1. Process and Service--service on corporate agent--defendant
clearly identified
The trial court erred by dismissing a retaliatory discharge
action for lack jurisdiction where the summons was directed to
Betty Koontz and sent via certified mail to Ms. Koontz as
registered agent. Plaintiff complied with the statutory
requirements for service upon the registered agent and the
officer of a corporation because Ms. Koontz was the president and
registered agent of defendant-corporation. The service upon
defendant was sufficient even though the summons did not indicate
the capacity in which Ms. Koontz was being served because the
summons clearly named Watauga Building Supply, Inc. as defendant.
2. Process and Service--summons--president and registered
agent--capacity not identified on summons
A summons was not fatally defective where it did not
identify the person served (Ms. Koontz) as the registered agent
or president of defendant-corporation. The return of service
shows that copies of the summons and complaint were delivered to
Ms. Koontz and there is no evidence to contradict the affidavit
of service identifying Ms. Koontz as the president and registered
agent of defendant. While it is the better practice to identify
the capacity in which the person receiving service is acting,
such failure is not fatal.
McElwee Firm, PLLC, by Elizabeth K. Mahan, for plaintiff-
appellant.
Miller & Johnson, PLLC, by Linda L. Johnson, for defendant-
appellee.
WALKER, Judge.
The plaintiff filed an action for retaliatory discharge
against his former employer, Watauga Building Supply, Inc.(defendant), on 23 February 2000. The clerk of superior court
issued a civil summons naming “Watauga Building Supply, Inc.” as
defendant in its caption. Its directory section stated “TO: Name
& Address of First Defendant: Betty G. Koontz, 587-105 Ext.,
Boone, N.C. 28607.” Plaintiff's attorney filed an affidavit
verifying the complaint and summons were mailed via certified mail,
return receipt requested and addressed to Ms. Koontz as registered
agent. Thereafter, the Sheriff of Watauga County served “Betty G.
Koontz” with the summons and complaint.
On 23 March 2000, defendant filed a motion to dismiss the
complaint for lack of personal jurisdiction, insufficiency of
process, insufficiency of service of process and failure to state
a claim upon which relief can be granted pursuant to Rules
12(b)(2), (4), (5) and (6) of our Rules of Civil Procedure. N.C.R.
Civ. P. 12(b)(2), (4)-(6)(1999). On 31 May 2000, the trial court
granted defendant's motion to dismiss for insufficiency of process,
insufficiency of service of process and lack of jurisdiction over
defendant pursuant to Rules 12(b)(2), (4) and (5). N.C.R. Civ. P.
12(b)(2), (4) and (5).
[1]In his sole assignment of error, plaintiff contends the
trial court erred in granting defendant's motion to dismiss for
lack of jurisdiction since: (1) naming defendant in the directory
paragraph of the summons is not required and failure to do so does
not amount to insufficient process; and (2) failure to identify
Ms. Koontz as defendant's registered agent or president is not
fatally defective and does not amount to insufficiency of service
of process. Plaintiff further states it was clear from the captionof the summons that defendant, rather than Ms. Koontz, was the one
being sued and that the record shows that Ms. Koontz was
defendant's registered agent and president.
In order to obtain personal jurisdiction over a defendant, it
is well established that the issuance of summons and service of
process must comply with one of the statutorily specified methods.
Glover v. Farmer, 127 N.C. App. 488, 490, 490 S.E.2d 576, 577
(1997), disc. review denied, 347 N.C. 575, 502 S.E.2d 590 (1998),
citing Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982).
“Absent valid service of process, a court does not acquire personal
jurisdiction over the defendant and the action must be dismissed.”
Id., citing Sink v. Easter, 284 N.C. 555, 561, 202 S.E.2d 138, 143
(1974). Here, plaintiff complied with our statutory requirements
for service of process upon the registered agent and the officer of
a corporation. See N.C.R. Civ. P. 4(j)(6)(1999). However, we
must determine if service of process was sufficient upon defendant.
Plaintiff cites Wiles v. Construction Co., 295 N.C. 81, 84-85,
243 S.E.2d 756, 758 (1978), abrogated on other grounds, Piland v.
Hertford County Bd. of Comm'rs, 141 N.C. App. 293, 539 S.E.2d 669
(2000) for the proposition that Rule 4(b) does not require naming
the corporate defendant in the directory paragraph of the summons.
In that case, the directory paragraph of the summons was directed
“[t]o each of the defendants named below at the indicated
addresses-GREETING: Mr. T.T. Nelson, Registered Agent, Welparnel
Construction Company, Inc.,” and Welparnel Construction Company was
the only defendant named in the complaint. Id. at 84, 243 S.E.2dat 757. Welparnel complained the process was insufficient because
it was directed to the corporation's registered agent rather than
to the corporation. Our Supreme Court, in re-evaluating its narrow
interpretation of our service of process statutes, cited with
approval the following broader reasoning from a federal case in the
United States Court of Appeals for the Fourth Circuit:
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.
Id. at 84-85, 243 S.E.2d at 758, quoting United States v. A.H.
Fischer Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947).
In Wiles, our Supreme Court concluded that the service of
process on Welparnel was proper because “any confusion arising from
the ambiguity in the directory paragraph of the summons was
eliminated by the complaint and the caption of the summons which
clearly indicate[d] that the corporation and not the registered
agent was the actual defendant in this action.” Id. at 85, 243
S.E.2d at 758. The Court further reasoned:
Since, under Rule 4, a copy of the complaint
must be served along with the summons, and the
corporate representative who may be served is
customarily one of sufficient discretion to
know what should be done with legal papers
served on him, the possibility of any
substantial misunderstanding concerning the
identity of the party being sued in this
situation is simply unrealistic. Under the
circumstances, the spirit certainly, if notthe letter, of N.C.R. Civ. P. 4(b) has been
met.
Id. at 85, 243 S.E.2d at 758. The Court therefore concluded:
[W]e feel that the better rule in cases such
as this is that when the name of the defendant
is sufficiently stated in the caption of the
summons and in the complaint, such that it is
clear that the corporation, rather than the
officer or agent receiving service, is the
entity being sued, the summons, when properly
served upon an officer, director or agent
specified in N.C.R. Civ. P. 4(j)(6), is
adequate to bring the corporate defendant
within the trial court's jurisdiction.
Id. at 85, 243 S.E.2d at 758.
Likewise in Wearring v. Belk Brothers, 38 N.C. App. 375, 248
S.E.2d 90 (1978), this Court reversed the trial court's
determination that there had been insufficient service of process
where the caption of the summons stated: “Dorothy Wearring,
Plaintiff Against Belk Brothers, Inc., Defendant,” but the summons
was directed to “Mr. Leroy Robinson, Exec. V.P., Belk Uptown, 115
East Trade Street, Charlotte, North Carolina.” Id. This Court
reasoned the caption of the summons and the complaint showed the
corporation rather than the individual was being sued, so that
process was sufficient. Id. at 377, 248 S.E.2d at 91. In doing
so, this Court stated:
Fundamental fairness requires that a summons
should be of sufficient particularity so as to
leave no reasonable doubt as to whom it is
directed. However, this requirement does not
force the courts to overlook the obvious when
determining the validity of a summons . . . .
'[W]hen the name of the defendant is
sufficiently stated in the caption of the
summons and in the complaint, such that it is
clear that the corporation, rather than theofficer or agent receiving service, is the
entity being sued, the summons, when properly
served upon an officer, director or agent
specified in N.C.R. Civ. P. 4(j)(6) is
adequate to bring the corporate defendant
within the trial court's jurisdiction.'
Id. at 376-377, 248 S.E.2d at 90-91 (citations omitted).
In the instant case, while the summons did not indicate in
what capacity Ms. Koontz was being served, it did name Watauga
Building Supply, Inc. as defendant. Therefore, the summons and
complaint clearly show defendant is Watauga Building Supply, Inc.
and not Ms. Koontz. The trial court erred in granting defendant's
motion to dismiss on the basis of insufficient process.
[2]We next consider whether plaintiff's failure to identify
Ms. Koontz as the registered agent or president of defendant on the
summons was fatally defective. Plaintiff argues Rule 4(j)(6) “does
not on its face require that the particular capacity of the officer
or agent be stated in the directory paragraph of the [s]ummons, on
the certified mail card or receipt, or on the return of service.“
Plaintiff further contends the record shows Ms. Koontz was the
registered agent and president of defendant, who was served with
the summons and complaint by certified mail and personal service.
