, 2018, Trinity Property moved the circuit court to dismiss the appeal because, it asserted, it had been untimely filed. On March 21, 2018, the circuit court dismissed Mays's appeal.

On March 27, 2018, Mays filed in the circuit court a "motion to reinstate appeal and [to] stay execution," which we construe as a motion filed pursuant to Rule 59(e), Ala. R. Civ. P. See Larkin v. American Western Surety Ins. Co., 979 So.2d 835, 838 (Ala. Civ. App. 2007) ; and Ryans v. State ex rel. Stoudmire, 963 So.2d 95, 96 (Ala. Civ. App. 2007). On May 2, 2018, Trinity Property filed an affidavit of Dale C. Stave, in which Stave averred, in 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."¹

1 Because the appeal from the district court to the circuit court was for a trial de novo, Stave's affidavit could be introduced to the circuit court. See § 12-12-71, Ala. Code 1975 (with exceptions not applicable to this case, "all appeals from final judgments of the district court shall be to the circuit court for trial de novo."); see also Casey v. Bingham, 265 So.3d 288, 291-92 (Ala. Civ. App. 2018) (quoting Crews v. Jackson, 218 So.3d 368, 370-71 (Ala. Civ. App. 2016), quoting in turn Petersen v. Woodland Homes of Huntsville, Inc., 959 So.2d 135, 139 (Ala. Civ. App. 2006) ) (" ‘ " ‘ "Alabama cases have consistently held that a trial de novo means an entirely new trial, ‘as if no trial had ever been had, and just as if it had originated in the circuit court.’ Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So.2d 602 (1964)." ’ State v. Reynolds, 887 So.2d 848, 853 (Ala. 2004) (quoting Ex parte Palughi, 494 So.2d 404, 408 (Ala. 1986) ). ‘A trial de novo ... means "trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered." ’ Neal v. First Alabama Bank of Huntsville, N.A., 440 So.2d 1111, 1112 (Ala. Civ. App. 1983) (quoting Rudolph v. State, 286 Ala. 189, 190, 238 So.2d 542, 543 (1970) ) (emphasis omitted)." ’ ").

1 Because the appeal from the district court to the circuit court was for a trial de novo, Stave's affidavit could be introduced to the circuit court. See § 12-12-71, Ala. Code 1975 (with exceptions not applicable to this case, "all appeals from final judgments of the district court shall be to the circuit court for trial de novo."); see also Casey v. Bingham, 265 So.3d 288, 291-92 (Ala. Civ. App. 2018) (quoting Crews v. Jackson, 218 So.3d 368, 370-71 (Ala. Civ. App. 2016), quoting in turn Petersen v. Woodland Homes of Huntsville, Inc., 959 So.2d 135, 139 (Ala. Civ. App. 2006) ) (" ‘ " ‘ "Alabama cases have consistently held that a trial de novo means an entirely new trial, ‘as if no trial had ever been had, and just as if it had originated in the circuit court.’ Cloverleaf Land Co. v. State, 276 Ala. 443, 163 So.2d 602 (1964)." ’ State v. Reynolds, 887 So.2d 848, 853 (Ala. 2004) (quoting Ex parte Palughi, 494 So.2d 404, 408 (Ala. 1986) ). ‘A trial de novo ... means "trying anew the matters involved in the original hearing as if they had not been heard before and as if no decision had been previously entered." ’ Neal v. First Alabama Bank of Huntsville, N.A., 440 So.2d 1111, 1112 (Ala. Civ. App. 1983) (quoting Rudolph v. State, 286 Ala. 189, 190, 238 So.2d 542, 543 (1970) ) (emphasis omitted)." ’ ").

On May 3, 2018, Mays filed a supplement to her Rule 59(e) motion. On May 4, 2018, Trinity Property filed a response to Mays's motion.

On June 4, 2018, the circuit court entered an order denying Mays's Rule 59(e) motion. On June 19, 2018, Mays filed her notice of appeal to this court.

Discussion

On appeal, Mays argues that she was entitled to relief under Rule 60(b)(4) because, she says, the default judgment entered by the district court was void because she was not properly served. She specifically argues that service by posting on the door of the property, which is her residence, was improper because, she says, Trinity Property failed to make a reasonable effort to serve Mays and because Mays was residing on the property.²

2 Trinity Property argues in its brief to this court that Mays raised this specific argument for the first time in her appeal to the circuit court. However, "[f]ailure of proper service under Rule 4[, Ala. R. Civ. P.,] deprives a court of jurisdiction and renders its judgment void." Ex parte Pate, 673 So.2d 427, 428–29 (Ala. 1995). "[T]he absence of jurisdiction may be raised for the first time on appeal." Reynolds v. Colonial Bank, 874 So.2d 497, 503 (Ala. 2003). Thus, we determine this issue to have been properly raised before this court.

