{ "id": 11920218, "name": "CARL O. HOCKE, Plaintiff v. BENEDICT K. HANYANE, Defendant", "name_abbreviation": "Hocke v. Hanyane", "decision_date": "1995-05-02", "docket_number": "No. 9318SC726", "first_page": "630", "last_page": "635", "citations": [ { "type": "official", "cite": "118 N.C. App. 630" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "100 L. Ed. 2d 1015", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": -1 }, { "cite": "352 S.E.2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "446" } ], "opinion_index": 0 }, { "cite": "84 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12168257 ], "year": 1987, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc-app/84/0263-01" ] }, { "cite": "393 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 805", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5308390, 5309329, 5308190, 5306711 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0805-01", "/nc/326/0805-03", "/nc/326/0805-02", "/nc/326/0805-04" ] }, { "cite": "386 S.E.2d 602", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 633", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524030 ], "year": 1989, "pin_cites": [ { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0633-01" ] }, { "cite": "385 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "203-04", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521429 ], "year": 1989, "pin_cites": [ { "page": "266", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0263-01" ] }, { "cite": "207 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "340", "parenthetical": "where nonresident defendant signed return receipt, due process requirements of notice and opportunity to be heard fulfilled" } ], "opinion_index": 0 }, { "cite": "22 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11312548 ], "year": 1974, "pin_cites": [ { "page": "687", "parenthetical": "where nonresident defendant signed return receipt, due process requirements of notice and opportunity to be heard fulfilled" } ], "opinion_index": 0, "case_paths": [ "/nc-app/22/0686-01" ] }, { "cite": "49 N.C.L. Rev. 235", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1971, "pin_cites": [ { "page": "255, n.101" } ], "opinion_index": 0 }, { "cite": "401 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "805", "parenthetical": "noting the presumption, Court observed co-defendant \"had offered no evidence to rebut\" it" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523084 ], "year": 1991, "pin_cites": [ { "page": "228", "parenthetical": "noting the presumption, Court observed co-defendant \"had offered no evidence to rebut\" it" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0222-01" ] }, { "cite": "244 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "736" }, { "page": "734" }, { "page": "735" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554811 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "586" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0582-01" ] } ], "analysis": { "cardinality": 702, "char_count": 13349, "ocr_confidence": 0.752, "pagerank": { "raw": 9.549872563369991e-08, "percentile": 0.5251022356901889 }, "sha256": "2be98463833d9eca7424016cc5da17629436994add04f2412ebc6fc6902a06e9", "simhash": "1:490ec467dd4a0624", "word_count": 2141 }, "last_updated": "2023-07-14T20:04:31.897721+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and GREENE concur." ], "parties": [ "CARL O. HOCKE, Plaintiff v. BENEDICT K. HANYANE, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals entry of judgment by default. He contends the trial court erred by: (1) rendering judgment following inadequate service of process, (2) basing the judgment upon rumor and speculation, and (3) proceeding to judgment prior to the filing of executed summons. Defendant\u2019s assertions are unfounded.\nFacts and procedural information pertinent to this appeal are as follows: In February 1988, Benedict Hanyane (defendant) was seriously injured in an automobile accident and thereafter remained totally disabled for a lengthy period of time. Carl Hocke (plaintiff) loaned defendant considerable sums of money to assist with his financial difficulties. These funds were provided from plaintiff\u2019s personal accounts based upon his desire to help an individual in need and were not advanced in connection with plaintiff\u2019s representative capacity as Outreach Minister of St. Pius X Catholic Church in Greensboro. Defendant agreed to repay the monies furnished by plaintiff.\nFollowing defendant\u2019s failure to pay the debt and his subsequent avoidance of plaintiff, the instant suit was filed alleging breach of contract as well as fraud. The latter count was based upon plaintiff\u2019s having advanced defendant money to travel to South Africa following his mother\u2019s alleged stabbing death and plaintiff\u2019s subsequent receipt of information that the woman was in fact not deceased.