Builders Mut. Ins. Co. v. Neibel

Opinions

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-240

Filed 19 March 2024

Wake County, No. 21 CVD 3353

BUILDERS MUTUAL INSURANCE COMPANY, Plaintiff,

v.

DANIEL R. NEIBEL, Individually and d/b/a DAN THE MAN CONSTRUCTION, Defendant.

Appeal by Defendant from Judgment entered 22 July 2022 by Judge Margaret

P. Eagles in Wake County District Court. Heard in the Court of Appeals 31 October

2023.

Stuart Law Firm, PLLC, by William A. Piner, II, for Plaintiff-Appellee.

Buckmiller, Boyette & Frost, PLLC, by Joseph Z. Frost, for Defendant- Appellant.

HAMPSON, Judge.

Factual and Procedural Background

Daniel R. Neibel, individually and d/b/a Dan the Man Construction

(Defendant) appeals from Summary Judgment granting a money judgment in favor

of Builders Mutual Insurance Company (Plaintiff) renewing a prior judgment entered

against Plaintiff. The Record before us tends to reflect the following:

On 10 March 2021, Plaintiff filed a Complaint in Wake County District Court

Opinion of the Court

alleging Plaintiff had previously obtained a judgment in Wake County on 11 March

2011 (2011 Judgment). The Complaint alleged the 2011 Judgment remained

unsatisfied and sought entry of a renewed judgment for: (1) the principal sum of

$4,343.81 with judgment interest accruing from 14 August 2009; (2) the principal

sum of $200.00 with judgment interest accruing from 12 August 2009; and (3) court

costs. On 10 June 2021, Defendant filed an Answer asserting affirmative defenses,

including that the underlying 2011 Judgment was void for lack of personal

jurisdiction, insufficient process, and insufficient service of process.

On or about 27 May 2022, Plaintiff filed a Motion for Summary Judgment.

Defendant served a Memorandum of Law in Opposition to Motion for Summary

Judgment on Plaintiff on 19 July 2022. The trial court heard Plaintiff’s Motion for

Summary Judgment on 21 July 2022.

At the summary judgment proceedings, Plaintiff asserted it filed a verified

complaint in the underlying lawsuit on or about 25 January 2010 seeking to collect

unpaid insurance premiums in the total amount of $4,543.81 related to Plaintiff’s

business (the 2010 Complaint). Defendant submitted his own Affidavit opposing

summary judgment and other documents, including the 2010 Complaint, as exhibits

attached to his Memorandum of Law opposing summary judgment. Attached as

exhibits to the 2010 Complaint were billing records and insurance applications for

policies purchased through an insurance agency in Boone, North Carolina, reflecting

Defendant’s address in Sugar Grove, North Carolina. Defendant also submitted a

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Certificate of Assumed Name for his construction business to do business in Watauga

County. The Certificate reflected addresses in Valle Crucis and Vilas, North

Carolina. Defendant also submitted documentation reflecting his address on file with

the North Carolina Licensing Board for General Contractors was in Paragon,

Indiana.

Following unsuccessful attempts to personally serve Defendant with the 2010

Complaint, Plaintiff served Defendant by publication on 21 December 2010 in

Watauga County, North Carolina. The Affidavit of Service by Publication filed in

that underlying suit reflected in January 2010, Plaintiff attempted to serve the 2010

Complaint and summons on Defendant via certified mail at Defendant’s Sugar Grove

address. The summons was returned unclaimed. In April 2010, Plaintiff then

attempted to serve the 2010 Complaint and alias and pluries summons at Defendant’s

Paragon, Indiana address. The summons was again returned unclaimed. In June

2010, Plaintiff again attempted service via alias and pluries summons by certified

mail at an address in Vilas, North Carolina which was also unsuccessful. Finally, in

August 2010, Plaintiff yet again attempted service of process on Defendant by

Watauga County Sheriff again at the addresses in Vilas and Sugar Grove. This alias

and pluries summons was not served because Defendant could not be located at those

addresses by the Sheriff’s office. Ultimately, on or about 13 October 2010, Plaintiff

caused Notice of Service of Process by Publication to be published in The Watauga

Democrat newspaper as Watauga County was Defendant’s last known residence.

