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2004-UP-513 - BB & T v. Taylor

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

BB&T f/k/a Southern National Bank,        Respondent,

v.

Carolyn M. Taylor a/k/a Carolyn Yvonne Murphy Taylor,        Appellant.


Appeal From Richland County
Alison Renee Lee, Circuit Court Judge


Unpublished Opinion No. 2004-UP-513
Submitted September 15, 2004 – Filed October 14, 2004


AFFIRMED


Carolyn M. Taylor, of Columbia, for Appellant.

John William Ray, of Greenville, for Respondent.

PER CURIAM:  Carolyn M. Taylor, a/k/a Carolyn Younns Murphy Taylor, appeals the trial court’s order denying her motion to set aside a default judgment in favor of BB&T, f/k/a Southern National Bank, asserting the judgment is void for lack of sufficient service of process.  We affirm.1

FACTUAL/PROCEDURAL BACKGROUND

BB&T filed this action for collection of a consumer debt on May 29, 1998.  A process server purported to serve Taylor on June 17, 1998, stating in his affidavit of service that the “[d]ocuments [were] posted on front door after person(s) inside refused to answer door.”  On July 17, 1998, BB&T filed an affidavit of default.  The Honorable L. Henry McKellar granted BB&T a default judgment on the liquidated debt, costs, and attorney’s fees totaling $8,926.10 by order filed August 3, 1998. 

On July 16, 2004, Taylor filed a motion to vacate the judgment pursuant to Rule 60(b)(4), SCRCP, claiming the court lacked personal jurisdiction in this matter due to insufficiency of service of the summons and complaint.  The Honorable Alison R. Lee denied the motion.2 This appeal followed.  

STANDARD OF REVIEW

Questions of fact arising on a motion to quash service of process for lack of jurisdiction over the defendant are to be determined by the circuit court.  Brown v. Carolina Emergency Physicians, P.A., 348 S.C. 569, 583, 560 S.E.2d 624, 631 (Ct. App. 2001).  “The findings of the circuit court on such issues are binding on the appellate court unless wholly unsupported by the evidence or manifestly influenced or controlled by error of law.”  Id.

DISCUSSION

Taylor argues the circuit court erred in finding she was properly served with the summons and complaint.  We disagree.

Rule 4(d)(1), SCRCP, provides service may be made as follows:

Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.

Rule 4, SCRCP, serves the dual purposes of conferring personal jurisdiction on the court and assuring the defendant of reasonable notice of the action.  Roche v. Young Bros., Inc., 318 S.C. 207, 209, 456 S.E.2d 897, 899 (1995).  Exacting compliance with the rules is not required to effect service of process.  Id. at 209-10, 456 S.E.2d at 899.  Rather, inquiry must be made as to whether the plaintiff has sufficiently complied with the rules such that the court has personal jurisdiction of the defendant and the defendant has notice of the proceedings.  Id. at 210, 456 S.E.2d at 899.  The plaintiff has the burden of establishing that the court has personal jurisdiction over the defendant.  Moore v. Simpson, 322 S.C. 518, 523, 473 S.E.2d 64, 66 (Ct. App. 1996).  However, service of process “should not become a game of wiles and tricks and a defendant should not be able to defeat service simply by refusing to accept the papers or by instructing others to reject service.” 62B Am.Jur. 2d Process § 204 (1990).

The Georgia Court of Appeals found service was effective when, after the defendant’s wife ordered the process server to leave and closed the door, the process server declared in a voice sufficiently loud enough to be heard that he was leaving the papers at the front door and left after doing so.  Jacobson v. Garland, 487 S.E.2d 640 (Ga. Ct. App. 1997).  The court explained:  “It is the duty of a defendant to accept and submit to the service of process when he is aware of the process server’s purpose.”  Id. at 642. 

Similarly, the New York Court of Appeals held “if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door, provided the person to be served is made aware he is doing so.”  Bossuk v. Steinberg, 447 N.E.2d 56, 58 (N.Y. 1983).  It extended this holding to leaving a copy of the summons outside the door of the person to be served upon the refusal of “a person of suitable age and discretion” to open the door to accept it, provided the process server informs the person to whom delivery is being made that this is being done.  Id.  The court in Bossuk noted that no question had been raised concerning the fact that the children who received service, one 14 and the other 15, were of “suitable age and discretion.”  Id.  See also Wood v. Weenig, 736 P.2d 1053, 1055 (Utah Ct. App. 1987) (finding service valid where process server left the summons and complaint on the defendant’s doorstep after a fruitless conversation with a faceless individual inside the residence who had identified herself as the defendant’s daughter and as being of suitable age even though both of the defendant’s daughters denied having spoken to the process server); CRB v. Wyoming, 974 P.2d 931, 935 (Wyo. 1999) (finding service of process was proper where after the defendant refused to open his apartment door to accept service, the process server called him while still outside of the apartment and informed him that he had papers to serve on him, and then told him that the process server would leave the papers in the defendant’s mailbox).

In the present case, BB&T’s process server stated in an affidavit that he made nine visits to Taylor’s residence in his attempt to serve her.  On several occasions, he confirmed someone was in the residence, but no one would answer the door.  He checked the public records to confirm Taylor’s address and discover what type of vehicle she owned and the vehicle’s license tag number.  He returned to Taylor’s residence on June 17, 1998 at approximately 4:30 p.m.  He noted that Taylor’s vehicle and another vehicle were in the driveway.  Once again, although someone was definitely present in the residence, the occupant refused to come to the door.  The process server called out his intent to leave the papers and secured the papers to the front door.  He averred, “I left copies [of the papers] at [Taylor’s] dwelling house and usual place of abode with some person, I believe the Defendant, of suitable age and discretion occupying the premises at that time.” 

BB&T’s attorney stated in an affidavit that he wrote to Taylor at both addresses for her residence confirming the service and asking her to contact him after the process server left the papers at Taylor’s residence.  After the judgment was served on Taylor, he wrote her again at both addresses.  He subsequently sought and received an execution against her property.  The attorney averred that none of the correspondence he sent Taylor was ever returned as improperly addressed or undeliverable. 

In her affidavit, Taylor acknowledged that she resided at the residence where the process server left the papers and that the addresses BB&T’s attorney used were valid addresses for her property.  However, she asserted she never received the summons and complaint the process server left at her house on June 17, 1998.  She also claimed she never received any of the correspondence from BB&T’s attorney.  Taylor averred the first time she knew of the existence of BB&T’s action was when she discovered the judgment against her while checking the records in the clerk of court’s office. 

The circuit court held, “[u]nder the circumstances, it cannot be argued that one may avoid service merely by refusing to answer the door, and such avoidance should not be allowed.”  The process server stated he left the summons and complaint at Taylor’s residence with a person of suitable age and discretion, whom he believed to be Taylor.  Although Taylor denied receiving the documents, there is evidence in the record to support the trial court’s conclusion that Taylor was properly served.  Accordingly, under our limited standard of review, we hold the trial court did not err in denying Taylor’s motion to set aside the default judgment. 

AFFIRMED.

HEARN, C.J., and HUFF, J., and CURETON, A.J. concur. 


1 We decide this case without oral argument pursuant to Rule 215, SCACR.

2 Judge McKellar retired July 31, 2002.