185 So. 3d 1130
Ala. Civ. App.2015Background
- Costigan sued Lovell (complaint alleging an $18,000 loan unpaid) and attempted service by certified mail; mail was returned with "FORWARDING ORDER EXPIRED."
- Costigan moved for service by publication; his attorney submitted an affidavit saying the address used was the only known address and that efforts (phone, internet) had been made to locate Lovell.
- The trial court ordered publication in The Foley Onlooker for four consecutive weeks; Lovell did not respond and clerk entered service notice for Sept. 2, 2006.
- Trial court entered default judgment against Lovell on Dec. 18, 2006. Lovell moved under Rule 60(b)(4) in 2016 to vacate the default judgment as void for lack of personal jurisdiction due to improper service.
- Trial court denied the motion; Lovell appealed. The appellate court reviewed whether publication service was proper under Rule 4.3 (which permits publication only when defendant "avoids service").
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication was proper under Rule 4.3 | Costigan: publication was proper because the only known address failed and counsel made efforts to locate Lovell | Lovell: no proper service; no evidence he "avoided" service, so court lacked personal jurisdiction | Publication was improper—affidavit failed to show defendant avoided service; therefore no personal jurisdiction and judgment is void |
| Whether a default judgment entered after publication is void for lack of personal jurisdiction | Costigan: entry of default was valid after publication and clerk's service notice | Lovell: default is void without perfected service giving notice; Rule 4.3 requires avoidance-based affidavit | Court held a judgment without personal jurisdiction is void and must be set aside under Rule 60(b)(4) |
| Whether Rule 60(b)(4) relief is time-barred after an extended delay | Costigan: (implicit) delay undermines relief | Lovell: Rule 60(b)(4) applies regardless of delay for void judgments | Court noted Rule 60(b)(4) has no reasonable-time limitation for void-judgment claims and entertained the motion |
| Standard of review for Rule 60(b)(4) motions | Costigan: (implicit) deferential review | Lovell: judgment validity is question of law | Court applied de novo review—if judgment is void it must be set aside |
Key Cases Cited
- Bank of America Corp. v. Edwards, 881 So.2d 403 (Ala. 2003) (standard: de novo review and Rule 60(b)(4) void-judgment principle)
- Ex parte Volkswagenwerk Aktiengesellschaft, 443 So.2d 880 (Ala. 1983) (personal-jurisdiction requires perfected service giving notice)
- Horizons 2000, Inc. v. Smith, 620 So.2d 606 (Ala. 1993) (service by publication and notice requirements for in personam judgments)
- McBrayer v. Hokes Bluff Auto Parts, 685 So.2d 763 (Ala. Civ. App. 1996) (affidavit must show defendant "avoided" service; inability to find defendant insufficient)
- Wagner v. White, 985 So.2d 458 (Ala. Civ. App. 2007) (diligent searches insufficient without factual showing of avoidance)
- Nichols v. Pate, 992 So.2d 734 (Ala. Civ. App. 2008) (reaffirming requirement that affidavit show avoidance)
- Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638 (Ala. 2003) (Rule 60(b)(4) relief not subject to reasonable-time limitation for void judgments)