IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-745
Filed 4 June 2025
Johnston County, No. 22 CVS000111-500
TONY RUSSELL, Plaintiff,
v.
GEORGE WILLIAM BAGBY TAYLOR JR. D/B/A NATIONAL SPEED OF WILMINGTON, INC. A/K/A NATIONAL SPEED, INC., Defendant.
Appeal by Defendant from order entered 27 March 2024 by Judge Keith O.
Gregory in Johnston County Superior Court. Heard in the Court of Appeals 9 April
2025.
Fox Rothschild LLP, by Matthew Nis Leerberg and Brian C. Bernhardt, for Defendant-Appellant.
Wicker Law Firm, P.L.L.C., by Harrison L. Wicker and Jackson D. Wicker, for Plaintiff-Appellee.
COLLINS, Judge.
George William Bagby Taylor appeals from the trial court’s order entering
default judgment against him. Taylor argues that the trial court erred by changing
the name of the judgment debtor on an Order for Entry of Default Judgment from
“National Speed of Wilmington, Inc.” to Taylor in his individual capacity, as
requested by Plaintiff in his amended Rule 60 motion, and by entering an Order for
Entry of Default Judgment against Taylor in his individual capacity. We agree and RUSSELL V. TAYLOR
Opinion of the Court
vacate the Order for Entry of Default Judgment entered against Taylor.
I. Background
Plaintiff Tony Russell filed a complaint against National Speed of Wilmington,
Inc. (“NSW, Inc.”) on 11 January 2022. Plaintiff alleged that NSW, Inc. negligently
tuned his vehicle, causing substantial damage to the vehicle, and Plaintiff sought
redress. Summons was issued on that date. Plaintiff served the summons and
complaint on NSW, Inc. by serving Taylor in his capacity as NSW, Inc.’s registered
agent. NSW, Inc. filed an answer to the complaint on 25 March 2022.
Plaintiff filed a motion for leave to file a first amended complaint and served
the motion on Lamar Armstrong, Jr., as counsel for NSW, Inc. Armstrong
subsequently moved to withdraw as counsel. The trial court granted Armstrong’s
motion to withdraw and ordered that Plaintiff serve NSW, Inc. by first class mail
addressed to: “National Speed of Wilmington, Inc., 6779 Gordon Road, Wilmington,
NC 28411.”
Plaintiff served the first amended complaint via mail on NSW, Inc. at the
address ordered. After receiving no response, Plaintiff moved for entry of default
against NSW, Inc. The trial court entered an order of default against NSW, Inc. on
May 2023. Plaintiff moved for default judgment against NSW, Inc. and served the
motion via mail to NSW, Inc. at the address ordered.
The trial court entered an Order for Entry of Default Judgment against NSW,
Inc. for $81,833.68. Plaintiff served the Order for Entry of Default Judgment on
-2- RUSSELL V. TAYLOR
NSW, Inc. at the address ordered.
Plaintiff began collection efforts, including docketing the judgment in New
Hanover County. At some point during these efforts, Plaintiff learned that NSW, Inc.
had been administratively dissolved in 2012 for failure to file its annual report.
Plaintiff filed a Rule 60 motion to amend the Order for Entry of Default
Judgment, asking the trial court to change the name of the judgment defendant from
“National Speed of Wilmington Inc.” to “George William Bagby Taylor, Jr. d/b/a
National Speed of Wilmington.” Plaintiff later filed a second Rule 60 motion to amend
the Order for Entry of Default Judgment, asking the trial court to change the name
of the judgment defendant from “National Speed of Wilmington, Inc.” to “George
William Bagby Taylor, Jr. d/b/a National Speed of Wilmington f/k/a National Speed,
Inc.”
