Crabtree v. City of Durham, COA99-244.
| Court | Court of Appeal of North Carolina (US) |
| Citation | 136 NC App. 816,526 S.E.2d 503 |
| Docket Number | No. COA99-244.,COA99-244. |
| Parties | Broadus A. CRABTREE, Plaintiff, v. CITY OF DURHAM, Micheal Wayne Ellis and Nationwide Insurance Company, Defendants. |
| Decision Date | 07 March 2000 |
526 S.E.2d 503
136 NC App. 816
v.
CITY OF DURHAM, Micheal Wayne Ellis and Nationwide Insurance Company, Defendants
No. COA99-244.
Court of Appeals of North Carolina.
March 7, 2000.
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
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