Washington v. Cline

NO. COA13-224-2

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

FRANKIE DELANO WASHINGTON and

FRANKIE DELANO WASHINGTON, JR.,

Plaintiffs,

v. Durham County

No. 11-CVS-5051

TRACEY CLINE, ANTHONY SMITH,

WILLIAM BELL, JOHN PETER, ANDRE T.

CALDWELL, MOSES IRVING, ANTHONY

MARSH, EDWARD SARVIS, BEVERLY

COUNCIL, STEVEN CHALMERS, PATRICK

BAKER, THE CITY OF DURHAM, NC, and

THE STATE OF NORTH CAROLINA,

Defendants.

Appeals by plaintiffs and defendant Patrick Baker from

orders entered 6 November 2012 by Judge W. Osmond Smith, III in

Durham County Superior Court. Originally heard in the Court of

Appeals 28 August 2013. Petition for Rehearing allowed 6

January 2014.

Ekstrand & Ekstrand LLP, by Robert C. Ekstrand, for

plaintiffs-appellants.

Wilson & Ratledge, PLLC, by Reginald B. Gillespie, Jr., and

Office of the City Attorney, by Kimberly M. Rehberg, for

defendant-appellant Patrick Baker and defendants-appellees

the City of Durham, North Carolina, Edward Sarvis, Beverly

Council, and Steven Chalmers.

Kennon Craver, PLLC, by Joel M. Craig and Henry W.

Sappenfield, for defendants-appellees Anthony Smith,

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William “Doug” Bell, John Peter, Moses Irving, and Anthony

Marsh.

HUNTER, Robert C., Judge.

Frankie Washington (“Washington”) and Frankie Washington,

Jr. (“Washington, Jr.”) (collectively “plaintiffs”) and

defendant Patrick Baker (“Baker”) appeal from interlocutory

orders entered by Judge W. Osmond Smith, III on 6 November 2012

in Durham County Superior Court. Plaintiffs appeal from orders

granting nine of twelve defendants’1 motion to dismiss for

insufficient service of process and denying plaintiffs’ motion

to amend the summons against defendant City of Durham (“the

City”). Baker appeals from orders denying his motion to dismiss

for insufficient service of process and denying his motion to

dismiss the action for failure of the summonses to contain the

“title of the cause” as is required by North Carolina Rule of

Civil Procedure 4(b).

1

Baker is the only defendant-appellant. Andre T. Caldwell,

although named in the complaint, is not listed in the briefs as

an appellee, and does not appear to have been a party to the

suit at the time the trial court entered its orders. Therefore,

the nine defendants whose motion to dismiss was granted, and

thus the nine appellees to plaintiffs’ appeal, are Steven

Chalmers (“Chalmers”), Beverly Council (“Council”), Anthony

Smith (“Smith”), William Bell (“Bell”), John Peter (“Peter”),

Moses Irving (“Irving”), Anthony Marsh (“Marsh”), Edward Sarvis

(“Sarvis”), and the City of Durham (“the City”) (collectively

“defendants-appellees,” or, when including Baker, “defendants”).

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On appeal, plaintiffs assert that: (1) the trial court

erred by granting defendants-appellees’ motion to dismiss for

insufficient service of process because plaintiffs properly

served those defendants via designated delivery service and

defendants are estopped from asserting such defense, and (2) the

trial court erred by denying plaintiffs’ motion to amend the

summons for the City because such amendment would not prejudice

the City. Baker argues that: (1) the trial court erred by

denying his motion to dismiss for insufficient service of

process because plaintiffs failed to meet the statutory

requirements for designated delivery service, and (2) the trial

court erred by failing to dismiss the action because the

summonses did not contain the “title of the cause” as is

required by statute.

On 5 November 2013, this Court filed an opinion affirming

the trial court’s orders granting the City’s motion to dismiss

for insufficient service of process, denying Baker’s motion to

dismiss for insufficient service of process, denying plaintiffs’

motion to amend the summons, and denying Baker’s motion to

dismiss for failure of the summonses to contain the “title of

the cause.” However, we reversed the trial court’s order

granting all other defendants-appellees’ motion to dismiss for

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insufficient service of process. Upon reexamination, we

maintain this disposition, but we modify the originally filed

opinion. This opinion supersedes the previous opinion filed 5

November 2013.

Background

Plaintiffs’ claims against defendants arise out of the

arrest, prosecution, conviction, and ultimate release of

Washington that took place over a six-year period between 30 May

2002 and 22 September 2008. After a four-year, nine-month delay

between arrest and trial, Washington was convicted of first-

degree burglary, two counts of second-degree kidnapping, robbery

with a dangerous weapon, attempted robbery with a dangerous

weapon, assault and battery, and attempted first-degree sex

offense. This Court vacated his convictions due to delays

attributed to the State in violation of Washington’s right to a

speedy trial under the Sixth Amendment of the United States

Constitution and Article I, Section 18 of the North Carolina

Constitution. See State v. Washington, 192 N.C. App. 277, 665

S.E.2d 799 (2008). On 21 September 2011, Washington and

Washington, Jr. filed a complaint and obtained civil summonses

against defendants for, inter alia, violations of federal and

state constitutional provisions, malicious prosecution,

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negligence, negligent and intentional infliction of emotional

distress, conspiracy, and supervisory liability.

