Snead v. Foxx

• Decision Date: 14 August 1991
• Docket Number: No. 490PA89,490PA89
• Citation: 329 N.C. 669,406 S.E.2d 829
• Parties: Martha Sue SNEAD v. Angelia Marie FOXX and James Edward Payne.
• Court: North Carolina Supreme Court

Page 829

406 S.E.2d 829

329 N.C. 669

Martha Sue SNEAD v. Angelia Marie FOXX and James Edward Payne.

No. 490PA89.

Supreme Court of North Carolina.

Aug. 14, 1991.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 95 N.C.App. 723, 384 S.E.2d 57 (1989), reversing order entered by Mills, J., at the 13 June 1988 Session of Superior Court, Guilford County. Heard in the Supreme Court 17 May 1990.

Rumsey & Oakley by Donald E. Rumsey, Jr., and Joel N. Oakley, Greensboro, for plaintiff-appellant.

Henson, Henson, Bayliss & Sue by A. Robinson Hassell and Perry C. Henson, Greensboro, for defendant-appellee Foxx.

EXUM, Chief Justice.

Defendant Foxx's motion to dismiss was granted by the trial court for plaintiff's failure properly to obtain service of process. The Court of Appeals reversed. That court did not consider whether the action had been discontinued, concluding that this issue had not been properly raised. We reverse the Court of Appeals' decision.

On or about 16 July 1984 plaintiff was injured when the car in which she was a passenger collided with one owned by defendant Payne and driven by defendant Foxx. On 16 June 1987 plaintiff filed complaint against both defendants. Civil summonses were issued against both defendants the same day. Defendant Payne was personally served on 18 June 1987, but the summons issued to defendant Foxx was returned on 17 June 1987. It included the notation that a Mr. Williamson had lived for over one year at the address to which the summons had been directed and that he did not know defendant Foxx.

The summons addressed to defendant Foxx was neither subsequently endorsed nor were alias or pluries summonses issued.

Plaintiff arranged for notice of service to be published for three consecutive weeks in two Greensboro papers, beginning 16 September 1987. The affidavit of service by publication filed by plaintiff's attorney on 12 November 1987 stated, inter alia, that a summons and complaint had been issued against defendant Foxx; that personal service had been unsuccessfully attempted at 2610 Phillips Avenue, Greensboro, 27405, the last known address of defendant Foxx and that still listed by the N.C. Department of Motor Vehicles as her address; that the attorney had inquired fruitlessly as to defendant Foxx's whereabouts; and that plaintiff had therefore attempted service by publication in the locality of the accident and that of defendant Foxx's last known address.

Defendant Foxx filed answer on 1 December 1987, averring inter alia that the affidavit filed by plaintiff's attorney had not complied with N.C.R.Civ.P. Rule 4 and that there had been a discontinuance of the action as to defendant Foxx. Defendant Foxx further pleaded the three-year statute of limitations as a bar to any recovery by plaintiff in this action.

The trial court's order dismissing plaintiff's action against Foxx was based upon the following reasoning:

[I]t appearing to the Court from the pleadings in this case and other documents in the court file and arguments of counsel for the parties and the affidavit of the attorney for plaintiff and the legal principles applicable to this case for service of summons by publication, and it appearing to the court from the affidavit of counsel that the last known address of the defendant Angelia Marie Foxx was 2610 Phillips Avenue, Greensboro, North Carolina 27405, and the Court being of the opinion that the plaintiff did not comply with Rule 4(j), Rules of Civil Procedure, or GS § 1-75.10(2) and failed to mail the defendant Angelia Marie Foxx notice of service of process by publication or of mailing to the defendant a copy of the summons and the complaint and the Court being of the opinion that service of process on the defendant by publication was deficient and that there has been a discontinuance of this action and that the action against the Defendant Angel[i]a Marie Foxx is barred by the three-year statute of limitation.

The order concluded:

[I]t is ... ORDERED, ADJUDGED AND DECREED that the motion of the defendant Angelia Marie Foxx for the entry of an order that there has been a discontinuance of this action shall be and the same is hereby allowed; and it is further ordered that the action against Angelia Marie Foxx is barred by the three-year statute of limitations and the action against Angelia Marie Foxx shall be and the same is hereby dismissed.

A unanimous panel of the Court of Appeals reversed. 95 N.C.App. 723, 384 S.E.2d 57 (1989). That court did not address whether the trial court had erred in holding that plaintiff's action had been discontinued because it concluded this issue had not been raised in the trial court. The appellate court treated the failure of plaintiff's attorney to mail a copy of the notice of service of process by publication to defendant Foxx as the sole basis for the trial court's dismissal of the action against her. The court held that under N.C.R.Civ.P. Rule 4(j1) "there no longer exists an obligation to mail a copy of the 'notice of service of process by publication' to an address where the party sought no longer resides." 95 N.C.App. at 728, 384 S.E.2d at 60.

Rule 4(d) includes the requirement that

When any defendant in a civil action is not served within the time allowed for service, the action may be continued in existence as to such defendant by either of the following methods of extension:

(1) The plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Return of the summons so endorsed shall be in the same manner as the original process. Such endorsement may be secured within 90 days after the issuance of summons or the date of the last prior endorsement, or

(2) The plaintiff may sue out an alias or pluries summons returnable in the same manner as the original process. Such alias or pluries summons may be sued out at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement.

N.C.G.S. § 1A-1, Rule 4(d) (1990).

We disagree with the Court of Appeals' conclusion that the discontinuance issue was not raised in the trial court. The record reflects that defendant Foxx's motion to dismiss stated "there has been a discontinuance of the action as to the defendant Angelia Marie Foxx and the defendant Angelia Marie Foxx pleads the failure of the plaintiff to comply with the provisions of Rule 4, Rules of Civil Procedure." The civil summons filed on 16 June 1987 was not endorsed nor were alias or pluries summonses issued subsequently. The order of the trial court granting defendant Foxx's motion to dismiss specifically concluded "there has been a discontinuance of this action and that the action against defendant Angelia Marie Foxx is barred by the three-year statute of limitation."

In concluding that there had been a "discontinuance of the action," the trial court did not cite pertinent subsections of Rule 4. There is no question, however, that the court was referring to Rule 4(d), which requires endorsement of the original, unserved summons and alias and pluries summonses, and Rule 4(e), which states the consequence of discontinuance for failure to follow Rule 4(d). "Discontinuance" is a term of art whose only application in the context of service of process is to an action that must cease for failure of the party to comply with Rule 4(d). (A new action may be filed, but the date for purposes of the statute of limitations is that of the later filing. See Rule 4(e).) The court's subsequent reference to Rule 4(j1) was clearly a...