BOLIN, Justice.
Timothy C. Allsopp appeals from the trial court's denial of his Rule 60(b)(4), Ala.
Specifically, Allsopp contends that the judgment is void because, he argues, he was not properly served with notice.
On January 31, 2008, the Boldings sued Naysa Realty and Investments, LLC, Deleana Davis, Keller-Williams Realty Co., and Allsopp. The Boldings alleged breach of fiduciary duty, and three counts of fraud, arising out of real-estate transactions in Madison County. Davis is a principal in Naysa Realty and is employed by Keller-Williams as a real-estate agent. Davis advised the Boldings, who were purchasing property, to give Allsopp power of attorney to sign certain closing documents on their behalf.
The Boldings amended their complaint to add claims of negligence and negligent hiring, training, and supervision against Keller-Williams. They also "properly designated" Keller-Williams as Classic Madison, LLC, d/b/a Keller-Williams Realty. Davis and Naysa Realty moved to compel arbitration of the claims against them based on the Boldings' real-estate sales contracts, which the trial court granted.
On October 27, 2010, Allsopp filed his Rule 60(b), Ala. R. Civ. P., motion for relief from the default judgment, alleging that he had not been properly served. On December 3, 2010, the trial court held a hearing on the motion. At the hearing, Allsopp testified that he was residing in Georgia with his parents on April 30, 2008, the day the summons and complaint were hand-delivered to Davis at her residence on Stage Coach Drive in Madison. He stated that he had been dating Davis since 2004 and that he spent "a fair amount" of time with her, but he denied residing with her in that house. Allsopp testified that he had a valid Georgia driver's license. He stated that he and Davis "broke up" in December 2007 and reconciled October 2008. Allsopp testified:
A credit-card receipt reflected that Allsopp made a charge in Huntsville on May 1, 2008. Allsopp testified that he and Davis married on March 21, 2009, and that they now reside on Jordan Lane in Huntsville. Allsopp testified that he did not have a job in 2008.
Allsopp testified regarding his involvement with the Boldings:
Allsopp's father testified that Allsopp lived at his house in Atlanta from December 2007 to the late summer of 2008. He testified that he did not know if Allsopp was in Atlanta on April 30, 2008.
Davis testified that she and Allsopp had been dating since 2004 but that she and Allsopp were not dating on April 30, 2008. She stated that she was involved with another man at the time service of process was made in this case. Davis testified that the man she was involved with was at her house on Stage Coach Drive on April 30, 2008, between 10:00 p.m. and 12:00 a.m., when the process server arrived. Davis testified that the next day she reported the "service" to the Madison County Sheriff. Davis stated that Allsopp never spent the night at her house before their marriage because she had a minor child from a previous marriage living with her. She stated that before April 30, 2008, Allsopp had been to her house approximately 25 times. At an earlier deposition, Davis stated that she and Allsopp had reconciled and that they were engaged.
The process server testified that he tried to serve Allsopp twice at a residence on Jordan Lane. He testified that on April 30, 2008, he delivered a copy of the summons and complaint to an address on Stage Coach Drive, in Madison. Davis resided at that address. Davis answered the door when the process server knocked, and he could see a man standing inside the house. The process server had discovered that Davis was Allsopp's girlfriend and that Allsopp did real-estate work with her. The process server asked if Allsopp resided at the address and Davis responded that he did. The process server testified as follows:
According to the process server, Davis cursed at the process server and threatened to contact the police and charge the process server with trespass. The process server then handed the summons and complaint to Davis. After he was out of "harm's way," the process server stated that he completed the return-of-service notice, marking the notice as delivered to "Deleana Davis, live-in partner" of Allsopp. The process server identified Allsopp as the man who was standing inside Davis's house when he served notice of the action.
On December 9, 2010, the trial court denied Allsopp's motion. On January 14, 2011, Allsopp appealed.