Plaintiffs attempted to serve process on defendants using

FedEx, a designated delivery service. All defendants except

Council were served between 23 and 27 September 2011; Council

was served on 25 October 2011.

The packages containing summonses and copies of the

complaint sent to the City and Baker contained the following

directory paragraphs, respectively:

City of Durham

c/o Patrick Baker

101 City Hall Plaza

Durham NC 27701

Patrick Baker City Manager

City of Durham

101 City Hall Plaza

Durham NC 27701

At the time of service, Baker was the City Attorney, not the

City Manager. Both packages were received by April Lally

(“Lally”), a receptionist and administrative assistant in the

City Attorney’s Office; Lally signed for the packages and later

handed them to Baker. Baker later filed an affidavit with the

trial court in which he admitted to receiving the summons and

complaint against him.

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Plaintiffs attempted to serve Chalmers at his home, but

left the package containing the summons and complaint with

Chalmers’ visiting twelve-year-old grandson who was playing in

the front yard. Chalmers’ grandson went inside and gave

Chalmers the package; Chalmers later filed an affidavit with the

trial court admitting that he received the summons and complaint

against him.

Plaintiff attempted to serve Council by delivering the

package via FedEx to her home, but no one was there at the time

of delivery. The driver left the package on the door step to

the side door; Council later filed an affidavit with the trial

court admitting that she received the summons and complaint

against her later that evening when she returned home.

Plaintiff attempted to serve Bell, Irving, Marsh, Peter,

Sarvis, and Smith by having a FedEx driver deliver their

summonses and copies of the complaint to the City Police

Department’s loading dock. Bell and Irving were former

employees of the City’s Police Department at the time of

delivery; Marsh, Peter, Sarvis, and Smith were then-current

employees. The driver left the package with Brenda T. Burrell

(“Burrell”), an employee for the City’s Police Department who is

responsible for “receiving materials and supplies delivered to

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the Police Department for use in its operations.” Each of these

defendants filed an affidavit with the trial court admitting

that he received the summons and complaint against him.

Plaintiffs filed with the trial court affidavits of service

and receipts generated by the designated delivery service for

each defendant. They also re-filed the defendants’ affidavits

in which they admitted to receiving the summonses and copies of

the complaint against them as evidence of effective service of

process.

On 11 January 2012, Cline and the State of North Carolina

filed motions to dismiss for insufficient service of process,

among other claims not relevant to this appeal. On 23 March

2012, all remaining defendants also filed a motion to dismiss

for insufficient service of process. That same day plaintiffs

filed a motion to amend the summons issued to the City to

replace Baker with the then-current City Manager. On 6 November

2012 Judge Smith entered orders: (1) denying plaintiffs’ motion

to amend the summons; (2) denying motions to dismiss for

insufficient service of process as to Baker, Cline, and the

State of North Carolina2; and (3) granting motions to dismiss for

insufficient service of process as to defendants-appellees. On

2

Only Baker appeals from this order.

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15 November 2012, plaintiffs filed a timely notice of appeal.

On 27 November 2012, Baker also filed timely notice of appeal.

Grounds for Appellate Review

The orders from which plaintiffs and Baker appeal are

interlocutory. “Generally, there is no right of immediate

appeal from interlocutory orders and judgments.” Goldston v.

Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990).

However, the Court does allow immediate appeal of interlocutory

orders in some circumstances.

[I]mmediate appeal of interlocutory orders

and judgments is available in at least two

instances. First, immediate review is

available when the trial court enters a

final judgment as to one or more, but fewer

than all, claims or parties and certifies

there is no just reason for delay . . . .

Second, immediate appeal is available from

an interlocutory order or judgment which

affects a substantial right.

Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579

(1999) (quotation marks omitted); see also N.C. Gen. Stat. § 1-

277(a) (2013) (“An appeal may be taken from every judicial order

. . . which in effect determines the action, and prevents a

judgment from which an appeal might be taken; or discontinues

the action.”).

Here, plaintiffs appeal from an order dismissing

defendants-appellees, who comprise more than one but not all

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parties. This order is in effect a final judgment as to those

defendants-appellees, and the trial court certified in the order

dismissing them that there was no just reason for delay in

appeal pursuant to Rule 54(b) of the North Carolina Rules of

Civil Procedure. As such, plaintiffs appeal of the trial

court’s order granting defendants-appellees’ motion to dismiss

is properly before this Court. See DKH Corp. v. Rankin-

Patterson Oil Co., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998)

(“[I]f the trial court enters a final judgment as to a party or

a claim and certifies there is no just reason for delay, the

judgment is immediately appealable.”).

