1. Process and Service_proof of service_throwing papers at feet
There was sufficient proof of service of process where the sheriff's certification of service
indicated the manner in which defendant was served and plaintiff presented affidavits supporting
the deputy's version of how service was made. The court did not abuse its discretion by
rendering a decision based solely on affidavits.
2. Jurisdiction_personal_default judgment
Although plaintiff served defendant with a summons and complaint and obtained an
entry of default upon defendant's failure to appear, plaintiff did not provide a basis upon which
personal jurisdiction could be established and the default judgment was void. N.C.G.S. § 1-
75.11.
Judge TYSON concurring in part and concurring in the result in part.
Horton and Gsteiger, PLLC, by Urs R. Gsteiger and Howard C.
Jones II, for plaintiff.
Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell,
Jr. and Jack M. Strauch, for defendant.
WYNN, Judge.
This appeal arises from the entry of a default judgment
against Defendant Sean Combs awarding Plaintiff Cedrick Bobby Lemon
$450,000 in compensatory damages and $2,000,000 in punitive damages
for personal injuries inflicted by bodyguards allegedly employed,
supervised and managed by Combs. From the trial court's order
upholding the compensatory damage award, Combs appeals; and, from
the setting aside of the punitive damage award, Lemon appeals. We
hold that because Lemon failed to fulfill the requirements of N.C.Gen. Stat. § 1-75.11, we must vacate the trial court's entry of
default judgment.
The pertinent facts indicate that following a concert given by
singer Mary J. Blige on 25 June 1995 at the Lawrence Joel Veterans
Memorial Coliseum in Winston-Salem, North Carolina, two of her
bodyguards beat and severely injured Lemon. Thereafter, Lemon
brought three actions arising from that incident; the third of
which is the subject of this appeal.
(See footnote 1)
In this action, brought in
May 2002, Lemon alleged that Combs was vicariously liable for the
injuries caused by the bodyguards who were allegedly employed,
supervised and managed by Combs.
At the default judgment hearing, Lemon presented evidence
showing that Guilford County Deputy Sheriff C.L. Overcash
personally served Combs with the Alias Summons and a copy of the
Complaint for this action on 21 June 2002 by throwing the copies of
the summons and complaint at Combs' feet and stating “You are
served” after Combs tried to avoid service. Combs, however,
refuted that he was ever served and submitted affidavits of eleven
individuals stating that no one attempted to serve him at the
Coliseum on that date.
After Combs neither appeared, answered, nor otherwise pleaded
to the Complaint, Lemon obtained an entry of default; thereafter on
10 September 2002, Lemon obtained a default judgment awardingdamages in the earlier stated amounts. Upon learning of the
judgment in media reports, Combs moved for relief from the judgment
on 30 October 2002. By order dated 6 February 2003, the trial
court upheld the compensatory damage award but set aside the
punitive damage award to allow Combs the opportunity to contest
Lemon's claim for punitive damages. Both parties appeal.
______________________________________________________
Both parties acknowledge their appeals are interlocutory but
contend that based upon this Court's decision in Clark v. Penland,
146 N.C. App. 288, 552 S.E.2d 243 (2001) a substantial right is
affected. We need not decide whether this appeal affects a
substantial right because we reach the merits of this appeal by
granting the petitions of both parties to allow certiorari review
of the issues on appeal.
The dispositive issue on appeal is whether the default
judgment entered by the trial court should be set aside because
Lemon failed to comply with N.C. Gen. Stat. § 1-75.11. We answer,
yes.
N.C. Gen. Stat. § 1-75.11 (2001) provides:
Where a defendant fails to appear in the
action within apt time the court shall, before
entering a judgment against such defendant,
require proof of service of the summons in the
manner required by G.S. 1-75.10 and, in
addition, shall require further proof as
follows:
(1) Where Personal Jurisdiction Is
Claimed Over the defendant.--
Where a personal claim is made
against the defendant, the court
shall require proof by affidavit or
other evidence, to be made and
filed, of the existence of any fact
shown by verified complaint which is
needed to establish grounds forpersonal jurisdiction over the
defendant. The court may require
such additional proof as the
interests of justice require. . . .
Under this statute, a plaintiff must show proof of proper service
and evidence establishing personal jurisdiction to obtain a default
judgment against a defendant. Combs contends (1) he was not served
with the Complaint in a manner required by N.C. Gen. Stat. § 1-
75.10 and (2) there was insufficient and inadequate proof
establishing personal jurisdiction. We address each contention
separately.
Generally, affidavits must be made on the
affiant's personal knowledge of the facts
alleged in the petition. The affidavit must
in some way show that the affiant is
personally familiar with the facts so that he
could personally testify as a witness. The
personal knowledge of the facts asserted in an
affidavit is not presumed from a mere positive
averment of facts but rather the court should
be shown how the affiant knew or could have
known such facts and if there is no evidence
from which an inference of personal knowledge
can be drawn, then it is presumed that such
does not exist. However, where it appears
that an affidavit is based on the personal
knowledge of the affiant and reasonable
inference is that the affiant could
competently testify to the contents of the
affidavit at trial, there is no requirement
that the affiant specifically attest to those
facts.
