Appeal by plaintiff from judgment entered 4 December 2000 by
Judge B. Craig Ellis in Cumberland County Superior Court. Heard in
the Court of Appeals 24 January 2002.
Brown, Crump, Vanore & Tierney, L.L.P., by Michael W.
Washburn, for plaintiff-appellant.
Smith Debnam Narron Wyche Story & Myers, L.L.P., by Connie
E. Carrigan, for defendant-appellee.
TIMMONS-GOODSON, Judge.
Thomas & Howard Company, Inc. (“plaintiff”) appeals from an
order granting Trimark Catastrophe Services' (“defendant”) motion
to dismiss for insufficient service of process and resulting lack
of personal jurisdiction. For the reasons stated herein, we affirm
the ruling of the trial court.
Defendant is a Texas corporation authorized to conduct
business in North Carolina with a registered office located in
Mooresville, North Carolina and a designated registered agent for
service, Bill Highsmith. In September of 1996, defendant entered
into a contract with plaintiff, a food distribution business, in
order to assist in the completion of repairs in the wake of
Hurricane Fran. These repairs included the replacement of vinylflooring in the facility owned and operated by plaintiff. The
defendant subsequently retained Mintz, Flora & Highsmith, Inc.
(“Mintz”) to oversee the floor repairs. Mintz subsequently entered
into a subcontract with Unique Expressions Carpet & Interiors, Inc.
(“Unique”) for installation of the floor.
On or around 1 January 1997, the flooring adhesive which held
the tiles together began to seep onto the finished surface,
creating an “unsightly” appearance and causing the tiles to loosen.
Plaintiff subsequently contacted the Harleysville Insurance Group
who filed a claim on behalf of plaintiff against defendant for the
alleged deficiencies.
On 30 December 1999, plaintiff filed a complaint against
defendant claiming negligence and breach of contract for damages
sustained as a result of the deficiencies in the vinyl flooring.
The summons and complaint were mailed to Vince Marshall, a
registered agent of defendant located in Wylie, Texas. Defendant
received a copy of plaintiff's complaint through first-class mail
in January of 2000. Defendant then contacted counsel for plaintiff
in order to discuss pending claims. In September of 2000, the
parties reached an impasse in the negotiations, whereupon Vince
Marshall then retained the services of Smith Debnam Narron Wyche
Story & Myers, L.L.P., to represent Trimark's interest in this
North Carolina lawsuit. Upon obtaining an extension of time to
file an answer, counsel for defendant reviewed the court file and
discovered that none of the defendants, including Mintz and Unique,
had been served in any manner authorized by law. The court filealso contained an administrative order entered 10 August 2000
discontinuing the action pursuant to Rule 4(e) of the North
Carolina Rules of Civil Procedure due to insufficient service of
process.
Defendant filed a motion to dismiss plaintiff's complaint,
asserting insufficient service of process. On 4 December 2000, an
order granting defendant's motion to dismiss was entered.
Plaintiff appeals from this order.
The issue presented by this appeal is whether the trial court
obtained personal jurisdiction over defendant. Plaintiff concedes
that its method of service on defendant of the summons and
complaint was “technically defective.” However, plaintiff contends
that defendant was estopped from asserting jurisdictional defenses
as grounds for dismissal of the complaint. For the following
reasons, we disagree.
At the outset, we note that the trial court entered the order
dismissing plaintiff's action without making any findings of fact.
“[O]n a motion to dismiss for insufficiency of process where the
trial court enter[s] an order without making findings of fact,” our
review is limited to determining whether, as a matter of law, the
manner of service of process was correct.
Winter v. Williams, 108
N.C. App. 739, 741, 425 S.E.2d 458, 459,
disc. review denied, 333
N.C. 578, 429 S.E.2d 578 (1993).
In order for a court to exercise personal jurisdiction over a
defendant, the issuance of summons and service of process mustcomply with one of the statutorily specified methods.
See N.C.
Gen. Stat. § 1A-1, Rule 4 (2001). Rule 4 of the North Carolina
Rules of Civil Procedure provides the methods by which a summons
and complaint must be served in order to obtain personal
jurisdiction. Pursuant to Rule 4(j)(6), service of process on a
corporation may be effectuated by one the following methods:
a. By delivering a copy of the summons and of
the complaint to an officer, director, or
managing agent of the corporation or by
leaving copies thereof in the office of such
officer, director, or managing agent with the
person who is apparently in charge of the
office; or
b. By delivering a copy of the summons and
of the complaint to an agent authorized by
appointment or by law to be served or to
accept service of process or by serving
process upon such agent or the party in a
manner specified by any statute.
c. By mailing a copy of the summons and of
the complaint registered or certified mail,
return receipt requested, addressed to the
officer, director or agent to be served as
specified in paragraphs a and b.
N.C. Gen. Stat. § 1A-1, Rule 4(j)(6)(2001).
N.C. Gen. Stat. § 55-15-10 (1999) sets forth the procedure for
service of process on foreign corporations. Section 55-15-10
provides that service on the registered agent is the typical method
of service of process on a qualified foreign corporation authorized
to transact business in this state. However, if the corporation
does not have a registered agent, or if the agent cannot, with due
diligence, be found at the registered office, section 55-15-10(b)
authorizes service upon the Secretary of State. N.C. Gen. Stat. §
55-15-10 (b)(1999)(repealed 2001). “Generally, where a statute specifically prescribes the method
by which to notify a party against whom a proceeding is commenced,
service of the summons and complaint must be accomplished in that
manner.”
