Wednesday, July 26, 2006

S.C. Supreme Court issues opinion on proper service of process when the defendant refuses to answer the door

In BB&T v. Taylor, the Supreme Court considered what constitutes delivery of a copy of the summons and complaint to the individual personally where the process server has repeatedly attempted to serve process and during the attempt at issue believed an individual was inside the residence but never saw or communicated with the individual.

In Taylor, the process server stated in an affidavit that he posted the documents on the front door "after person(s) inside refused to answer door." In a subsequent affidavit, the process server stated he posted the documents on the front door after determining a person was present inside the residence, knocking and calling out to the alleged occupant, determining the alleged occupant would not communicate with him, confirming one of the vehicles at the residence belonged to Taylor, and calling out his intent to leave the papers.

According to the court, the service of process was insufficient:

Jones merely speculated that an individual of suitable age and discretion was inside Petitioner's residence and was refusing to communicate with him during his attempts to serve process. Also, Petitioner did not refuse to accept a copy of the summons and complaint, unlike the defendant in Patel. Rather, there are no facts in the record to indicate Petitioner was even aware of the process server and his attempts to serve her. Petitioner was not properly served under these facts because Jones never saw or spoke to anyone who resided in Petitioner's residence nor did anyone refuse acceptance before Jones attached the summons and complaint to Petitioner's front door.

No comments: