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Jurisdiction_motion for additional time to set aside default_not a general appearance
Defendant's motion to continue seeking additional time to file a motion to set aside an
entry of default was not a general appearance that waived service of process and vested the court
with personal jurisdiction. Defendant's motion did not invoke the adjudicatory powers of the
Bollinger & Piemonte, P.C., by George C. Piemonte, for
Caudle & Spears, P.A., by C. Grainger Pierce, Jr. and Eric A. Rogers, for defendant-appellee April N. McNair.
Robert D. McDonnell, for defendant Transit Management of Charlotte, Inc.
MARTIN, Chief Judge.
Plaintiff filed her complaint in this action on 20 September 2001 seeking damages for injuries which she allegedly sustained when she was struck by a vehicle owned and operated by defendant April McNair on 21 September 1998. Plaintiff alleged negligence on the part of defendant McNair, as well as on the part of defendant Transit Management of Charlotte, Inc. Summons were also issued to both defendants on 20 September 2001.
On 1 October 2001, an affidavit of service was filed by plaintiff's counsel attesting to service by certified mail on defendant McNair on 22 September 2001. The affidavit and exhibitthereto showed that the summons was mailed to Defendant McNair at: 412 W. Craighead Road, Apt. B, Charlotte, NC 28206, and that it was received by an individual named Kirt Crews. No answer was filed on behalf of defendant McNair and her default was entered on 25 February 2002. Defendant Transit Management of Charlotte, Inc. filed an answer, asserting plaintiff's contributory negligence as a defense and also seeking contribution and indemnity from defendant McNair. On 7 March 2002, the trial court administrator entered a scheduling order setting the trial of the case for 3 February 2003.
On 15 January 2003, defendant McNair, through counsel, filed a document entitled Motion to Continue in which she recited that she was making a special appearance without waiving any jurisdictional defenses, asserted that she had never been served with process and lived at a different address from that to which the summons had been directed, and sought additional time to file a motion to set aside Entry of Default already in place against her . . . . The trial court administrator entered an order continuing the action until a later trial session.
On 31 January 2003, defendant McNair filed motions to set aside the entry of default and to dismiss the action pursuant to G.S. § 1A-1, Rules 12 (b)(2), (4) and (5) for lack of jurisdiction, insufficiency of process, and insufficiency of service of process. In her motions and an affidavit attached thereto, defendant McNair averred that at the time of the event complained of she had resided at 412 W. Craighead Road, Apt. C, rather than Apt. B, to which the summons and complaint had been mailed; that she was no relation toKirt Crews, the person who resided at Apt. B and had signed the certified mail return receipt, and that Mr. Crews had never informed her of the civil action; and that at the time of the issuance of the summons, she had resided at 4329 Cinderella Road, Apt. 4, Charlotte, N.C. and no attempt had been made to serve her at her correct address.
By order dated 28 February 2003, the entry of default against defendant McNair was set aside. Thereafter, on 20 May 2003, the trial court granted defendant McNair's motion to dismiss. Plaintiff appeals.
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