Opinion
2170867
01-10-2020
Brittony MAYS v. TRINITY PROPERTY CONSULTANTS, LLC
After Remand from the Alabama Supreme Court
The prior judgment of this court has been reversed, and the cause remanded by the Supreme Court of Alabama. See Ex parte Trinity Prop. Consultants, LLC, 308 So.3d 36 (Ala. 2019). On remand to this court, and in compliance with the supreme court's opinion, the judgment entered by the Shelby Circuit Court is hereby affirmed.
AFFIRMED.
Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.
On Application for Rehearing After Remand from the Alabama Supreme Court
MOORE, Judge.
The Shelby District Court ("the district court") entered a default judgment against Brittony Mays and in favor of Trinity Property Consultants, LLC, in an eviction and unlawful-detainer action. Mays filed a motion for relief from the default judgment under Rule 60(b)(4), Ala. R. Civ. P., which the district court denied. Mays appealed to the Shelby Circuit Court ("the circuit court"), which dismissed her appeal. Mays then appealed to this court. On original submission, Mays argued that the district court and the circuit court had erred in determining that she had been properly served.
Section 35-9A-461(c), Ala. Code 1975, a part of the Alabama Uniform Residential Landlord and Tenant Act, § 35-9A-101 et seq., Ala. Code 1975, which governs service of process in this case, 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.)
In the proceedings below, Trinity filed an 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 Mays v. Trinity Property Consultants, LLC, 308 So.3d 29 (Ala. Civ. App. 2019) (" Mays I") (opinion on application for rehearing, withdrawing opinion issued on original submission and substituting a new opinion), this court determined that the affidavit filed by the process server did not contain sufficient facts from which it could be determined that the process server had made "reasonable effort" to find Mays or any other person who is sui generis residing on the premises. The Alabama Supreme Court reversed the judgment of this court and remanded the cause for further proceedings. See Ex parte Trinity Prop. Consultants, LLC, 308 So.3d 36 (Ala. 2019) (opinion authored by Sellers, J., with Bolin, Wise, and Mendheim, JJ., concurring; Bryan and Mitchell, JJ., concurring in the result; and Parker, C.J., and Stewart, J., dissenting). After the cause was remanded to this court by the supreme court, we affirmed the judgment of the circuit court. See Mays v. Trinity Prop. Consultants, LLC, 308 So.3d 43 (Ala. Civ. App. 2020) (" Mays II").
Mays has filed an application for rehearing from this court's decision in Mays II. She argues that the supreme court's decision in Ex parte Trinity Property Consultants did not dispose of all the issues presented by her on appeal. We disagree. In Ex parte Trinity Property Consultants, a majority of the supreme court concluded that this court's decision in Mays I should be reversed because the process server had properly served Mays by posting and mailing.
In her application for rehearing, Mays argues that service by posting and mailing was not proper because, she says, she was, in fact, residing on the property at the time of service. However, § 35-9A-461(c) provides that, when process cannot be personally served, process may be served by posting and mailing when, after reasonable effort, no person is "found" residing on the premises.
In Board of Superiors of City of Somerset v. Smith, 278 Ky. 223, 128 S.W.2d 546, 547 (Ky. 1939), the Kentucky Court of Appeals reasoned:
"[Section 625 of the Civil Code of Practice] does not require that the person on whom the notice is to be served must be absent from his usual place of abode. It only says that if he be not found there, service may be made by posting. This does not mean that the officer or person seeking to serve the notice must remain at the front door all day or make a search of the house. When he has made a reasonable effort to summon the occupants of the house to the door for the purpose of delivering the notice and no one answers, he is then justified in posting it."
Similarly, in the present case, § 35-9A-461(c) allows for service by posting and mailing if the process server does not locate anyone residing on the premises while making a reasonable effort to serve the tenant.
In this case, Stave, the process server, averred that he knocked on the door of the property and no one answered. Mays asserts that she was home at the time and did not hear the knock, but she does not contest that no one responded to Stave or that Stave did not find anyone residing on the property at the time he attempted service. Regardless of the fact that Mays might have had a lease on the property and was using the property as her domicile, and regardless of the fact that Mays might have actually been present on the property at the time, it remains that, on the date in question, "after reasonable effort no person [was] found residing on the premises." § 35-9A-461(c).
Mays also asserts in her application for rehearing that she had constructively answered the complaint filed by Trinity and, therefore, that the default judgment was entered in error. Mays raises this issue for the first time on rehearing; therefore, we will not address it. See Water Works & Sewer Bd. of Selma v. Randolph, 833 So. 2d 604, 608 (Ala. 2002) (opinion on application for rehearing) ("The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing.").
APPLICATION OVERRULED.
Thompson, P.J., and Donaldson, Edwards, and Hanson, JJ., concur.