\nPlaintiff attempted to serve defendant at his last known address in Greensboro, but the summons was returned unserved 19 June 1992. An alias and pluries summons was issued 10 September 1992 for the same address, but did not appear in the court file until 24 June 1993. A third summons was issued 27 October 1992 which also never appeared in the file prior to 24 June 1993. This last summons was addressed to \u201cBenedict K. Hanyane, c/o Frances Hanyane\u201d at an address in South Africa. Frances Hanyane is defendant\u2019s mother. The summons was served 12 November 1992 at the address in South Africa which in actuality was the home of defendant\u2019s brother.\nOn 14 January 1993, plaintiff moved for entry of judgment by default. Attached to plaintiff\u2019s motion was an affidavit directing the court\u2019s attention to a \u201cCertificate of Mailing of Service of Process\u201d previously executed and filed by an Assistant Clerk of Superior Court which included a genuine copy of a Return Receipt indicating service being effected on 12 November 1992. Plaintiff\u2019s motion was granted in open court 3 February 1993, and judgment was filed accordingly 22 February 1993. Defendant gave notice of appeal to this Court 1 March 1993.\nI.\nDefendant first contends the trial court erred in entering default judgment against him under circumstances in which service of process was made to the address of a family member and not to the address of defendant. We find his argument unpersuasive.\nThe trial court in the case sub judice determined \u201cservice of process was had on the Defendant Benedict K. Hanyane, pursuant to Rule 4(j)(3) of the North Carolina Rules of Civil Procedure.\u201d We note parenthetically that the applicable rule is in fact Rule 4(j3). However, any error in designation appears to be clerical, and it is apparent from the context that the court was indeed referring to Rule 4(j3) which states in pertinent part:\nService in a foreign country. \u2014 Where service is to be effected upon a party in a foreign country, in the alternative service of the summons and complaint may be made . . . (iv) by any form of mail, requiring a signed receipt, to be addressed and dispatched by the clerk of court to the party to be served. . . .\nN.C! Gen. Stat. \u00a7 1A-1, Rule 4(J3) (1990). Thus, our focus herein is upon whether the summons and complaint were sent \u201cto the party to be served.\u201d We believe the trial court properly resolved this issue against defendant.\nFirst, we note the Clerk\u2019s \u201cCertificate of Mailing of Service of Process,\u201d which incorporated the return receipt and which was contained in the court file and reviewed by the trial judge, reflected that a copy of the complaint and summons were deposited, return receipt requested, in the U.S. Post Office for mailing and that the return receipt indicated the complaint and summons were in fact received at the stated address by the individual whose signature appeared thereon. Rule 4Q2) states:\nBefore judgment by default may be had on service by registered or certified mail, the serving party shall file an affidavit with the court showing proof of such service . . . This affidavit together with the return receipt signed by the person who received the mail if not the addressee raises a presumption that the person who received the mail and signed the receipt. . . was a person of suitable age and discretion residing in the addressee\u2019s dwelling house or usual place of abode.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 4(j2)(2) (1990). Therefore, the certificate of service itself indicates sufficient compliance with Rule 4 to \u201craise a rebuttable presumption of valid service.\u201d In re Cox, 36 N.C. App. 582, 586, 244 S.E.2d 733, 736 (1978). At the hearing below, defendant made no attempt to rebut his presumed receipt of a copy of the complaint and summons on 12 November 1992. No testimony, affidavit or other evidence of record addressed this point. See Warzynski v. Empire Comfort Systems, 102 N.C. App. 222, 228, 401 S.E.2d 801, 805 (1991) (noting the presumption, Court observed co-defendant \u201chad offered no evidence to rebut\u201d it).\nFurther, our holding in In re Cox is instructive. Petitioner therein served respondent by registered mail. The return receipt indicated the mail was addressed to \u201cMr. Daniel James Cox, Sr., c/o Mrs. Valeri Mixon Tellegrini, Box 3904, 403 Allewood Drive, Charlotte, North Carolina\u201d and that it was received by Vallaree M. Pellegrinni. Cox, 36 N.C. App. at 583, 244 S.E.2d at 734. Respondent moved to dismiss based upon insufficiency of service. He contended that service \u201cwas not completed according to law for that the registry receipt attached to the Affidavit did not bear the signature of Daniel James Cox, Sr., the party upon whom service was sought to be served.