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Following publication of the Notice Service of Process by Publication, Plaintiff moved

for summary judgment and obtained the 2011 Judgment on 11 March 2011.

At the hearing on summary judgment in the case sub judice, Defendant

contended the 2011 Judgment was void for lack of personal jurisdiction—and should

not be renewed—arguing Plaintiff failed to comply with the requirements for service

by publication of the 2010 Complaint. Defendant asserted Plaintiff failed to exercise

reasonable diligence in attempting to personally serve Defendant prior to resorting

to service by publication and by publishing the Notice of Service by Publication only

in Watauga County and not in Paragon, Indiana and/or Wake County, North Carolina

where the action was pending. Defendant’s own Affidavit averred that while he was

currently a resident of Watauga County, he did not reside and was not present in

Watauga County between March 2009 and September 2012. Instead, Defendant

claimed during that time he lived in Gosport, Indiana. As such, he further asserted

he was not served and did not have actual notice of the 2010 Complaint or 2011

Judgment.

On 22 July 2022, the trial court entered Summary Judgment in favor of

Plaintiff and against Defendant for the full amounts in the 2011 Judgment.

Defendant, however, was not served nor provided a copy of the trial court’s Summary

Judgment until 5 December 2022. Defendant timely filed Notice of Appeal on 21

December 2022. See N.C.R. App. P. 3(c)(2) (“In civil actions . . . a party must file and

serve a notice of appeal . . . within thirty days after service upon the party of a copy

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of the judgment if service was not made within that three-day period” prescribed by

Rule 58 of the North Carolina Rules of Civil Procedure).

Issues

The issues on appeal are whether the trial court properly entered Summary

Judgment for Plaintiff renewing the 2011 Judgment where: (I) service by publication

of the 2010 Complaint was utilized following multiple attempts by Plaintiff to

personally serve Defendant at multiple addresses in Watauga County and Indiana;

and (II) Notice of Service of Process by Publication was published in Watauga County.

Analysis

Summary judgment is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2023). A grant of

summary judgment “is appropriate if: (1) the non-moving party does not have a

factual basis for each essential element of its claim; (2) the facts are not disputed and

only a question of law remains; or (3) if the non-moving party is unable to overcome

an affirmative defense offered by the moving party.” Erthal v. May, 223 N.C. App.

373, 378, 736 S.E.2d 514, 517 (2012) (citations and quotation marks omitted).

“Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows that there is no genuine issue

as to any material fact and that any party is entitled to a judgment as a matter of

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law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and

quotation marks omitted). When ruling on a motion for summary judgment, all

inferences of fact “must be drawn against the movant and in favor of the party

opposing the motion.” Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)

(citation and quotation marks omitted).

On appeal in this case, Defendant argues Summary Judgment was improperly

entered for Plaintiff, and, instead, should have been entered in favor of Defendant.

Specifically, Defendant contends the 2011 Judgment was, itself, void because of

defects in Plaintiff’s service of process by publication. As such, Defendant asserts the

trial court had no jurisdiction to enter the underlying 2011 Judgment against him in

the first place, and the 2011 Judgment could not, therefore, be renewed in the present

action.

“ ‘A defect in service of process by publication is jurisdictional, rendering any

judgment or order obtained thereby void.’ ” Cotton v. Jones, 160 N.C. App. 701, 703,

586 S.E.2d 806, 808 (2003) (quoting Fountain v. Patrick, 44 N.C. App. 584, 586, 261

S.E.2d 514, 516 (1980)). “Service of process by publication is in derogation of the

common law. Therefore, statutes authorizing service of process by publication are

strictly construed, both as grants of authority and in determining whether service

has been made in conformity with the statute.” Id. (citation and quotation marks

omitted).