Although Baker admits that his appeal does not stem from a

final judgment or an order affecting a substantial right, he

argues that the Court should hear his appeal in order to prevent

“fragmentary appeals.” The circumstances here are comparable to

those in RPR & Assocs., Inc. v. State, 139 N.C. App. 525, 530-

31, 534 S.E.2d 247, 251-52 (2000), in which this Court chose to

hear an appeal from the trial court’s denial of a motion to

dismiss for insufficient service of process that was not itself

immediately appealable, but was related to an issue properly

before the Court. The Court reasoned that “to address but one

interlocutory or related issue would create fragmentary

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appeals.” Id. at 531, 534 S.E.2d at 252. Here, Baker’s appeal

involves the application of the same rules to the same facts and

circumstances as plaintiffs’ appeal, which we choose to allow.

Therefore, in order to prevent fragmentary appeals, we find that

Baker’s appeal is also proper at this time.

Additionally, we find the appeals from the trial court’s

orders denying plaintiffs’ motion to amend the summons against

the City and denying defendants’ motion to dismiss for failure

of the summons to “contain the title of the cause” are also

properly before the Court pursuant to N.C. Gen. Stat. § 1-278,

which provides that “[u]pon an appeal from a judgment, the court

may review any intermediate order involving the merits and

necessarily affecting the judgment.” Here, plaintiffs properly

appeal from a final judgment, and the above orders involve the

merits and necessarily affect that judgment. Therefore,

appellate review is appropriate at this stage of litigation.

Discussion

I. Sufficiency of Service of Process

Plaintiffs first argue that the trial court erred by

granting defendants-appellees’ motion to dismiss for

insufficient service of process. Baker argues that the trial

court erred by denying his motion to dismiss for insufficient

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service of process. After careful review, we reverse the trial

court’s order dismissing all defendants-appellees except the

City and affirm the trial court’s order denying Baker’s motion

to dismiss.

A. Estoppel

At the outset, plaintiffs cite Storey v. Hailey, 114 N.C.

App. 173, 441 S.E.2d 602 (1994), in support of their argument

that defendants are estopped from asserting the defense of

insufficient service of process. In Storey, this Court ruled

that the defendants were estopped from asserting insufficient

service of process as a defense where they asked for and

received extensions of time without alerting the plaintiff to

any possible defects in service, and plaintiffs ran out of time

to effect valid service due to the extensions. The Court

reasoned that by doing so, the defendants in effect “lulled

[the] plaintiff into a ‘false sense of security’ and probably

prevented [the] plaintiff from discovering her error and

effecting valid service within the statutory period.” Storey,

114 N.C. App. at 176, 441 S.E.2d at 604. Here, although

defendants did receive extensions of time from the trial court,

they explicitly stated that the reason for the extensions was to

“determine whether any Rule 12 or other defenses [were]

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appropriate.” Defendants-appellees’ and Baker’s motion to

dismiss for insufficient service of process were entered

pursuant to Rule 12(b)(5). Therefore, plaintiffs had notice

that such motions could be filed. Furthermore, defendants-

appellees in fact served plaintiffs with their answer containing

the defenses on 16 December 2012, four days before the last day

in which plaintiffs could have obtained extensions of the

summonses. It is evident that plaintiffs had actual notice of

the defenses, because they served their reply to the answer on

20 December 2011, the same day that the summonses expired.

Therefore, because defendants were not responsible for

plaintiffs’ failure to extend the life of the summonses, we find

that Storey is inapposite and defendants are not estopped from

asserting the defense of insufficient service of process.

B. Natural persons

Defendants-appellees and Baker moved to dismiss this action

under Rule 12(b)(5) for insufficient service of process. “We

review de novo questions of law implicated by denial of a motion

to dismiss for insufficiency of service of process.” New

Hanover Cnty. Child Support Enforcement ex rel. Beatty v.

Greenfield, __ N.C. App. __, __, 723 S.E.2d 790, 792 (2012).

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Rule 4(j)(1)d of the North Carolina Rules of Civil

Procedure sets forth the requirements for service of process on

natural persons via designated delivery service, the method

utilized by plaintiffs here:

d. By depositing with a designated delivery

service . . . a copy of the summons and

complaint, addressed to the party to be

served, delivering to the addressee, and

obtaining a delivery receipt.

N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)d (2013). Where defendants

appear in an action and challenge the service of the summons (as

all defendants did here), service by designated delivery service

may be proved in the following manner:

(5) Service by Designated Delivery Service.

- In the case of service by designated

delivery service, by affidavit of the

serving party averring all of the following:

a. That a copy of the summons and

complaint was deposited with a

designated delivery service as

authorized under G.S. 1A-1, Rule 4,

delivery receipt requested.

b. That it was in fact received as

evidenced by the attached delivery

receipt or other evidence satisfactory

to the court of delivery to the

addressee.

c. That the delivery receipt or other

evidence of delivery is attached.

N.C. Gen. Stat. § 1-75.10(a)(5) (2013).

