I’ve previously blogged about cases that remind me of the bar exam or law school exams.  In reading a case released by the Court of Appeals yesterday, however, I was reminded of grammar lessons from 7^th grade English class and the dreaded logic section of the LSAT.

In In re Powell, the court addressed an appeal from a trial court’s order denying the Appellant’s motion to set aside a foreclosure sale.  The Appellant’s primary argument was that she had not been properly served with notice of the foreclosure hearing.  Pursuant to N.C. Gen. Stat. § 45-21.16, notice of a foreclosure hearing must be served on all parties by any manner set forth in Rule 4 of the North Carolina Rules of Civil Procedure, and service of the notice may be effectuated by posting to the subject property when service by publication would be permissible pursuant to Rule 4(j1).  Rule 4(j1), in turn, states that “when a party cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service,” the party may be served by publication.  (emphasis added).  The issue confronting the court, and sure to intrigue grammarians, was the meaning of the word “or” in Rule 4(j1).  The Appellant argued, in part, that the “or” in Rule 4(j1) was “conjunctive,” meaning that a party must attempt service by personal delivery, registered/certified mail, and designated delivery service before proceeding with notice by posting on the subject property.  As the substitute trustee had only attempted service by two of the three methods listed in Rule 4(j1) before posting notice at the property, the Appellant asserted that the trustee had not complied with the notice provision.

As to the meaning of the word “or,” the court was split.  Judges Hunter (Robert C.) and Davis rejected the Appellant’s argument and held that the word “or” in Rule 4(j1) is disjunctive.  Citing a number of cases from both the Supreme Court of North Carolina and the Court of Appeals, the majority stated that Rule 4(j1) has consistently been applied “in the disjunctive” and held that the court could not deviate from that established jurisprudence.  The majority thus found that under the facts of this case, in which the substitute trustee tried unsuccessfully to serve the notice by sheriff and certified mail, the requirements of Rule 4(j1) were satisfied without the trustee also having shown that he attempted service “by a designated delivery service.”

Judge Dillon, on the other hand, believed that the “or” in Rule 4(j1) is conjunctive.  He agreed with the majority that “the word ‘or’ in a list typically requires an interpretation that the list is to be read in the disjunctive.”  However, the presence of the word “cannot” at the beginning of the list of service methods at issue in Rule 4(j1) led Judge Dillon to interpret “or” differently from his colleagues.  Using a real-life example and a principle of logic called DeMorgan’s Law, he stated:

For example, if a father tells his daughter that she is not allowed to go to the movies or to the football game, the parent has effectively told the child that she is not allowed to do either activity; that is, she may not go to the movies and she may not go to the football game.  However, if the father tells his daughter that she is not allowed to go to the movies and to the football game, the parent has only stated that she may not do both activities, but that she could do one or the other. In the field of logic, the “not . . . or” construct is governed by a principle known as DeMorgan’s Law, which provides, in part, that the negation of a disjunction is the conjunction of the negatives; that is, “not (A or B)” is the same as “not A and not B.”  Accordingly, applying DeMorgan’s Law, I believe the plain language of Rule 4(j1) requires a showing that a party may only be served by publication where it is shown that the party cannot with due diligence be served by any of the listed methods, not just one of them.

Judge Dillon nevertheless concurred in the majority’s determination that the trial court did not err in denying the Appellant’s motion to set aside the foreclosure order because he also opined that Rule 4(j1) does not require the serving party to actually attempt service by all three methods listed, but rather only “requires that a party must show that the opposing party ‘cannot with due diligence be served’ by any of the three methods.”  As the Appellant had refused to claim a certified letter, Judge Dillon opined that it was “proper to conclude that she also could not with due diligence have been served by UPS or FedEx” and therefore, even under the conjunctive interpretation, Rule 4(j1) had been satisfied.

The majority recognized that Judge Dillon’s interpretation of Rule 4(j1) using DeMorgan’s Law “is plausible on its face,” but they considered themselves bound by prior North Carolina jurisprudence on the issue.  Notably, however, a case relied on by the majority, Barnes v. Wells, 165 N.C. App. 575, 599 S.E.2d 585 (2004), analyzed a version of Rule 4(j1) that existed in 1979 and that did not include the word “cannot.”  According to Judge Dillon, the inclusion of the word “cannot” in the amended rule reflected a change in the General Assembly’s intent.  In light of this decision, it will be interesting to see if this issue of grammar, logic, and statutory construction will be addressed by the Supreme Court of North Carolina, either in this case or a future case.

(Author’s Note: Perhaps the most avid reader of my posts on this blog is my mother, who holds a Ph.D. in English and is a professor of education.  I hope that with this post I’ve finally written on a topic that she finds interesting.)

–Patrick Kane