Powell v Quinn

Plaintiff appeals from an order dismissing his complaint for lack of jurisdiction, insufficiency of process, and insufficient service of process. The sole issue presented is whether plaintiff exercised due diligence in attempting to serve defendant with process before resorting to service by publication. The trial court concluded that plaintiff did not. We affirm.

Plaintiff filed a complaint on 6 October 1999 alleging that injuries and damages sustained by plaintiff in an automobile accident on 15 November 1996 were proximately caused by defendant's negligence in operating his vehicle. Summons was issued on 6 October 1999 listing defendant's address as 444 Drummond Drive,Raleigh, N.C. This summons was returned unserved by the sheriff. Plaintiff caused the issuance of alias and pluries summons to the same address on 4 November 1999, 17 December 1999, and 23 February 2000. All were returned unserved. Plaintiff also attempted to serve defendant by certified mail by letter addressed to defendant at 444 Drummond Drive, Raleigh, N.C. 27609. This letter was returned to the sender marked forwarding order expired. Plaintiff then served notice by publication for three consecutive weeks beginning 27 March 2000.

In concluding that plaintiff failed to exercise due diligence in attempting to serve defendant before resorting to service by publication, the trial court found that on 9 April 1998, the Wake County Clerk of Superior Court adjudicated defendant incompetent and appointed his son, Dr. Stephen F. Quinn, to serve as his guardian. The clerk's order, a public document, showed defendant had been placed at Sunrise Assisted Living of Raleigh. The court also found that at the time service was attempted defendant's wife, Patricia Quinn, continued to reside at 444 Drummond Drive, and that the telephone directory listed her name, her address as 444 Drummond Drive, Raleigh, and her telephone number. Plaintiff contends that he did not know defendant's marital status, nor that Patricia Quinn was defendant's wife.

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Under these circumstances, we hold the trial court properly concluded that plaintiff did not exercise due diligence in attempting to serve defendant prior to service by publication. The court's order dismissing the action is affirmed.

Affirmed for Defendant.

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C.L.