Service by publication is governed by Rule 4(j1) of the North Carolina Rules of

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Civil Procedure. “Rule 4(j1) permits service by publication on a party that cannot,

through due diligence, otherwise be served.” Id. Rule 4(j1) of the North Carolina

Rules of Civil Procedure provides in relevant part:

A party that cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) may be served by publication. Except in actions involving jurisdiction in rem or quasi in rem as provided in section (k), service of process by publication shall consist of publishing a notice of service of process by publication once a week for three successive weeks in a newspaper that is qualified for legal advertising in accordance with G.S. 1-597 and G.S. 1-598 and circulated in the area where the party to be served is believed by the serving party to be located, or if there is no reliable information concerning the location of the party then in a newspaper circulated in the county where the action is pending.

N.C. Gen. Stat. § 1A-1, Rule 4(j1) (2023).

I. Due Diligence

Defendant first contends Plaintiff failed to exercise due diligence in attempting

to locate Defendant before resorting to service by publication of the 2010 Complaint.

Defendant asserts Plaintiff should have utilized other avenues to locate Defendant

beyond the attempts Plaintiff made to serve Defendant either in Watauga County or

Indiana. We disagree.

“Due diligence dictates that plaintiff use all resources reasonably available to

her in attempting to locate defendants. Where the information required for proper

service of process is within plaintiff's knowledge or, with due diligence, can be

ascertained, service of process by publication is not proper.” Fountain, 44 N.C. App.

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at 587, 261 S.E.2d at 516 (citations omitted). However, “there is no ‘restrictive

mandatory checklist for what constitutes due diligence’ for purposes of service of

process by publication; ‘[r]ather, a case by case analysis is more appropriate.’ ” Jones

v. Wallis, 211 N.C. App. 353, 358, 712 S.E.2d 180, 184 (2011) (quoting Emanuel v.

Fellows, 47 N.C. App. 340, 347, 267 S.E.2d 368, 372 (1980)). “Further, a plaintiff is

not required to jump through every hoop later suggested by a defendant in order to

meet the requirement of ‘due diligence.’ This is particularly true when there is no

indication in the record that any of the steps suggested by a defendant would have

been fruitful.” Id. at 359, 712 S.E.2d at 185.

Here, Defendant offers two suggestions for additional steps. First, Defendant

suggests Plaintiff should have attempted service at a Post Office Box in Watauga

County. Second, Defendant suggests Plaintiff should have made repeated attempts

at service to the Paragon, Indiana address on file with the North Carolina Licensing

Board for General Contractors. Defendant also suggests Plaintiff should have tried

simply contacting him by telephone to ascertain an address for service of the lawsuit

against him.

Defendant, however, fails to identify any indication in the Record that these

steps would have been fruitful. To the contrary, Defendant’s entire factual basis for

his argument is that he did not live and was not present in Watauga County at the

time—necessarily defeating his suggestion that service at a Watauga County Post

Office Box would have borne fruit. Likewise, Defendant casually ignores the fact that

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the attempt at service at the Paragon, Indiana address was returned unclaimed and

offers no indication further attempts would have been successful. Defendant also

makes no effort to argue telephone calls would have resulted in successful service of

the 2010 Complaint.

Defendant cites Barclays American/Mortgage Corporation v. BECA

Enterprises, 116 N.C. App. 100, 446 S.E.2d 883 (1994), as supportive of his argument.

In Barclays, the “sole attempt at personal service of Notice . . . consisted of a certified

letter mailed to the business address . . ., a postal box number.” Id. at 103, 446 S.E.2d

at 886. We concluded, on the facts of that case, this was insufficient to constitute

due diligence where the record reflected other addresses including a personal address

that had been used previously to contact the defendant. Id. at 104, 446 S.E.2d at 886-

87.

