Crabtree v. City of Durham

• Decision Date: 07 March 2000
• Docket Number: No. COA99-244.,COA99-244.
• Citation: 136 NC App. 816,526 S.E.2d 503
• Parties: Broadus A. CRABTREE, Plaintiff, v. CITY OF DURHAM, Micheal Wayne Ellis and Nationwide Insurance Company, Defendants.
• Court: North Carolina Court of Appeals

526 S.E.2d 503

136 NC App. 816

Broadus A. CRABTREE, Plaintiff, v. CITY OF DURHAM, Micheal Wayne Ellis and Nationwide Insurance Company, Defendants.

No. COA99-244.

Court of Appeals of North Carolina.

March 7, 2000.

Thomas, Ferguson & Charns, LLP, by Jay H. Ferguson, Durham, for the plaintiff-appellant.

Faison & Gillespie, by Reginald B. Gillespie, Jr. and Keith D. Burns, Durham, for the defendant-appellee.

LEWIS, Judge.

Plaintiff appeals from an order granting defendant City of Durham's ("City") motion to dismiss for insufficient service of process and resulting lack of personal jurisdiction. We reverse.

On 9 May 1997, plaintiff filed this negligence action against defendants City, Michael Wayne Ellis and Nationwide, alleging that while driving a truck owned by the City, Ellis backed into plaintiff's truck. Two summonses were issued the same day, addressed to acting "City Manager, Cecil Brown," and "City Clerk, Margaret Bowers," respectively. On 9 May 1997, Deputy J.E. Brooks served the complaint and summonses in the offices of Mr. Brown and Ms. Bowers. The parties dispute, however, who actually was served and whether the personal service was sufficient. On 4 August 1997, plaintiff again attempted to serve Ms. Bowers by certified mail, return receipt requested. The certified mail was properly addressed to Ms. Bowers at City Hall, but the return receipt indicated that upon arrival, the summons and complaint were "unclaimed."

On 18 September 1997, the City filed an answer to the complaint alleging as its first defense insufficient service of process and lack of personal jurisdiction over the City and responded to the allegations of the complaint. On 29 May 1998, the City filed a motion to dismiss the complaint, alleging failure to institute proper service of process and failure to obtain personal jurisdiction over the City. The motion was granted by the trial court. In its order and judgment, the court concluded the summonses and complaint were improperly served and the court lacked personal jurisdiction pursuant to Johnson v. City of Raleigh, 98 N.C.App. 147, 389 S.E.2d 849 (1990). Plaintiff appeals.

The City argues that Deputy Brooks personally served process on Mr. Brown's secretary, Ila Newton, and the Deputy City Clerk, D. Ann Gray, both of whom are improper persons for personal service of process under our statutes and accompanying case law.

Rule 4 of the North Carolina Rules of Civil Procedure provides the methods in which a summons and complaint must be served in order to obtain personal jurisdiction over the defendant. N.C.R. Civ. P. 4. Rule 4(j)(5)(a) applies to cities and provides that the service upon a city is properly effectuated "by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its mayor, city manager or clerk." Rule 4 is strictly enforced to insure that a defendant receives actual notice of a claim against him. Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 94,reh'g denied,343 N.C. 128, 468 S.E.2d 774 (1996). In Johnson v. City of Raleigh, this Court held that Rule 4(j)(5)(a) "does not provide for substituted personal process on any persons other than those named in [Rule 4](j)(5)(a)." 98 N.C.App. at 150,389 S.E.2d at 851.

N.C. Gen.Stat. § 1-75.10(4) provides that notice given by registered mail is effective when actually received. Since the return receipt reveals that the City did not actually receive the registered mail, we will consider whether service by personal delivery in this case was sufficient. As such, we must determine whether either the Acting City Manager, Mr. Brown, or the City Clerk, Ms. Bowers, was properly served through personal delivery.

Under G.S. 1-75.10(1)(a), where a defendant challenges personal service of the summons, proof of service shall be "by the [serving] officer's certificate thereof, showing place, time and manner of service." When this return of service on its face shows legal service by an authorized officer, that return is sufficient, at least prima facie, to show service in fact. Williams v. Burroughs Wellcome Co., 46 N.C.App. 459, 462, 265 S.E.2d 633, 635 (1980). The prima facie evidence established by a valid return of service may be rebutted only by producing affidavits of more than one person showing unequivocally that proper service was not made upon the person stated in the return of service. Grimsley, 342 N.C. at 545, 467 S.E.2d at 94.

In an attempt to rebut plaintiff's prima facie evidence of valid service in this case, the City has produced two affidavits relevant to personal delivery to the acting city manager and two affidavits relevant to personal delivery to the city clerk....