86 So. 3d 952
Ala.2011Background
- Boldings sued Allsopp and others for fiduciary breach and three counts of fraud related to real-estate transactions; Allsopp allegedly had power of attorney to sign closing documents for Boldings.
- Default judgment was entered against Allsopp with leave to prove damages later; Classic Madison (d/b/a Keller-Williams) settled and was dismissed.
- Boldings moved to compel arbitration against Davis and Naysa Realty under real-estate contracts; trial court granted arbitration, affecting claims against those entities.
- Allsopp filed Rule 60(b)(4) motion for relief from judgment arguing improper service; hearing showed disputed facts about service at Davis's Stage Coach Drive residence on April 30, 2008.
- Trial court denied the Rule 60(b)(4) motion; on appeal, the Alabama Supreme Court reviewed de novo the questions of service and usual place of abode, applying the ore tenus rule to the trial court's factual findings; the court affirmed the judgment, holding service valid as to Allsopp.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service on Davis at Stage Coach Drive valid under Rule 4(c)? | Allsopp argues service was ineffectual since papers were delivered to Davis, not him. | Davis is a person of suitable age who resided at the dwelling; service on her satisfies Rule 4(c). | Yes, service valid. |
| Was Stage Coach Drive Allsopp's usual place of abode at the time of service? | Allsopp contends he resided in Georgia; service at Davis's home cannot be his abode. | Evidence showed Allsopp engaged with Davis at Stage Coach Drive and resided there; this was his usual place of abode. | Yes, Stage Coach Drive was Allsopp's usual place of abode for service purposes. |
Key Cases Cited
- Northbrook Indemnity Co. v. Westgage, Ltd., 769 So.2d 890 (Ala. 2000) (presumption of service not applicable under Rule 4(c) without specific authority evidence)
- Palomar Ins. Corp. v. Insurance Mgmt. Admin., Inc., 590 So.2d 209 (Ala. 1991) (clerk's notation creates presumption of proper service; presumption not for Rule 4(c) as to dwelling/place of abode)
- Hudson v. Birmingham Water Works Co., 238 Ala. 38, 189 So. 72 (1939) (abode meaning fixed place of residence; usual place of abode interpreted in ordinary sense)
- Truss v. Chappell, 4 So.3d 1110 (Ala. 2008) (default judgment void where service invalid; mother's house not shown as defendant's abode)
- Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241 (Ala. 2008) (de novo review on Rule 60(b)(4) when judgment validity at issue; ore tenus considerations may influence factual findings)
- Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389 (Ala. 1990) (substantial evidence standard for ore tenus findings of fact)