Larry Lovell appeals from a judgment of the Baldwin .Circuit Court (“the. trial court”) denying his motion, filed pursuant to Rule 60(b)(4), Ala. R. Civ. P., to set aside the trial court’s default judgment entered against him.
On August 16,2005, Allan Costigan filed in the trial court a complaint alleging that Lovell had borrowed $18,000 from him and that Lovell had failed to make payments on that loan. Costigan’s attorney attempted to serve Lovell with process via certified mail. However, that attempted service was returned with the notation “FORWARDING ORDER EXPIRED.” (Capitalization in original.) The case-action-summary sheet also contains a notation that attempted service was .unsuccessful because “return not found.”
On April 7, 2006, Costigan filed in the trial court a motion requesting service of process by- publication. Costigan attached to that motion the affidavit of his attorney, which states, in part:
“The address used [to attempt to serve Lovell] was the only address known by [Costigan] and it was the last one used in correspondence to [Lovell]. In the ensuing months, attempts have . been made to ascertain [Lovell’s] place оf residence through telephone and internet. It is known that..[Lovell] still resides in this area.”
The trial court granted Costigan’s motion and ordered that notice of the proceedings be. published once, a week for four consecutive weeks in The Foley Onlooker, a weekend newspaper circulated in Baldwin County. Pursuant, to the trial court’s order, notice of the proceedings was published in The Foley Onlooker on August 12, 2006, August 19, 2006, August 26, 2006, and September 2,. 2006. Lovell never responded to those notices. Thereafter, the clerk of the trial court entered a “service notice” indicating that Lovell had received service of process on September 2, 2006.
On Novеmber 17, 2006, Costigan filed an application for the entry of a default judgment. The trial court granted that application on December 18, 2006, and entered a default judgment against Lovell.
On March 16, 2016, Lovell filed a motion to set aside the default..judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P.
“A trial court’s ruling on a Rule 60(b)(4) motion is subject to de novo review. Bank of America Corp. v. Edwards,881 So.2d 403 (Ala.2003). In Bank of America, supra, our supreme court stated:
“ ‘ “ ‘The standard of review on appeal from the dénial of relief under Rulе 60(b)(4) is not whether there has been an abuse of discretion. When the grant or denial of relief turns on the validity of the judgment,- as under Rule 60(b)(4), discretion has -no place. If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the сourt rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process. Satterfield v. Winston Industries, Inc., 553 So.2d 61 (Ala.1989).’ ” ’
“881 So.2d at 405 , quoting Image Auto, Inc. v. Mike Kelley Enters., Inc.,823 So.2d 655 , 657 (Ala.2001), quoting in turn Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp.,590 So.2d 209 , 212 (Ala.1991).”
Nichols v. Pate,
It is axiomatic. that “‘[a] judgment rendered against a defendant in the absencе of personal jurisdiction, over the defendant is void.’” Campbell v. Taylor,
Rule 4.3(a)(2), Ala. R. Civ. P., provides, in part, that a defendant in an action involving legal claims may be served by publication when that defendant “avoids service of process as described in subdivision (c) of this rule.” Subdivision (c) of Rule 4.3 provides, in part:
“When a defendant avoids service and that defendant’s present location or residence is unknown and the process server has endorsed the fact of failure оf service and the reason'‘therefor on the process arid returned it 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'.-..; The mere fact of failure of service is not sufficient evidence of avoidance, and the affidavit required in subdivision (d)(1) of this rule must aver specific facts of avoidance.”
(Emphasis added.)
Subdivision (d)(1) of Rule 4.3 provides, in part:
“Before service by publicatiori' can be made in an action ... where the defendant avoids service, an affidavit of a party or the party’s ^counsel must be filed with the court averring that service of summons or оther process cannot be made because .. .- the -defendant avoids service, averring facts showing such avoidance.”
(Emphasis added.)
Thus,
“[s]ections (a)(2), (c), and (d)(1) of Rule 4.3 permit service of a resident defendant by publication only when the defendant avoids service. The committee comments to Rule 4 ... support this conclusion. The, committee comments to Rule 4.3(c), state: .
“‘[M]ore than mere inability to find the defendant is rеquired because ofthe use of the term “avoidance” of service. Without this element of culpability on the part of the defendant when plaintiff has failed to obtain service other than by publicatiоn, substantial constitutional questions may be posed by the obtaining of an in personam judgment by publication.’ ”
McBrayer v. Hokes Bluff Auto Parts,
In Hokes Bluff, the plaintiff filed a motion requesting service .of process by publication after it- unsuccessfully attempted to serve the defendant by certified mail. The affidavit accompanying the plaintiffs motion stated, in part: “ ‘[T]he defendant ... cannot be located by the Sheriff of Etowah County, Alabama; ... the whereabouts of the said [defendant] is unknown and сannot be ascertained after reasonable effort....’” Hokes Bluff,
On appeal, this court held that, because the affidavit submitted in support of the plaintiffs motion did not show that the defendant was avoiding service, service of process had not been proper and that, as a result, the trial court in that case never obtained personal jurisdiction over the defendant. Id. at 768. Accordingly, we reversed the judgment denying the defendant’s Rule 60(b).motion and remanded the cause for the trial court in that case to enter a judgment vacating the default judgment. Id.
Similarly, in Wagner v. White,
On appeal, this court held that the trial court in that case had erred in denying Wagner’s Rule 60(b) motion because the judgment had been entered in the absence of personal jurisdiction .over Wagner. Wagner,
In the present case, Costigan’s attorney’s affidavit stаtes that he attempted to serve Lovell with process at Lovell’s only known address and that he had made attempts to ascertain Lovell’S residence via telephone and the Internet. It may be, though we cannot know with certainty,
Because there is no evidеnce showing that Lovell avoided service of process, we hold that service of process by publication was improper and, thus, that the trial court never acquired personal jurisdiction ovеr Lovell. In the absence of personal jurisdiction, the default judgment entered by the trial court is void and should have been set aside pursuant to Lovell’s Rule 60(b) motion. Accordingly, we reverse the trial court’s judgment dеnying Lovell’s Rule 60(b) motion and remand the cause for the trial court to enter a judgment granting the motion and vacating the default judgment.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Notes
. Rule 60(b)(4) provides that a court may relieve a party from a final judgment if that judgment is void. Although Lovell did not file his Rule 60(b) motion Until moré than eight years after. the trial court had entered the default judgment, Rule 60(b)’s "reasonable-time limitation is not applicable to actions seeking to set aside a void judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P.” Ex parte Full Circle Distrib., L.L.C.,