Carpenter v. Agee

McGEE, Judge.

Gary Carpenter (plaintiff) appeals from an order entered 9 February 2004 and amended 18 February 2004 granting defendant Stephen Reed Agee’s motion to dismiss. Defendant Davis Transport, Inc. (Davis) is no longer a party to this action, pursuant to plaintiff’s voluntary dismissal of his claims against Davis filed on 16 December 2003.

Plaintiff filed a complaint on 4 March 2003 seeking damages for injuries he sustained in a motor vehicle collision on 21 August 2000, that he alleged were caused by the negligence of Stephen Reed Agee (defendant). The civil summons and complaint were addressed to defendant by certified mail, return receipt requested, at an address in San Bemadino, California. The return receipt was signed by defendant’s mother, Dixie Agee, at the same address, on 12 March 2003. Plaintiff filed an affidavit of service by certified mail and a copy of the signed return receipt on 25 March 2003. The affidavit averred that a copy of the civil summons and complaint was mailed by certified mail, return receipt requested, and that it was so received on 12 March 2003.

Defendant filed an answer to the complaint on 9 May 2003. Along with his answer, defendant served plaintiff with defendant’s first set of interrogatories and request for the production of documents. Plaintiff served defendant with plaintiff’s first set of interrogatories on 22 September 2003, to which defendant responded on 9 December 2003.

Defendant filed a motion to dismiss and an affidavit on 16 January 2004, claiming that he was never properly served with the civil summons and complaint. In his affidavit, defendant stated that although defendant’s mother resided at the address where the civil summons and complaint were mailed, defendant had not resided at that address since 2002. The trial court granted defendant’s motion to dismiss in an order entered 9 February 2004 and amended 18 February 2004.

Plaintiff contends that the trial court erred in granting defendant’s motion to dismiss because plaintiff properly served defendant with the civil summons and complaint. Plaintiff argues that plaintiff’s affidavit of service by certified mail, coupled with a copy of the signed return receipt, created a presumption of valid service that defendant has failed to rebut.

Rule 4(j)(l)(c) of our Rules of Civil Procedure permit service by certified mail “[b]y mailing a copy of the summons and of the complaint, . . . return receipt requested, addressed to the party to be served, and delivering to the addressee.” N.C. Gen. Stat. § 1A-1, Rule 4(j)(l)(c) (2003). Once service by certified mail is complete, the serving party may make proof of service by filing an affidavit in accordance with N.C. Gen. Stat. § 1-75.10. N.C. Gen. Stat. § 1A-1, Rule 4(j2)(2) (2003). Under N.C. Gen. Stat. § 1-75.10 (2003), the affidavit must aver:

a. That a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested;

b. That it was in fact received as evidenced by the attached registry receipt or other evidence satisfactory to the court of delivery to the addressee; and

c. That the genuine receipt or other evidence of delivery is attached.

Such an affidavit, filed along with a return receipt signed by the individual who received the mail, “raises a presumption that the person who received the mail or delivery and signed the receipt was an agent of the addressee authorized by appointment or by law to be served or to accept service of processf.]” N.C. Gen. Stat. § 1A-1, Rule 4(j2)(2); see also Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 490-91, 586 S.E.2d 791, 796 (2003); Fender v. Deaton, 130 N.C. App. 657, 663, 503 S.E.2d 707, 710 (1998), disc. review denied, 350 N.C. 94, 527 S.E.2d 666 (1999); Steffey v. Mazza Construction Group, 113 N.C. App. 538, 540-41, 439 S.E.2d 241, 243 (1994), disc. review improvidently allowed, 339 N.C. 734, 455 S.E.2d 155 (1995).

By filing a copy of the signed return receipt, along with an affidavit that comports with N.C. Gen. Stat. § 1-75.10, plaintiff is entitled to a rebuttable presumption of valid service. We find that defendant’s single affidavit does not rebut the presumption in this case. In his affidavit, defendant merely asserts that he had not resided at the address to which service was addressed since 2002. However, defendant does not state or otherwise present any evidence that Dixie Agee, who signed for the civil summons and complaint, was not authorized to accept service for him. In the absence of such evidence, defendant has failed to rebut the statutory presumption of valid service. We therefore conclude that the Rule 4 requirements of service of process were met, and we reverse the trial court’s order granting defendant’s motion to dismiss.

Since this issue is dispositive of this case on appeal, we need not address plaintiff’s remaining assignments of error.

Reversed.

Judge TYSON concurs. Judge GEER concurs in the result with a separate opinion.