After a hearing on Defendant’s amended motion, the trial court announced
orally that it would allow the motion under Rule 60(a), which permits a trial court to
correct clerical errors. Although there was talk of a written order, none appears in
the record. What does appear in the record is a red-lined version of the Order for
Entry of Default Judgment, which changes the name of the judgment defendant from
“National Speed of Wilmington, Inc.” to “George William Bagby Taylor, Jr. d/b/a
National Speed of Wilmington f/k/a National Speed, Inc” and indicates the entered
date as “nunc pro tunc July 11th 2023,” the date the Order for Entry of Default
Judgment against NSW, Inc. was signed by the trial court. The amended order was
-3- RUSSELL V. TAYLOR
filed 27 March 2024.
Taylor timely filed a Notice of Appeal.
II. Discussion
Taylor contends that the trial court erred for numerous reasons by changing
the name of the judgment debtor on the Order for Entry of Default Judgment from
“National Speed of Wilmington, Inc.” to Taylor in his individual capacity, as
requested by Plaintiff in his amended Rule 60 motion, and entering an Order for
Entry of Default Judgment against Taylor in his individual capacity. We agree.
This Court reviews a trial court’s grant of a Rule 60 motion for abuse of
discretion. Lumsden v. Lawing, 117 N.C. App. 514, 518 (1995). “[A]n error of law is
an abuse of discretion” and is reviewed de novo. Miller v. Carolina Coast Emergency
Physicians, LLC, 382 N.C. 91, 104 (2022) (internal quotation marks omitted).
Taylor first argues that the trial court erred by entering an Order for Entry of
Default Judgment against him in his individual capacity because the trial court
lacked personal jurisdiction. We agree.
For a court to obtain personal jurisdiction over a defendant, a summons must
be issued in the name of that individual and service of process secured on that
individual by one of the statutorily specified methods. Grimsley v. Nelson, 342 N.C.
542, 545 (1996); N.C. Gen. Stat. § 1A-1, Rule 4(j) (2023). If a party fails to obtain
valid service of process, “a court does not acquire personal jurisdiction over the
defendant and the action must be dismissed.” Bentley v. Watauga Bldg. Supply, Inc.,
-4- RUSSELL V. TAYLOR
145 N.C. App. 460, 462 (2001).
Under Rule 4 of the North Carolina Rules of Civil Procedure, “[u]pon the filing
of the complaint, summons shall be issued forthwith, and in any event within five
days.” N.C. Gen. Stat. § 1A-1, Rule 4(a) (2023). The summons “shall be directed to
the defendant or defendants,” id. § 1A-1, Rule 4(b) (2023), and service of the summons
must be made in a time and manner consistent with Rule 4.
Here, the complaint named NSW, Inc. as the defendant and summons was
issued in that name. Plaintiff served the complaint and summons on NSW, Inc. by
certified mail to Taylor in his capacity as registered agent for NSW, Inc., not in his
individual capacity. Plaintiff amended the complaint and served it on NSW, Inc. as
the defendant.
At no point was a summons issued or directed to Taylor in his individual
capacity. Thus, valid service of process did not occur, and the trial court did not have
personal jurisdiction over Taylor. Accordingly, the Order for Entry of Default
Judgment naming Taylor in his individual capacity as defendant is void and is
vacated. See Jones v. Wallis, 211 N.C. App. 353, 356 (2011) (a default judgment is
void if there was a defect in the service of process).
Taylor also argues that Plaintiff’s attempt to establish proper service of process
on him by substituting him in his individual capacity for NSW, Inc., under the guise
of correcting a misnomer, is invalid. We agree.
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-745
Filed 4 June 2025
Johnston County, No. 22 CVS000111-500
TONY RUSSELL, Plaintiff,
v.
GEORGE WILLIAM BAGBY TAYLOR JR. D/B/A NATIONAL SPEED OF WILMINGTON, INC. A/K/A NATIONAL SPEED, INC., Defendant.
Appeal by Defendant from order entered 27 March 2024 by Judge Keith O.
Gregory in Johnston County Superior Court. Heard in the Court of Appeals 9 April
2025.
Fox Rothschild LLP, by Matthew Nis Leerberg and Brian C. Bernhardt, for Defendant-Appellant.
Wicker Law Firm, P.L.L.C., by Harrison L. Wicker and Jackson D. Wicker, for Plaintiff-Appellee.
