Problem with Service Publication, 0315 SCBJ, S.C. Lawyer, March 2015, #18

Author:David Moore, J.
 
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The Problem with Service by Publication

Vol. 26 Issue 5 Pg. 18

South Carolina BAR Journal

March, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 David Moore, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It was a simple accident. He was simply unable to stop in time in heavy, rush-hour traffic and rear-ended the vehicle in front of him. After the accident was investigated and insurance information exchanged, he assumed the matter would be amicably resolved by his insurer.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Several months later, he received a call from an attorney retained by his insurer that the other party had filed suit and had made an entry of default against him. Upon further discussion with the attorney, he learned that the other party was making a substantial claim for damages caused by the injuries he sustained in the accident. He also learned that because he was in default, he could not present evidence on his own behalf, although there would be a hearing on damages.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0How could this be? He had received no actual notice and had not been personally served. The attorney advised that the other party, through his attorney, had been unable to serve him personally based upon the address set forth in the incident report prepared by the investigating officer. As a result, the other attorney had obtained a court order directing that he be served by publication. He had not seen the publication in the local newspaper. Moreover, it turned out that the investigating officer had failed to note the change of address on the back of his license and had mistakenly entered his old address. Since he had moved, he was obviously not there when service was attempted. Under South Carolina law, the above scenario is not necessarily far-fetched. A judge would have the discretion to overturn the entry of default. But, as seen in the recent case of Caldwell v. Wiquist, 1 circuit judges are not always sympathetic. These rulings are not to be disturbed absent a clear showing of abuse of discretion.2 Fortunately for the defendant in Caldwell, the Court of Appeals overturned the default judgment based upon the lack of a factual basis for determining that the defendants could not, after due diligence, be found in the state.3 There are instances, however, where the appellate courts have found that the supporting affidavits contained sufficient factual information to support service by publication.4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Where there is a sufficient factual basis for this issuance of an order granting service by publication, the question then becomes whether service by publication adequately fulfills the purposes of service of process. In Roche v. Young Bros., Inc. of Florence, 5 the S.C. Supreme Court noted that service of process serves at least two purposes: It assures the defendant of reasonable notice of the action, and it confers personal jurisdiction on the court.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Service by publication may not comply with due process requirements of adequate notice, particularly in light of the drastic decline in newspaper readership over the past few years. The Pew Research Center reports that only 23 percent of the public read newspapers on a regular basis.6 Service by publication assumes that those who read newspapers do so thoroughly, including reading the small print notices for litigation. Although courts have recognized that service by publication is a notoriously unreliable method of actually informing interested parties of pending litigation, 7 they continue to rely upon statutorily permitted service by publication when reasonable efforts have been undertaken to otherwise serve and notify interested parties of the litigation.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Even if service by publication passes constitutional muster, the statutory practice of serving only the summons by publication may be inadequate to obtain personal jurisdiction over the defendant. Until 1985, when the South Carolina Rules of Civil Procedure were adopted, the commencement of a legal action was made when a summons was properly served upon a defendant.8 Moreover, section 15-13-230 provided that a complaint need not be served with the summons. Instead, the summons would direct a defendant to obtain a copy of the complaint from the clerk of court in the county where the action was pending.

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