This case is a far cry from Barclays. Here, Plaintiff utilized their own records

and the public record to attempt service on Defendant at business and residential

addresses in Watauga County. Moreover, Plaintiff attempted service at the Indiana

address on file with the Licensing Board for General Contractors. On the facts of this

case, we conclude Plaintiff exercised due diligence in making multiple attempts to

personally serve Defendant with the 2010 Complaint. This is particularly so where

Defendant has not forecast that any other attempts would have been fruitful. See

Jones, 211 N.C. App. at 358, 712 S.E.2d at 184.

II. Publication in Watauga County

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Defendant further contends Notice of Service by Publication of the 2010

Complaint in Watauga County was insufficient to meet the requirements of N.C.R.

Civ. P. 4(j1). In relevant part, Rule 4(j1) requires:

a notice of service of process by publication . . . in a newspaper . . . circulated in the area where the party to be served is believed by the serving party to be located, or if there is no reliable information concerning the location of the party then in a newspaper circulated in the county where the action is pending.

N.C. Gen. Stat. § 1A-1, Rule 4(j1) (2023). Instead, Defendant contends Plaintiff was

required to serve him by publication in Indiana and/or Wake County, North Carolina,

or, possibly, in Indiana, Wake County, and Watauga County. Defendant contends

Plaintiff either reasonably believed Defendant was located in Watauga County or

Indiana and should have served him by publication in both locations. Alternatively,

Defendant contends Plaintiff had no reliable information about his whereabouts and,

as such, should have served Defendant in Wake County (where the action was

pending) and Watauga County and/or Indiana. Defendant, however, offers no case

law supporting his alternative and conflicting positions.1

In Winter v. Williams, this Court concluded service by publication was proper

in Wake County—where the action was pending—where (a) plaintiff had made

diligent attempts to serve defendant at addresses in Wake County and Granville

County, North Carolina; (b) the only other information plaintiff received about

1Indeed, to be fair, our dissenting colleague provides a far more thoughtful analysis in making Defendant’s case for him.

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defendant’s location was “defendant may be out west, possibly California,”; (c)

inquiries to the California Department of Motor Vehicles revealed no information;

and, importantly, (d) the defendant’s last known address was also in Wake County.

108 N.C. App. 739, 743-45, 425 S.E.2d 458, 460-61 (1993). We concluded there the

plaintiff had no reliable information concerning the defendant’s location. Id. at 745,

425 S.E.2d at 461.

Subsequently, in Chen v. Zou this Court observed where a trial court’s findings

“demonstrate that [p]laintiff had reliable information (from [d]efendant herself) that

[d]efendant was living in New York City . . . service by publication in Mecklenburg

County—where the action was pending—was ineffective.” 244 N.C. App. 14, 19, 780

S.E.2d 571, 575 (2015). We noted “Winter is distinguishable from the present case

because [p]laintiff had reliable information from [d]efendant and several other

individuals that [d]efendant was in New York City, an area significantly smaller and

more precise than ‘out West,’ or ‘possibly California.’ ” Id.

Here, Defendant appears to effectively concede service by publication in

Watauga County itself was not improper. Indeed, it was entirely reasonable for

Plaintiff to believe Defendant would be located in Watauga County. Plaintiff’s

dealings with Defendant all occurred in Watauga County. Defendant’s last known

residence was in Watauga County. Plaintiff’s records of insuring Defendant all

reflected Defendant’s business was conducted only in North Carolina. Defendant’s

purchase of insurance products from Plaintiff was through a Watauga County

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insurance agent. Indeed, Defendant’s own affidavit submitted in the present action

admits he was a resident and conducting business in Watauga County until 2009 and

then returned to Watauga County in 2012—indicating he had not permanently

severed all ties with Watauga County and underscoring the reasonableness of

Plaintiff’s belief as to Defendant’s likely location.

