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Watauga County v. Beal

Court of Appeals of North Carolina

October 3, 2017

WATAUGA COUNTY, Plaintiff,
v.
TERESA BEAL, Defendant.

          Heard in the Court of Appeals 8 August 2017.

         Appeal by defendant from order entered 26 July 2016 by Judge Hal G. Harrison in Watauga County No. 15 CVD 450 District Court.

          Di Santi Watson Capua Wilson & Garrett, PLLC, by Chelsea Bell Garrett, for plaintiff-appellee.

          Deal, Moseley & Smith, LLP, by Bryan P. Martin, for defendant-appellant.

          BRYANT, JUDGE.

         Where the unique facts of this case show that plaintiff was aware based on extensive prior experience with defendant that it could not effect service of process on defendant by personal delivery or by registered or certified mail, plaintiff's actions satisfied the "due diligence" requirement necessary to justify the use of service of process by publication, and the trial court did not err or abuse its discretion in denying defendant's motion to set aside entry of default, default judgment, foreclosure sale, and commissioner's deed. We affirm.

         In November 2001, defendant Theresa Beal acquired title to real property as shown in Book 677, Page 205 of the Watauga County Register of Deeds. Thereafter, defendant became delinquent on her tax obligation and plaintiff Watauga County initiated collections for taxes owed. Defendant's address on record was listed as Post Office Box 1202, Conover, NC 28613.

         On or about 6 May 2013, the Watauga County Tax Collections Supervisor (the "Supervisor") attempted to find a valid address for defendant. Plaintiff attempted to contact various individuals, including defendant's mother by phone. On 9 May 2013, defendant contacted the Supervisor, wherein defendant agreed to enter into a payment agreement with plaintiff. During that conversation, defendant provided a facsimile number, but she did not provide any other contact information.

         Thereafter, the Supervisor sent a three-page fax to defendant at the fax number provided by defendant. The fax included a coversheet, an "Agreement of Payment Schedule, " and a "Watauga County Tax Certification." On 17 May 2013, defendant sent a return fax, which included a cover sheet and a copy of the Agreement of Payment Schedule with defendant's signature. No contact information for defendant was added to either page of her return fax.

         In 2013, defendant made two payments on her payment plan. The first was made shortly after execution of the payment agreement, and the second was made on 26 June 2013. On 12 May 2014, plaintiff sent defendant a fax including a cover page and a 2013 tax bill. The cover page included a note asking defendant to please call regarding her 2013 tax bill and payment plan and notifying her that failure to do so could result in foreclosure. On 22 May 2014, plaintiff received a third payment from defendant. After the third payment, plaintiff received no further payments or communications from defendant.

         As a result, plaintiff sent collection notices to defendant's address of record- Post Office Box 1202, Conover, NC 28613. Thereafter, on 4 September 2015, plaintiff filed a verified complaint in Watauga County District Court to collect the past due taxes from defendant and request a commissioner be appointed to sell the property in order to satisfy plaintiff's tax lien. Defendant's address was listed on the complaint as follows: "Teresa Beal Post Office Box 1202 Conover, NC 28613." The same day the complaint was filed-4 September 2015-plaintiff filed a Notice of Service by Publication, indicating that plaintiff would publish notice in the Watauga Democrat, a newspaper in circulation in the county where the property is located, on 14, 21, and 28 September 2015. Less than a week later, plaintiff filed another Notice of Service by Publication on 10 September 2015, indicating that it intended to publish notice on three additional dates-13, 20, and 27 September 2015.

         Thereafter, plaintiff attempted service on 19 October 2015 by certified mail to the same address listed for defendant on the complaint-P.O. Box 1202, Conover, NC, 28613. On 21 October 2015, this was returned as "undeliverable as addressed; unable to forward." On 16 December 2015, plaintiff filed an affidavit of attempted service, based on plaintiff's attempt to serve defendant on 20 October 2015 by certified mail at the Conover post office box address. The affidavit was filed along with a motion for entry of default which was granted by the Watauga County Clerk of Superior Court on the same day.

         On 4 January 2016, default judgment was entered. On 9 February 2016, a sale of the property was held, which sale was confirmed on 2 May 2016. On 6 May ...


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