Allsopp v. Bolding

• Decision Date: 16 December 2011
• Docket Number: 1100432.
• Citation: 86 So.3d 952
• Parties: Timothy C. ALLSOPP v. James A. BOLDING and Kisha Bolding.
• Court: Alabama Supreme Court

86 So.3d 952

Timothy C. ALLSOPP

v.James A. BOLDING and Kisha Bolding.

1100432.

Supreme Court of Alabama.

Sept. 30, 2011.

Rehearing Denied Dec. 16, 2011.

C. Wayne Morris, Huntsville, for appellant.

Gary V. Conchin and Joseph D. Aiello of Morris, Conchin, King & Hodge, Huntsville, for appellees.

BOLIN, Justice.

Timothy C. Allsopp appeals from the trial court's denial of his Rule 60(b)(4), Ala. R. Civ. P., motion for relief from a judgment entered in favor of James A. Bolding and Kisha Bolding.

Specifically, Allsopp contends that the judgment is void because, he argues, he was not properly served with notice.

Facts and Procedural History

On January 31, 2008, the Boldings sued Naysa Realty and Investments, LLC, Deleana Davis, Keller–Williams Realty Co., and Allsopp. The Boldings alleged breach of fiduciary duty, and three counts of fraud, arising out of real-estate transactions in Madison County. Davis is a principal in Naysa Realty and is employed by Keller–Williams as a real-estate agent. Davis advised the Boldings, who were purchasing property, to give Allsopp power of attorney to sign certain closing documents on their behalf.

The Boldings amended their complaint to add claims of negligence and negligent hiring, training, and supervision against Keller–Williams. They also “properly designated” Keller–Williams as Classic Madison, LLC, d/b/a Keller–Williams Realty. Davis and Naysa Realty moved to compel arbitration of the claims against them based on the Boldings' real-estate sales contracts, which the trial court granted.¹ A default judgment was entered against Allsopp, with leave for the Boldings to prove damages against him later. The Boldings entered into a settlement agreement with Classic Madison, and it was subsequently dismissed as a party.

On October 27, 2010, Allsopp filed his Rule 60(b), Ala. R. Civ. P., motion for relief from the default judgment, alleging that he had not been properly served. On December 3, 2010, the trial court held a hearing on the motion. At the hearing, Allsopp testified that he was residing in Georgia with his parents on April 30, 2008, the day the summons and complaint were hand-delivered to Davis at her residence on Stage Coach Drive in Madison. He stated that he had been dating Davis since 2004 and that he spent “a fair amount” of time with her, but he denied residing with her in that house. Allsopp testified that he had a valid Georgia driver's license. He stated that he and Davis “broke up” in December 2007 and reconciled October 2008. Allsopp testified:

“Q. [Allsopp's attorney:] And in 2008 were you in and out of Alabama at all up until the time they say you were served?

“A. No, not up until the time they say that I was served. I was not.”

A credit-card receipt reflected that Allsopp made a charge in Huntsville on May 1, 2008. Allsopp testified that he and Davis married on March 21, 2009, and that they now reside on Jordan Lane in Huntsville. Allsopp testified that he did not have a job in 2008.

Allsopp testified regarding his involvement with the Boldings:

“Q. [The Boldings' attorney:] Yeah. Well, [Davis] got you to—she got my clients, the Boldings, I'm assuming with your knowledge, to sign a power of attorney for three separate real estate closings naming you as power of attorney. Your girlfriend did that. That's how you got involved in this in the first place, correct?

“A. With their permission, that's correct.

“Q. Okay. And so they go to three real estate closings, never—they've never been to a real estate closing. But you go, allegedly on their behalf, and sign some documents on their behalf with them never being there. That's how you got involved in this, correct? Because you were designated by your girlfriend, Ms. Davis, who is a defendant, as power of attorney to sign the name for the Boldings, the plaintiffs?

“A. Actually I was designated by a notary which was related to the Boldings who authorized the power of attorney which was prepared by the closing attorney. Ms. Davis did not authorize it. They authorized it, which was notarized by his sister-in-law. And so his sister-in-law notarized the document that he authorized providing me permission to do power of attorney on their transactions they consented to. That's what happened.

“Q. Mr. Allsopp, the Boldings didn't know you from Adam's house cat before they signed a real estate transaction with your girlfriend, now your wife, miss whatever her name is at the time. They didn't know you. You never met them. You didn't have a clue who they were. Isn't that correct?

“A. That's correct.”

Allsopp's father testified that Allsopp lived at his house in Atlanta from December 2007 to the late summer of 2008. He testified that he did not know if Allsopp was in Atlanta on April 30, 2008.