Rather, Defendant—again without citing authority—contends Plaintiff was

required to do more. Defendant contends Plaintiff was required to serve Defendant

by publication in Indiana, arguing Plaintiff had reason to believe Defendant was

located there because of the address on file with the Licensing Board for General

Contractors. However, Plaintiff attempted service at this address and was

unsuccessful, and the Record provides no further indication Plaintiff had any other

reason to believe Defendant was located in Indiana. See Winter, 108 N.C. App. at

745, 425 S.E.2d at 461. This is particularly so given Plaintiff’s dealings with

Defendant, which all occurred exclusively in Watauga County. Therefore, we

conclude on the facts of this case that Plaintiff had no reason to believe Defendant

was located in Indiana. Thus, Plaintiff was not required to serve Defendant with

notice of the 2010 Complaint by publication in Indiana.

Defendant further contends that, alternatively, Plaintiff had no reliable

information whatsoever about Defendant’s location. Thus, Defendant asserts,

Plaintiff was required, as a matter of law, to serve Defendant in Wake County where

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the action was pending. We disagree.2

Ultimately, the test for the constitutional validity of service “is not whether

defendants received [a]ctual notice but whether the notice was of a nature

[r]easonably calculated to give them actual notice and the opportunity to defend.”

Royal Bus. Funds Corp. v. S.E. Dev. Corp., 32 N.C. App. 362, 369, 232 S.E.2d 215,

219 (1977). Here, it is apparent that service by publication in Wake County—of the

three options available—was the option least reasonably calculated to give Defendant

notice of the 2010 Complaint and an opportunity to defend.

Defendant’s argument boils down to a contention that because Plaintiff could

not obtain service of him at his Watauga County addresses, then Plaintiff necessarily

did not believe Defendant was in Watauga County. Indeed, this is the analysis

employed by the dissenting opinion here. This contention, however, misses the point.

If Plaintiff had been able to effectuate personal service on Defendant at those

addresses, service by publication would not be necessary. But it cannot logically

follow that just because personal service was not effectuated in a county where

Defendant was last known to reside and conduct business related to the lawsuit,

Defendant was no longer located in that county—or more to the point, that Plaintiff

could not reasonably believe Defendant would be located in that county for purposes

of publication.

2 This single point is where our dissenting colleague and we, respectfully, part ways.

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Indeed, the dissent’s analysis here functionally eviscerates the protections for

defendants afforded by Rule 4(j1). Under the dissent’s analysis, if a plaintiff is unable

to serve a defendant personally at their last known location, publication of the notice

cannot—as a matter of law—occur in that county. This cannot be so. The purpose of

the notice of publication is to provide as meaningful an opportunity for a defendant

to receive notice of the lawsuit as possible under the circumstances. Publication in

the county where the suit is pending is the last resort. See e.g., Zou, 244 N.C. App.

at 19, 780 S.E.2d at 575 (publication of notice inadequate in Mecklenburg County

where plaintiff had information defendant had moved to New York).

Here, there is no dispute publication in Wake County would have provided

practically zero chance of notice to Defendant. Meanwhile, it is not unreasonable for

Plaintiff to believe Defendant would be located in Watauga County where he had

resided, where his business was located, and where Defendant conducted business

with Plaintiff though a local insurance agency. This is much different than the

generalized assertion a defendant was “out west, possibly California.” See Winter,

108 N.C. App. at 745, 425 S.E.2d at 461. The test is not whether Defendant was, in

fact, located in Watauga County—but whether in 2010 Plaintiff reasonably believed

Defendant was located in Watauga County based on what reliable information it had

at the time.

Defendant’s own affidavit underscores the reasonableness of Plaintiff’s belief

Defendant would be located in Watauga County. Defendant admits he resided and

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operated his business in Watauga County, except for a temporary absence when he

left to go to Indiana to care for his ailing father, returning to Watauga County after

his father’s death. As such, we conclude Defendant has failed to establish Plaintiff

was required to publish notice of service of process by publication of the 2010

Complaint in Wake County where the action was pending.

