ALTON B. CRAVER, JR.,
Plaintiff,
v
.
Mecklenburg County
No. 01 CVS 21567
CAMPBELL & TAYLOR,
Defendant.
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).
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