Rule 60(b)(4), Ala. R. Civ. P., provides for relief from a judgment when that judgment is void. Generally, this Court reviews a trial court's ruling on a Rule 60(b) motion to determine whether the trial court exceeded its discretion. However, with regard to Rule 60(b)(4), this Court has stated:
Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991). In other words, if the underlying judgment is void because the trial court lacked subject-matter or personal jurisdiction or because the entry of the judgment violated the defendant's due-process rights, then the trial court has no discretion and must grant relief under Rule 60(b)(4). This Court reviews de novo the trial court's decision on a Rule 60(b)(4) motion to set aside a judgment as void, because the question of the validity of a judgment is a question of law. Orix Fin. Servs., Inc. v. Murphy, 9 So.3d 1241, 1248 (Ala.2008)(Murdock, J., concurring specially). Notwithstanding our de novo review, in his special writing in Orix, Justice Murdock recognized that when a trial court, in ruling on a Rule 60(b)(4) motion, makes factual findings implicating the ore tenus rule, the trial court's factual findings are entitled to some deference by this Court. In Ethridge v. Wright, 688 So.2d 818 (Ala. Civ.App.1996), the Court of Civil Appeals applied the ore tenus rule to oral testimony heard by the trial court regarding service of process challenged pursuant to
The ore tenus rule affords a presumption of correctness to a trial court's findings of fact based on ore tenus evidence, and the judgment based on those findings will not be disturbed unless those findings are clearly erroneous and against the great weight of the evidence. Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000). It is grounded upon the principle that when a trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of the witnesses. Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). The ore tenus rule does not cloak a trial court's conclusions of law or the application of the law to the facts with a presumption of correctness. Kennedy v. Boles Invs., Inc., 53 So.3d 60 (Ala.2010).
In the present case, the trial court heard oral testimony concerning the sufficiency of service of process on Allsopp. In accordance with our well settled standard regarding a Rule 60(b)(4) motion challenging a judgment as void, our de novo standard of review applies. However, because the trial court heard oral testimony regarding disputed facts involved in the service of process, the ore tenus rule applies to our review of its factual findings.
We note that several federal courts of appeal review a district court's decision on a Rule 60(b)(4), Fed.R.Civ.P., motion de novo, but those courts review the factual findings underlying the decision for clear error. In Securities & Exchange Commission v. Internet Solutions for Business, Inc., 509 F.3d 1161 (9th Cir.2007), the defendant filed a Rule 60(b)(4), Fed. R.Civ.P., motion to set aside a default judgment entered against him on the ground that the Commission had failed to properly serve him. The trial court found that the defendant provided insufficient evidence to prove that he was not served. In reviewing the district court's decision, the federal appeals court stated:
509 F.3d at 1165. See also Goetz v. Synthesys Techs., Inc., 415 F.3d 481, 483 (5th Cir.2005) (recognizing that clear error applies to factual findings related to Rule 60(b)(4) decisions); Kelly, Sutter, Mount & Kendrick, P.C. v. Alpert, 234 Fed Appx. 246 (5th Cir.2007) (not selected for publication in the Federal Reporter) (holding that a district court's finding of fact, following an evidentiary hearing on a Rule 60(b)(4) motion, that the defendant's housekeeper residing in the defendant's house was "a person of suitable age and discretion," satisfying the service-of-process requirements, was not clear error and, therefore, affirming the district court's judgment denying the motion).
When a trial court ruling on a Rule 60(b)(4) motion has heard oral testimony regarding the facts, we will review the trial court's factual findings pursuant to the ore tenus rule. We will review the trial court's conclusions of law and its application
The trial court heard oral testimony regarding service of process on Allsopp. "Under the ore tenus standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court's findings." Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala. 1990). The trial court did not make specific findings of facts in its order denying Allsopp's Rule 60(b)(4) motion. It is well settled that when the record is silent as to the trial court's findings of fact on a disputed issue, we will assume the trial court made those findings necessary to support the judgment. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).
Allsopp argues that the service of process was flawed because the process server's return receipt indicates that the complaint was served not on him, but on Davis his "live-in partner." Next, Allsopp argues that Davis's house was not his "dwelling house or usual place of abode" under Rule 4, Ala. R. Civ. P., and that the uncontroverted evidence shows that he was residing in Georgia on April 30, 2008. Allsopp further argues that, without legal service, the trial court lacked jurisdiction to enter the default judgment against him.
Rule 4(c)(1) provides:
Pursuant to Rule 4(c), in order for Allsopp to have been properly served, the process server had to (1) serve him in person, (2) leave the process papers at his "dwelling house or usual place of abode with some person of suitable age or discretion" residing there with him, or (3) deliver the process papers to a person authorized by appointment or by law to receive service for him.
We now turn to whether Allsopp was properly served at his "dwelling house or usual place of abode" under Rule 4(c). In support of his argument that the service of process was flawed because the return of service reflected that service was upon Davis as his "live-in partner," Allsopp cites Northbrook Indemnity Co. v. Westgate, Ltd., 769 So.2d 890, 893 (Ala.2000), for the general proposition that a judgment is void if the court rendering it lacked subject-matter jurisdiction or if the court acted in a manner inconsistent with due process. Allsopp does not discuss Northbrook and cites no other authority regarding this argument. "It is well established that general propositions of law are not considered `supporting authority' for purposes of Rule 28. Ex parte Riley, 464 So.2d 92 (Ala.1985)." S.B. v. Saint James Sch., 959 So.2d 72, 89 (Ala.2006). This Court will not "create legal arguments for a party based on undelineated general propositions unsupported by authority or argument." Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). Further, it is well settled that "`[w]here an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court's duty nor its function to perform all the legal research for an appellant.'" Spradlin v. Birmingham Airport Auth., 613 So.2d 347, 348 (Ala.1993)(quoting Sea Calm Shipping Co., S.A. v. Cooks, 565 So.2d 212, 216 (Ala.1990)).
