               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-731

                                 Filed: 19 March 2019

Durham County, No. 17CVS3530

DENISE ANGELISTA HENRY, Plaintiff,

              v.

ELENA NICOLE MORGAN, Defendant.


        Appeal by Plaintiff from order entered 22 March 2018 by Judge A. Graham

Shirley in Durham County Superior Court. Heard in the Court of Appeals 15 January

2019.


        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
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                                   Opinion of the Court



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.




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                                       Opinion of the Court



      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 the Midtown Raleigh News on 4

October 2017, 11 October 2017, and 18 October 2017.

      On 26 December 2017, Defendant filed an answer to the Complaint, including

a Motion to Dismiss for lack of service of process, insufficiency of process, and

insufficiency of service of process.

      The trial court granted Defendant’s motion and entered an order dismissing

Plaintiff’s Complaint on 22 March 2018. Plaintiff appeals.

                                         ANALYSIS

      A trial court’s unchallenged findings of fact are conclusive on appeal. Dreyer

v. Smith, 163 N.C. App. 155, 157, 592 S.E.2d 594, 595 (2004).         A trial court’s

conclusions of law are reviewed de novo. Farm Bureau v. Cully’s Motorcross Park,

366 N.C. 505, 512, 742 S.E.2d 781, 786 (2013). We review the trial court’s conclusions



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that Plaintiff did not exercise due diligence in attempting to locate and serve

Defendant, and that service of process by publication was therefore improper. When

employing de novo review, the appellate court considers the matter anew and

substitutes its judgment for that of the trial court. Blow v. DSM Pharm., Inc., 197

N.C. App. 586, 588, 678 S.E.2d 245, 248 (2009).

      Rule 4(j1) of the North Carolina Rules of Civil Procedure provides for service

of process by publication for “a party that cannot with due diligence be served” by

other statutory methods. N.C. Gen. Stat. § 1A-1, Rule 4 (2017). Due diligence

requires a plaintiff to “use all resources reasonably available to her in attempting to

locate defendants.” Fountain v. Patrick, 44 N.C. App. 584, 587, 261 S.E.2d 514, 516

(1980) (citations omitted). “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.” Id. Because service by publication is

in derogation of the common law, statutes authorizing service by this method “are

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

has been made in conformity with the statute.” Id. at 586, 261 S.E.2d at 516 (citations

omitted).

      In considering whether a plaintiff exercised due diligence in her attempts to

locate and serve a defendant, this Court has refrained from creating a “restrictive




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mandatory checklist,” but rather conducts a case-by-case analysis. Jones v. Wallis,

211 N.C. App. 353, 358, 712 S.E.2d 180, 184 (2011) (internal quotations omitted).

       Here, Plaintiff’s efforts to locate and serve Defendant consisted of (1) an

attempt to serve the summons and complaint at an address at which Defendant did

not reside and (2) a general internet search. Plaintiff also provided copies of the

endorsed summons to Defendant’s attorney and insurer, but did not ask either to

provide Defendant’s contact information or to accept service on Defendant’s behalf.

Plaintiff did not examine Division of Motor Vehicles (“DMV”) or other public records.

       No individual action that Plaintiff took or failed to take is dispositive to the

issue of whether or not Plaintiff exercised due diligence. For example, this Court has

in the past emphasized the importance of examining public records—see In re Clark,

76 N.C. App. 83, 87, 332 S.E.2d 196, 199 (1985) (“We find the following findings of

fact most persuasive: . . . [t]hat the petitioner in this matter checked no public records

to determine the location and identity of the father of the minor child”)—but has in

another decision held that the due diligence requirement was satisfied even though

a plaintiff failed to consult DMV records. Jones, 211 N.C. App. at 358, 712 S.E.2d at

184.

       Plaintiff’s argument relies heavily on comparisons to Jones. In Jones, as in

this case, the plaintiff did not search DMV records, use any fee-based internet search

service, or ask the defendant’s counsel for the defendant’s address. Id. This Court



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did not find these failures determinative, because “a plaintiff is not required to jump

through every hoop later suggested by a defendant in order to meet the requirement

of due diligence.” Id at 359, 712 S.E.2d at 185. But other facts in Jones—not present

in this case—supported the Court’s conclusion. In its analysis, this Court focused on

the steps “actually undertaken” by the plaintiff, rather than methods not undertaken.

Id. at 359, 712 S.E.2d at 184.      The plaintiff’s attorney in Jones had asked the

defendant’s attorney to accept service of process, and the defendant’s counsel refused

that request, providing indicia that it would be futile for the plaintiff’s attorney to

ask for the defendant’s address. Id. Here, Plaintiff’s attorney did not ask Defendant’s

attorney to accept service and did not ask for Defendant’s address. The plaintiff’s

counsel in Jones also attempted personal service at multiple addresses, searched non-

DMV public records, and interviewed current residents of the defendant’s former

address. Id.

      Given that the efforts undertaken here fall short of those made in Jones,

Plaintiff’s failure to search any public records at all invites comparison to this Court’s

holding in Clarke that the petitioner had not exercised due diligence sufficient to

justify service by publication. 76 N.C. App. at 87, 332 S.E.2d at 199.

      We cannot hold that a single failed attempt at personal service at an address

where Defendant did not reside and a general internet search constitute due diligence

when readily available resources were left unexplored.          To do so would render



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                                  Opinion of the Court



meaningless the requirement that a plaintiff use all resources reasonably available

to locate a defendant. Because Plaintiff failed to exercise due diligence, service of

process by publication was improper, and the trial court correctly granted

Defendant’s motion to dismiss the action for insufficient service of process.

      AFFIRMED.

      Judges BRYANT and DAVIS concur.




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