McArdle Corp. v. Patterson ( 1994 )

Judge Eagles

dissenting.

I respectfully dissent. The majority states that “section 45-21.16(c) specifically lists the information the notice of hearing must contain and does not include a requirement that the notice contain the names of the parties entitled to notice” and holds that “[w]e do not believe that such a requirement is implied by the statute as a whole.” G.S. 45-21.16(c) provides that “[njotice shall be in writing and shall state in a manner reasonably calculated to make the party entitled to notice aware of the following: . ...” A posted document cannot be “reasonably calculated” to give notice without listing at least the name of the person entitled to receive that notice. Cf. G.S. 1A-1, Rule 4(ji)(ii) (“The notice of service of process by publication shall . . . (ii) be directed to the defendant sought to be served”). Unlike the majority, I would imply that requirement from the “reasonably calculated” language of G.S. 45-21.16(c). Furthermore, it is quite understandable that our General Assembly omitted this requirement from the list of enumerated items because with its inclusion the statute would be needlessly nonsensical: i.e., the statute would read, “[n]otice shall be in writing and shall state in a manner reasonably calculated to make the party entitled to notice aware of the following: ... his or her own name.” (Emphasis added.) Given that “foreclosure under a power of sale is not favored in the law, and its exercise [is to] be watched with jealousy,” In Re Foreclosure of Goforth Properties, Inc., 334 N.C. 369, 375, 432 S.E.2d 855, 859 (1993) (internal quotations omitted), I would reverse the judgment of the trial court.