Poole v. Hanover Brook, Inc.

239 S.E.2d 479, 34 N.C. App. 550, 1977 N.C. App. LEXIS 1767
CourtCourt of Appeals of North Carolina
DecidedDecember 7, 1977
Docket777SC87
StatusPublished
Cited by5 cases

This text of 239 S.E.2d 479 (Poole v. Hanover Brook, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Poole v. Hanover Brook, Inc., 239 S.E.2d 479, 34 N.C. App. 550, 1977 N.C. App. LEXIS 1767 (N.C. Ct. App. 1977).

Opinion

BRITT, Judge.

Defendant contends first that the service of process was insufficient in that the requirements of Rule 4(j) for service of process were not strictly followed in three respects: (1) the record does not contain sufficient information to meet plaintiffs’ burden of proof to show that service was made on a proper person; (2) the summons was not served by the Sheriff as required by Rule 4(a); and (3) the summons was not addressed in the manner required by Rule 4. We do not find any of these reasons persuasive.

G.S. 1A-1, Rule 4(j)(9)(b) provides:

(9) Alternative Method of Service on Party That Cannot Otherwise Be Served or Is Not Inhabitant of or Found Within State. — Any party that cannot after due diligence be served within this State in the manner heretofore prescribed in this section (j), or that is not an inhabitant of or found within this State, or is concealing his person or whereabouts to avoid service of process, or is a transient person, or one whose residence is unknown, or is a corporation incorporated under the laws of any other state or foreign country and has no agent authorized by appointment or by law to be served or to accept service of process, service upon the defendant may be made in the following manner:
* * *
b. Registered or Certified Mail. — Any party subject to service of process under this subsection (9) may be served by mailing a copy of the summons and complaint, registered or certified mail, return receipt requested, addressed to the party to be served. Service shall be complete on the day the summons and complaint are delivered to the addressee, but the court in which the action is pending shall, upon motion of the party served, allow such additional time as may be necessary to afford the defendant reasonable opportunity to defend the action. Before judgment by default may be had on such *554 service, the serving party shall file an affidavit with the court showing the circumstances warranting the use of the service by registered or certified mail and averring (i) that a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested, (ii) that it was in fact received as evidenced by the attached registered or certified receipt or other evidence satisfactory to the court of delivery to the addressee and (iii) that the genuine receipt or other evidence of delivery is attached. This affidavit shall be prima facie evidence that service was made on the date disclosed therein in accordance with the requirements of this paragraph, and shall also constitute the method of proof of service of process when the party appears in the action and challenges such service upon him.

G.S. 1A-1, Rule 4(j)(6)(c) provides:

(j) Process — manner of service to exercise personal jurisdiction. — In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service shall be as follows:
* * *
(6) Domestic or Foreign Corporation. — Upon a domestic or foreign corporation:
* * *
c. By mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to the officer, director or agent to be served as specified in paragraphs a and b.

Due to the specific language of Rule 4(j)(9) and Rule 4(j)(6)(c), we find no merit in defendant’s argument that service was insufficient because the record does not show that it was made on a proper person. The record includes the return receipt which shows that the summons which was directed to the defendant, HANOVER Brook, INC., and addressed to Mr. Donald A. Kahan, President, was received on 9 July 1976 by M. McCartin, authorized agent.

*555 In the recent case of Lewis Clarke Associates v. Tobler, 32 N.C. App. 435, 438, 232 S.E. 2d 458, 459, cert. denied 292 N.C. 641, 235 S.E. 2d 60 (1977), this court stated:

[ T]he provision in Rule 4(j)(9)(b) providing that service of process will be complete when the copies of the summons and complaint are “delivered to the addressee,” contemplates merely that the registered or certified mail be delivered to the address of the party to be served and that a person of reasonable age and discretion receive the mail and sign the return receipt on behalf of the addressee.
A showing on the face of the record of compliance with the statute providing for service of process raises a rebut-table presumption of valid service. Finance Co. v. Leonard, 263 N.C. 167, 139 S.E. 2d 356 (1964); Harrington v. Rice, 245 N.C. 640, 97 S.E. 2d 239 (1957).

In the present case, it is a reasonable inference from the return receipt that the summons and complaint were delivered to a person, M. McCartin, at defendant’s address, and that M. Mc-Cartin received the summons and complaint on behalf of Donald A. Kahan, president of defendant. The summons itself was properly directed to defendant corporation, G.S. 1A-1, Rule 4(b), and the mailing was properly addressed to an officer of the corporation, G.S. 1A-1, Rule 4(j)(6)(c). It can be assumed that M. McCartin was a person of reasonable age and discretion authorized to receive registered mail and sign the receipt for the addressee.

The return receipt and the affidavit of plaintiffs’ attorney averring that defendant did not have an authorized agent for service of process within this state, and that he had sent a copy of the summons and complaint to defendant by registered mail, return receipt requested, and that the process had been received by an authorized agent, shows sufficient compliance with Rule 4(j) (9)(b) to raise a rebuttable presumption of valid service. Defendant did not attempt to rebut this presumption by showing that he did not receive copies of the summons and complaint. Consequently, defendant has failed to show that service of process was insufficient because a delivery was not made to a proper person.

We find no merit in defendant’s argument that the service was not proper for the reason that it should have been mailed by the sheriff of Nash County.

*556 G.S. 1A-1, Rule 4(a), provides for the traditional method of service of process “by the sheriff of the county where service is to be made or some other person duly authorized by law to serve summons.” Rule 4(j)(9), quoted in pertinent part above, provides for alternative methods of service on a party that cannot otherwise be served or is not an inhabitant of or found within this state. Three alternative methods are set forth: (1) Personal service outside the state by one of the persons authorized in Rule 4(a); registered or certified mail; or (3) service by publication. We find nothing in Rule 4(j)(9)(b) or elsewhere that requires that service by registered or certified mail be initiated by the sheriff of the county in which process is issued.

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Bluebook (online)
239 S.E.2d 479, 34 N.C. App. 550, 1977 N.C. App. LEXIS 1767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poole-v-hanover-brook-inc-ncctapp-1977.