Preview:

REL: 05/02/2008

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2007-2008 _________________________ 2060963 _________________________ Shirley Diane Nichols v. Larry K. Pate and Carol Ruffino Pate Appeal from Chilton Circuit Court (CV-05-213)

THOMPSON, Presiding Judge.

On July 21, 2005, Larry K. Pate and Carol Ruffino Pate sued Shirley Diane Nichols, alleging that Nichols had breached a May 20, 2005, contract ("the contract") for the purchase of

2060963 real property located in Chilton County.1 The Pates requested

specific performance of the contract and, in the alternative, damages. After personal service of process was attempted at two separate addresses in Tennessee, the Pates filed a motion on August 25, 2005, seeking an order permitting them to serve Nichols by publication. Neither the Pates nor their counsel attached an affidavit to the motion for service by

publication.

The trial court granted the motion to serve

Nichols by publication, and notice of the pending action was published in the Chilton County News, a local newspaper of general circulation, for four consecutive weeks. On November 15, 2005, the Pates moved for the entry of a default judgment based on Nichols's failure to answer the complaint. On December 13, 2005, the trial court entered a default judgment in favor of the Pates, holding that they were entitled to specific performance of the contract and ordering Nichols to convey the property to the Pates upon payment of the outstanding balance of the contract.

Bonnie Caldwell d/b/a Delta Properties, L.L.C., was also named as a defendant in the complaint. The trial court subsequently dismissed the Pates' claims against Caldwell. The dismissal of the Pates' claims against Caldwell is not at issue in this appeal. 2

1

2060963 On January 16, 2007, Nichols filed a motion, pursuant to Rule 60(b), Ala. R. Civ. P., to set aside the default

judgment. In her motion, Nichols alleged, among other things, that the Pates had attempted to serve her by publication but that service had not been perfected because the Pates did not comply with Rule 4.3, Ala. R. Civ. P. After a hearing on the

motion, the trial court denied Nichols's motion to set aside the default judgment based on a statement made by Nichols that she had received funds interpleaded by the Pates that had been designated to Nichols in the trial court's December 13, 2005, default judgment. Nichols timely appealed to the supreme court, which transferred the case to this court pursuant to

Download 2060963.pdf

Alabama Law