Section 35-9A-461(c), Ala. Code 1975, which specifically applies to "[a] landlord's action for eviction, rent, money damages, or other relief," § 35-9A-461(a), provides:

"Service of process shall be made in accordance with the Alabama Rules of Civil Procedure. However, if a sheriff, constable, or process server is unable to serve the defendant personally, service may be had by delivering the notice to any person who is sui juris residing on the premises, or if after reasonable effort no person is found residing on the premises, by posting a copy of the notice on the door of the premises, and on the same day of posting or by the close of the next business day, the sheriff, the constable, the person filing the complaint, or anyone on behalf of the person, shall mail notice of the filing of the unlawful detainer action by enclosing, directing, stamping, and mailing by first class a copy of the notice to the defendant at the mailing address of the premises and if there is no mailing address for the premises to the last known address, if any, of the defendant and making an entry of this action on the return filed in the case. Service of the notice by posting shall be complete as of the date of mailing the notice."

(Emphasis added.) See also Ala. Code 1975, § 6–6–332(b) (providing substantially the same with regard to unlawful-detainer actions).

In Gaudin v. Collateral Agency, Inc., 624 So.2d 631, 633 (Ala. Civ. App. 1993), this court reasoned:

"We recognize that in unlawful detainer actions, after a complaint is filed, notice may be served on a defendant, who the sheriff or constable cannot personally serve. A copy of the notice can be delivered to any person residing on the premises or by posting a copy of the notice on the door of the premises and by mailing the notice by first class mail

to the defendant. The parties stipulated that copies of the complaint were posted on the premises and that a copy also was mailed to Gaudin by first class mail. Clearly, service was proper pursuant to § 6–6–332 ...."

In this case, Stave, the process server, averred in his affidavit that he had "knocked on the door, [and that,] after [he] did not receive a response, [he] 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." Mays argues that Stave's action of knocking on the door of her residence did not constitute "reasonable effort."

Mays cites several cases concerning the requirements that must be met before a person can be served by publication pursuant to Rule 4.3, Ala. R. Civ. P. However, Rule 4.3 specifically requires a showing that the defendant is avoiding service before service by publication is made, a showing that is not required by §§ 6–6–332(b) and 35-9A-461(c). Instead, §§ 6–6–332(b) and 35-9A-461(c) require only that "reasonable effort" to personally serve the defendant be made before "posting a copy of the notice on the door of the premises and by mailing the notice by first class mail to the defendant." Gaudin, 624 So.2d at 633. "Reasonable" is defined, in part, as "being in accordance with reason," "not extreme or excessive," and "moderate, fair." Merriam-Webster's Collegiate Dictionary 1037 (11th ed. 2003).

Mays points out that Stave's affidavit did not include any information regarding his knocking on the door, such as the time he knocked on the door of the residence. In her application for rehearing, Mays cites, among other cases, Eight Associates v. Hynes, 102 A.D.2d 746, 476 N.Y.S.2d 881 (1984). In Hynes, the Appellate Division of the New York Supreme Court discussed whether a single knock at the residence of a tenant constituted a "reasonable application" such that service by posting and mailing could be made under N.Y. Real Property Actions & Proceedings Law § 735 (McKinney 1980). That court noted:

"The Appellate Term of this Department has previously held that an attempted personal service at 7:35 A.M. which was unsuccessful, followed by ‘nail and mail’ service, met the requirements of [ N.Y. Real Property Actions & Proceedings Law §] 735 since the process server ‘was on the premises at an hour when he could reasonably expect the tenant to be at home ...’ ( Parkchester Apts. Co. v. Hawkins, [111 Misc. 2d 896, 897, 447 N.Y.S.2d 194 (N.Y. App. Term (1981)] )."

102 A.D.2d at 748, 476 N.Y.S.2d at 883. The court noted in Hynes, however, that the process server had attempted service on a weekday during normal working hours. 102 A.D.2d at 747, 476 N.Y.S.2d at 882. The court concluded that "one attempt to serve process during ‘normal working hours’ " could not be deemed reasonable under the circumstances of that case. 102 A.D.2d at 747, 476 N.Y.S.2d at 883. It noted that an attempt that is "predestined to failure" is inadequate. 102 A.D. 2d at 748, 476 N.Y.S.2d at 883.

In the present case, Stave 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 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).