Fulton v. Mickle, 134 N.C. App. 620, 623, 518 S.E.2d 518,
520-21 (1999). While a defective service of process may give the
defending party sufficient and actual notice of the proceedings,
such “actual notice does not give the court jurisdiction over the
party.”
Id. at 624, 518 S.E.2d at 521 (quoting
Johnson v. City of
Raleigh, 98 N.C. App. 147, 149, 389 S.E.2d 849, 851,
disc. review
denied, 327 N.C. 140, 394 S.E.2d 176 (1990). “Absent valid service
of process, a court does not acquire personal jurisdiction over the
defendant and the action must be dismissed.”
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).
Our examination of the record in the instant case reveals that
service was not sufficient to give the trial court personal
jurisdiction over defendant. First, the facts reveal plaintiff
served defendant by mailing a copy of the summons and complaint by
regular mail, rather than certified mail. Further, the mailing of
the summons and complaint occurred before the documents had been
filed or signed by the Clerk of Court. No additional action was
taken to effectively serve defendant, even after an administrative
order was issued discontinuing the case. Second, there is no
evidence in the record that service was ever effectuated upon the
registered agent for North Carolina, Bill Highsmith. N.C. Gen.
Stat. § 1A-1, Rule 4(j)(6) provides the manner upon which serviceis to be made upon foreign corporations having registered offices
and registered agents in the state of North Carolina. While
service of process upon a registered agent in Texas may have given
defendant actual notice of the lawsuit, it did not confer
jurisdiction over defendant.
In the face of such abundant evidence supporting defective
service of process, and a concession that service was technically
defective, plaintiff contends that defendant was estopped from
asserting jurisdictional defenses.
“The doctrine of [equitable] estoppel is a means of preventing
a party from asserting a defense which is inconsistent with his
prior conduct.”
Purser v. Heatherlin Properties, 137 N.C. App.
332, 337, 527 S.E.2d 689, 692,
disc. review denied, 352 N.C. 676,
545 S.E.2d 428 (2000). The essential elements of equitable
estoppel are:
(1) conduct on the part of the party sought to
be estopped which amounts to a false
representation or concealment of material
facts; (2) the intention that such conduct
will be acted on by the other party; and (3)
knowledge, actual or constructive, of the real
facts. The party asserting the defense must
have (1) a lack of knowledge and the means of
knowledge as to the real facts in question;
and (2) relied upon the conduct of the party
sought to be estopped to his prejudice.
Parker v. Thompson-Arthur Paving Co., 100 N.C. App. 367, 370, 396
S.E.2d 626, 628-29 (1990).
In the instant case, plaintiff alleges that defendant agreed
not to assert any jurisdictional defenses in order to secure an
extension of time upon which to file an answer. Plaintiff contendsthat due to defendant's conduct in securing extensions of time,
defendant is now estopped from asserting any jurisdictional
defenses. We disagree.
Although not specifically addressing the estoppel issue, we
find
Fulton v. Mickle, 134 N.C. App. 620, 518 S.E.2d 518 (1999),
instructive on this matter. In
Fulton, plaintiff served defendant
insurance company by mailing a copy of the summons and complaint to
defendant's claim examiner by regular mail. This Court held that
under 4(j)(6)(c) of the North Carolina Rules of Civil Procedure,
this method failed for the following reasons: (1) process was not
sent by certified or regular mail 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. Plaintiff's
failure “to strictly adhere to the statutory requirements of
service by mail” rendered service on defendant invalid.
Id. This
Court further held that “the record does not show a mistake in
delivery of the summons and complaint that was beyond plaintiff's
control. . . . Indeed the record reveals that plaintiff had ample
opportunity to cure the defect in service prior to the expiration
of the statute of limitations.”
Id. at 625, 518 S.E.2d at 522.
Therefore, without specifically addressing the estoppel issue, the
Court reached this holding even though defendant had requested
several extensions of time to file a responsive pleading.
Clearly,
in
Fulton, the defendant's request for extensions of time did not
estop defendant from later asserting jurisdictional defenses.
Similarly in the present case, the record reveals no evidenceof plaintiff properly locating or serving defendant's registered
agent in this state, or any other manner of service as authorized
by our Rules of Civil Procedure. Plaintiff had ample opportunity
to cure the defect even after an administrative order had been
entered discontinuing the case. Further, there is no indication
that defendant represented to plaintiff that all service and
jurisdictional defenses would be waived upon the granting of an
extension of time. Instead, the record indicates that defendant's
agreement not to dispute the sufficiency of service was contingent
upon the fact that service was, in fact, valid. However, upon
review of the court file, defendant discovered that no defendants
in this action were properly served. We therefore conclude that
defendant was not estopped from arguing for dismissal based upon
lack of service of process because service upon defendant's agent
in Texas was improper. This assignment of error is therefore
overruled.
Plaintiff next contends that defendant's motion pursuant to
12(b)(6) of the North Carolina Rules of Civil Procedure should not
serve as a basis for dismissal of the case. However, plaintiff has
cited no authority nor any argument in his brief to support this
contention. Accordingly, this argument is deemed abandoned.
See
N.C.R. App. P. 28(b)(5)(2002).
Accordingly, because plaintiff failed to properly serve the
complaint and summons upon defendant, we affirm the ruling of the
trial court.
Affirmed. Judges MARTIN and BRYANT concur.
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