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At issue in this case is the interpretation of the phrase

“delivering to the addressee” in Rule 4(j)(1)d and section 1-

75.10(5). Defendants summarize their argument as follows:

“because FedEx did not deliver the process to the addressee or

an agent of the addressee, the requirement of Rule 4(j)(1)d of

‘delivering to the addressee’ was not met, and therefore service

was insufficient.” In support of this contention, they further

argue that “[e]stablished case law of the Supreme Court and this

Court holds that Rule 4’s requirements for service of process

are to be strictly enforced.” We agree that Rule 4 is “to be

strictly enforced to insure that a defendant will receive actual

notice of a claim against him.” Hamilton v. Johnson, __ N.C.

App. __, __, 747 S.E.2d 158, 162 (2013) (emphasis added)

(quoting Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92,

94 (1996)). However, the greater weight of precedent supports a

liberal approach to interpreting the language of the rules.

Both of our appellate courts have explicitly recognized

liberality as the canon of construction when interpreting the

North Carolina Rules of Civil Procedure. See Excel Staffing

Serv., Inc. v. HP Reidsville, Inc., 172 N.C. App. 281, 285, 616

S.E.2d 349, 352 (2005) (“It is true that our Supreme Court

instructed that when construing the Rules of Civil Procedure . .

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. that ‘[l]iberality is the canon of construction.’”) (quoting

Lemons v. Old Hickory Council, Boy Scouts of America, Inc., 322

N.C. 271, 275, 367 S.E.2d 655, 657 (1988)). The Lemons Court

explained that:

The Rules of Civil Procedure were adopted by

the General Assembly at the urging of the

North Carolina Bar Association “to eliminate

the sporting element from litigation.” The

philosophy underlying these rules was that:

Technicalities and form are to be

disregarded in favor of the merits of

the case. One of the purposes of the

rules was to take the sporting element

out of litigation. No single rule is to

be given disproportionate emphasis over

another rule which also has

application. Rather, the rules are to

be applied as a harmonious whole. The

rules are designed to eliminate legal

sparring and fencing and surprise moves

of litigants. The aim is to achieve

simplicity, speed and financial economy

in litigation. Liberality is the canon

of construction.

Lemons, 322 N.C. at 274-75, 367 S.E.2d at 657 (emphasis added)

(citation omitted).

Furthermore, the General Assembly itself added commentary

to Rule 4 indicating that it is “complementary” to the

jurisdiction statutes in N.C. Gen. Stat. § 1-75.1 et. seq. which

were “proposed for consideration contemporaneously with [the

North Carolina Rules of Civil Procedure].” See N.C. Gen. Stat.

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§ 1A-1, Rule 4 official commentary (2013). Section 1-75.1

states that the jurisdiction statutes, including section 1-

75.10, “shall be liberally construed to the end that actions be

speedily and finally determined on their merits. The rule that

statutes in derogation of the common law must be strictly

construed does not apply to this Article.” N.C. Gen. Stat. § 1-

75.1 (2013) (emphasis added). The canon of liberality noted by

both this Court and the Supreme Court and the General Assembly’s

explicit intent to have actions “speedily and finally determined

on their merits” underlie the general recognition in this state

that:

A suit at law is not a children’s game, but

a serious effort on the part of adult human

beings to administer justice; and the

purpose of process is to bring parties into

court. If it names them in such terms that

every intelligent person understands who is

meant, . . . it has fulfilled its purpose;

and courts should not put themselves in the

position of failing to recognize what is

apparent to everyone else.

Wiles v. Welparnel Const. Co., Inc., 295 N.C. 81, 84-85, 243

S.E.2d 756, 758 (1978) (quoting United State v. A.H. Fischer

Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947)).

Turning to the facts of this case, we believe that

Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 493, 586

S.E.2d 791, 797 (2003), is helpful to our analysis. In

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Granville Medical Center, the plaintiff served the defendant via

certified mail under Rule 4(j)(1)c of the North Carolina Rules

of Civil procedure and won default judgment when the defendant

failed to answer the complaint. Id. at 485-86, 586 S.E.2d at

793. To prove service under section 1-75.10(4), the plaintiff

presented the trial court with an affidavit attesting that the

summons and complaint were delivered to the defendant and a

signature was obtained on the registry receipt. Id. at 490-91,

586 S.E.2d at 796-97. The defendant attempted to rebut the

presumption of proper service by averring that the individual

who signed for the summons and complaint was not connected to

the defendant in any way. Id. at 493, 586 S.E.2d at 798.

In addressing section 1-75.10(4) and Rule 4(j)(1)c, the

Granville Medical Center Court held that “a defendant who seeks

to rebut the presumption of regular service generally must

present evidence that service of process failed to accomplish

its goal of providing defendant with notice of the suit, rather

than simply questioning the identity, role, or authority of the

person who signed for delivery of the summons.” Granville Med.

Ctr., 160 N.C. App. at 493, 586 S.E.2d at 797 (2003) (citing In

re Williams, 149 N.C. App. 951, 959, 563 S.E.2d 202, 206 (2002)

(where the defendant “did not rebut this presumption by showing

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he never received the summons and complaint” the Court held that

“defendant was sufficiently served with process”); Poole v.

