MURDOCK, Justice.

Volcano Enterprises, Inc., d/b/a Club Volcano ("Volcano Enterprises"), appeals from the denial of its Rule 60(b)(4), Ala. R. Civ. P., motion to set aside the judgment entered against it in a wrongful-death action filed by Peggy Bender Rush, as administratrix of the estate of her husband Derric Edwin Rush and as the widow of Derric Edwin Rush, and by Dashton Rush, the Rushes' minor son, by an through his mother and next friend, Peggy Bender Rush (hereinafter collectively referred to as "Rush"). We reverse and remand.

I. Facts and Procedural History

This appeal stems from a default judgment entered against Volcano Enterprises based on its failure to answer a complaint served upon it by publication under Rule 4.3, Ala. R. Civ. P. For purposes of this appeal, the uncontested facts provided in Rush's complaint are the only facts properly before us.

In pertinent part, the complaint alleges that police officer James Lenoir Kendrick met a friend of his, an off-duty police officer, at Club Volcano (sometimes referred to hereinafter as "the club") after Kendrick's shift had ended. The complaint alleges that Kendrick consumed a substantial amount of alcohol while sitting in a parked vehicle in the parking lot of the club, after which he entered the club with his friend. The complaint further alleges that Kendrick "remained for several hours" in the club, that while there he "became visibly intoxicated," and that, "despite his "visibly intoxicated condition, [he] was served additional alcohol and allowed to leave in an intoxicated condition." Finally, the complaint alleges that, in his intoxicated condition, Kendrick drove his vehicle in a manner that caused the death of Derric Edwin Rush.1

On August, 11, 2011, Rush filed the complaint in the Jefferson Circuit Court, naming as defendants Kendrick and Volcano Enterprises and seeking damages based upon a claim of "wrongful death." Daryl Williams is the owner of Volcano Enterprises and its designated agent for service of process. Rush attempted to serve Volcano Enterprises by attempting to effect personal service on Williams in that capacity.

In a "Motion for Extension of Time to Serve Defendant Volcano Enterprises and Service by Publication" filed by Rush on December 12, 2011, Rush's counsel stated:

Rush attached to the motion an affidavit from Scott Hadly, a hired process server, in which Hadly averred, in pertinent part:

Additionally, on December 9, 2011, Hadly signed a "Return of Service" stating that the summons and complaint had not been served on Volcano Enterprises because Volcano Enterprises had "avoided service."

In the motion for service by publication, Rush noted that,

On December 19, 2011, the trial court granted the motion to serve Volcano Enterprises by publication. Thereafter, Rush had an affidavit of publication published in the Alabama Messenger, a semi-weekly newspaper published in Jefferson County, for four consecutive weeks on February 8, 2012, February 15, 2012, February 22, 2012, and March 1, 2012. Volcano Enterprises did not file an answer or make any appearance in the action.

On April 18, 2012, Rush filed an application for a default judgment against Volcano Enterprises. The following day the trial court entered a default judgment against Volcano Enterprises and in favor of Rush with leave to prove damages.

A jury trial on the claims against Kendrick and on the issue of damages as to Volcano Enterprises was held on February 25, 2013. The jury entered a verdict on February 27, 2013, in favor of Rush and against Kendrick. On March 1, 2013, the trial court entered a final order pursuant to the verdict, awarding $3.25 million in damages against Kendrick, who appeared and defended against the action, and $37 million in damages against Volcano Enterprises.