Davis testified that she and Allsopp had been dating since 2004 but that she and Allsopp were not dating on April 30, 2008. She stated that she was involved with another man at the time service of process was made in this case. Davis testified that the man she was involved with was at her house on Stage Coach Drive on April 30, 2008, between 10:00 p.m. and 12:00 a.m., when the process server arrived. Davis testified that the next day she reported the “service” to the Madison County Sheriff. Davis stated that Allsopp never spent the night at her house before their marriage because she had a minor child from a previous marriage living with her. She stated that before April 30, 2008, Allsopp had been to her house approximately 25 times. At an earlier deposition, Davis stated that she and Allsopp had reconciled and that they were engaged.

The process server testified that he tried to serve Allsopp twice at a residence on Jordan Lane. He testified that on April 30, 2008, he delivered a copy of the summons and complaint to an address on Stage Coach Drive, in Madison. Davis resided at that address. Davis answered the door when the process server knocked, and he could see a man standing inside the house. The process server had discovered that Davis was Allsopp's girlfriend and that Allsopp did real-estate work with her. The process server asked if Allsopp resided at the address and Davis responded that he did. The process server testified as follows:

“A. All right. I did make several attempts to catch them there. When I did finally—when I did finally catch them—someone at home, I went to the front door and rang the doorbell. And Ms. Davis—I saw her out in the hallway, answered the door. And Mr. Allsopp was in another room but it was in eye—eyesight, excuse me, of the front door. I could see him there. And I asked if he resided there. She said, ‘Yes.’ And, ‘I have these papers to serve.’ And I, at that point, handed them to Ms. Davis.

“Q. [The Boldings' attorney:] All right. Now, you see this guy right here?

“A. Yes.

“Q. Is that the guy you saw through the door at that residence that night?

“A. Yes.

“Q. All right. Now, let's do you know anything about a Dewayne (sic) Johnson or somebody else that you served papers on that night or anything of that nature?

“A. No.

“Q. All right. And you handed the papers to her?

“A. Yes. With him there, yes.

“Q. All right. And what, if anything, did you say and then what did she say?

“A. Well, I just said, more or less ‘These papers are service papers for Timothy Allsopp and just see that he gets them.’

“....

“Q. Okay. And where was this room that you saw Mr. Allsopp in?

“A. At the end of that foyer, hallway, whichever you describe the room or would call that.

“Q. Okay. How far away was he from you?

“A. Maybe as far as from here to that second railing back there.

“Q. Would that be about 35, 40 feet?

“A. I would imagine. I'm not good judge of distances like that. But that looks like maybe about that.

“Q. Why did you not step inside and hand him the papers?

“A. It's not my place to enter someone's home, especially in that situation, if I'm not invited.

“Q. Well, if she said. ‘He's here,’ and you were there to serve papers why didn't you say. ‘Well, I need to hand these to him’?

“A. The—I guess the attempts that I had made and hearing that it may be trouble to, you know, to get this serve done. When I asked—

“Q. Well, you indicated that when she opened the door you asked something about was he there and she said, ‘He lives here’?

“A. Uh-huh. (Affirmative.)

“Q. Was there any indication [of] anybody refusing access to hand him the papers if he's right there in front of you?

“A. I did not ask to go in. It's my job to get the papers served to the person or to an adult living in the same premises—or address, excuse me.

“....

“Q. Well, what do you do when you walk up to somebody to serve papers and they don't take the papers? What do you normally do?

“A. Lay them at their feet and say, ‘You've been served.’

“Q. Okay. Did you do that?

“A. My recollection I handed them to Ms. Davis.

“Q. Okay. Well, if you saw Mr. Allsopp there why didn't you say ‘I served Mr. Allsopp’ in your return and lay them in the front door? Because you saw him right there, from your testimony.

“A. Could you repeat that, please?

“Q. Your testimony was that when you walked to the screen door, front door, you opened the door and you saw him from here to about that chair right there?

“A. From here?

“Q. Yes, sir. And supposedly what your testimony was he was identified to you as Mr. Allsopp. And yet your return says you served Ms. Davis, not Mr. Allsopp. Is that correct?

“A. Yes, I served Ms. Davis. She was the person at the door.

“Q. Why didn't you on the return say ‘I served Mr. Allsopp because I left them there in his front where he could see him’ and he was straight in front of you. What's the difference?

“A. What is the difference in—I don't follow you.

“Q. Well, if your practice was if somebody doesn't take the papers you put them at their feet and say you've been served.

“A. Correct.

“Q. Why didn't you say to Mr. Allsopp, ‘You've been served,’ or lay them there in front of him and exit the property?

“A. Because I was not speaking...