Hanover Brook, Inc., 34 N.C. App. 550, 555, 239 S.E.2d 479, 482

(1977) (a defendant who “did not attempt to rebut this

presumption by showing that he did not receive copies of the

summons and complaint” held to have “failed to show that service

of process was insufficient because a delivery was not made to a

proper person”)). Thus, the Granville Medical Center Court held

that:

In the present case, defendant's affidavit

essentially states that (1) he did not

personally sign the registry receipt

indicating delivery of the summons, (2) the

receipt was signed by “S” or “F” Hedgepeth,

and (3) defendant had never employed a

person named Hedgepeth “as an agent,

officer, employee, or principal[.]” On this

basis, defendant asserts his affidavit

proves the person signing for receipt of the

summons “was not in any way connected with

the defendant.” However, as the trial court

observed, the fact that Hedgepeth was not

defendant's agent or principal does not

necessarily mean he had no connection to

defendant. Further, as discussed above, the

crucial issue is not whether the individual

signing for the summons was formally

employed by defendant as his agent, but

whether or not defendant in fact received

the summons. Conspicuously absent from

defendant's affidavit is any allegation that

he did not receive the summons, or did not

receive notice of the suit.

We conclude that it was not error for the

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trial court to conclude that defendant was

properly served with the summons. This

assignment of error is overruled.

Granville Med. Ctr., 160 N.C. App. at 493-94, 586 S.E.2d at 798

(emphasis added).

Although the holding of Granville Medical Center is

distinguishable because it analyzed whether the defendant could

rebut a presumption of service, we find its reasoning as to the

interplay between Rule 4 and section 1-75.10 persuasive. The

rules analyzed by the Granville Medical Center Court are

materially similar to those at issue in this case. Rule

4(j)(1)c, like Rule 4(j)(1)d, requires “deliver[y] to the

addressee” to effectuate valid service; section 1-75.10(4), like

section 1-75.10(5), allows proof of delivery to the addressee

with “other evidence” sufficient to establish that the summons

and complaint were “in fact received.” The Granville Medical

Center Court held that whether the defendant in fact received

the summons and complaint is the “crucial issue” to rebut a

presumption of “deliver[y] to the addressee” under Rule 4(j)(1)c

and section 1-75.10(4). Thus, given the nearly identical

language of these rules, it follows that where defendants

challenge “deliver[y] to the address” under Rule 4(j)(1)d and

section 1-75.10(5), the “crucial issue” is whether the summons

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and complaint were in fact received by the defendants

challenging service.

Furthermore, principles of statutory construction lead us

to conclude that defendants’ argument that Rule 4(j)(1)d

requires direct service exclusively on a defendant or his

service agent is without merit. “The best indicia of

[legislative] intent are the language of the statute . . . the

spirit of the act and what the act seeks to accomplish.”

Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d

379, 385 (1980). The General Assembly’s stated objective in

passing the jurisdiction statutes in sections 1-75.1 et. seq.

was to have actions “speedily and finally determined on their

merits.” N.C. Gen. Stat. § 1-75.1. To achieve this end, the

General Assembly drafted section 1-75.10 with plain language

allowing a plaintiff to prove service under Rule 4(j)(1)d with

either a return receipt or “other evidence” that copies of the

summons and complaint were “in fact received” by the addressee,

not evidence that the delivery service employee personally

served the individual addressee or his service agent. N.C. Gen.

Stat. § 1-75.10(a)(5)(b). Further, when construing a statute,

“the entire sentence, section, or statute must be taken into

consideration, and every word must be given its proper effect

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and weight.” Nance v. S. Ry. Co., 149 N.C. 366, 271, 63 S.E.

116, 118 (1908). Defendants’ interpretation would provide

almost no weight to the phrase “in fact received” in section 1-

75.10. Viewed under the doctrine of expressio unius est

exclusio alterius, which means the expression of one thing is

the exclusion of another, the fact that the legislature declined

to include a personal delivery requirement in Rule 4(j)(1)d when

it did so in other subsections throughout the statute indicates

its intention to exclude it. See N.C. Gen. Stat. § 1A-1, Rule

4(j)(5)a (2013) (prescribing “personal service” on a city, town,

or village as an effective method of service); Haywood v.

Haywood, 106 N.C. App. 91, 99-100, 415 S.E.2d 565, 570 (1992)

rev'd in part, 333 N.C. 342, 425 S.E.2d 696 (1993).

Here, by presenting the trial court with affidavits from

defendants-appellees and Baker admitting that they actually

received the summonses and complaints after the service

documents were addressed to them and sent through FedEx,

plaintiffs provided incontrovertible “other evidence” under

section 1-75.10(5) that the summonses and complaints were “in

fact received” by the addressees. Therefore, based on the

persuasive reasoning of the Granville Medical Center Court, the

General Assembly’s stated goal in enacting section 1-75.10, and

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the plain language of the statute itself, we hold that

plaintiffs properly proved service via Rule 4(j)(1)d under

section 1-75.10(5), and the trial court’s conclusion that

plaintiffs failed to properly prove service on defendants-

appellees, except the City, was in error.