Conclusion

Having determined that Trinity Property failed to demonstrate that Mays was properly served pursuant to § 35-9A-461(c) and § 6-6-332(b), we conclude that the circuit court should have awarded Mays Rule 60(b)(4) relief from the district court's judgment against her on Trinity Property's eviction and unlawful-detainer claims. We therefore reverse the circuit court's judgment and remand this cause for the entry of a judgment in accordance with this opinion.³

3 We pretermit discussion of Mays's argument that posting and mailing service was improper because she was residing on the property at the time Stave attempted to serve her.
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Trinity Property's request for an attorney's fee on appeal is denied.

APPLICATION GRANTED; OPINION OF JANUARY 11, 2019, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.

On Second Application for Rehearing

MOORE, Judge.

Trinity Property Consultants, LLC, seeks a rehearing of this court's decision issued on March 8, 2019. In its application for a rehearing, Trinity Property argues that this court's decision is in conflict with Greene v. Lindsey, 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982). In Greene, the United States Supreme Court considered whether service of process under Ky. Rev. Stat. § 454.030 (1975), "as applied to tenants in a public housing project, fails to afford those tenants the notice of proceedings initiated against them required by the Due Process Clause of the Fourteenth Amendment." 456 U.S. at 445, 102 S.Ct. 1874. Section 454.030, as it read at that time, provided:

"If the officer directed to serve notice on the defendant in forcible entry or detainer proceedings cannot find the defendant on the premises mentioned in the writ, he may explain and leave a copy of the notice with any member of the defendant's family thereon over sixteen (16) years of age, and if no such person is found he may serve the notice by posting a copy thereof in a conspicuous place on the premises. The notice shall state the time and place of meeting of the court."

The Supreme Court in Greene explained that " ‘due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ " 456 U.S. at 449-50, 102 S.Ct. 1874 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ). The Supreme Court concluded that notice by posting under § 454.030, after only one failed attempt at personal service, did not afford tenants "adequate notice of the proceedings against them before issuing final orders of eviction, [and thereby] deprived them of property without the due process of law required by the Fourteenth Amendment." 456 U.S. at 456, 102 S.Ct. 1874.

At one point in its discussion, the Supreme Court noted, in dicta, that "[n]otice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required assurance that the State has not allowed its power to be invoked against a person who has had no opportunity to present a defense despite a continuing interest in the resolution of the controversy." 456 U.S. at 455, 102 S.Ct. 1874. Trinity Property asserts that because the United States Supreme Court indicated that notice by mailing in addition to posting after one failed attempt at personal service may not offend the notions of due process, then the service in this case, i.e., posting of notice and mailing notice after one failed attempt at personal service, did not violate Brittony Mays's due-process rights.

The issue in this case is not whether posting and mailing is sufficient under a due-process standard. The statute at issue in this case specifically provides that "reasonable effort" must be made before resorting to notice by posting and mailing. Although the statute at issue in Greene did not require "reasonable effort" to perfect service, the Supreme Court discussed whether one attempt at personal service would be considered sufficient to afford a tenant due process, stating:

"To be sure, the statute requires the officer serving notice to make a visit to the tenant's home and to attempt to serve the writ personally on the tenant or some member of his family. But if no one is at home at the time of that visit, as is apparently true in a ‘good percentage’ of cases, posting follows forthwith. Neither the statute, nor the practice of the process servers, makes provision for even a second attempt at personal service, perhaps at some time of day when the tenant is more likely to be at home. The failure to effect personal service on the first visit hardly suggests that the tenant has abandoned his interest in the apartment such that mere pro forma notice might be held constitutionally adequate."

456 U.S. at 454, 102 S.Ct. 1874 (footnote omitted; emphasis added). The Supreme Court did not hold that one attempt at personal service alone followed by posting and mailing would satisfy due process, as Trinity Property asserts. To the contrary, the Supreme Court indicated in the foregoing excerpt that a process server making a reasonable effort to personally serve a tenant should attempt service at a place and time when the tenant is likely to be at home, requiring more than one attempt at personal service if necessary.

At one time, Alabama law provided for service of unlawful-detainer actions much in the same manner as the Kentucky statute at issue in Greene. Following the Greene decision, the United States District Court for the Middle District of Alabama struck down former § 35-9-82, Ala. Code 1975, the statute governing service in unlawful-detainer actions, as unconstitutional. See Thornton v. Butler, 728 F.Supp. 679, 684 (M.D. Ala. 1990). In 1990, the Alabama Legislature amended former § 35-9-82 to require "reasonable effort" at personal service before posting and mailing. The legislature carried forward the "reasonable effort" requirement when it adopted the Alabama Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala. Code 1975, in 2006. In so doing, the legislature basically incorporated the holding in Greene into Alabama law. Accordingly, we conclude that this court's holding in our opinion issued on March 8, 2019, construing the phrase "reasonable effort" in this context is in complete harmony with Greene and the legislative intent in using those words.

APPLICATION OVERRULED.

Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.