532 S.E.2d 825 | N.C. Ct. App. | 2000
Edwin MOSS, Malcolm Thomas, Thomas Hereford, C. Ray Edwards, Jim Stallings, and Lem Long, Plaintiffs,
v.
The IMPROVED BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE WORLD, and Donald P. Wilson, Defendants.
Court of Appeals of North Carolina.
*828 Poyner & Spruill, LLP, by Joseph E. Zeszotarski, Jr., Raleigh, for plaintiff-appellants.
Robinson, Bradshaw & Hinson, P.A., by Mark W. Merritt and Sarah B. Kemble, Charlotte, for defendant-appellees.
EAGLES, Chief Judge.
In deciding whether the Alabama default judgment was enforceable in North Carolina under the full faith and credit clause of the federal constitution, see U.S. Const. Art IV, § 1, we first consider whether defendants Wilson and the Elks were properly served under Alabama law. Defendants argue that they were not properly served with a summons and complaint. Plaintiffs argue that service was accomplished by (1) certified mail and (2) personal service on Larry Wallace at the 19 April default hearing. Because we affirm the North Carolina trial court's ruling that defendants were not properly served under Alabama law, we discuss only that issue.
Plaintiffs first argue that notations on the Alabama court docket sheets, indicating that the court received return cards from Wilson and the Elks, establish that defendants were properly served by certified mail in accordance with A.R.C.P. 4.2. See generally *829 Insurance Mgmt. & Administration, Inc. v. Palomar Insurance Corp., 590 So.2d 209 (Ala.1991). The docket sheets were attached to plaintiffs' one-page response to defendants' motion for relief. However, the record reveals no arguments on the propriety of service by certified mail (1) on the face of plaintiffs' response to defendants' motion for relief, (2) in the affiants' testimony in support of plaintiffs' response or (3) in plaintiffs' oral arguments before the North Carolina court. Accordingly, we hold that plaintiffs waived the service argument by failing to argue it in North Carolina, and we decline to address it here. See N.C. R.App. P. 10(b)(1).
We also note that although mentioned in the Alabama order, neither the Alabama nor North Carolina courts decided whether service was accomplished by certified mail. Absent the return cards "received" by the Alabama court, there was insufficient proof of proper service by mail under Insurance Mgmt., cited by both parties, which held that "proof of service is evidenced by the return receipt and the circuit court clerk's notation on the docket sheet that the process has been properly mailed." Id. at 212-13 (emphasis added).
Plaintiffs' remaining argument is that defendants were properly served through their attorney at the 19 April 1996 hearing. We are not persuaded. Appellate review of a trial court's ruling pursuant to Rule 60(b) is limited to determining whether the trial court abused its discretion. Vaughn v. Vaughn, 99 N.C.App. 574, 575, 393 S.E.2d 567, 568, disc. rev. denied, 327 N.C. 488, 397 S.E.2d 238 (1990). For a foreign judgment to be accorded full faith and credit in North Carolina, and thereby survive a Rule 60(b) motion,
the rendering court must ... have respected the demands of due process. That is, the rendering court must ... have afforded the parties adequate notice and opportunity to be heard before full faith and credit will be accorded the judgment.
....
[I]t follows that when a party against whom a default was entered subsequently challenges the validity of the original proceeding on grounds that he did not receive adequate notice, the reviewing court ordinarily must examine the underlying facts in the record to determine if they support the conclusion that the notice given of the original proceeding was adequate.
Boyles v. Boyles, 308 N.C. 488, 491-92, 302 S.E.2d 790, 793 (1983), citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).
As in Boyles, here we decide whether the defendants were properly served under the law of a foreign state. We agree with both parties that A.R.C.P. 4(h), as interpreted in Colvin v. Colvin, 628 So.2d 802 (Ala. Civ.App.1993), controls this issue. Rule 4(h) provides that
[a] defendant or the defendant's attorney may accept or waive service of process, provided that said acceptance or waiver is in writing and signed by the defendant and a credible witness.
In Colvin, an Alabama defendant's attorney accepted process on her behalf without complying with the writing requirement in Rule 4(h), but withdrew prior to entry of default against her. Citing Rule 4(h), the court dismissed the default judgment for lack of proper service, holding that
[n]either the Alabama Code nor our Rules of Civil Procedure authorize process service on the defendant's attorney unless performed in compliance with Rule 4(h), Singleton v. Allen, 431 So.2d 547 (Ala.Civ. App.1983)....
....
This Court is aware of the long-standing informal practice by most members of the bar whereby they regularly accept service on behalf of their clients and later file their appearance on behalf thereof. Nothing in this opinion is intended to change that practice; however, in a case such as here, where the attorney has withdrawn, and no other appearance has been filed, Rule 4(h) ... must be strictly adhered to in order to enter a default judgment. Failure of personal service ... renders the judgment by default void.
Colvin v. Colvin, 628 So.2d at 803 (emphasis added).
*830 We disagree with plaintiffs' argument that under Colvin, Rule 4(h) applies only when a defendant's attorney has withdrawn or failed to file an appearance. Recognizing both Alabama practice and the plain language of Rule 4(h), Colvin merely extended the time for compliance with Rule 4(h) in the case of "informal" service on a party's attorney by allowing an attorney's later-filed notice of appearance to qualify as a "writing" under the rule. There being no evidence of any written notice of appearance or other writing, this argument is overruled.
Affirmed.
Judges TIMMONS-GOODSON and HUNTER concur.
