Mays v. Trinity Prop. Consultants, LLC

• Decision Date: 08 March 2019
• Docket Number: 2170867
• Parties: Brittony MAYS v. TRINITY PROPERTY CONSULTANTS, LLC
• Court: Alabama Court of Civil Appeals

308 So.3d 29

Brittony MAYS

v.TRINITY PROPERTY CONSULTANTS, LLC

2170867

Court of Civil Appeals of Alabama.

March 8, 2019

Opinion Issued on Denial of Rehearing May 3, 2019

On Application for Rehearing

MOORE, Judge.

This court's opinion of January 11, 2019, is withdrawn, and the following is substituted therefor.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

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

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...