COLLINS, Judge.
George William Bagby Taylor appeals from the trial court’s order entering
default judgment against him. Taylor argues that the trial court erred by changing
the name of the judgment debtor on an Order for Entry of Default Judgment from
“National Speed of Wilmington, Inc.” to Taylor in his individual capacity, as
requested by Plaintiff in his amended Rule 60 motion, and by entering an Order for
Entry of Default Judgment against Taylor in his individual capacity. We agree and RUSSELL V. TAYLOR
Opinion of the Court
vacate the Order for Entry of Default Judgment entered against Taylor.
I. Background
Plaintiff Tony Russell filed a complaint against National Speed of Wilmington,
Inc. (“NSW, Inc.”) on 11 January 2022. Plaintiff alleged that NSW, Inc. negligently
tuned his vehicle, causing substantial damage to the vehicle, and Plaintiff sought
redress. Summons was issued on that date. Plaintiff served the summons and
complaint on NSW, Inc. by serving Taylor in his capacity as NSW, Inc.’s registered
agent. NSW, Inc. filed an answer to the complaint on 25 March 2022.
Plaintiff filed a motion for leave to file a first amended complaint and served
the motion on Lamar Armstrong, Jr., as counsel for NSW, Inc. Armstrong
subsequently moved to withdraw as counsel. The trial court granted Armstrong’s
motion to withdraw and ordered that Plaintiff serve NSW, Inc. by first class mail
addressed to: “National Speed of Wilmington, Inc., 6779 Gordon Road, Wilmington,
NC 28411.”
Plaintiff served the first amended complaint via mail on NSW, Inc. at the
address ordered. After receiving no response, Plaintiff moved for entry of default
against NSW, Inc. The trial court entered an order of default against NSW, Inc. on
May 2023. Plaintiff moved for default judgment against NSW, Inc. and served the
motion via mail to NSW, Inc. at the address ordered.
The trial court entered an Order for Entry of Default Judgment against NSW,
Inc. for $81,833.68. Plaintiff served the Order for Entry of Default Judgment on
-2- RUSSELL V. TAYLOR
NSW, Inc. at the address ordered.
Plaintiff began collection efforts, including docketing the judgment in New
Hanover County. At some point during these efforts, Plaintiff learned that NSW, Inc.
had been administratively dissolved in 2012 for failure to file its annual report.
Plaintiff filed a Rule 60 motion to amend the Order for Entry of Default
Judgment, asking the trial court to change the name of the judgment defendant from
“National Speed of Wilmington Inc.” to “George William Bagby Taylor, Jr. d/b/a
National Speed of Wilmington.” Plaintiff later filed a second Rule 60 motion to amend
the Order for Entry of Default Judgment, asking the trial court to change the name
of the judgment defendant from “National Speed of Wilmington, Inc.” to “George
William Bagby Taylor, Jr. d/b/a National Speed of Wilmington f/k/a National Speed,
Inc.”
After a hearing on Defendant’s amended motion, the trial court announced
orally that it would allow the motion under Rule 60(a), which permits a trial court to
correct clerical errors. Although there was talk of a written order, none appears in
the record. What does appear in the record is a red-lined version of the Order for
Entry of Default Judgment, which changes the name of the judgment defendant from
“National Speed of Wilmington, Inc.” to “George William Bagby Taylor, Jr. d/b/a
National Speed of Wilmington f/k/a National Speed, Inc” and indicates the entered
date as “nunc pro tunc July 11th 2023,” the date the Order for Entry of Default
Judgment against NSW, Inc. was signed by the trial court. The amended order was
-3- RUSSELL V. TAYLOR
filed 27 March 2024.
Taylor timely filed a Notice of Appeal.
II. Discussion
Taylor contends that the trial court erred for numerous reasons by changing
the name of the judgment debtor on the Order for Entry of Default Judgment from
“National Speed of Wilmington, Inc.” to Taylor in his individual capacity, as
requested by Plaintiff in his amended Rule 60 motion, and entering an Order for
Entry of Default Judgment against Taylor in his individual capacity. We agree.
