Crabtree v. City of Durham, COA99-244.

CourtCourt of Appeal of North Carolina (US)
Citation136 NC App. 816,526 S.E.2d 503
Docket NumberNo. COA99-244.,COA99-244.
PartiesBroadus A. CRABTREE, Plaintiff, v. CITY OF DURHAM, Micheal Wayne Ellis and Nationwide Insurance Company, Defendants.
Decision Date07 March 2000

526 S.E.2d 503
136 NC App.

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

No. COA99-244.

Court of Appeals of North Carolina.

March 7, 2000.

526 S.E.2d 504
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

526 S.E.2d 505
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...

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13 cases
  • Sarkissian v. CHICAGO BD. OF EDUC., 88530.
    • United States
    • Supreme Court of Illinois
    • July 3, 2002
    ...entered upon the paper in question." Peterson, 324 Mo. at 458, 23 S.W.2d at 1047. In Crabtree v. City of Durham, 136 N.C.App. 816, 819, 526 S.E.2d 503, 505 (2000), the court held that, "in order to establish valid service of process, the plaintiff is not precluded from offering his own proo......
  • In re N.B., COA 06-814.
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • May 1, 2007
    ...87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967), to civil cases, including termination of parental rights cases. Harrison, 136 N.C.App. at 833, 526 S.E.2d at 503. Anders permits "[a]n attorney for a criminal defendant who believes that his client's appeal is without merit . . . to file what has becom......
  • State v. Velasquez-Cardenas, COA17-422
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • April 17, 2018
    ...that " ‘counsel for a parent appealing from a juvenile court’s severance order has no right to file an Anders brief.’ " Id. at 833, 526 S.E.2d at 503 (quoting Denise H. v. Arizona Dept. of Economic Sec. , 193 Ariz. 257, 259, 972 P.2d 241, 243 (1998) ). Despite holding that there was no righ......
  • Fordham v. Doe, 4:11-CV-32-D
    • United States
    • United States District Courts. 4th Circuit. Eastern District of North Carolina
    • October 20, 2011
    ...service, other than the specific procedure set forth in the statute. See, e.g., Crabtree v. City of Durham, 136 N.C. App. 816, 817, 526 S.E.2d 503, 505 (2000); Johnson v. City of Raleigh, 98 N.C. App. 147, 149, 389 S.E.2d 849, 851 (1990). Here, Fordham mailed a copy of the complaint and sum......
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