NO. COA13-224-2

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

FRANKIE DELANO WASHINGTON and 

FRANKIE DELANO WASHINGTON, JR.,

Plaintiffs,

v. Durham County

No. 11-CVS-5051

TRACEY CLINE, ANTHONY SMITH, 

WILLIAM BELL, JOHN PETER, ANDRE T. 

CALDWELL, MOSES IRVING, ANTHONY 

MARSH, EDWARD SARVIS, BEVERLY 

COUNCIL, STEVEN CHALMERS, PATRICK 

BAKER, THE CITY OF DURHAM, NC, and 

THE STATE OF NORTH CAROLINA,

Defendants.

Appeals by plaintiffs and defendant Patrick Baker from 

orders entered 6 November 2012 by Judge W. Osmond Smith, III in 

Durham County Superior Court. Originally heard in the Court of 

Appeals 28 August 2013. Petition for Rehearing allowed 6 

January 2014.

Ekstrand & Ekstrand LLP, by Robert C. Ekstrand, for 

plaintiffs-appellants.

Wilson & Ratledge, PLLC, by Reginald B. Gillespie, Jr., and 

Office of the City Attorney, by Kimberly M. Rehberg, for 

defendant-appellant Patrick Baker and defendants-appellees 

the City of Durham, North Carolina, Edward Sarvis, Beverly 

Council, and Steven Chalmers. 

Kennon Craver, PLLC, by Joel M. Craig and Henry W. 

Sappenfield, for defendants-appellees Anthony Smith, 
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William “Doug” Bell, John Peter, Moses Irving, and Anthony 

Marsh. 

HUNTER, Robert C., Judge.

Frankie Washington (“Washington”) and Frankie Washington, 

Jr. (“Washington, Jr.”) (collectively “plaintiffs”) and 

defendant Patrick Baker (“Baker”) appeal from interlocutory 

orders entered by Judge W. Osmond Smith, III on 6 November 2012 

in Durham County Superior Court. Plaintiffs appeal from orders 

granting nine of twelve defendants’1 motion to dismiss for 

insufficient service of process and denying plaintiffs’ motion 

to amend the summons against defendant City of Durham (“the 

City”). Baker appeals from orders denying his motion to dismiss 

for insufficient service of process and denying his motion to 

dismiss the action for failure of the summonses to contain the 

“title of the cause” as is required by North Carolina Rule of 

Civil Procedure 4(b). 

 

1 Baker is the only defendant-appellant. Andre T. Caldwell,

although named in the complaint, is not listed in the briefs as 

an appellee, and does not appear to have been a party to the 

suit at the time the trial court entered its orders. Therefore, 

the nine defendants whose motion to dismiss was granted, and 

thus the nine appellees to plaintiffs’ appeal, are Steven 

Chalmers (“Chalmers”), Beverly Council (“Council”), Anthony 

Smith (“Smith”), William Bell (“Bell”), John Peter (“Peter”), 

Moses Irving (“Irving”), Anthony Marsh (“Marsh”), Edward Sarvis

(“Sarvis”), and the City of Durham (“the City”) (collectively 

“defendants-appellees,” or, when including Baker, “defendants”). 
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On appeal, plaintiffs assert that: (1) the trial court 

erred by granting defendants-appellees’ motion to dismiss for 

insufficient service of process because plaintiffs properly 

served those defendants via designated delivery service and 

defendants are estopped from asserting such defense, and (2) the 

trial court erred by denying plaintiffs’ motion to amend the 

summons for the City because such amendment would not prejudice 

the City. Baker argues that: (1) the trial court erred by

denying his motion to dismiss for insufficient service of 

process because plaintiffs failed to meet the statutory 

requirements for designated delivery service, and (2) the trial 

court erred by failing to dismiss the action because the 

summonses did not contain the “title of the cause” as is 

required by statute. 

On 5 November 2013, this Court filed an opinion affirming 

the trial court’s orders granting the City’s motion to dismiss 

for insufficient service of process, denying Baker’s motion to 

dismiss for insufficient service of process, denying plaintiffs’ 

motion to amend the summons, and denying Baker’s motion to 

dismiss for failure of the summonses to contain the “title of 

the cause.” However, we reversed the trial court’s order 

granting all other defendants-appellees’ motion to dismiss for 
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insufficient service of process. Upon reexamination, we 

maintain this disposition, but we modify the originally filed 

opinion. This opinion supersedes the previous opinion filed 5 

November 2013. 

Background

Plaintiffs’ claims against defendants arise out of the 

arrest, prosecution, conviction, and ultimate release of 

Washington that took place over a six-year period between 30 May 

2002 and 22 September 2008. After a four-year, nine-month delay 

between arrest and trial, Washington was convicted of firstdegree burglary, two counts of second-degree kidnapping, robbery 

with a dangerous weapon, attempted robbery with a dangerous 

weapon, assault and battery, and attempted first-degree sex 

offense. This Court vacated his convictions due to delays 

attributed to the State in violation of Washington’s right to a 

speedy trial under the Sixth Amendment of the United States 

Constitution and Article I, Section 18 of the North Carolina 

Constitution. See State v. Washington, 192 N.C. App. 277, 665 

S.E.2d 799 (2008). On 21 September 2011, Washington and 

Washington, Jr. filed a complaint and obtained civil summonses 

against defendants for, inter alia, violations of federal and 

state constitutional provisions, malicious prosecution, 
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negligence, negligent and intentional infliction of emotional 

distress, conspiracy, and supervisory liability. 

Plaintiffs attempted to serve process on defendants using 

FedEx, a designated delivery service. All defendants except 

Council were served between 23 and 27 September 2011; Council 

was served on 25 October 2011. 

The packages containing summonses and copies of the 

complaint sent to the City and Baker contained the following 

directory paragraphs, respectively:

City of Durham

c/o Patrick Baker

101 City Hall Plaza

Durham NC 27701

Patrick Baker City Manager

City of Durham

101 City Hall Plaza

Durham NC 27701

At the time of service, Baker was the City Attorney, not the 

City Manager. Both packages were received by April Lally 

(“Lally”), a receptionist and administrative assistant in the 

City Attorney’s Office; Lally signed for the packages and later 

handed them to Baker. Baker later filed an affidavit with the 

trial court in which he admitted to receiving the summons and 

complaint against him. 
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Plaintiffs attempted to serve Chalmers at his home, but 

left the package containing the summons and complaint with 

Chalmers’ visiting twelve-year-old grandson who was playing in 

the front yard. Chalmers’ grandson went inside and gave 

Chalmers the package; Chalmers later filed an affidavit with the 

trial court admitting that he received the summons and complaint 

against him. 

Plaintiff attempted to serve Council by delivering the 

package via FedEx to her home, but no one was there at the time 

of delivery. The driver left the package on the door step to 

the side door; Council later filed an affidavit with the trial 

court admitting that she received the summons and complaint 

against her later that evening when she returned home. 

Plaintiff attempted to serve Bell, Irving, Marsh, Peter, 

Sarvis, and Smith by having a FedEx driver deliver their 

summonses and copies of the complaint to the City Police 

Department’s loading dock. Bell and Irving were former 

employees of the City’s Police Department at the time of 

delivery; Marsh, Peter, Sarvis, and Smith were then-current

employees. The driver left the package with Brenda T. Burrell 

(“Burrell”), an employee for the City’s Police Department who is 

responsible for “receiving materials and supplies delivered to 
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the Police Department for use in its operations.” Each of these 

defendants filed an affidavit with the trial court admitting 

that he received the summons and complaint against him. 

Plaintiffs filed with the trial court affidavits of service 

and receipts generated by the designated delivery service for 

each defendant. They also re-filed the defendants’ affidavits 

in which they admitted to receiving the summonses and copies of 

the complaint against them as evidence of effective service of 

process. 

On 11 January 2012, Cline and the State of North Carolina 

filed motions to dismiss for insufficient service of process, 

among other claims not relevant to this appeal. On 23 March 

2012, all remaining defendants also filed a motion to dismiss 

for insufficient service of process. That same day plaintiffs 

filed a motion to amend the summons issued to the City to 

replace Baker with the then-current City Manager. On 6 November 

2012 Judge Smith entered orders: (1) denying plaintiffs’ motion 

to amend the summons; (2) denying motions to dismiss for 

insufficient service of process as to Baker, Cline, and the 

State of North Carolina2; and (3) granting motions to dismiss for 

insufficient service of process as to defendants-appellees. On 

 

2 Only Baker appeals from this order. 
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15 November 2012, plaintiffs filed a timely notice of appeal. 

On 27 November 2012, Baker also filed timely notice of appeal. 

Grounds for Appellate Review

The orders from which plaintiffs and Baker appeal are 

interlocutory. “Generally, there is no right of immediate 

appeal from interlocutory orders and judgments.” Goldston v. 

Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). 

However, the Court does allow immediate appeal of interlocutory 

orders in some circumstances.

[I]mmediate appeal of interlocutory orders 

and judgments is available in at least two 

instances. First, immediate review is 

available when the trial court enters a 

final judgment as to one or more, but fewer 

than all, claims or parties and certifies 

there is no just reason for delay . . . .

Second, immediate appeal is available from 

an interlocutory order or judgment which 

affects a substantial right.

Sharpe v. Worland, 351 N.C. 159, 161-62, 522 S.E.2d 577, 579 

(1999) (quotation marks omitted); see also N.C. Gen. Stat. § 1-

277(a) (2013) (“An appeal may be taken from every judicial order 

. . . which in effect determines the action, and prevents a 

judgment from which an appeal might be taken; or discontinues 

the action.”). 

Here, plaintiffs appeal from an order dismissing 

defendants-appellees, who comprise more than one but not all 
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parties. This order is in effect a final judgment as to those 

defendants-appellees, and the trial court certified in the order 

dismissing them that there was no just reason for delay in 

appeal pursuant to Rule 54(b) of the North Carolina Rules of 

Civil Procedure. As such, plaintiffs appeal of the trial 

court’s order granting defendants-appellees’ motion to dismiss 

is properly before this Court. See DKH Corp. v. RankinPatterson Oil Co., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998)

(“[I]f the trial court enters a final judgment as to a party or 

a claim and certifies there is no just reason for delay, the 

judgment is immediately appealable.”). 

Although Baker admits that his appeal does not stem from a 

final judgment or an order affecting a substantial right, he 

argues that the Court should hear his appeal in order to prevent 

“fragmentary appeals.” The circumstances here are comparable to 

those in RPR & Assocs., Inc. v. State, 139 N.C. App. 525, 530-

31, 534 S.E.2d 247, 251-52 (2000), in which this Court chose to 

hear an appeal from the trial court’s denial of a motion to 

dismiss for insufficient service of process that was not itself 

immediately appealable, but was related to an issue properly 

before the Court. The Court reasoned that “to address but one 

interlocutory or related issue would create fragmentary 
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appeals.” Id. at 531, 534 S.E.2d at 252. Here, Baker’s appeal 

involves the application of the same rules to the same facts and 

circumstances as plaintiffs’ appeal, which we choose to allow. 

Therefore, in order to prevent fragmentary appeals, we find that 

Baker’s appeal is also proper at this time.

Additionally, we find the appeals from the trial court’s 

orders denying plaintiffs’ motion to amend the summons against 

the City and denying defendants’ motion to dismiss for failure 

of the summons to “contain the title of the cause” are also 

properly before the Court pursuant to N.C. Gen. Stat. § 1-278, 

which provides that “[u]pon an appeal from a judgment, the court 

may review any intermediate order involving the merits and 

necessarily affecting the judgment.” Here, plaintiffs properly 

appeal from a final judgment, and the above orders involve the 

merits and necessarily affect that judgment. Therefore, 

appellate review is appropriate at this stage of litigation. 

Discussion

I. Sufficiency of Service of Process

Plaintiffs first argue that the trial court erred by 

granting defendants-appellees’ motion to dismiss for 

insufficient service of process. Baker argues that the trial 

court erred by denying his motion to dismiss for insufficient 
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service of process. After careful review, we reverse the trial 

court’s order dismissing all defendants-appellees except the 

City and affirm the trial court’s order denying Baker’s motion 

to dismiss. 

A. Estoppel

At the outset, plaintiffs cite Storey v. Hailey, 114 N.C. 

App. 173, 441 S.E.2d 602 (1994), in support of their argument 

that defendants are estopped from asserting the defense of 

insufficient service of process. In Storey, this Court ruled 

that the defendants were estopped from asserting insufficient 

service of process as a defense where they asked for and 

received extensions of time without alerting the plaintiff to 

any possible defects in service, and plaintiffs ran out of time 

to effect valid service due to the extensions. The Court 

reasoned that by doing so, the defendants in effect “lulled 

[the] plaintiff into a ‘false sense of security’ and probably 

prevented [the] plaintiff from discovering her error and 

effecting valid service within the statutory period.” Storey, 

114 N.C. App. at 176, 441 S.E.2d at 604. Here, although 

defendants did receive extensions of time from the trial court, 

they explicitly stated that the reason for the extensions was to 

“determine whether any Rule 12 or other defenses [were]
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appropriate.” Defendants-appellees’ and Baker’s motion to 

dismiss for insufficient service of process were entered 

pursuant to Rule 12(b)(5). Therefore, plaintiffs had notice 

that such motions could be filed. Furthermore, defendantsappellees in fact served plaintiffs with their answer containing 

the defenses on 16 December 2012, four days before the last day 

in which plaintiffs could have obtained extensions of the 

summonses. It is evident that plaintiffs had actual notice of 

the defenses, because they served their reply to the answer on

20 December 2011, the same day that the summonses expired. 

Therefore, because defendants were not responsible for 

plaintiffs’ failure to extend the life of the summonses, we find 

that Storey is inapposite and defendants are not estopped from 

asserting the defense of insufficient service of process. 

B. Natural persons

Defendants-appellees and Baker moved to dismiss this action 

under Rule 12(b)(5) for insufficient service of process. “We 

review de novo questions of law implicated by denial of a motion 

to dismiss for insufficiency of service of process.” New 

Hanover Cnty. Child Support Enforcement ex rel. Beatty v. 

Greenfield, __ N.C. App. __, __, 723 S.E.2d 790, 792 (2012).
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Rule 4(j)(1)d of the North Carolina Rules of Civil 

Procedure sets forth the requirements for service of process on 

natural persons via designated delivery service, the method 

utilized by plaintiffs here:

d. By depositing with a designated delivery 

service . . . a copy of the summons and 

complaint, addressed to the party to be 

served, delivering to the addressee, and 

obtaining a delivery receipt. 

N.C. Gen. Stat. § 1A-1, Rule 4(j)(1)d (2013). Where defendants 

appear in an action and challenge the service of the summons (as 

all defendants did here), service by designated delivery service 

may be proved in the following manner:

(5) Service by Designated Delivery Service.

- In the case of service by designated 

delivery service, by affidavit of the 

serving party averring all of the following:

a. That a copy of the summons and 

complaint was deposited with a 

designated delivery service as 

authorized under G.S. 1A-1, Rule 4, 

delivery receipt requested.

b. That it was in fact received as 

evidenced by the attached delivery 

receipt or other evidence satisfactory 

to the court of delivery to the 

addressee.

c. That the delivery receipt or other 

evidence of delivery is attached.

