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Henry v. Morgan

Court of Appeals of North Carolina

March 19, 2019

DENISE ANGELISTA HENRY, Plaintiff,
v.
ELENA NICOLE MORGAN, Defendant.

          Heard in the Court of Appeals 15 January 2019.

          Appeal by Plaintiff from order entered 22 March 2018 by Judge A. Graham Shirley in Durham County Superior Court No. 17CVS3530.

          Law Office of Saprina Brown Taylor, by Saprina Brown Taylor, for Plaintiff-Appellant.

          Law Office of Robert E. Ruegger, by Robert E. Ruegger, for Defendant-Appellee.

          INMAN, JUDGE.

         When a plaintiff's attempts to find and serve a defendant do not meet the due diligence standard described by Rule 4(j1) of the North Carolina Rules of Civil Procedure, service of process by publication is improper and dismissal is appropriate.

         Plaintiff Denise Angelista Henry ("Plaintiff") brought suit against Defendant Elena Nicole Morgan ("Defendant") for negligence. Plaintiff appeals from the trial court's order granting Defendant's motion to dismiss for lack of service of process, insufficiency of process, and insufficiency of service of process. After careful review of the record and applicable law, we hold that the trial court did not err in granting Defendant's motion and affirm.

         FACTUAL AND PROCEDURAL HISTORY

         The record and the trial court's undisputed findings of fact reveal the following:

On 18 July 2014, Plaintiff and Defendant were involved in a motor vehicle accident. Plaintiff filed a complaint alleging negligence on 17 July 2017, and a civil summons was issued. The summons listed Defendant's address as 2931 Springsweet Lane, Apartment 17, Raleigh, North Carolina, and service was attempted at that address by the Wake County Sheriff's Office. The summons was returned unserved on 31 August 2017, with a deputy sheriff's note indicating that after several attempts he was unable to locate Defendant.

         At all times relevant to this case, Defendant has resided at 4021 Bella Park Trail, Apartment 5, Raleigh, North Carolina. Defendant's driver's license, issued 1 July 2016, reflects this fact.

         On 23 August 2017, Plaintiff's attorney participated in the mediation of an unrelated case with an attorney retained by Defendant. During this meeting, the attorneys discussed Plaintiff's difficulty serving Defendant. Plaintiff's attorney told Defendant's attorney that she would "keep him posted regarding service," but did not ask for Defendant's address.

         An endorsement of the original summons and complaint was issued and, on 18 September 2017, Plaintiff's attorney sent a copy to Defendant's attorney and Defendant's insurance carrier. In these communications, Plaintiff did not ask for Defendant's address, but instead informed Defendant's attorney that Defendant would be served by publication.

         Plaintiff's attorney conducted a Google search and determined that Defendant may have still resided in Raleigh, North Carolina at that time. The record reflects no evidence of any additional attempt by Plaintiff to locate Defendant. Notice of service of process by publication was published in ...


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