An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1416

NORTH CAROLINA COURT OF APPEALS

Filed: 21 October 2003

ALTON B. CRAVER, JR.,

        Plaintiff,

v .                         Mecklenburg County
                            No. 01 CVS 21567
CAMPBELL & TAYLOR,

        Defendant.

    Appeal by plaintiff from judgment entered 26 March 2002 by Judge James E. Lanning in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 August 2003.

    Alton B. Craver, Jr., plaintiff-appellant, pro se.

    Poyner & Spruill L.L.P., by E. Fitzgerald Parnell, III, and Rebecca B. Wofford, for defendant-appellee.

    ELMORE, Judge.

    Alton B. Craver, Jr. (plaintiff) appeals from an order dismissing his legal malpractice action against Campbell & Taylor (defendant) for lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(2), (4), and (5) (2001). For the reasons stated herein, we affirm.
    Defendant, a law firm, represented plaintiff in a personal injury action arising out of a 1990 traffic accident. Plaintiff's claims therein were tried to a jury, which on 20 November 1998 rendered a verdict stating that plaintiff's alleged injuries werenot caused by the other driver's negligence. Plaintiff's subsequent motion for a new trial was denied.
    Almost three years later, on 15 November 2001, plaintiff, acting pro se, filed an application and order extending time to file complaint (application and order) against defendant, pursuant to N.C. Gen. Stat. § 1A-1, Rule 3(a) (2001). Plaintiff stated on the application and order that he intended to commence “a negligence action against defendants [sic] who represented plaintiff in a civil trial . . . involving a [sic] auto accident. The negligence being that what atty. [sic] Mr. Taylor presented and did not present to the jury about said accident left the jury with a total misrepresentation of said accident and no way but to find that the accident did not cause injury to plaintiff.” Also on 15 November 2001, a Mecklenburg County assistant clerk of superior court issued a civil summons to be served with order extending time to file complaint. On 4 December 2001, the application and order and the civil summons to be served with order extending time to file complaint were served on defendant when copies were delivered to defendant's office by a Mecklenburg County Sheriff's Deputy and left with Jason E. Taylor (Taylor), a partner in the defendant law firm.
    On 4 December 2001, plaintiff filed a complaint which purported to assert a negligence claim against defendant, apparently on the grounds that defendant “did not present the case as strongly as the facts would justify” by failing to call certain witnesses at trial. That same day, the clerk's office issued adelayed service of complaint. The record evidence indicates the delayed service of complaint was not filed until almost four months later, on 25 March 2002, and the return of service indicates that personal service of the complaint was attempted on 22 March 2002 by leaving a copy at defendant's office with “Carrie Henderson, Administrative Assistant.”   (See footnote 1) 
    On 7 February 2002, defendant filed motions to dismiss plaintiff's 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 N.C. Gen. Stat. § 1A-1, Rule 12(b)(2), (4), (5), and (6) (2001). At the hearing on defendant's motions to dismiss, plaintiff argued that he attempted to serve defendant with the complaint and an amended complaint via a registered mailing sent to defendant's office on 11 December 2001, which he asserts was signed for by “Carrie Henderson” on 12 December 2001. In support of this contention plaintiff submitted his affidavit of service, filed 13 February 2002, in which plaintiff stated that he mailed, via registered or certified mail, a copy of the complaint to defendant, and “[f]urther, that copies of the Summons and Complaint were in fact received by the Defendant on 12/12/01 as evidenced by the attached genuine receipt.” A copy of a registered mail return receipt for an article addressed to “Clair G. Campbell, Agent,Campbell & Taylor, 717 E[.] Blvd[.], Charlotte[,] NC,” signed by “Carrie Henderson” and indicating a “12/12/01” date of delivery, was attached to plaintiff's affidavit. Plaintiff's affidavit averred that it was signed by plaintiff “in the presence of a Notary Public” and contained a purported notary public's signature. Significantly, however, there was no notary public's seal stamped or otherwise affixed to plaintiff's affidavit of service.
    In support of its motions to dismiss for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process, defendant submitted the affidavits of Taylor and Clair G. Campbell (Campbell), defendant's named partners. Campbell averred in her affidavit as follows:
    . . . .
        3. I have not signed for or received any registered or certified mail, addressed to me or my law firm, which contained any pleadings in this action Mr. Craver has filed against Campbell & Taylor. Upon information and belief, no one in my office has signed for or received any registered or certified mail, addressed to me or my law firm, which contain any pleadings in this action Mr. Craver has filed against Campbell & Taylor.

    . . . .

