Trico Engineering Consultants v. Kozlowski

THIS
OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Trico
Engineering Consultants, Respondent,

v.

S. Joseph
Kozlowski, Appellant.

Appeal From Georgetown County

 J. Michael Baxley, Circuit Court Judge

Unpublished Opinion No. 2010-UP-511

Submitted October 1, 2010 – Filed November
23, 2010   

REVERSED

Charles Owen Nation, II, of Georgetown, for Appellant.

John W. Davidson, of Columbia, for Respondent.

PER CURIAM:  In this debt collection action, S. Joseph Kozlowski
appeals the circuit court's denial of his motion for relief from default
judgment.  On appeal, Kozlowski maintains the circuit court abused its
discretion in failing to grant relief pursuant to Rule 60(b)(1) and (4), SCRCP,
arguing the default was the result of excusable neglect or, in the alternative,
the judgment was void because service of process was not perfected.  We reverse.[1]

Rule
60(b)(4) provides for relief from default when the judgment is void.  Rule
60(b)(4), SCRCP ("On motion and upon such terms as are just, the court may
relieve a party . . . from a final judgment, order, or proceeding [because] . .
. the judgment is void.").  "A judgment is void if a court acts
without personal jurisdiction."  BB & T v. Taylor, 369 S.C.
548, 551, 633 S.E.2d 501, 503 (2006).  A court usually obtains personal
jurisdiction by the service of the summons, which, pursuant to Rule 4, SCRCP,
is typically effected by delivering a copy of the summons and complaint to the
individual personally or by leaving copies thereof at the individual's
residence, or by delivering a copy to an agent authorized by law to receive
service of process.  Rule 4(d)(1), SCRCP.  When the defendant is a resident of
this state, but after a diligent search cannot be found, service by publication
may be appropriate.  S.C. Code Ann. § 15-9-710(3) (2005); Montgomery v.
Mullins, 325 S.C. 500, 505, 480 S.E.2d 467, 470 (Ct. App. 1997). 

In
South Carolina, service by publication is authorized by statute.  See S.C.
Code Ann. §§ 15-9-710 to -750 (2005 & Supp. 2009).  Specifically, pursuant
to section 15-9-710, an order for service by publication may be issued "when
an affidavit, satisfactory to the issuing officer, is made stating that the
defendant, a resident of the state, cannot, after the exercise of due diligence,
be found and that a cause of action exists against him."  S.C. Code Ann. §
15-9-710 (2005); Wachovia Bank of S.C., N.A. v. Player, 341 S.C. 424,
428-29, 535 S.E.2d 128, 130 (2000).  When publication is deemed appropriate
under the framework outlined above, section 15-9-740 (Supp. 2009) sets forth
specific statutory requirements for the order of publication.  In particular,
section 15-9-740 provides:

The
order of publication shall direct the publication to be made in one newspaper .
. . for such length of time as may be deemed reasonable not less than once a
week for three weeks.  The court . . . shall also direct that a copy of the
summons be forthwith deposited in the post office directed to the person to be
served at his place of residence, unless it appears that such residence is
neither known to the party making the application nor can, with reasonable
diligence, be ascertained by him. 

S.C. Code Ann. § 15-9-740.

Here,
following several unsuccessful attempts at serving Kozlowski personally, Trico
Engineering Consultants (Trico) sought an order for service by publication from
the circuit court.  While Kozlowski's specific residence was unknown, Trico
averred Kozlowski's last known address was the Nation Law Firm, 317 Screven
Street, Georgetown, S.C.  Consequently, in accordance with section 15-9-740,
the circuit court's order for service by publication directed Trico to (1)
publish the summons and complaint in The Georgetown Times once a week for three
successive weeks and (2) mail a copy of the pleadings by certified mail to
Kozlowski at his last known address on or before the first date of publication. 
Significantly, the order expressly cited 317 Screven Street, Georgetown, S.C.,
as Kozlowski's last known address where the summons was to be mailed.  Despite
this specific mailing requirement, however, Trico mailed the pleadings to a
Post Office Box address neither mentioned in the order nor disclosed to the
parties to be a more appropriate address for Kozlowski.  Kozlowski asserts this
noncompliance with the order's specific mailing requirement renders the service
by publication invalid. 

