Jones v. Wallis
211 N.C. App. 353
N.C. Ct. App.2011Background
- Jones and Wallis contracted to build homes on Haw River Plantation; Wallis was Viridis Building's president and Viridis signed the note and deed of trust securing Jones's line of credit.
- Wallis and Viridis allegedly failed to timely pay interest and principal on the note.
- During 2008–2009, Jones sought payment while discovering Viridis had no valid lien or title to the lots.
- Jones attempted personal service at Wallis's known addresses; sheriff attempts failed and Wallis's address could not be located.
- Service by publication was used for Wallis and Viridis after failed attempts; Wallis and Viridis were defaulted on 15 April 2009.
- Court denied Wallis's motion to set aside the default and granted summary judgment against Wallis and Rossabi; execution issues were moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due diligence supported service by publication. | Jones exercised due diligence. | Wallis argues due diligence was lacking. | No abuse of discretion; due diligence found. |
| Whether service by publication complied with Rule 4(j1) and notice requirements. | Publication notice was proper for Wallis and Viridis. | Notice to Wallis via publication was deficient. | Notice and publication proper under plain language of rules. |
| Whether execution issues remain moot after default and summary judgment. | Execution proceedings supported by final judgments. | Execution issues should be addressed post-judgment. | Moot; execution issues resolved. |
Key Cases Cited
- Fountain v. Patrick, 44 N.C.App. 584 (1980) (jurisdictional defect in service by publication; void judgment)
- Emanuel v. Fellows, 47 N.C.App. 340 (1980) (case-by-case due diligence standard for service by publication)
- Barclays American/Mortgage Corp. v. BECA Enterprises, 116 N.C.App. 100 (1994) (public records inspection relevant to due diligence)