In this case, neither the record nor the affidavit shows that Lemonhad personal knowledge of the circumstances surrounding the hiring
of the bodyguards, Tauraen and Odarus Bennett. Accordingly,
Lemon's affidavit does not provide a sufficient basis upon which
personal jurisdiction could be grounded.
Lemon also relies upon Mary J. Blige's interrogatory answers.
Questions 3(c) and (d) regarding her knowledge of Tauraen Russell
Bennett stated:
(c) Describe fully how he was selected for
employment or to perform services related to
Mary J. Blige on June 25, 1995 and the full
extent of your involvement in that selection.
(d) All services that he performed for you
during the tour that included your performance
at the Lawrence Joel Veterans Memorial
Coliseum on June 25, 1995.
In responding to these questions, Blige stated:
(c) Unknown. Tauraen Russell Bennett, was an
independent contractor retained by Steve Lucas
Management and Sean “Puffy” Combs. How he was
selected is unknown to this party.
(d) I am advised that he was assigned by Steve
Lucas Management and Sean “Puffy” Combs to
provide security services.
In Questions 4(c) and (d), Blige was asked the same questions
regarding Odarus Chron Bennett. She responded:
(c) Unknown. Steve Lucas Management and Sean
“Puffy” Combs. See answer to 3.(c).
(d) Unknown. On information and belief,
Odorus Chron Bennett was an independent
contractor retained by Steve Lucas Management
and Sean “Puffy” Combs. How he was selected
is unknown to this party.
After responding to all of the interrogatories, Blige limited her
certification to those facts of which she had personal knowledge.
In her certification, she indicated she did not have personalknowledge of the subject matter in questions 3 and 4. The
pertinent portions of her certification state:
2. I have reviewed the answers to the
interrogatories submitted on my behalf in
this action. I certify as to the facts to
which I have personal knowledge, and
contained therein, I verify them to be
true.
5. The statements set forth in my answers to
questions Number 5, 6, 8 and 13 indicate
my personal knowledge concerning Steve
Lucas, Steve Lucas Management, and the
restrictions on the plaintiff, Cedrick
Bobby Lemon. I cannot do the
investigative work for the plaintiff, to
assist his case in determining the
whereabouts of Steve Lucas.
8. As to the subject matter, my sister,
LaTonya Blige-DaCosta, and my attorney,
Ernest Booker, are more familiar with the
facts demanded by the plaintiff
concerning the other defendants and the
incident, and could [indiscernible] as my
surrogates.
Thus, Blige's certification indicates she did not have personal
knowledge regarding the hiring of Tauraen and Odarus Bennett and
that her sister, LaTonya Blige-DaCosta and her attorney, Ernest
Booker, were the individuals more familiar with the facts of this
case. As Blige limited her certification and verification of her
interrogatory responses to the subject matter of which she had
personal knowledge, the trial court could not rely upon responses
3 and 4 as grounds for personal jurisdiction. See Corda v. Brook
Valley Enterprises, Inc., 63 N.C. App. 653, 657, 306 S.E.2d 173,
176 (1983)(affirming the trial court's exclusion of interrogatory
answers that were not based upon personal knowledge; but rather,
were based upon information and belief).
Moreover, DaCosta, in her affidavit submitted in otherlitigation arising out of this incident, stated:
(1) I am the personal assistant to defendant
Mary J. Blige and held that position in June,
1995.
(2) I have personal knowledge of the facts
herein . . .
(3) The hiring of the two bodyguards, Taurean
Russell Bennett and Odarus Chron Bennett
(bodyguards) was under the control of Steven
Lucas, Mary J. Blige's then agent, or his
company, Steve Lucas Management, Inc.
(4) Steve Lucas was responsible for many of
the details of the day-to-day running of the
Mary J. Blige tour of 1995 up to and including
the hiring and firing of the bodyguards.
(5) Mary J. Blige herself had no personal
knowledge of these bodyguards prior to their
employment by Steve Lucas for the 1995 tour.
She assumed they were professionals who would
use their independent knowledge of their
specialized skills and training in their work.
Thus, Blige's interrogatory answers do not provide sufficient facts
upon which personal jurisdiction could be established.
In sum, although Lemon served Combs with the summons and
complaint and obtained an entry of default upon Combs' failure to
timely answer, pursuant to N.C. Gen. Stat. § 1-75.11, Lemon had to
provide the trial court with sufficient facts upon which the trial
court could establish grounds for personal jurisdiction. See Hill
v. Hill, 11 N.C. App. 1, 180 S.E.2d 424 (1971)(stating “there is a
distinction between obtaining jurisdiction by service of process
and the proof of jurisdiction as required by G.S. 1-75.11 before
entry of a judgment against a non-appearing defendant). Lemon's
unverified complaint, affidavit and Blige's interrogatory responses
do not provide a basis upon which personal jurisdiction may be
established. Indeed, Lemon and Blige lack personal knowledgeregarding the circumstances surrounding the employment of Taurean
and Odarus Bennett.