Thus, in the case sub judice, Defendant has failed to forecast evidence Plaintiff

failed to exercise due diligence in attempting personal service or that service by

publication in Watauga County was invalid. Therefore, the trial court had personal

jurisdiction over Defendant to enter the 2011 Judgment. Consequently, in this

action, the trial court did not err in granting Summary Judgment to Plaintiff

renewing the 2011 Judgment.

Conclusion

Accordingly, for the foregoing reasons, the trial court’s 22 July 2022 Summary

Judgment is affirmed.

AFFIRMED.

Judge STROUD concurs.

Judge GORE dissents with separate opinion.

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No. COA23-240 – Builders Mut. Ins. Co. v. Neibel

GORE, Judge, dissenting.

The majority opinion seeks to mitigate the tough consequences of an

inadequate application of the stringent service by publication requirements, however,

I believe a correct application of Rule 4(j1) requires remand and consequently to

vacate the prior judgment, therefore I respectfully dissent.

Rule 4(j) of the North Carolina Rules of Civil Procedure states:

A party that cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) may be served by publication. Except in actions involving jurisdiction in rem or quasi in rem as provided in section (k), service of process by publication shall consist of publishing a notice of service of process by publication once a week for three successive weeks in a newspaper that is qualified for legal advertising in accordance with G.S. 1-597 and G.S. 1-598 and circulated in the area where the party to be served is believed by the serving party to be located, or if there is no reliable information concerning the location of the party then in a newspaper circulated in the county where the action is pending.

N.C. R. Civ. P. 4(j1) (2023) (emphasis added).

The majority is satisfied with plaintiff’s reliance upon evidence of its prior

dealings with defendant to establish it reasonably believed defendant was located in

Watauga County. The evidence is dated a year or more prior to the filing of the prior

judgment action, and evidence obtained through attempts to serve defendant during

the lawsuit contradicted this reasonable belief. I agree with the majority that

plaintiff demonstrated service by publication was proper in this case. But I disagree

Justice Gore, dissenting

with the majority’s generous reading of what qualifies as a reasonable belief that

defendant was located in Watauga County. Case law demonstrates the Courts must

strictly apply service by publication requirements. See Henry v. Morgan, 264 N.C.

App. 363, 365 (2019) (discussing how our Courts must strictly construe whether the

party properly served the defendant under Rule 4(j1) because this type of service is a

“derogation of the common law.”); Dowd v. Johnson, 235 N.C. App. 6, 10 (2014)

(cleaned up) (“Because service by publication is a derogation of the common law,

statutes authorizing service of process by publication are strictly construed, both as

grants of authority and in determining whether service has been made in conformity

with the statute.”).

The majority argues that my application of Rule 4(j1) “functionally eviscerates

the protections for defendants.” I am not suggesting that a failure to personally serve

defendant at their last known address equates as a matter of law in ruling that

service by publication is not proper in that county. I am merely pointing to the facts

of this case and comparing it with prior decisions by this Court that utilize the

available facts to determine whether the serving party properly published in the area

where the serving party believed the defendant was located. Given the strict

requirements of service by publication, the purpose is not to determine whether

defendant would actually get notice by publication in a certain county, although this

is certainly a desired outcome as this equates to personal jurisdiction, but instead it

is the proper application of Rule 4(j1). I agree with the majority, that it is likely in

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this case defendant would not receive notice through publication in the county where

the case was pending, after all he was in Indiana at the time of the lawsuit. But we

are not given the luxury of applying the law based on how we think it should turn

out, but rather by interpreting the law as articulated by the General Assembly and

previously applied by the Courts.

In Winter v. Williams, the defendant argued the service by publication in the

county in which the action was pending was improper because the serving party had

some information defendant could be out west in California. 108 N.C. App. 739, 744–

45 (1993). The Winter Court held that service by publication “in the county in which

the action was pending” was proper. Id. at 745. The Court reasoned that the

“defendant’s last known address was in Wake County and despite reasonable efforts,

[the] plaintiff had no ‘reliable information’ as to the defendant’s whereabouts.” Id.

