Mays v. Trinity Prop. Consultants, LLC (Ex parte Trinity Prop. Consultants, LLC)

• Decision Date: 30 August 2019
• Docket Number: 1180642
• Citation: 308 So.3d 36
• Parties: EX PARTE TRINITY PROPERTY CONSULTANTS, LLC (In re: Brittony Mays v. Trinity Property Consultants, LLC)
• Court: Alabama Supreme Court

308 So.3d 36

EX PARTE TRINITY PROPERTY CONSULTANTS, LLC(In re: Brittony Mays

v.Trinity Property Consultants, LLC)

1180642

Supreme Court of Alabama.

August 30, 2019

Rehearing Denied November 22, 2019

Susan Walker, Birmingham, for petitioner.

Rhonda Steadman Hood of Hood & Lay, LLC, Birmingham, for respondent.

Thomas A. Woodall, Greggory M. Deitsch, and Christian C. Feldman of Sirote & Permutt, P.C., Birmingham, for amicus curiae Alabama Apartment Association, Inc., in support of the petitioner.

Farahbin Majid, Laurie S. McFalls, and Rachele A. Reis, Birmingham, on behalf of amicus curiae Legal Services Alabama, Birmingham; and Lawrence F. Gardella, Daphne, on behalf of amici curiae Low Income Housing Coalition of Alabama, Community Action Association of Alabama, and Alabama Arise, in support of the respondent.

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, 308 So.3d 29 (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)."

308 So.3d at 33-34.

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, 102 S.Ct. 1874, 72 L.Ed.2d 249 (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. See Mays v. Trinity Prop. Consultants, LLC, 308 So. 3d 29, 34 (Ala. Civ. App. 2019) (opinion on second application for rehearing). This Court issued the writ of certiorari to determine whether the Court of Civil Appeals correctly construed the phrase "reasonable effort" as that phrase is used in § 35-9A-461(c) and § 6-6-332(b).

Standard of Review

"Because the issue presented by this appeal concerns only questions of law involving statutory construction, our review is de novo. Whitehurst v. Baker, 959 So. 2d 69 (Ala. 2006). See also Taylor v. Cox, 710 So. 2d 406 (Ala. 1998)." Alabama Dep't of Transp. v. Williams, 984 So. 2d 1092, 1094 (Ala. 2007).

Discussion

Section 35-9A-461(c) addresses actions by residential landlords "for eviction, rent, monetary damages, or other relief relating to a tenancy" and 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.) Section § 6-6-332(b), entitled "Process - Form of notice; service and return thereof," contains substantially the same language.

In Greene, the United States Supreme Court examined a Kentucky statute that provided that, in a forcible entry or detainer action, a process server was required to make a visit to the tenant's home and attempt to serve the summons personally on the tenant or some member of the tenant's family who was over the age of 16. If no one was home at the time of the attempted service, the statute authorized the process server to post a copy of the summons in a conspicuous place on the premises.² The issue before the Supreme Court was whether the Kentucky statute, "as applied to tenants in a public housing project, fail[ed] 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. The Supreme Court began its analysis by stating that, because it is reasonable to assume that a property owner has a continuing interest in maintaining possession of his or her property, posting on the property alone would be a constitutionally and, indeed, a "singularly" acceptable means of service. 456 U.S. at 452-53, 102 S.Ct. 1874. The Supreme Court noted, however, that it was...