This Court reviews a trial court’s grant of a Rule 60 motion for abuse of
discretion. Lumsden v. Lawing, 117 N.C. App. 514, 518 (1995). “[A]n error of law is
an abuse of discretion” and is reviewed de novo. Miller v. Carolina Coast Emergency
Physicians, LLC, 382 N.C. 91, 104 (2022) (internal quotation marks omitted).
Taylor first argues that the trial court erred by entering an Order for Entry of
Default Judgment against him in his individual capacity because the trial court
lacked personal jurisdiction. We agree.
For a court to obtain personal jurisdiction over a defendant, a summons must
be issued in the name of that individual and service of process secured on that
individual by one of the statutorily specified methods. Grimsley v. Nelson, 342 N.C.
542, 545 (1996); N.C. Gen. Stat. § 1A-1, Rule 4(j) (2023). If a party fails to obtain
valid service of process, “a court does not acquire personal jurisdiction over the
defendant and the action must be dismissed.” Bentley v. Watauga Bldg. Supply, Inc.,
-4- RUSSELL V. TAYLOR
145 N.C. App. 460, 462 (2001).
Under Rule 4 of the North Carolina Rules of Civil Procedure, “[u]pon the filing
of the complaint, summons shall be issued forthwith, and in any event within five
days.” N.C. Gen. Stat. § 1A-1, Rule 4(a) (2023). The summons “shall be directed to
the defendant or defendants,” id. § 1A-1, Rule 4(b) (2023), and service of the summons
must be made in a time and manner consistent with Rule 4.
Here, the complaint named NSW, Inc. as the defendant and summons was
issued in that name. Plaintiff served the complaint and summons on NSW, Inc. by
certified mail to Taylor in his capacity as registered agent for NSW, Inc., not in his
individual capacity. Plaintiff amended the complaint and served it on NSW, Inc. as
the defendant.
At no point was a summons issued or directed to Taylor in his individual
capacity. Thus, valid service of process did not occur, and the trial court did not have
personal jurisdiction over Taylor. Accordingly, the Order for Entry of Default
Judgment naming Taylor in his individual capacity as defendant is void and is
vacated. See Jones v. Wallis, 211 N.C. App. 353, 356 (2011) (a default judgment is
void if there was a defect in the service of process).
Taylor also argues that Plaintiff’s attempt to establish proper service of process
on him by substituting him in his individual capacity for NSW, Inc., under the guise
of correcting a misnomer, is invalid. We agree.
Rule 4(i) of the Rules of Civil Procedure permits trial courts to allow, in their
-5- RUSSELL V. TAYLOR
discretion, the amendment of any process or proof of service thereof “unless it clearly
appears that material prejudice would result to substantial rights of the party against
whom the process issued.” N.C. Gen. Stat. § 1A-1, Rule 4(i) (2023). “[T]he
discretionary powers of amendment permit the courts to allow amendment to correct
a misnomer or mistake in the name of a party.” Harris v. Maready, 311 N.C. 536,
546 (1984) (citation omitted). “If the amendment amounts to a substitution or entire
change of parties, however, the amendment will not be allowed.” Id. (citation
omitted).
Here, NSW, Inc. was a North Carolina Corporation that was administratively
dissolved in November 2012; Taylor is a natural person. By his Rule 60 amended
motion, Plaintiff did not seek to merely correct a misnomer or mistake in NSW, Inc.’s
name. Instead, Plaintiff’s attempt to amend the Order for Entry of Default Judgment
against NSW, Inc. to name Taylor in his individual capacity as the judgment
defendant “amounts to a substitution or entire change of parties” and “will not be
allowed.” Id. Accordingly, the trial court abused its discretion by granting Plaintiff’s
amended Rule 60 motion.
III. Conclusion
The trial court did not have personal jurisdiction over Defendant. Therefore,
the Order for Entry of Default Judgment against Taylor in his individual capacity is
vacated.
-6- RUSSELL V. TAYLOR
Judges HAMPSON and CARPENTER concur.
-7-