Defendants disagree with our conclusion for a number of

reasons. First, they contend that because Rule 4(j)(1)c and

4(j)(1)d both contain the requirement that a summons and

complaint be “deliver[ed] to the addressee,” this Court should

follow precedent established by cases where Rule 4(j)(1)c was

construed. We agree with this general proposition, as is

exemplified by our analysis of the Granville Medical Center

decision above. However, defendants cite Hunter v. Hunter, 69

N.C. App. 659, 317 S.E.2d 910 (1984), which they argue is

directly on point. Defendants claim that the Hunter Court held

that “transmitting process via certified mail to the defendant’s

place of employment, but not delivering the certified mail to

the defendant herself, even though the process was ultimately

delivered to the defendant, was invalid.” However, defendants

ignore the Hunter Court’s application of section 1-75.10. See

id. at 661, 317 S.E.2d at 911. In applying this provision, the

Hunter Court actually held that:

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[W]e find that plaintiff has failed to show

proof of service of process in the manner

provided by [section 1-75.10]. . . . The

affidavit and accompanying delivery receipt

show only that the summons was forwarded to

defendant's place of business. There is no

showing from the affidavit that defendant

herself received a copy of the summons and

complaint. The trial court had before it no

evidence from which it could have determined

that the summons was in fact delivered to

defendant since there was no genuine

registry receipt or “other evidence” of

delivery attached to the affidavit. We,

therefore, conclude that plaintiff did not

establish valid service of process over

defendant and affirm the order of the trial

court setting aside the judgment of divorce.

Id. at 663, 317 S.E.2d at 912 (emphasis added). This case is

therefore readily distinguishable; the trial court here, unlike

the trial court in Hunter, had before it affidavits from each

defendant signifying that they all, in fact, received the

summons and complaint against them after they were delivered by

FedEx. Had the trial court in Hunter been presented with

similar evidence signifying delivery, it could have determined

that the summons and complaint were “in fact received”, per

section 1-75.10, on which it based its holding.3

3

Defendants also argue that Osman v. Reese, No. COA09-950, 2010

WL 1315595 (N.C. Ct. App. Aril 6, 2010) is analogous to Hunter

and should be followed by this Court despite being unpublished.

They claim that the Osman Court held that “service via certified

mail delivered to defendant’s co-worker at defendant’s place of

employment was invalid under Rule 4(j)(1)c, even though

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Next, defendants argue that their actual notice of the suit

did not cure the defect in service rendered by FedEx’s failure

to hand the summons and complaint to each defendant or his or

her respective service agents. The cases that defendants claim

support application of this principle here are distinguishable

in material aspects. First, defendants cite Grimsley, 342 N.C.

at 544-46, 467 S.E.2d at 94, and claim that in that case

“[t]here was no question that process was received: [the]

defendant answered the complaint. Nevertheless, process was

held to be insufficient.” In actuality, the basis of the

plaintiff’s argument in Grimsley was that “while [the defendant]

was not actually served with summons and complaint, [the

insurance company’s] 12 October 1992 answer constituted a

general appearance by [the defendant], thereby precluding [the

defendant] from raising the defense of lack of personal

jurisdiction.” Id. at 545, 467 S.E.2d at 94 (emphasis added).

defendant ultimately received the process, because the

requirement of ‘delivering to the addressee’ had not been met.”

However, the Court explicitly stated that “[The defendant]

signed affidavits averring that he had never been served with

process in this case, and that he never ‘received a copy of the

Summons and Complaint that was purportedly mailed to [him] c/o

Merchant’s Tire.’” Id. at *2 (emphasis added). The co-worker

who received the summons and complaint averred that “[he] never

provided copies to [the defendant.]” Id. Because of this

crucial factual distinction, we disagree with defendants’

assertion that Osman has precedential value.

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Thus, it is clear that the defendant in Grimsley did not answer

the complaint; a third party to the suit did. Id. at 546, 467

S.E.2d at 95. The Court stated unequivocally that “[the

defendant] has never been served with [the] summons and complain

as required by the Rules of Civil Procedure.” Id. at 546, 467

S.E.2d at 94. This case is therefore distinguishable because

defendants here actually received copies of the summons and

complaint and filed answers directly.

Furthermore, the other cases cited by defendants in support

of this proposition are equally distinguishable because in each

of them, the Court held that service was actually defective.

See Mabee v. Onslow Cnty. Sheriff’s Dept., 174 N.C. App. 210,

211-12, 620 S.E.2d 307, 308 (2005) (holding that service was

defective under N.C. Gen. Stat. § 162-16 because it was executed

by an individual other than those vested with authority to do so

under the statute, and that this defect could not be cured by

actual notice of the proceedings); Fulton v. Mickle, 134 N.C.

