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Process and Service--service of process--in-hand delivery not
required
The trial court erred in a negligence case by granting
defendant city's motion to dismiss for insufficient service of
process under N.C.G.S. § 1A-1, Rule 4(j)(5)(a) and lack of
personal jurisdiction because the circumstances of this case
reveal that there was no requirement of in-hand delivery to
effect proper service since two affidavits show the deputy
informed the employee at the reception area that he needed to see
the acting city manager; the deputy was informed that the acting
city manager was in a meeting in his office; the deputy said he
had legal papers to deliver to the acting city manager; the
deputy went to the acting city manager's office door and directed
the acting city manager's attention indicating to him that he was
being served with legal papers; and without objection or
indication of rejection, the deputy handed the papers to the
employee from the reception area.
Thomas, Ferguson & Charns, LLP, by Jay H. Ferguson, for the
plaintiff-appellant.
Faison & Gillespie, by Reginald B. Gillespie, Jr. and Keith D.
Burns, for the defendant-appellee.
LEWIS, Judge.
Plaintiff appeals from an order granting defendant City of
Durham's ("City") motion to dismiss for insufficient service of
process and resulting lack of personal jurisdiction. We reverse.
On 9 May 1997, plaintiff filed this negligence action against
defendants City, Michael Wayne Ellis and Nationwide, alleging thatwhile driving a truck owned by the City, Ellis backed into
plaintiff's truck. Two summonses were issued the same day,
addressed to acting "City Manager, Cecil Brown," and "City Clerk,
Margaret Bowers," respectively. On 9 May 1997, Deputy J.E. Brooks
served the complaint and summonses in the offices of Mr. Brown and
Ms. Bowers. The parties dispute, however, who actually was served
and whether the personal service was sufficient. On 4 August 1997,
plaintiff again attempted to serve Ms. Bowers by certified mail,
return receipt requested. The certified mail was properly
addressed to Ms. Bowers at City Hall, but the return receipt
indicated that upon arrival, the summons and complaint were
"unclaimed."
On 18 September 1997, the City filed an answer to the
complaint alleging as its first defense insufficient service of
process and lack of personal jurisdiction over the City and
responded to the allegations of the complaint. On 29 May 1998, the
City filed a motion to dismiss the complaint, alleging failure to
institute proper service of process and failure to obtain personal
jurisdiction over the City. The motion was granted by the trial
court. In its order and judgment, the court concluded the
summonses and complaint were improperly served and the court lacked
personal jurisdiction pursuant to Johnson v. City of Raleigh, 98
N.C. App. 147, 389 S.E.2d 849 (1990). Plaintiff appeals.
The City argues that Deputy Brooks personally served process
on Mr. Brown's secretary, Ila Newton, and the Deputy City Clerk, D.
Ann Gray, both of whom are improper persons for personal service of
process under our statutes and accompanying case law. Rule 4 of the North Carolina Rules of Civil Procedure provid
es
the methods in which a summons and complaint must be served in
order to obtain personal jurisdiction over the defendant. N.C.R.
Civ. P. 4. Rule 4(j)(5)(a) applies to cities and provides that the
service upon a city is properly effectuated "by personally
delivering a copy of the summons and of the complaint to its mayor,
city manager or clerk or 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." Rule 4
is strictly enforced to insure that a defendant receives actual
notice of a claim against him. Grimsley v. Nelson , 342 N.C. 542,
545, 467 S.E.2d 92, 94, reh'g denied, 343 N.C. 128, 468 S.E.2d 774
(1996). In Johnson v. City of Raleigh, this Court held that Rule
4(j)(5)(a) "does not provide for substituted personal process on
any persons other than those named in [Rule 4] (j)(5)(a)." 98 N.C.
App. at 150, 389 S.E.2d at 851.
N.C. Gen. Stat. § 1-75.10(4) provides that notice given by
registered mail is effective when actually received. Since the
return receipt reveals that the City did not actually receive the
registered mail, we will consider whether service by personal
delivery in this case was sufficient. As such, we must determine
whether either the Acting City Manager, Mr. Brown, or the City
Clerk, Ms. Bowers, was properly served through personal delivery.
Under G.S. 1-75.10(1)(a), where a defendant challenges
personal service of the summons, proof of service shall be "by the
[serving] officer's certificate thereof, showing place, time and
manner of service." When this return of service on its face showslegal service by an authorized officer, that return is sufficient,
at least prima facie, to show service in fact. Williams v.
Burroughs Wellcome Co., 46 N.C. App. 459, 462, 265 S.E.2d 633, 635
(1980). The prima facie evidence established by a valid return of
service may be rebutted only by producing affidavits of more than
one person showing unequivocally that proper service was not made
upon the person stated in the return of service. Grimsley, 342
N.C. at 545, 467 S.E.2d at 94.
In an attempt to rebut plaintiff's prima facie evidence of
valid service in this case, the City has produced two affidavits
relevant to personal delivery to the acting city manager and two
affidavits relevant to personal delivery to the city clerk. We
conclude, however, that this evidence establishes valid service of
process on the City. Because we need only find that service on one
of the public servants mentioned in Rule 4 was proper to effect
valid service on the City, we will only consider the evidence
relevant to service upon Mr. Brown.
Ms. Newton's affidavit states:
4. On Wednesday, May 14, 1997, at
approximately 9:37 a.m., a Deputy Sheriff of
Durham County came to City Hall and to [the]
reception area of the City Manager's suite of
offices, and asked to see Mr. Brown, who at
that time was in a meeting in his office.
5. I greeted the deputy, and informed him
that Mr. Brown was in a meeting in his office.
6. The deputy said he had some legal papers
to deliver to Mr. Brown. The deputy went to
the door of Mr. Brown's office, which was
open, and got Mr. Brown's attention to let Mr.
Brown know he was delivering some legal
papers. The deputy then handed those papers
to me.
In order to establish valid service of process, the plaintiffis not precluded from offering his own proof in additi
on to the
officer's return of service. Williams, 46 N.C. App. at 462, 265
S.E.2d at 635. The plaintiff in this case produced an affidavit of
Deputy Brooks in which he admitted to having no independent
recollection of serving process in this case, but stated:
4. It was my unvarying practice when serving
process on the [c]ity [m]anager or [c]ity
[c]lerk to seek out the person to be served
and to serve him or her personally. On
occasions when the person was in a meeting, I
might send the papers into the meeting by the
hand of a secretary after getting the person's
attention, but I always watched to be sure
that the person to be served personally
received the papers in my sight.
5. I never simply left papers to be served on
a person in the care of another person . . . .
From Ms. Newton's affidavit, it appears that Deputy Brooks
entered the office suite of the acting city manager, realized Mr.
Brown was occupied, directed Mr. Brown's attention indicating to
him that he was being served, and without objection or indication
of rejection, handed the papers to Ms. Newton. Under the
circumstances appearing from the affidavits of Ms. Newton and
Deputy Brooks, there was no requirement of in-hand delivery to
effect proper service in this case -- the fact that Mr. Brown
acknowledged the deputy's presence with knowledge that he was
serving him was adequate. While we are mindful of our holding in
Johnson that "delivery of the summons to a person other than the
named official [is] insufficient to give the court personal
jurisdiction over the City," 98 N.C. App. at 150, 389 S.E.2d at
851, we conclude that under the circumstances appearing from the
affidavits of Ms. Newton and Deputy Brooks, process was properly
served upon Mr. Brown. We therefore conclude that the trial courterred in granting defendants' motion to dismiss for insufficient
service of process and resulting lack of personal jurisdiction.
Reversed and remanded.
Judges WYNN and MARTIN concur.
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