N.C. Gen. Stat. § 1-75.10(a)(5) (2013). 
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At issue in this case is the interpretation of the phrase 

“delivering to the addressee” in Rule 4(j)(1)d and section 1-

75.10(5). Defendants summarize their argument as follows: 

“because FedEx did not deliver the process to the addressee or 

an agent of the addressee, the requirement of Rule 4(j)(1)d of 

‘delivering to the addressee’ was not met, and therefore service 

was insufficient.” In support of this contention, they further 

argue that “[e]stablished case law of the Supreme Court and this 

Court holds that Rule 4’s requirements for service of process 

are to be strictly enforced.” We agree that Rule 4 is “to be 

strictly enforced to insure that a defendant will receive actual 

notice of a claim against him.” Hamilton v. Johnson, __ N.C. 

App. __, __, 747 S.E.2d 158, 162 (2013) (emphasis added) 

(quoting Grimsley v. Nelson, 342 N.C. 542, 545, 467 S.E.2d 92, 

94 (1996)). However, the greater weight of precedent supports a

liberal approach to interpreting the language of the rules. 

Both of our appellate courts have explicitly recognized 

liberality as the canon of construction when interpreting the 

North Carolina Rules of Civil Procedure. See Excel Staffing 

Serv., Inc. v. HP Reidsville, Inc., 172 N.C. App. 281, 285, 616 

S.E.2d 349, 352 (2005) (“It is true that our Supreme Court 

instructed that when construing the Rules of Civil Procedure . . 
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. that ‘[l]iberality is the canon of construction.’”) (quoting 

Lemons v. Old Hickory Council, Boy Scouts of America, Inc., 322 

N.C. 271, 275, 367 S.E.2d 655, 657 (1988)). The Lemons Court 

explained that:

The Rules of Civil Procedure were adopted by 

the General Assembly at the urging of the 

North Carolina Bar Association “to eliminate 

the sporting element from litigation.” The 

philosophy underlying these rules was that:

Technicalities and form are to be 

disregarded in favor of the merits of 

the case. One of the purposes of the 

rules was to take the sporting element 

out of litigation. No single rule is to 

be given disproportionate emphasis over 

another rule which also has 

application. Rather, the rules are to 

be applied as a harmonious whole. The 

rules are designed to eliminate legal 

sparring and fencing and surprise moves 

of litigants. The aim is to achieve 

simplicity, speed and financial economy 

in litigation. Liberality is the canon 

of construction.

Lemons, 322 N.C. at 274-75, 367 S.E.2d at 657 (emphasis added) 

(citation omitted). 

Furthermore, the General Assembly itself added commentary 

to Rule 4 indicating that it is “complementary” to the 

jurisdiction statutes in N.C. Gen. Stat. § 1-75.1 et. seq. which 

were “proposed for consideration contemporaneously with [the 

North Carolina Rules of Civil Procedure].” See N.C. Gen. Stat. 
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§ 1A-1, Rule 4 official commentary (2013). Section 1-75.1 

states that the jurisdiction statutes, including section 1-

75.10, “shall be liberally construed to the end that actions be 

speedily and finally determined on their merits. The rule that 

statutes in derogation of the common law must be strictly 

construed does not apply to this Article.” N.C. Gen. Stat. § 1-

75.1 (2013) (emphasis added). The canon of liberality noted by 

both this Court and the Supreme Court and the General Assembly’s 

explicit intent to have actions “speedily and finally determined 

on their merits” underlie the general recognition in this state 

that:

A suit at law is not a children’s game, but 

a serious effort on the part of adult human 

beings to administer justice; and the 

purpose of process is to bring parties into 

court. If it names them in such terms that 

every intelligent person understands who is 

meant, . . . it has fulfilled its purpose; 

and courts should not put themselves in the 

position of failing to recognize what is 

apparent to everyone else.

Wiles v. Welparnel Const. Co., Inc., 295 N.C. 81, 84-85, 243 

S.E.2d 756, 758 (1978) (quoting United State v. A.H. Fischer 

Lumber Co., 162 F.2d 872, 873 (4th Cir. 1947)). 

Turning to the facts of this case, we believe that 

Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 493, 586 

S.E.2d 791, 797 (2003), is helpful to our analysis. In 
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Granville Medical Center, the plaintiff served the defendant via 

certified mail under Rule 4(j)(1)c of the North Carolina Rules 

of Civil procedure and won default judgment when the defendant 

failed to answer the complaint. Id. at 485-86, 586 S.E.2d at 

793. To prove service under section 1-75.10(4), the plaintiff 

presented the trial court with an affidavit attesting that the 

summons and complaint were delivered to the defendant and a 

signature was obtained on the registry receipt. Id. at 490-91, 

586 S.E.2d at 796-97. The defendant attempted to rebut the 

presumption of proper service by averring that the individual 

who signed for the summons and complaint was not connected to 

the defendant in any way. Id. at 493, 586 S.E.2d at 798. 

In addressing section 1-75.10(4) and Rule 4(j)(1)c, the 

Granville Medical Center Court held that “a defendant who seeks 

to rebut the presumption of regular service generally must 

present evidence that service of process failed to accomplish 

its goal of providing defendant with notice of the suit, rather 

than simply questioning the identity, role, or authority of the 

person who signed for delivery of the summons.” Granville Med. 

