Service of process on a Midlands woman was ineffective — even though the process server left the papers at her front door, believing she was inside the residence and refusing to answer his calls, the Supreme Court ruled July 24.
The process server visited the defendant’s home nine times trying to serve her with a debt collection suit. On his final attempt, he verified that the defendant’s car was in the driveway, according to the opinion.
The server said he thought the defendant — or someone else able to accept service — was in the home, but he never made contact with that individual.
That lack of communication was key, the high court said.
Unlike other cases where service has been deemed effective, there was no evidence that the defendant refused service of process, or was even aware of the server’s attempt, the high court said.
The justices’ decision reversed the Appeals Court’s ruling in a 2004 unpublished opinion (see Oct. 25, 2004 Lawyers Weekly).
The case is BB&T f/k/a Southern National Bank v. Taylor (South Carolina Lawyers Weekly No. 010-113-06, 7 pages). Justice E.C. Burnett III wrote the opinion for a unanimous court.
BB&T filed an action against the defendant on May 29, 1998 to collect consumer debt.
The bank hired a private process server. The server verified the defendant’s address and obtained the make, model and tag number of the defendant’s car.
The process server made nine visits to the defendant’s address in attempts to serve her with the complaint. He also left a message on her answering machine.
On June 17, 1998, the server arrived at the defendant’s address around 4:30 p.m. Two cars were parked in the driveway, including the one registered to the defendant.
The server said someone seemed to be inside the house, but that individual would not open the door or communicate with him.
The process server announced his intent to leave the papers and posted the summons and complaint on the front door of the home.
BB&T filed an affidavit of default. On Aug. 3, 1998, a default judgment was entered against the defendant.
On July 16, 2002, the defendant moved to set aside the default judgment under Rule 60(b)(4), SCRCP. She argued the judgment should be set aside because she was not properly served with process.
The trial court denied the motion finding that service was effective. The Court of Appeals affirmed in an unpublished decision in 2004.
The defendant petitioned the high court for cert.
The defendant argued that she did not personally receive the summons and complaint as required by Rule 4, SCRCP. The Supreme Court agreed.
“[The defendant] was not properly served under these facts because [the process server] never saw or spoke to anyone who resided in [the defendant’s] residence nor did anyone refuse acceptance before [the server] attached the summons and complaint to [the defendant’s] front door,” Justice Burnett wrote.
“The process server is not required to ram the documents down a defendant’s throat and personal service of process ‘should not become a game of wiles and tricks,'” he wrote.
“However, there must be something more than a mere suspicion of a defendant’s refusal to accept the summons and complaint before we are willing to find a defendant was sufficiently served with process by a means other than strict compliance with Rule 4(d)(1), SCRCP,” the opinion states.
The justices distinguished the out-of-state precedent cited in the Appeals Court’s unpublished decision. Those cases found service to be effective under various circumstances where an individual who was capable of accepting service refused to do so.
“Unlike the foreign authority cited by the Court of Appeals, [the process server] merely speculated that an individual of suitable age and discretion was inside [the defendant’s] residence and was refusing to communicate with him during his attempts to serve process,” Justice Burnett wrote.
The high court also distinguished the 1982 South Carolina case of Patel v. Southern Brokers, Ltd., 277 S.C. 490, 289 S.E.2d 642 (1982).
In Patel, the court said the defendant could not avoid process by refusing to sign for registered mail that he knew contained a summons and complaint.
“[The defendant in Taylor] did not refuse to accept a copy of the summons and complaint, unlike the defendant in Patel. Rather, there are no facts in the record to indicate [the defendant] was even aware of the process server and his attempts to serve her,” Justice Burnett wrote.
Case Name: BB&T f/k/a Southern National Bank v. Taylor (South Carolina Lawyers Weekly No. 010-113-06, 7 pages).
Court: S.C. Supreme Court
Judge: Justice E.C. Burnett III
Attorneys: Carolyn M. Taylor, of Columbia, pro se for petitioner; John William Ray, The Law Office of J. William Ray, of Greenville, for respondent.
Issue: Was service of process effective where a process server left paperwork at the defendant’s residence where he suspected someone was inside but refused to answer the door?
Holding: No. The process server made no contact with the individual inside the home and there was no evidence that the defendant was aware of his attempts to serve her.
Potential Impact: The decision indicates that, for the court to find effective service, the defendant will need an opportunity to actively refuse to accept the summons and complaint. A process server’s mere suspicion that a defendant — or someone else qualified to accept the papers — is inside a dwelling but won’t come to the door is insufficient.
Opinion Digest: See page 9.
Comments: E-mail [email protected].