Wagner v. White

• Decision Date: 23 February 2007
• Docket Number: 2050525.
• Citation: 985 So.2d 458
• Parties: Christopher WAGNER v. Barbara WHITE.
• Court: Alabama Court of Civil Appeals

985 So.2d 458

Christopher WAGNER v. Barbara WHITE.

2050525.

Court of Civil Appeals of Alabama.

February 23, 2007.

Rehearing Denied June 22, 2007.

Certiorari Denied November 9, 2007 Alabama Supreme Court 1061460.

Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham;

and Jack Criswell, Birmingham, for appellant.

Richard A. Bearden and Dexter L. McFarlin of Massey, Stotser & Nichols, P.C., Birmingham, for appellee.

PITTMAN, Judge.

In March 2002, Barbara White brought a civil action in the Jefferson Circuit Court against Christopher Wagner, Stuart Gregory Wilkins, and various fictitiously named defendants, seeking an award of damages with respect to an alleged motor-vehicle collision that occurred in March 2000. Wilkins answered the complaint after having been served, and a nonfinal summary judgment in his favor was entered in September 2003. However, a final judgment was entered by default in February 2004 against Wagner, who had been served by publication, and the trial court subsequently denied a motion for relief from that default judgment, filed in October 2005; that motion had asserted that the default judgment was void for lack of personal jurisdiction.¹ Wagner appeals from the denial of his motion for relief from that default judgment.

"A trial court's decision to deny a motion, filed pursuant to Rule 60(b), Ala. R. Civ. P., for relief from a final judgment is itself a final judgment that will support an appeal; however, the only matter reviewable in such an appeal is the propriety of the denial. Here, the defendant's motion for relief from the judgment asserted grounds cognizable under subsection (4) of Rule 60(b), which authorizes relief on the ground that `the judgment is void'; under Alabama law, a judgment is `void' within the scope of that subsection `only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.' Although a trial court's ruling on a motion filed pursuant to Rule 60(b) will generally be reversed only upon a showing of an abuse of discretion, a motion attacking the underlying judgment as void is subject to a different standard of review: `If the judgment is void, it is to be set aside; if it is valid, it must stand.'"

Williams v. Williams, 910 So.2d 1284, 1286 (Ala.Civ.App.2005) (citations omitted).

The record reveals the following pertinent facts. Service of the summons and complaint upon Wagner was first attempted by the trial court clerk at an address in Birmingham that had been supplied by counsel for White; however, the case-action-summary sheet bears a notation that that attempt failed because Wagner had moved from that address. After the trial court had dismissed the claim as to Wagner for lack of service, White's counsel moved for reinstatement, which was granted; however, an alias summons that was sent to another Birmingham address supplied by White's counsel was returned to the trial court clerk's office because Wagner had moved from that address. White then sought and obtained two orders permitting service of the summons and complaint upon Wagner through the use of two separate special process servers, one in Texas and one in Oregon (two states in which Wagner was found to have had addresses); however, both process servers indicated on separate declaration forms that they had been unable to locate Wagner at the Texas and Oregon addresses, respectively.

In September 2004, White filed a motion for service by publication. At the time White's action was filed in March 2002, Rule 4.3(a)(2), Ala. R. Civ. P., which governs procedure with respect to service by publication, stated, in pertinent part, that the rule applied "[t]o a claim, whether legal or equitable, against a defendant who avoids service of process as described in subparagraph (c)" of the rule (emphasis added).² The former version of subparagraph (c) of Rule 4.3 provided, in pertinent part, that

"[w]hen a resident defendant avoids service and that defendant's present location or residence is unknown and the process server has endorsed the fact of failure of service and the reason therefor on the process and returned same to the clerk or where the return receipt shows a failure of service, the court may, on motion, order service to be made by publication."

(Emphasis added.) Similarly, Rule 4.3(d)(1), Ala. R. Civ. P., as it read at the commencement of this action, provided that before service could be made by publication "in an action ... where the defendant avoids service," a party or his attorney was required to file an affidavit "averring that service of summons or other process cannot be made because ... the defendant avoids service, averring facts showing such avoidance" (emphasis added).

In her motion for service by publication, White asserted that Wagner was avoiding service as described in Rule 4.3 "by changing his residence." However, the affidavit filed by White's counsel in support of the motion for service by publication merely recited his office's efforts to obtain Wagner's various addresses and discussed the failure of the two special process servers to effect personal service. Apart from White's bare statement that Wagner's residential moves amounted to avoidance of service, neither the motion nor counsel's affidavit set forth any facts tending to show that Wagner had undertaken any relocation for the purpose of avoiding personal service in White's action. Nevertheless, White's motion was granted, and notice of the pending action was published in a Jefferson County legal periodical for four successive weeks, after which White moved for and obtained a judgment by default against Wagner.

In his appeal from the order denying relief from that judgment, Wagner contends (a) that White did not demonstrate that Wagner was "avoiding" service, and (b) that Wagner was not a resident of Alabama at the time White moved for service by publication and, therefore, could not properly have been served in that manner. We conclude that resolution of the first of those issues is dispositive of the appeal, and, accordingly, we do not address the parties' contentions as to the second issue.

In Fisher v. Amaraneni, 565 So.2d 84 (Ala.1990), the Alabama Supreme Court reversed a trial court's order denying a motion for relief from a default judgment that had been entered against two partners who resided at the same address and who had been served by publication. In that case, a special process server that had been appointed by the trial court made six attempts to personally serve the summons and complaint upon the partners, but the partners were not at their residence during any of those attempts; on one of those occasions, a third party had informed the...