Ctr., 160 N.C. App. at 493, 586 S.E.2d at 797 (2003) (citing In 

re Williams, 149 N.C. App. 951, 959, 563 S.E.2d 202, 206 (2002)

(where the defendant “did not rebut this presumption by showing 
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he never received the summons and complaint” the Court held that

“defendant was sufficiently served with process”); Poole v. 

Hanover Brook, Inc., 34 N.C. App. 550, 555, 239 S.E.2d 479, 482 

(1977) (a defendant who “did not attempt to rebut this 

presumption by showing that he did not receive copies of the 

summons and complaint” held to have “failed to show that service 

of process was insufficient because a delivery was not made to a 

proper person”)). Thus, the Granville Medical Center Court held 

that:

In the present case, defendant's affidavit 

essentially states that (1) he did not 

personally sign the registry receipt 

indicating delivery of the summons, (2) the 

receipt was signed by “S” or “F” Hedgepeth, 

and (3) defendant had never employed a 

person named Hedgepeth “as an agent, 

officer, employee, or principal[.]” On this 

basis, defendant asserts his affidavit 

proves the person signing for receipt of the 

summons “was not in any way connected with 

the defendant.” However, as the trial court 

observed, the fact that Hedgepeth was not 

defendant's agent or principal does not 

necessarily mean he had no connection to 

defendant. Further, as discussed above, the 

crucial issue is not whether the individual 

signing for the summons was formally 

employed by defendant as his agent, but 

whether or not defendant in fact received 

the summons. Conspicuously absent from 

defendant's affidavit is any allegation that 

he did not receive the summons, or did not 

receive notice of the suit.

We conclude that it was not error for the 
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trial court to conclude that defendant was 

properly served with the summons. This 

assignment of error is overruled. 

Granville Med. Ctr., 160 N.C. App. at 493-94, 586 S.E.2d at 798 

(emphasis added). 

Although the holding of Granville Medical Center is

distinguishable because it analyzed whether the defendant could 

rebut a presumption of service, we find its reasoning as to the 

interplay between Rule 4 and section 1-75.10 persuasive. The 

rules analyzed by the Granville Medical Center Court are 

materially similar to those at issue in this case. Rule 

4(j)(1)c, like Rule 4(j)(1)d, requires “deliver[y] to the 

addressee” to effectuate valid service; section 1-75.10(4), like 

section 1-75.10(5), allows proof of delivery to the addressee 

with “other evidence” sufficient to establish that the summons 

and complaint were “in fact received.” The Granville Medical 

Center Court held that whether the defendant in fact received 

the summons and complaint is the “crucial issue” to rebut a 

presumption of “deliver[y] to the addressee” under Rule 4(j)(1)c 

and section 1-75.10(4). Thus, given the nearly identical 

language of these rules, it follows that where defendants 

challenge “deliver[y] to the address” under Rule 4(j)(1)d and 

section 1-75.10(5), the “crucial issue” is whether the summons 
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and complaint were in fact received by the defendants 

challenging service. 

Furthermore, principles of statutory construction lead us 

to conclude that defendants’ argument that Rule 4(j)(1)d 

requires direct service exclusively on a defendant or his 

service agent is without merit. “The best indicia of 

[legislative] intent are the language of the statute . . . the 

spirit of the act and what the act seeks to accomplish.” 

Concrete Co. v. Bd. of Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 

379, 385 (1980). The General Assembly’s stated objective in 

passing the jurisdiction statutes in sections 1-75.1 et. seq.

was to have actions “speedily and finally determined on their 

merits.” N.C. Gen. Stat. § 1-75.1. To achieve this end, the 

General Assembly drafted section 1-75.10 with plain language 

allowing a plaintiff to prove service under Rule 4(j)(1)d with 

either a return receipt or “other evidence” that copies of the 

summons and complaint were “in fact received” by the addressee, 

not evidence that the delivery service employee personally 

served the individual addressee or his service agent. N.C. Gen. 

Stat. § 1-75.10(a)(5)(b). Further, when construing a statute, 

“the entire sentence, section, or statute must be taken into 

consideration, and every word must be given its proper effect 
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and weight.” Nance v. S. Ry. Co., 149 N.C. 366, 271, 63 S.E. 

116, 118 (1908). Defendants’ interpretation would provide 

almost no weight to the phrase “in fact received” in section 1-

75.10. Viewed under the doctrine of expressio unius est 

exclusio alterius, which means the expression of one thing is 

the exclusion of another, the fact that the legislature declined

to include a personal delivery requirement in Rule 4(j)(1)d when 

it did so in other subsections throughout the statute indicates 

its intention to exclude it. See N.C. Gen. Stat. § 1A-1, Rule 

4(j)(5)a (2013) (prescribing “personal service” on a city, town, 

or village as an effective method of service); Haywood v. 

Haywood, 106 N.C. App. 91, 99-100, 415 S.E.2d 565, 570 (1992) 

rev'd in part, 333 N.C. 342, 425 S.E.2d 696 (1993). 

Here, by presenting the trial court with affidavits from 

defendants-appellees and Baker admitting that they actually 

received the summonses and complaints after the service 

documents were addressed to them and sent through FedEx, 

plaintiffs provided incontrovertible “other evidence” under 

section 1-75.10(5) that the summonses and complaints were “in 

fact received” by the addressees. Therefore, based on the

persuasive reasoning of the Granville Medical Center Court, the 

General Assembly’s stated goal in enacting section 1-75.10, and 
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the plain language of the statute itself, we hold that 

plaintiffs properly proved service via Rule 4(j)(1)d under

section 1-75.10(5), and the trial court’s conclusion that 

plaintiffs failed to properly prove service on defendantsappellees, except the City, was in error.