On March 29, 2013, Volcano Enterprises filed a "Motion to Alter, Vacate, or Amend or in the alternative Motion for a New Trial." Pertinent to this appeal, the motion sought to set aside the default judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., on the ground that "said judgment is void due to the lack of in personam jurisdiction over [Volcano Enterprises] because proper service has not been effected pursuant to Rule 4.3 of the Alabama Rules of Civil Procedure."2 Volcano Enterprises contended that Rush did not present facts sufficient to warrant service by publication based on avoidance of service by Volcano Enterprises. In support of its motion, Williams filed an affidavit executed on March 29, 2013,3 that provided, in pertinent part:

On April 30, 2013, Rush filed a response in opposition to Volcano Enterprises' motion. Rush attached to her response a copy of court records showing that over 30 filings had been mailed to Williams's home address during the course of litigation and that none of those filings had been returned as undelivered. The filings included, among other documents: Kendrick's answer to the complaint, subpoenas to various non-parties, Kendrick's motion for leave to appear at trial, motions in limine — including one such motion filed by Rush specific to Volcano Enterprises, the parties' proposed jury charges, and the court order entering judgment on the jury verdict.

Additionally, in an effort to refute Williams's assertion that he was not involved in the daily functions of Club Volcano, Rush submitted excerpts from files of the Alabama Alcoholic Beverage Control Board ("the ABC Board") pertaining to Volcano Enterprises. Those documents showed that during the period leading up to the incident, Williams signed and filed documents with the ABC Board on behalf of Volcano Enterprises. The filings included affidavits executed by Williams for the renewal of Club Volcano's liquor licenses over the course of several years4 and documents showing that at least two separate inspections of Club Volcano were performed by ABC Board agents in 2009, during which violations were found and for which Williams had signed violations notices and had paid fines, that an ABC Board agent had personally served Williams with an insufficient-fund/payment notice, and that payments had been made to the ABC Board on behalf of Club Volcano by money orders signed by Williams. Rush also submitted a copy of a complaint Williams had filed in the Madison Circuit Court against the City of Huntsville in February 2013 on behalf of Volcano Enterprises for its establishment in Huntsville, which averred that "Mr. Williams has twenty years of experience owning, managing, and operating adult entertainment clubs."

Volcano Enterprises filed a motion to strike Rush's evidentiary submissions. Volcano Enterprises argued that the submissions were filed late under Rule 59(c), Ala. R. Civ. P., and that the submissions were not relevant to demonstrating that Williams actively managed Club Volcano. On May 21, 2013, the trial court denied Volcano Enterprises' motion to strike.

On May 2, 2013, the trial court held a hearing on Volcano Enterprises' motion to set aside the default judgment. On May 21, 2013, the trial court entered an order denying Volcano Enterprises' motion to set aside the default judgment, concluding, among other things, that it did not find Williams's affidavit credible in certain respects.5 Among other things, the court stated that it "reasonably inferred that Club Volcano employees probably knew Daryl Williams and that they probably would not falsely state to a process server that they did not know Daryl Williams unless they were involved in the process of avoiding service as instructed by managers, officer, or agents of Club Volcano."

Volcano Enterprises filed a timely appeal of the trial court's judgment.

II. Standard of Review

Nichols v. Pate, 992 So.2d 734, 736 (Ala. Civ.App.2008).

III. Analysis

A default judgment was entered against Volcano Enterprises based on its failure to answer a complaint. Rule 4.3(c), Ala. R. Civ. P., addresses this situation and provides, in pertinent part, that,

The committee comments to Rule 4.3 observe that

Rule 4.3, Ala. R. Civ. P., Committee Comments on 1977 Complete Revision (emphasis added).

Volcano Enterprises argues that Hadly's affidavit did not demonstrate the culpability necessary to find avoidance of service rather than a mere failure on his part to find the defendant. We agree.

Although there is no requirement for such in the Alabama Rules of Civil Procedure, it is worth noting that, following the failed attempt to achieve personal service upon Williams at the club, and despite having a mailing address for Williams at which he had clearly received a great deal of mail in this case, Rush did not attempt service by certified mail. She attempted personal service in two ways. First, the sheriff attempted to serve process by physically visiting Williams's residence, only to find that it had been destroyed by a tornado. The other attempt at personal service was made by sending Hadly, a hired process server, to the club in an effort to locate Williams at that location.