Using almost identical language, Taylor's affidavit likewise averred that he had not received any registered or certified mail containing any pleadings in this action, nor was he aware of anyone in the office signing for or receiving such a mailing. Each affidavit was signed by a notary public and stamped with the notary's official seal.
    At the hearing's conclusion, the trial court granted defendant's motions to dismiss the action. An order of dismissaland judgment was subsequently entered, in which the trial court made the following pertinent conclusions of law:
    . . . .
        1. There is no evidence before the Court to support plaintiff's claims that service of process was properly obtained over defendant[; therefore,] this action should be dismissed pursuant to Rules 12(b)(4) and (5) for insufficiency of process and insufficiency of service of process;

        2. Plaintiff failed to obtain personal jurisdiction over defendant in accordance with the Rules of Civil Procedure and this action should be dismissed pursuant to Rules [sic] 12(b)(2) for lack of personal jurisdiction over defendant;

    . . . .

The order further provided as follows:

    . . . .

        IN THE ALTERNATIVE, the Court holds that plaintiff's complaint and amended complaint fail to state any claim upon which relief can be granted against defendant and therefore this action should be dismissed pursuant to Rule 12(b)(6).

        IN THE ALTERNATIVE, the Court[,] having considered matters outside the pleadings, which were presented by both parties . . . at the hearing on defendant's motion to dismiss pursuant to Rule 12(b)(6); and the Court having not excluded these matters; the Court, in the alternative, treats defendant's motion to dismiss as one for summary judgment under Rule 56; the Court finds that there is no genuine issue of any material fact. . . . Accordingly, defendant is entitled to judgment in its favor pursuant to Rule 56.

    . . . .

Plaintiff appeals from this order, assigning error to (1) the trial court's dismissal of the action for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process; (2) the trial court's dismissal of the action, in the alternative,for failure to state a claim upon which relief may be granted; and (3) the trial court's grant of summary judgment, in the alternative, for defendant.
    In the instant case, plaintiff commenced his action against defendant pursuant to Rule 3 of the North Carolina Rules of Civil Procedure, which provides that a plaintiff may commence a civil action by “mak[ing] application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days. . . .” N.C. Gen. Stat. § 1A-1, Rule 3(a)(1) (2001). However, in order for an action commenced in this manner to continue, Rule 3 further requires that “[t]he summons and the court's order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects.” N.C. Gen. Stat. § 1A-1, Rule 3(a)(2) (2001) (emphasis added).
    We agree with the trial court's conclusion that plaintiff never properly served upon defendant a copy of the complaint or amended complaint. While plaintiff properly served the application and order and the civil summons to be served with order extending time to file complaint by having these documents delivered to defendant's office and left with Taylor, the record evidence fails to show that service of the complaint or amended complaint was ever effected upon defendant. The delayed service of complaint's return of service indicates that personal service of the complaint was attempted only on 22 March 2002, three days after the hearing ondefendant's motions to dismiss, by leaving a copy at defendant's office with a person who was not authorized to accept service of process for defendant.
    While plaintiff asserts he served the complaint and amended complaint earlier, via registered mail received at defendant's office on 12 December 2001, defendant properly challenged the validity of service of process in this manner by filing and noticing its motions to dismiss. At the hearing on defendant's motions to dismiss, plaintiff, as required by N.C. Gen. Stat. § 1- 75.10(4) (2001), submitted an affidavit averring that a copy of the summons and complaint was mailed via registered or certified mail and was received by the addressee, as evidenced by an attached genuine return receipt signed by “Carrie Henderson.” However, plaintiff's affidavit was not effective to prove service of process because, while signed by a person who purported to be a notary public, it lacked a notary stamp or seal. See N.C. Gen. Stat. § 10A-9(b)(3) (2001) (a notarial act shall be attested by “[t]he clear and legible appearance of the notary's stamp or seal”); see also Skinner v. Skinner, 28 N.C. App. 412, 414, 222 S.E.2d 258, 261, disc. review denied, 289 N.C. 726, 224 S.E.2d 674 (1976) (“The certificate to the verification signed by the notary public and attested by her seal certifies that the verification was '[s]worn to and subscribed' before her. . . .”) (emphasis added). Plaintiff offered no other proof of service at the hearing to counter the affidavits of Taylor and Campbell, wherein each denied signing for or receiving, or having knowledge of anyone in defendant's officesigning for or receiving, any registered or certified mail containing pleadings in plaintiff's action against defendant.
    Because we hold that the trial court did not err in dismissing plaintiff's action for lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process, we need not address plaintiff's remaining assignments of error. However, we note that we have reviewed plaintiff's remaining assignments of error and find them to be without merit.
    Affirmed.
    Judges TIMMONS-GOODSON and HUNTER concur.
    Report per Rule 30(e).


Footnote: 1
    The hearing on defendant's motions to dismiss was held before either of these dates, on 19 March 2002, and the order and judgment dismissing plaintiff's claim was signed on 19 March 2002 and filed on 26 March 2002.

*** Converted from WordPerfect ***