Defendants disagree with our conclusion for a number of 

reasons. First, they contend that because Rule 4(j)(1)c and 

4(j)(1)d both contain the requirement that a summons and 

complaint be “deliver[ed] to the addressee,” this Court should 

follow precedent established by cases where Rule 4(j)(1)c was 

construed. We agree with this general proposition, as is 

exemplified by our analysis of the Granville Medical Center 

decision above. However, defendants cite Hunter v. Hunter, 69 

N.C. App. 659, 317 S.E.2d 910 (1984), which they argue is 

directly on point. Defendants claim that the Hunter Court held 

that “transmitting process via certified mail to the defendant’s 

place of employment, but not delivering the certified mail to 

the defendant herself, even though the process was ultimately 

delivered to the defendant, was invalid.” However, defendants 

ignore the Hunter Court’s application of section 1-75.10. See 

id. at 661, 317 S.E.2d at 911. In applying this provision, the 

Hunter Court actually held that:
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[W]e find that plaintiff has failed to show 

proof of service of process in the manner 

provided by [section 1-75.10]. . . . The 

affidavit and accompanying delivery receipt 

show only that the summons was forwarded to 

defendant's place of business. There is no 

showing from the affidavit that defendant 

herself received a copy of the summons and 

complaint. The trial court had before it no 

evidence from which it could have determined 

that the summons was in fact delivered to 

defendant since there was no genuine 

registry receipt or “other evidence” of 

delivery attached to the affidavit. We, 

therefore, conclude that plaintiff did not 

establish valid service of process over 

defendant and affirm the order of the trial 

court setting aside the judgment of divorce.

Id. at 663, 317 S.E.2d at 912 (emphasis added). This case is 

therefore readily distinguishable; the trial court here, unlike 

the trial court in Hunter, had before it affidavits from each 

defendant signifying that they all, in fact, received the 

summons and complaint against them after they were delivered by 

FedEx. Had the trial court in Hunter been presented with 

similar evidence signifying delivery, it could have determined

that the summons and complaint were “in fact received”, per 

section 1-75.10, on which it based its holding.3 

 

3 Defendants also argue that Osman v. Reese, No. COA09-950, 2010 

WL 1315595 (N.C. Ct. App. Aril 6, 2010) is analogous to Hunter 

and should be followed by this Court despite being unpublished. 

They claim that the Osman Court held that “service via certified 

mail delivered to defendant’s co-worker at defendant’s place of 

employment was invalid under Rule 4(j)(1)c, even though 
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Next, defendants argue that their actual notice of the suit 

did not cure the defect in service rendered by FedEx’s failure 

to hand the summons and complaint to each defendant or his or 

her respective service agents. The cases that defendants claim 

support application of this principle here are distinguishable 

in material aspects. First, defendants cite Grimsley, 342 N.C. 

at 544-46, 467 S.E.2d at 94, and claim that in that case 

“[t]here was no question that process was received: [the] 

defendant answered the complaint. Nevertheless, process was 

held to be insufficient.” In actuality, the basis of the 

plaintiff’s argument in Grimsley was that “while [the defendant]

was not actually served with summons and complaint, [the 

insurance company’s] 12 October 1992 answer constituted a 

general appearance by [the defendant], thereby precluding [the 

defendant] from raising the defense of lack of personal 

jurisdiction.” Id. at 545, 467 S.E.2d at 94 (emphasis added). 

 

defendant ultimately received the process, because the 

requirement of ‘delivering to the addressee’ had not been met.” 

However, the Court explicitly stated that “[The defendant] 

signed affidavits averring that he had never been served with 

process in this case, and that he never ‘received a copy of the 

Summons and Complaint that was purportedly mailed to [him] c/o 

Merchant’s Tire.’” Id. at *2 (emphasis added). The co-worker

who received the summons and complaint averred that “[he] never 

provided copies to [the defendant.]” Id. Because of this 

crucial factual distinction, we disagree with defendants’ 

assertion that Osman has precedential value.
-25-

Thus, it is clear that the defendant in Grimsley did not answer 

the complaint; a third party to the suit did. Id. at 546, 467 

S.E.2d at 95. The Court stated unequivocally that “[the 

defendant] has never been served with [the] summons and complain 

as required by the Rules of Civil Procedure.” Id. at 546, 467 

S.E.2d at 94. This case is therefore distinguishable because 

defendants here actually received copies of the summons and 

complaint and filed answers directly.

Furthermore, the other cases cited by defendants in support 

of this proposition are equally distinguishable because in each 

of them, the Court held that service was actually defective. 

See Mabee v. Onslow Cnty. Sheriff’s Dept., 174 N.C. App. 210, 

211-12, 620 S.E.2d 307, 308 (2005) (holding that service was 

defective under N.C. Gen. Stat. § 162-16 because it was executed 

by an individual other than those vested with authority to do so 

under the statute, and that this defect could not be cured by 

actual notice of the proceedings); Fulton v. Mickle, 134 N.C. 