Notwithstanding
actual notice,[2] we are constrained to find service
was not proper when Trico failed to comply with the specific mailing
requirement of the circuit court's order.  Consequently, after a thorough
review of the record, we find the circuit court erred in failing to grant
relief under Rule 60(b)(4),[3] and we reverse the order of the circuit court pursuant to the following
authorities:  S.C. Code Ann. § 15-9-740
(establishing the requirements for service by publication); Tenney v. Am.
Pipe Mfg. Co., 96 F. 919, 919 (D.S.C. 1899) (service by publication is in
derogation of the common law, and the statute must be strictly construed); see,
e.g., Brown v. Malloy, 345 S.C. 113, 126-27, 546 S.E.2d 195, 201-02
(Ct. App. 2001) (finding notice would be insufficient for due process purposes when
order of publication erroneously designated county where defendant did not
reside as the proper county for publication and when notice was published in a newspaper
of general circulation in the improper county); McGloon v. Gwynn, 100
P.3d 621, 625 (Idaho 2004) (finding failure to comply with mailing requirement
of rules of civil procedure in effecting service by publication required
default judgment be set aside as service was invalid); In re Marriage of
Wilson, 502 N.E.2d 447, 449 (Ill. App. 1986) (holding failure to mail a
copy of the publication to respondent's last known address as stated in the
affidavit and required by relevant statute rendered service by publication
invalid when strict compliance with the statute mandated mailing of the notice
as a relevant part of the publication process); Sink v. Easter, 202
S.E.2d 138, 141 (N.C. App. 1974) (finding plaintiff's failure to mail defendant
a copy of the notice of divorce when the service was by publication, as
required by the statute, rendered service of process by publication invalid); Sanders
v. Sanders, 278 A.2d 615, 618 (Md. App. 1971) (stating in divorce
proceeding "[w]here a statute requires not only a publication but also
that a copy of the petition be mailed by registered mail to the defendant at
his or her last known address, the mailing is as much a part of the service as
the publication, and where there is a publication but there is no mailing, or
the plaintiff causes a notice to be mailed to a false address, the service is
void. The mere fact that the
defendant has actual notice of the institution of the proceedings against him
is not sufficient to give the court jurisdiction where the plaintiff has not
complied substantially with the statutes on constructive service.")
(quoting 24 Am. Jur. 2d, Divorce and Separation § 286); Anderson v.
Anderson, 82 N.E. 311, 311 (Ill. 1907) (finding failure to mail notice of
publication to the last known residence when notice mailed to 5857 State
Street, Chicago, IL, rather than 5559 State Street, as stated in the affidavit,
was insufficient to confer jurisdiction).[4]

REVERSED.

WILLIAMS,
PIEPER, and KONDUROS, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2] At the hearing, counsel indicated Kozlowski came to
his office after reading the publication in The Georgetown Times.

[3] We note the following factors, while relevant to a
motion under Rule 60(b)(1), do not apply to a motion pursuant to Rule 60(b)(4):
(1) the promptness with which relief is sought, (2) the reasons for the failure
to act promptly, (3) the existence of a meritorious defense, and (4) the
prejudice to the other parties.  See BB&T, 369 S.C. at 553
n.1, 633 S.E.2d at 503 n.1.

[4] Based on our disposition herein, we need not reach Kozlowski's
remaining argument as to excusable neglect under Rule 60(b)(1), SCRCP.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518
S.E.2d 591, 598 (1999) (holding an appellate court need not address an issue
when its determination of a prior issue is dispositive of the appeal).