# In Re Annex. Ord. No. 1219 Adopt. by Asheville

> Court of Appeals of North Carolina · June 21, 1983 · 62 N.C. App. 588

URL: https://www.frixlaw.com/law-library/cases/9579343

## Case

- **Full name:** In Re: Annexation Ordinance No. 1219 Adopted by City of Asheville, May 14, 1981
- **Court:** Court of Appeals of North Carolina
- **Decided:** June 21, 1983
- **Citations:** 62 N.C. App. 588; 303 S.E.2d 380; 1983 N.C. App. LEXIS 2990
- **Precedential status:** Published
- **Opinion:** Concurrence by Eagles
- **Judges:** Wells, Becton, Eagles
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9579343

## How later opinions describe it (automated extraction)

- holding that service was proper where a petition was sent by certified mail addressed to defendant City of Asheville but received by a mail clerk, which receipt was held to be acknowledged by the clerk’s signature

## Opinion text

Judge Eagles
concurring in result.
I am concurring in the result reached by the majority. I wish to express a different position on the issue of whether petitioners’ method of service of process on respondent was proper.
G.S. 160A-50(b) is a specific statute regulating service of process procedure in annexation suits against municipalities, while G.S. 1A-1, Rule 4(j)(5)a regulates service of process upon local governments in general. “Where there are two provisions in a statute, one of which is special or particular and the other general, which, if standing alone, would conflict with the particular provision, the special will be taken as intended to constitute an exception to the general provisions, as the General Assembly is not to be presumed to have intended a conflict.” Utilities Comm. v. Electric Membership Corp., 3 N.C. App. 309 , 164 S.E. 2d 889 (1968), citing Davis v. Granite Corporation, 259 N.C. 672 , 131 S.E. 2d 335 (1963).
Even though I am persuaded that G.S. 160A-50(b) controlled the method of service of process in the case sub judice, since it is the more specific statute, I still find petitioners’ service of process by certified mail permissible and valid under the facts of this case. “It is generally held that slight irregularities will not invalidate annexation proceedings if there has been substantial compliance with all essential provisions of the law [citations omitted]. ‘Absolute and literal compliance with a statute enacted describing the conditions of annexation is unnecessary; substantial compliance only is required .... The reason is clear. Absolute and literal compliance with the statute would result in defeating the purpose of the statute in situations where no one has been or could be misled.’ ” In re Annexation Ordinance, 278 N.C. 641 , 180 S.E. 2d 851 (1971), quoting State v. Town of Benson, Cochise County, 95 Ariz. 107, 108 , 387 P. 2d 807, 808 . Unlike the service of process requirements of G.S. 1A-1, Rule 4, which must be strictly followed in order to obtain proper service of process, Lynch v. Lynch, 302 N.C. 189 , 274 S.E. 2d 212 (1981), the requirements of G.S. 160A-50(b), need only be substantially complied with.
*602 Respondent’s claim of injury will have merit only where the irregularity in the proceedings materially prejudiced respondent’s substantive rights. In re Annexation Ordinance, 303 N.C. 220 , 278 S.E. 2d 224 (1981). The petition was sent by certified mail addressed to the City of Asheville in care of its City Manager, and was received by the City’s mail clerk who signed the return receipt acknowledging its delivery. During the hearing on respondent’s motion to dismiss, Lawrence Hoote, a 28 year veteran of the Asheville Post Office, testified that the only distinction between registered and certified mail was that the post office retained a record of the transactions in the former but not in the latter. Since respondent can show no material prejudice to their substantive rights where they actually received timely notice of the petition, I find that the method of service of process was in substantial compliance with G.S. 160A-50(b) and therefore valid.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9579343. Public record. Not legal advice.