App. 620, 624, 518 S.E.2d 518, 521 (1999) (holding that service 

was defective under Rule 4(j)(6)c because the summons and 

complaint were not sent to a party vested with authority to 

accept service on behalf of a corporation); Long v. Cabarrus 

Cnty. Bd. of Educ., 52 N.C. App. 625, 626, 279 S.E.2d 95, 96 
-26-

(1981) (holding that service was defective under Rule 4(j)(5)c 

because it was not made on a person vested with authority to 

receive service on behalf of a county or city board of 

education). For reasons discussed in more detail above, we do 

not hold that service under Rule 4(j)(1)d here was defective; 

therefore, we do not purport to hold that actual notice of the 

suit cured a defect in service.

Defendants next contend that Hamilton v. Johnson, __ N.C. 

App. __, __, 747 S.E.2d 158, 162-63 (2013) is controlling and 

requires a holding that service was defective because the FedEx 

employee did not personally serve defendants or their service 

agents. Although they correctly characterize the holding in

Hamilton - that delivery by FedEx to an alleged concierge of a 

building did not constitute “delivery to the addressee” under 

Rule 4(j)(1)d – we still find this case to be distinguishable. 

See id. at __, 747 S.E.2d at 162-63. In Hamilton, the plaintiff 

attempted to serve the summons and complaint on the defendant by 

mailing them to his residence in Texas via FedEx. Id. at __, 

747 S.E.2d at 160. When the package arrived, an individual 

identified as “KKPONI” signed for the documents, but the 

defendant failed to appear at the subsequent hearing for which 

service was meant to provide notice. Id. The Hamilton Court 
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stated that:

Absent any statutory presumption, plaintiff 

bore the burden of proving that “KKPONI” 

[the alleged concierge] was defendant's 

agent, authorized by law to accept service 

of process on his behalf.

Here, the trial court's order is devoid of 

any findings as to whether “KKPONI” was an 

agent authorized to accept service of 

process on defendant's behalf. In fact, it 

is unclear how “KKPONI” was employed in the 

building—if an employee at all. Thus, we 

cannot conclude that service on “KKPONI,” an 

alleged concierge, satisfies Rule 

4(j)(1)(d)'s requirement of “delivering to 

the addressee.”

Id. at __, 749 S.E.2d at 163.

The fact that distinguishes Hamilton from this case is that

the Court makes no mention of whether the defendant actually

received the summons and complaint, or more specifically, 

whether the plaintiff attempted to prove service under section 

1-75.10 with affidavits indicating that the defendant received 

the summons and complaint. In fact, the Hamilton Court makes no 

citation to section 1-75.10, a statute crucial to our holding

that the General Assembly explicitly states must be read 

“contemporaneously” with Rule 4. See N.C. Gen. Stat. § 1A-1, 

Rule 4 general commentary. Thus, because we are faced with 

additional facts not discussed by the Court in Hamilton, its 

holding is distinguishable.
-28-

Ultimately, defendants’ arguments as to why Rule 4(j)(1)d 

should be read to require personal service on a defendant or his 

service agent, exclusive of all other individuals and regardless 

of whether the defendant actually receives the summons and 

complaint, are unavailing. Because the trial court erred in its 

conclusions, we reverse the trial court’s order dismissing 

defendants-appellees and affirm the order denying Baker’s motion 

to dismiss.

C. The City

Unlike natural persons, service may only be valid and 

effective upon a city:

[b]y personally delivering a copy of the 

summons and of the complaint to its mayor, 

city manager or clerk; 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; or by depositing with a designated 

delivery service authorized pursuant to 26 

U.S.C. § 7502(f)(2) a copy of the summons 

and complaint, addressed to the mayor, city 

manager, or clerk, delivering to the 

addressee, and obtaining a delivery receipt. 

As used in this sub-subdivision, “delivery 

receipt” includes an electronic or facsimile 

receipt.

N.C. Gen Stat. § 1A-1, Rule 4(j)(5)a (2013) (emphasis added). 

The list of parties named in the statute is exclusive; service 

upon anyone other than the mayor, city manager, or clerk is 
-29-

insufficient to confer jurisdiction over a city. See Johnson v. 

City of Raleigh, 98 N.C. App. 147, 149-50, 389 S.E.2d 849, 851-

52 (1990) (holding that service of summons was insufficient to 

confer personal jurisdiction over defendant city where a copy of 

the summons and complaint was delivered to a person other than 

an official named in Rule 4(j)(5)), disc. review denied, 327 

N.C. 140, 394 S.E.2d 176. 

Here, the summons and complaint were not addressed to 

either the mayor, city manager, or clerk, as is required by Rule 

4(j)(5)a; they were addressed to Baker, who was the City 

Attorney. Delivery to Baker, although technically delivery to 

the addressee, was insufficient to confer jurisdiction over the 

City because he is not a named official capable of receiving 

service on behalf of the City. Furthermore, there is no direct 

evidence that the City’s mayor, city manager, or clerk ever 

received the summons and complaint or were otherwise served in 

any way. The only evidence plaintiffs provide is a newspaper 

article wherein the City’s mayor said that he would discuss the 

lawsuit with other city officials and council members. Although 

they may have had actual notice of this action, there is no 

evidence indicating that any of the required parties in Rule 

4(j)(5)a were ever served with the summons and complaint. 
-30-

Unlike the service on defendants who are natural persons, 

service on the City was defective because plaintiffs did not 

comply with Rule 4(j)(5)a, and any actual notice that those

parties enumerated in the rule may have had did not cure this 

defect. Fulton, 134 N.C. App. at 624, 518 S.E.2d at 521

(citation and quotation omitted).