App. 620, 624, 518 S.E.2d 518, 521 (1999) (holding that service

was defective under Rule 4(j)(6)c because the summons and

complaint were not sent to a party vested with authority to

accept service on behalf of a corporation); Long v. Cabarrus

Cnty. Bd. of Educ., 52 N.C. App. 625, 626, 279 S.E.2d 95, 96

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(1981) (holding that service was defective under Rule 4(j)(5)c

because it was not made on a person vested with authority to

receive service on behalf of a county or city board of

education). For reasons discussed in more detail above, we do

not hold that service under Rule 4(j)(1)d here was defective;

therefore, we do not purport to hold that actual notice of the

suit cured a defect in service.

Defendants next contend that Hamilton v. Johnson, __ N.C.

App. __, __, 747 S.E.2d 158, 162-63 (2013) is controlling and

requires a holding that service was defective because the FedEx

employee did not personally serve defendants or their service

agents. Although they correctly characterize the holding in

Hamilton - that delivery by FedEx to an alleged concierge of a

building did not constitute “delivery to the addressee” under

Rule 4(j)(1)d – we still find this case to be distinguishable.

See id. at __, 747 S.E.2d at 162-63. In Hamilton, the plaintiff

attempted to serve the summons and complaint on the defendant by

mailing them to his residence in Texas via FedEx. Id. at __,

747 S.E.2d at 160. When the package arrived, an individual

identified as “KKPONI” signed for the documents, but the

defendant failed to appear at the subsequent hearing for which

service was meant to provide notice. Id. The Hamilton Court

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stated that:

Absent any statutory presumption, plaintiff

bore the burden of proving that “KKPONI”

[the alleged concierge] was defendant's

agent, authorized by law to accept service

of process on his behalf.

Here, the trial court's order is devoid of

any findings as to whether “KKPONI” was an

agent authorized to accept service of

process on defendant's behalf. In fact, it

is unclear how “KKPONI” was employed in the

building—if an employee at all. Thus, we

cannot conclude that service on “KKPONI,” an

alleged concierge, satisfies Rule

4(j)(1)(d)'s requirement of “delivering to

the addressee.”

Id. at __, 749 S.E.2d at 163.

The fact that distinguishes Hamilton from this case is that

the Court makes no mention of whether the defendant actually

received the summons and complaint, or more specifically,

whether the plaintiff attempted to prove service under section

1-75.10 with affidavits indicating that the defendant received

the summons and complaint. In fact, the Hamilton Court makes no

citation to section 1-75.10, a statute crucial to our holding

that the General Assembly explicitly states must be read

“contemporaneously” with Rule 4. See N.C. Gen. Stat. § 1A-1,

Rule 4 general commentary. Thus, because we are faced with

additional facts not discussed by the Court in Hamilton, its

holding is distinguishable.

-28-

Ultimately, defendants’ arguments as to why Rule 4(j)(1)d

should be read to require personal service on a defendant or his

service agent, exclusive of all other individuals and regardless

of whether the defendant actually receives the summons and

complaint, are unavailing. Because the trial court erred in its

conclusions, we reverse the trial court’s order dismissing

defendants-appellees and affirm the order denying Baker’s motion

to dismiss.

C. The City

Unlike natural persons, service may only be valid and

effective upon a city:

[b]y personally delivering a copy of the

summons and of the complaint to its mayor,

city manager or clerk; by mailing a copy of

the summons and of the complaint, registered

or certified mail, return receipt requested,

addressed to its mayor, city manager or

clerk; or by depositing with a designated

delivery service authorized pursuant to 26

U.S.C. § 7502(f)(2) a copy of the summons

and complaint, addressed to the mayor, city

manager, or clerk, delivering to the

addressee, and obtaining a delivery receipt.

As used in this sub-subdivision, “delivery

receipt” includes an electronic or facsimile

receipt.

N.C. Gen Stat. § 1A-1, Rule 4(j)(5)a (2013) (emphasis added).

The list of parties named in the statute is exclusive; service

upon anyone other than the mayor, city manager, or clerk is

-29-

insufficient to confer jurisdiction over a city. See Johnson v.

City of Raleigh, 98 N.C. App. 147, 149-50, 389 S.E.2d 849, 851-

52 (1990) (holding that service of summons was insufficient to

confer personal jurisdiction over defendant city where a copy of

the summons and complaint was delivered to a person other than

an official named in Rule 4(j)(5)), disc. review denied, 327

N.C. 140, 394 S.E.2d 176.

Here, the summons and complaint were not addressed to

either the mayor, city manager, or clerk, as is required by Rule

4(j)(5)a; they were addressed to Baker, who was the City

Attorney. Delivery to Baker, although technically delivery to

the addressee, was insufficient to confer jurisdiction over the

City because he is not a named official capable of receiving

service on behalf of the City. Furthermore, there is no direct

evidence that the City’s mayor, city manager, or clerk ever

received the summons and complaint or were otherwise served in

any way. The only evidence plaintiffs provide is a newspaper

article wherein the City’s mayor said that he would discuss the

lawsuit with other city officials and council members. Although

they may have had actual notice of this action, there is no

evidence indicating that any of the required parties in Rule

4(j)(5)a were ever served with the summons and complaint.