Therefore, as indicated in Hill v. Hill, 11 N.C. App. at 10,
180 S.E.2d at 430, “for the failure of the record to show, as
required by G.S. 1-75.11, personal jurisdiction of Combs by the
court, the judgment entered herein was void and could be considered
and treated as a nullity.” However, the entry of default is valid.
See Silverman v. Tate, 61 N.C. App. 670, 301 S.E.2d 732
(1983)(indicating that jurisdictional proof is not required for an
entry of default).
As the default judgment was null and void, it is unnecessary
to address Lemon's appeal regarding the propriety of the trial
court's order setting aside the punitive damages award.
Furthermore, we decline to render an advisory opinion regarding how
the parties should proceed below. Indeed, “it is no part of the
function of the courts to issue advisory opinions.” Wise v.
Harrington Grove Community Association, 357 N.C. 396, 408, 584
S.E.2d 731, 740 (2003). As the concurring opinion addresses issues
neither presented to this Court nor argued by the parties, we
decline to advise the parties and the trial court as to what
evidence would satisfy the requirements of N.C. Gen. Stat. § 1-
75.11. See id. (stating “this is not an issue drawn into focus by
these proceedings, and to reach this question would be to render an
unnecessary advisory opinion”). In conclusion, we affirm the entry
of default but vacate the entry of default judgment.
Affirmed in part, Vacated in part.
Judge HUNTER concurs. Judge TYSON concurring in part and concurring in the result in
part.
TYSON, Judge concurring in part and concurring in the result
in part.
I concur in that portion of the majority's opinion which
affirms the entry of default and vacates the entry of default
judgment due to insufficient evidence of personal jurisdiction as
required by N.C. Gen. Stat. § 1-75.11.
I agree with the majority's opinion that proof of service of
summons does not, by itself, satisfy both requirements of N.C. Gen.
Stat. § 1-75.11. Hill v. Hill, 11 N.C. App. 1, 8-9, 180 S.E.2d
424, 429, cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971). I
disagree, however, with dicta in the majority's opinion which
asserts that issues not presented to this Court or argued by the
parties are being addressed. Defendant Combs specifically assigned
error to the trial court's entry of default judgment and argued
plaintiff failed to comply with the requirements of N.C. Gen. Stat.
§ 1-75.11. Therefore, this issue is properly before this Court.
The record before us contains three affidavits which were
before the trial court on defendant's motion to set aside the
default judgment. These affidavits were not before the trial court
when it entered default judgment but provide the required proof of
personal jurisdiction over defendant Combs to satisfy the
requirements of N.C. Gen. Stat. § 1-75.11.
N.C. Gen. Stat. § 1-75.4 (2003) states:
A court of this State . . . has jurisdiction
over a person . . . under any of the following
circumstances:
(1) Local Presence or Status. -- In anyaction, whether the claim arises within or
without this State, in which a claim is
asserted against a party who when service of
process is made upon such party:
a. Is a natural person present within this
State.
(emphasis supplied).
The sworn affidavits of: (1) C.L. Overcash, Deputy Sheriff of
Guilford County, who actually served defendant Combs at the GCC;
(2) J.E. Hinson, Jr., an officer with the Greensboro Police
Department, who was working off-duty at the GCC and physically
present to witness the service on the night defendant Combs was
served; and (3) Erik W. Schneider, Security Supervisor at GCC on
the night of the incident, who escorted defendant Combs to his
dressing room after his performance and witnessed the service, show
defendant Combs was properly served and served while physically
present within the State of North Carolina. If a defendant who is
a “natural person” is served with process while “present within
this State,” the court possesses the jurisdiction to enter a
“judgment against a party personally,” based upon jurisdictional
grounds set forth in N.C. Gen. Stat. § 1-75.4. See N.C. Gen. Stat.
§ 1.75.3 (2003); see also Hill, 11 N.C. App. at 8-9, 180 S.E.2d at
429.
We all agree that proof of service of summons was sufficient
and entry of default was proper. Since, however, the complaint is
unverified and the affidavits before the trial court when it
entered judgment by default against defendant Combs were
insufficient to show personal jurisdiction over defendant, the
default judgment must be vacated.
However, the affidavits of C.L. Overcash, J.E. Hinson, Jr.,and Erik W. Schneider show defendant Combs was properly served
while physically present in Greensboro, North Carolina; provide the
trial court with personal jurisdiction over defendant Combs
pursuant to N.C. Gen. Stat. § 1-75.4; and satisfy the requirements
of N.C. Gen. Stat. § 1-75.11.
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