NORTHFIELD DEVELOPMENT CO.,
INC.,
Plaintiff,
v
.
Alamance County
No. 01-CvS-753
THE CITY OF BURLINGTON, a
Political Subdivision of the
State of North Carolina,
Defendant.
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).
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