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Unlike the service on defendants who are natural persons,

service on the City was defective because plaintiffs did not

comply with Rule 4(j)(5)a, and any actual notice that those

parties enumerated in the rule may have had did not cure this

defect. Fulton, 134 N.C. App. at 624, 518 S.E.2d at 521

(citation and quotation omitted).

Therefore, we hold that the trial court did not err in

granting the City’s motion to dismiss for insufficient service

of process.

II. Motion to Amend the Summons

Plaintiffs next argue that the trial court abused its

discretion by denying its motion to amend the summons against

the City to correct the name of the person currently holding the

office of city manager. We find no abuse of discretion.

The North Carolina Rules of Civil Procedure vest discretion

in the hands of the trial courts to allow or disallow parties to

amend summonses:

At any time, before or after judgment, in

its discretion and upon such terms as it

deems just, the court may allow any process

or proof of service thereof to be amended,

unless it clearly appears that material

prejudice would result to substantial rights

of the party against whom the process

issued.

-31-

N.C. Gen. Stat. § 1A-1, Rule 4(i) (2013). This Court therefore

reviews such orders for abuse of discretion. See White v.

White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“It is

well established that where matters are left to the discretion

of the trial court, appellate review is limited to a

determination of whether there was a clear abuse of

discretion.”). Although the trial courts have wide discretion

in this arena, that power has been limited by this Court to

those cases where the trial court initially acquired

jurisdiction over the defendant. See Carl Rose & Sons, Ready

Mix Concrete, Inc. v. Thorp Sales Corp., 30 N.C. App. 526, 529,

227 S.E.2d 301, 303 (1976) (“The broad discretionary power given

the court . . . does not extend so far as to permit the court

by amendment of its process to acquire jurisdiction over the

person of a defendant where no jurisdiction has yet been

acquired. A defendant cannot, in this short-hand manner by

amendment, be brought into court without service of process.”)

(citation and quotations omitted), overruled on other grounds,

Wiles v. Welparnel Const. Co., Inc., 295 N.C. 81, 86, 243 S.E.2d

756, 758-59 (1978).

As stated above, in order to confer jurisdiction over the

City, plaintiffs needed to comply with Rule 4(j)(5) by sending

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the summons and complaint addressed to either the City’s mayor,

city manager, or clerk and delivering to one of those three

parties. Because plaintiffs failed to do so, the trial court

never acquired jurisdiction over the City. Glover v. Farmer,

127 N.C. App. 488, 490, 490 S.E.2d 576, 577 (1997) (“Absent

valid service of process, a court does not acquire personal

jurisdiction over the defendant and the action must be

dismissed.”).

Therefore, based on the rule set out in Carl Rose & Sons,

we find that the trial court did not abuse its discretion by

denying plaintiff’s motion to amend the summons, as it would

confer jurisdiction over the City without proper service of

process.

III. Title of the Cause

Baker argues on appeal that the trial court erred by

denying his motion to dismiss the action for failure of the

summonses to contain all of the necessary information required

by Rule 4(b), namely the “title of the cause.” We disagree.

This Court reviews the conclusions of law entered by the

trial court in its order de novo. Carolina Power & Light Co. v.

City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721

(2004).

-33-

Pursuant to Rule 4(b) of the North Carolina Rules of Civil

Procedure, “[t]he summons shall . . . contain the title of the

cause.” N.C. Gen. Stat. § 1A-1, Rule 4(b) (2013). Here, the

title of the cause in the summons listed “Frankie Washington and

Frankie Washington, Jr.” as plaintiffs and “CITY OF DURHAM

(N.C.) ET AL” as defendants. Baker argues that the title of the

cause in the summons is defective because it does not list all

defendants and does not mirror the title of the cause in the

complaint. He cites to no authority for the proposition that

these characteristics render the title of the cause in the

summons defective, and we find none. Therefore, we find that

the argument is abandoned. See Metric Constructors, Inc. v.

Industrial Risk Insurers, 102 N.C. App. 59, 64, 401 S.E.2d 126,

129 (1991) (“Because the appellee cites no authority for this

argument, it is deemed abandoned”).

Conclusion

Because plaintiffs properly proved service by Rule 4(j)(1)d

under section 1-75.10(5), we reverse the trial court’s order

dismissing all defendants-appellees except the City, and we

affirm the trial court’s order denying Baker’s motion to dismiss

for insufficient service of process. We affirm the trial

court’s order dismissing the City, because the record reveals

-34-

that plaintiffs failed to properly serve a party designated by

rule to receive service on behalf of the City. Finally, we

affirm the trial court’s denial of plaintiffs’ motion to amend

the summons against the City and Baker’s motion to dismiss for

failure of the summonses to contain the title of the cause.

AFFIRMED in part and REVERSED in part.

Judges GEER and McCULLOUGH concur.