Even giving Hadly's affidavit a generous reading, he merely attested that he visited the club on three occasions6 over a two-week period and that, on each visit, he talked to at least one employee of the club who informed him that he or she did not know anyone by the name Daryl Williams.7 On one of those visits, however, an employee with whom Hadly spoke recommended to Hadly that he return on another occasion when he could speak with one of the managers, a man identified by the employee as Leonard Smith. The affidavit submitted by Hadly does not state that Hadly ever attempted to follow this recommendation.8

Ultimately, this is a case in which the trial court inferred that a process server spoke with a club employee on each of three occasions, that those employees did in fact know Daryl Williams, and that, moreover, those employees had been instructed by Daryl Williams to deny that they knew him. There is a substantial question of the sufficiency of the evidence to support the trial court's inferences. In addition, there is no evidence indicating that, on any of the occasions on which Hadly visited Club Volcano, Williams was in fact present at the club or that, even if the employees knew Williams, any of those individuals had any information regarding Williams's physical whereabouts that they could have shared with Hadly. Based on the facts before us in this particular case, we cannot conclude that the averments of Hadly's affidavit are sufficient to justify a finding of anything other than that Hadly simply did not find Williams at the club on the three occasions he visited there.

The burden of proving "avoidance of service" in order to justify service by publication is on the plaintiff. See, e.g., Nichols v. Pate, 992 So.2d 734, 737 (Ala.Civ. App.2008). With one exception, Rush does not identify any of the persons with whom the process server spoke; none of them were called as witnesses; and there is no evidence indicating that any of them did in fact know Daryl Williams, despite the fact that he was the owner of the club and was listed as its registered agent. A fortiori, there is no direct evidence that any of these employees had been instructed by Williams to lie on his behalf.

Volcano Enterprises likens this case to Fisher v. Amaraneni, 565 So.2d 84, 87-88 (Ala.1990), in which this Court stated:

(Footnote omitted.) See also, e.g., Wachovia Bank, N.A. v. Jones, Morrison & Womack, P.C., 42 So.3d 667, 689 (Ala. 2009); Nichols v. Pate, 992 So.2d at 738; and Wagner v. White, 985 So.2d 458, 461-62 (Ala.Civ.App.2007).

Rush seeks to rely upon a 2003 Court of Civil Appeals' opinion, Snead v. Snead, 874 So.2d 568 (Ala.Civ.App.2003). In that case, a special process server visited the office where a defendant was known to be present and spoke to the defendant's secretary in an outer office. The secretary informed the process server that the defendant was, in fact, in the building, in what she referred to as "the lab," but that he "would not come out." Unlike the evidence in the present case, the evidence in Snead made clear that an employee of the defendant did in fact know the defendant, that the defendant was in fact on the premises at the time of the process server's visit, and that the defendant refused to "come out," a scenario that was repeated on three separate occasions. The evidence presented by Rush simply does not rise to the same level as the evidence presented by the plaintiffs in Snead.

In this case, Rush no doubt was frustrated by the inability of her process server to find Williams at the club on the several occasions he visited that establishment. Again, however, the mere inability to find a defendant is not a sufficient ground for service by publication. Without implicating the "substantial constitutional questions" relating to due process referenced in the Committee Comments to Rule 4.2, Ala. R. Civ. P., we cannot license the use of service by publication without the presentation of more evidence of the avoidance of service than was presented by Rush in this case.

IV. Conclusion

Rush had the burden of demonstrating that Williams avoided service, which necessarily involves a level of culpability on the part of the defendant, such as hiding out or actively avoiding service, rather than just an inability to serve the defendant. Hadly's affidavit did not establish such avoidance of service, and Rush presented no other evidence. Without proper service, the judgment is void. Accordingly, the trial court erred in failing to grant Volcano Enterprises' Rule 60(b)(4) motion to set aside the default judgment against Volcano Enterprises.

REVERSED AND REMANDED.

MOORE, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.