On the other hand, defendant contends service of process in
this case is insufficient under Fulton v. Mickle, 134 N.C. App.
620, 518 S.E.2d 518 (1999). In that case, plaintiff served
defendant insurance company by mailing a copy of the summons and
complaint by regular mail to defendant's claims examiner. Id. at
621, 518 S.E.2d at 519. This Court held that under Rule 4(j)(6)(c)
of the Rules of Civil Procedure, this method of service failed intwo respects: (1) process was not sent by certified or registered
mail, return receipt requested; and (2) process was not addressed
to an officer, director or agent authorized to receive service of
process. Id. at 624, 518 S.E.2d at 521, N.C.R. Civ. P.
4(j)(6)(c). This case is distinguished from the instant case, as
Ms. Koontz was authorized to receive service of process on behalf
of defendant.
Defendant further points out the return of service section on
the summons does not indicate Ms. Koontz' title nor that defendant
is a corporation. Defendant concludes that since Ms. Koontz was
listed on the summons only as an individual, defendant received
insufficient notice of the lawsuit and therefore service of process
did not comply with Rule 4(j)(6)(a) or (b). N.C.R. Civ. P.
4(j)(6)(a)-(b).
This case is analogous to Williams v. Burroughs Wellcome Co.,
46 N.C. App. 459, 265 S.E.2d 633 (1980), where plaintiff filed an
action against the corporate defendant, Burroughs Wellcome Co., and
against its personnel manager, James Rostar, individually. The
sheriff's return indicated that each summons was served on
Burroughs and Mr. Rostar by leaving a copy with Carol Allen in the
corporation's office. Id. at 460, 265 S.E.2d at 634. The trial
court denied defendant corporation's motion to dismiss for
insufficiency of service of process. Id. at 461, 265 S.E.2d at
634. Defendant contended the summons was defective on its face
because it failed to recite in what capacity, if any, Carol Allen
was acting when service was made upon her. Id. at 462, 265 S.E.2dat 635. This Court did not find this to be a fatal error and
stated:
Assuming that this return is incomplete in
that it fails to specify in detail the agency
of Carol Allen and the manner in which service
upon her constituted compliance with G.S. 1A-
1, Rule 4(j)(6), the significant factor in
determining whether the court acquired
jurisdiction over the corporate defendant here
is whether the manner of service itself,
rather than the return of the officer showing
such service, complied with the applicable
statute. 'It is the service of summons and
not the return of the officer that confers
jurisdiction.'
Id. at 462, 265 S.E.2d at 635, quoting State v. Moore, 230 N.C.
648, 649, 55 S.E.2d 177, 178 (1949). This Court then remanded the
case to the trial court to determine whether Carol Allen was
apparently in charge of the office as a “managing agent” which
would comply with the service of process requirement. Id. at 464-
465, 265 S.E.2d at 636-637.
As stated in Williams, it is the better practice to identify
in what capacity the person receiving service is acting; however,
such failure is not fatal. The question is whether the manner of
service complies with Rule 4(j)(6). Proper service of process upon
a corporation can be made by “delivering a copy of the summons and
of the complaint to an officer,” or by “delivering a copy of the
summons and complaint to an agent authorized by appointment or by
law to be served or to accept service.” N.C.R. Civ. P.
4(j)(6)(a)-(b). Every corporation in our State must maintain a
registered office and registered agent in the State. Ms. Koontz
was the registered agent of defendant. Here, the return of service shows that copies of the summons
and complaint were delivered to Ms. Koontz and there is no evidence
to contradict the affidavit of service filed by plaintiff's
attorney identifying Ms. Koontz as the president and registered
agent of defendant. We conclude that plaintiff sufficiently
complied with the requirements of Rule 4(j)(6) by delivering a copy
of the summons and complaint to Ms. Koontz.
Thus, the trial court erred in granting defendant's motion to
dismiss this action based on insufficient service of process and
lack of jurisdiction over defendant.
Reversed.
Judges HUNTER and TYSON concur.
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