An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-53


Filed: 4 March 2003


v .                             Alamance County
                                No. 01-CvS-753
Political Subdivision of the
State of North Carolina,

    Appeal by plaintiff from order entered 6 September 2001 by Judge James C. Spencer, Jr. in Alamance County Superior Court. Heard in the Court of Appeals 9 October 2002.

    Smith, James, Rowlett & Cohen, LLP, by Seth R. Cohen and J. David James, for plaintiff-appellant.

    Faison & Gillespie, by Reginald B. Gillespie, Jr. and Keith D. Burns, for defendant-appellee.

    EAGLES, Chief Judge.

    Plaintiff, Northfield Development Co., Inc., appeals from an order granting defendant's motion to dismiss plaintiff's civil action challenging defendant's denial of its re-zoning request. The facts are uncontroverted.
    On 6 November 2000, plaintiff filed a petition with the Burlington Planning and Zoning Commission seeking to have approximately 45 acres of plaintiff's real property re-zoned to accommodate manufactured homes. Following a public hearing on 6February 2001, the Burlington City Counsel voted to deny plaintiff's request.
    On 6 April 2001, plaintiff initiated this action by applying for and receiving an order extending the time to file a complaint pursuant to N.C.R. Civ. P. 3(a). A summons was issued in accordance with Rule 3 naming the “City of Burlington c/o William R. Baker, City Manager” as the defendant. Both the summons and order were delivered to the Alamance County Sheriff's Department for service.
    On 12 April 2001, an Alamance County Sheriff's Deputy went to the Burlington City Manager's office to serve the summons and order. The City Manager, (“Baker”) was not in the office. The deputy told Shirley Thompson, a part-time city employee who was working as Baker's receptionist, that he was there to serve legal papers on Baker. Thompson told the deputy that Baker was not in the office. Thompson also told the deputy that he could leave the papers with her and she would give them to Baker when he returned. Consequently, the deputy left the summons and order with Thompson and made a notation to this effect on the return of service.
    Plaintiff filed its complaint on 25 April 2001 and the complaint and summons were personally served on the Burlington City Clerk on 4 May 2001. On 24 May 2001, defendant moved pursuant to N.C.R. Civ. P. 6(b) for an enlargement of time within which to answer, to enable “counsel to determine whether any Rule 12 or other defenses are appropriate . . . .” Defendant's motion was granted and the time to answer was extended to 5 July 2001.Defendant timely answered, asserting insufficiency of service of process as it's first affirmative defense.
    Defendant moved to dismiss the action pursuant to N.C.R. Civ. P. 12(b)(5) and 41(b). The trial court granted defendant's motion, finding that “the summons issued when th[e] action was commenced was not served by delivery to the mayor, city manager, or city clerk . . . as required by Rules 3(a) and 4(j)(5)a . . . .” Plaintiff appeals.
    The sole issue presented in this appeal is whether the trial court erred in granting defendant's motion to dismiss for insufficiency of service of process.
    “When a statute prescribes the manner for proper notification, the summons must be issued and served in that manner.” Johnson v. City of Raleigh, 98 N.C. App. 147, 149, 389 S.E.2d 849, 851 (1990), disc. review denied, 327 N.C. 140, 394 S.E.2d 176 (1990). “[T]he manner of service of process” in any action commenced in North Carolina is governed by Rule 4(j) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 4(j) (2001). Rule 4 requires that service of process must be made “[u]pon a city, town, or village by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk . . . .” N.C. Gen. Stat. § 1A-1, Rule 4(j)(5)(a) (2001). “[T]he statute does not provide for substituted personal process on any persons other than those named . . . [therein].” Johnson, 98 N.C. App. at 150, 389 S.E.2d at 851.    In Johnson, the summons and complaint in a personal injury suit against the City were delivered to the mayor's office and left with the mayor's assistant. This Court held that “while delivery of the summons to the mayor's assistant was sufficient to give the City notice of the suit, the delivery of the summons to a person other than the named official was insufficient to give the court personal jurisdiction over the City.” Id. at 150, 389 S.E.2d at 851.
    Here, like Johnson, the summons was directed to the City of Burlington, in care of William R. Baker, City Manager. Moreover, the summons was delivered to the city manager's office and left with Shirley Thompson, Baker's receptionist. Therefore, the service of process was insufficient to give the trial court personal jurisdiction over defendant.
    Nevertheless, plaintiff contends that defendant should be estopped from asserting the insufficiency of service of process as a defense. Relying on Storey v. Hailey, 114 N.C. App. 173, 441 S.E.2d 602 (1994), plaintiff argues that by securing an extension of time to answer, defendant lulled it into a “false sense of security” that prevented plaintiff from noticing the defective service in time to secure either an indorsement or an alias and pluries summons. We disagree.
    In Storey, a North Carolina attorney (“Wellman”) was appointed as the resident process agent for the estate of Bernard M. Hailey. After the plaintiff brought an action to recover from the estate, a deputy sheriff delivered the summons and complaint to Wellman'slaw office, leaving a copy with Wellman's law partner. Wellman later appeared as counsel of record for defendant and secured an extension of time to plead from the trial court. Defendant, through Wellman, subsequently secured two additional extensions by stipulation of counsel. Defendant later obtained new counsel and moved for dismissal of the action due to insufficiency of service of process. The trial court granted defendant's motion and plaintiff appealed. Id. at 175, 441 S.E.2d 603-04.
    This Court held that defendant was estopped from asserting the defense of insufficiency of service of process. The Storey court reasoned:
        By requesting that extension, defendant led plaintiff to believe that further service of process on defendant would be duplicatory and redundant.

            . . . .

            Defendant's conduct in the present case lulled plaintiff into such a 'false sense of security,' and probably prevented plaintiff from discovering her error and effecting valid service within the statutory period.

            We conclude that since the responsibility for plaintiff's failure to effect valid service within the period of [the statute] rests upon defendant, 'the ends of substantial justice' . . . will best be served by estopping defendant from moving to dismiss under that section.

        Similarly, in the case below, plaintiff was deprived of any opportunity to cure any defects in the process or in the service of process, because defendant's counsel led plaintiff's counsel to believe it was unnecessary to continue further process.
Id. at 176-77, 441 S.E.2d at 604-05 (quoting Tresway Aero, Inc. v. Superior Court of Los Angeles County, 5 Cal.3d 431, 441-42, 487 P.2d 1211, 1218-19 (1971))(citation omitted).
    The facts here are distinguishable from those in Storey. Here, the City specifically filed its motion for additional time so counsel could “determine whether any Rule 12 or other defenses [we]re appropriate.” The City then answered and asserted the Rule 12(b)(5) defense of insufficiency of service of process. Unlike defendant in Storey, the City did not engage in any conduct that could reasonably have led plaintiff to believe that service of process was sufficient, depriving plaintiff of the opportunity to cure any defect. On the contrary, the City's motion should have put plaintiff on notice that the City was assessing the viability of any and all possible defenses, particularly those arising under Rule 12. Therefore, plaintiff's reliance on Storey is misplaced.
    We are also unpersuaded by plaintiff's argument that Thompson's apparent authority to accept service of process on behalf of the City provides a basis for estoppel in this case. “'Persons dealing with a municipal corporation are charged with notice of all limitations upon the authority of its officers representing them . . . .' This is because the scope of such authority is a matter of public record.” L&S Leasing, Inc. v. City of Winston-Salem, 122 N.C. App. 619, 622, 471 S.E.2d 118, 121 (1996)(citation omitted).
    Accordingly, the decision of the trial court is affirmed.
    Affirmed.    Judges McCULLOUGH and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***