In Northbrook, supra, the corporation moved to vacate a default judgment based on the lack of service of process on the ground that the office where notice was served was not one of the corporation's "usual places of business" at that time. In Northbrook, we discussed the holding in Palomar Insurance Corp., supra, that the clerk's notation of proper service creates a presumption of proper service that can be rebutted only by clear and convincing evidence. We noted that Palomar Insurance established only that the clerk mailed the process by certified mail under Rule 4.2(b)(1) and that the person signing the certified-mail receipt received the process. We noted that Palomar Insurance did not establish a presumption under Rule 4(c) that the person signing the receipt was a proper person to receive process or that the place of service was the defendant's dwelling house or usual place of abode. In the present case, we recognize that the return of service does not create a presumption that Davis's residence (where Allsopp was served) was Allsopp's usual place of abode.
In support of his argument that Davis's house was not his usual place of abode, Allsopp cites several case, including Bogus v. Bank of New York, 49 So.3d 719 (Ala. Civ.App.2010), and McDermott v. Tabb, 32 So.3d 1 (Ala.2009), for the proposition that the plaintiff has the burden of proving that service of process was performed legally and correctly. He cites Ex parte Pate, 673 So.2d 427 (Ala.1995), for the proposition
In Hudson v. Birmingham Water Works Co., 238 Ala. 38, 189 So. 72 (1939), the sole issue was whether leaving a copy of demand for possession at the tenant's place of business satisfied the relevant statute, which permitted a copy of demand to be left at the "usual place of abode" of the party holding over in the rented premises. This Court stated:
238 Ala. at 39, 189 So. at 73. In Hudson, this Court held that the place of business was not a person's usual place of abode.
More recently, in Truss v. Chappell, 4 So.3d 1110 (Ala.2008), this Court held that the default judgment against the defendant was void because service of process was invalid where the evidence, in the form of affidavits, indicated that the defendant was served at his mother's house. The mother's affidavit stated that the defendant was in the armed services and that he had been called to service in Iraq and may have been overseas or "stationed" in another state at the time service was attempted. In Truss, there was no evidence before the trial court indicating that the defendant was, at the time of the alleged service, or ever had been, a resident of the particular address at which service was attempted; therefore, there was no evidence indicating that the mother's house was the defendant's "dwelling house or usual place of abode."
Charles Alan Wright and Arthur R. Miller's treatise on Federal Practice and Procedure discusses "dwelling house or usual place of abode" as follows:
4A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure: Civil § 1096 (3d ed.2002).
Other courts have addressed the phrase "usual place of abode" in the context of service of process. A person can have more than one "usual place of
In the present case, there is evidence to support a conclusion that Allsopp had a "usual place of abode" at Davis's residence on Stage Coach Drive at the time of service. Allsopp and Davis had dated for years and were engaged in either August or October 2008 and were married in March 2009. Allsopp stated that he was involved in the real-estate transactions that are the subject of this action and that Davis was the real-estate agent in that transaction. A receipt shows that Allsopp was in Huntsville on May 1, 2008, the day after service. We note that the process server testified that before April 30, 2008, he attempted to serve Allsopp on Jordan Lane in Huntsville, where Davis and Allsopp now reside. However, Allsopp does not argue that Jordan Lane was his usual place of abode; instead, he contends that he was residing in Georgia on April 30, 2008. The process server testified that he saw Allsopp at Davis's house on April 30, 2008. Davis admitted that there was a man at her house on Stage Coach Drive on April 30, 2008. In addition, the trial court heard testimony from the process server, apparently without objection, to the effect that Davis answered in the affirmative when asked if Allsopp "resided" at the house on Stage Coach Drive. Accordingly, the trial court did not err in denying Allsopp's Rule 60(b)(4) motion for relief from judgment on the ground of insufficient service because there are facts to support the trial court's finding that Stage Coach Drive was Allsopp's usual place of abode.
Next, Allsopp argues that the trial court erred in not ordering him to submit along with Davis and Naysa Realty to arbitration when he was the Boldings' "agent" under the real-estate contracts.
Based on the foregoing, we conclude that the judgment of the trial court is due to be affirmed.
AFFIRMED.
MALONE, C.J., and STUART, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.
WOODALL, J., concurs in the result.