Therefore, we hold that the trial court did not err in 

granting the City’s motion to dismiss for insufficient service 

of process. 

II. Motion to Amend the Summons 

Plaintiffs next argue that the trial court abused its 

discretion by denying its motion to amend the summons against 

the City to correct the name of the person currently holding the 

office of city manager. We find no abuse of discretion.

The North Carolina Rules of Civil Procedure vest discretion 

in the hands of the trial courts to allow or disallow parties to 

amend summonses:

At any time, before or after judgment, in 

its discretion and upon such terms as it 

deems just, the court may allow any process 

or proof of service thereof to be amended, 

unless it clearly appears that material 

prejudice would result to substantial rights 

of the party against whom the process 

issued.
-31-

N.C. Gen. Stat. § 1A-1, Rule 4(i) (2013). This Court therefore 

reviews such orders for abuse of discretion. See White v. 

White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (“It is 

well established that where matters are left to the discretion 

of the trial court, appellate review is limited to a 

determination of whether there was a clear abuse of 

discretion.”). Although the trial courts have wide discretion 

in this arena, that power has been limited by this Court to 

those cases where the trial court initially acquired 

jurisdiction over the defendant. See Carl Rose & Sons, Ready 

Mix Concrete, Inc. v. Thorp Sales Corp., 30 N.C. App. 526, 529, 

227 S.E.2d 301, 303 (1976) (“The broad discretionary power given 

the court . . . does not extend so far as to permit the court 

by amendment of its process to acquire jurisdiction over the 

person of a defendant where no jurisdiction has yet been 

acquired. A defendant cannot, in this short-hand manner by 

amendment, be brought into court without service of process.”) 

(citation and quotations omitted), overruled on other grounds, 

Wiles v. Welparnel Const. Co., Inc., 295 N.C. 81, 86, 243 S.E.2d 

756, 758-59 (1978). 

As stated above, in order to confer jurisdiction over the 

City, plaintiffs needed to comply with Rule 4(j)(5) by sending 
-32-

the summons and complaint addressed to either the City’s mayor, 

city manager, or clerk and delivering to one of those three 

parties. Because plaintiffs failed to do so, the trial court 

never acquired jurisdiction over the City. Glover v. Farmer, 

127 N.C. App. 488, 490, 490 S.E.2d 576, 577 (1997) (“Absent 

valid service of process, a court does not acquire personal 

jurisdiction over the defendant and the action must be 

dismissed.”).

Therefore, based on the rule set out in Carl Rose & Sons,

we find that the trial court did not abuse its discretion by 

denying plaintiff’s motion to amend the summons, as it would 

confer jurisdiction over the City without proper service of 

process. 

III. Title of the Cause

Baker argues on appeal that the trial court erred by 

denying his motion to dismiss the action for failure of the 

summonses to contain all of the necessary information required 

by Rule 4(b), namely the “title of the cause.” We disagree.

This Court reviews the conclusions of law entered by the 

trial court in its order de novo. Carolina Power & Light Co. v. 

City of Asheville, 358 N.C. 512, 517, 597 S.E.2d 717, 721 

(2004). 
-33-

Pursuant to Rule 4(b) of the North Carolina Rules of Civil 

Procedure, “[t]he summons shall . . . contain the title of the 

cause.” N.C. Gen. Stat. § 1A-1, Rule 4(b) (2013). Here, the 

title of the cause in the summons listed “Frankie Washington and 

Frankie Washington, Jr.” as plaintiffs and “CITY OF DURHAM 

(N.C.) ET AL” as defendants. Baker argues that the title of the 

cause in the summons is defective because it does not list all 

defendants and does not mirror the title of the cause in the 

complaint. He cites to no authority for the proposition that 

these characteristics render the title of the cause in the 

summons defective, and we find none. Therefore, we find that 

the argument is abandoned. See Metric Constructors, Inc. v. 

Industrial Risk Insurers, 102 N.C. App. 59, 64, 401 S.E.2d 126, 

129 (1991) (“Because the appellee cites no authority for this 

argument, it is deemed abandoned”). 

Conclusion

Because plaintiffs properly proved service by Rule 4(j)(1)d 

under section 1-75.10(5), we reverse the trial court’s order 

dismissing all defendants-appellees except the City, and we 

affirm the trial court’s order denying Baker’s motion to dismiss 

for insufficient service of process. We affirm the trial 

court’s order dismissing the City, because the record reveals 
-34-

that plaintiffs failed to properly serve a party designated by 

rule to receive service on behalf of the City. Finally, we 

affirm the trial court’s denial of plaintiffs’ motion to amend 

the summons against the City and Baker’s motion to dismiss for 

failure of the summonses to contain the title of the cause. 

AFFIRMED in part and REVERSED in part.

Judges GEER and McCULLOUGH concur.