Conversely, in Chen v. Zou, a later decision by this Court addressing the same

application of Rule 4(j1), we discussed why service by publication in the location in

which the action was pending was “inadequate.” 244 N.C. App. 14, 19 (2015). The

Chen Court determined the serving party did not “exercise due diligence” in

attempting to serve the defendant, because the plaintiff had “reliable information”

defendant was in New York City. Id. The effect of this inadequate service by

publication was to recognize the prior divorce judgement was void and order it set

aside. Id. at 20.

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In both cases, the Winter Court and the Chen Court diverged in the application

of Rule 4(j1) based upon evidence obtained during the legal proceedings. In Winter,

the information obtained while attempting service demonstrated the plaintiff lacked

reliable information of the defendant’s whereabouts, because he received notice from

a failed service attempt that the defendant could be located out in California. 108

N.C. App. at 743. The Winter Court determined the plaintiff only knew of the

defendant’s prior address and lacked reliable information as to where the defendant

was located, therefore, publication was proper in the location where the action was

pending. Id. at 745. Whereas, in Chen, the information the plaintiff had about the

defendant during the legal proceedings (by talking to and texting the defendant)

demonstrated the plaintiff had reliable information of where the defendant was

located. 244 N.C. App. at 18–19. Therefore, the Chen Court stated it was improper

to publish in the location where the action was pending, because he had reliable

information from the defendant of her location. Id. at 19.

Plaintiff made the following attempts to serve defendant: (1) by certified mail

to Sugar Grove, North Carolina, but it was returned unclaimed; (2) by certified mail

to Paragon, Indiana, but it was returned unclaimed; (3) by certified mail to Vilas,

North Carolina, but it was returned unclaimed; and (4) by personal service through

the Watauga County Sheriff to both Vilas, North Carolina, and Sugar Grove, North

Carolina, but the sheriff told plaintiff that defendant could not be located at either

address, and there was no forwarding information. It appears plaintiff used due

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diligence to obtain the Indiana address and attempt service there. While I would not

impute a requirement for further attempts at the Indiana address beyond the service

attempted, it does raise suspicion as to plaintiff’s reliable information and reasonable

belief of defendant’s location.

Plaintiff made multiple attempts of service and each time received information

that defendant could not be located at those addresses. Plaintiff also received notice

prior to the hearing that stated defendant moved from the address in Watauga

County. This evidence altogether, casts doubt upon plaintiff’s reliance of prior

dealings with defendant for where it believed defendant was located. When I consider

the key differences between proper service by publication and improper service by

publication in Winter and Chen, it becomes evident that the prior dealings of plaintiff

with defendant were not enough to strictly comply with the requirements of Rule

4(j1). The requirement of service by publication in the location in which the action is

pending, is a last resort, but it is necessary when the serving party reveals it lacks

reliable information of defendant’s location. Further, while it is not required, plaintiff

could have published in more than one county when the evidence raised a question of

whether plaintiff properly believed defendant was located in Watauga County, and

whether that belief was based upon reliable information of defendant’s location.

I am not suggesting defendant’s lack of knowledge is determinative of the

proper application of service by publication requirements, instead, I merely suggest

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the evidence admitted, without dispute, casts great doubt upon the majority’s

determination service by publication was proper in Watauga County. In applying

both Winter and Chen to the present case, I would consider the evidence obtained

during the legal proceedings and let that guide the determination as to whether

plaintiff had reliable information of defendant’s location. In this case, because the

evidence casts doubt on plaintiff’s reliable information of defendant’s location, I would

determine the service by publication should have been issued in the county in which

the case was pending, and therefore, service was improper and the judgment should

be vacated for lack of personal jurisdiction. Therefore, I respectfully dissent.

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