\u201d Id. The trial court denied the motion.\nOn appeal to this Court we stated:\n[I]t is a reasonable inference from the return receipt that the summons and complaint were delivered to a person, Valeri Mixon Tellegrini, at an address where respondent apparently received correspondence, he being a transient person. Because of this relationship, we think it can further be reasonably inferred that Valeri Mixon Tellegrini received the summons and complaint on behalf of respondent. The fiction of agency, employed by the courts in accepting a receipt signed by another as proof of service by registered mail, is one \u201cassumed from the relationship between the addressee and the person signing rather than proved.\u201d\nId. at 585, 244 S.E.2d at 735 (quoting 49 N.C.L. Rev. 235, 255, n.101 (1971)).\nSimilarly in the case sub judice, the complaint and summons were directed to \u201cBenedict K. Hanyane, c/o Frances Hanyane,\u201d defendant\u2019s mother. While the signature on the return receipt beneath the designation \u201cSignature of the addressee\u201d is arguably somewhat illegible, it reads \u201cHBKanyane.\u201d The receipt thus at a minimum raises a reasonable inference that the summons and complaint were received on behalf of defendant by a person at an address where defendant could be reached. Such inference is supported by the absence of declination or rejection of service upon grounds that the individual to be served was not available at the designated premises. Moreover, the inference is reinforced by indications of defendant\u2019s transient status, his apparent attempts to avoid financial obligations in the United States and his return to South Africa.\nEven more significantly, plaintiff testified the signature on the return receipt was in fact that of defendant, another indication of valid service, see, e.g., House v. House, 22 N.C. App. 686, 687, 207 S.E.2d 339, 340 (1974) (where nonresident defendant signed return receipt, due process requirements of notice and opportunity to be heard fulfilled), and which testimony is corroborated by examination of the signature itself as well as its placement beneath the designation \u201cSignature of the addressee.\u201d\nAdditionally, the transcript of the default proceeding reveals that defendant\u2019s attorney acknowledged he \u201cwent over the complaint [received by counsel from plaintiff\u2019s attorney] piece by piece\u201d prior to accomplishment of service. Given that the purpose behind Rule 4 of the North Carolina Rules of Civil Procedure is notification to the party served of the litigation involved, Copley Triangle Assoc. v. Apparel America, Inc., 96 N.C. App. 263, 266, 385 S.E.2d 201, 203-04 (1989) (citation omitted), defendant may not be heard to complain of lack of knowledge of the pending suit.\nBased on the foregoing, therefore, defendant\u2019s argument regarding insufficiency of service fails.\nII.\nDefendant\u2019s second assignment of error states the trial court \u201cerred in basing its judgment on rumor and speculation from the [plaintiff\u2019s testimony on matters the [p]laintiff could not possibly have personal knowledge of.\u201d However, defendant cites no authority for this assertion in his brief, and we therefore deem defendant\u2019s second contention abandoned and decline to address it. N.C.R. App. P. 28(b)(5).\nIII.\nDefendant\u2019s remaining argument relates to an alleged irregularity regarding the second and third summons. Specifically, defendant maintains these summons were not officially filed until 24 June 1993, approximately four months following the last court action, and that therefore \u201c[i]t is plain that neither the Clerk nor the Judge could have examined the summons to see if it was properly issued prior to taking their official actions which require that the summons be examined.\u201d This argument is unpersuasive.\nThe trial court herein determined \u201cservice of process was had on the [defendant.\u201d We observe that \u201c[t]he rulings, orders and judgments of the trial judge are presumed to be correct, and the burden is on the appealing party to rebut the presumption of verity on appeal.\u201d Stone v. Stone, 96 N.C. App. 633, 634, 386 S.E.2d 602, 603 (1989), dismissal allowed and disc. review denied, 326 N.C. 805, 393 S.E.2d 906 (1990). Therefore, while acknowledging the record is silent as to whether the trial court examined the contested summons at the hearing, we are required, absent a showing to the contrary, to presume the trial court\u2019s determination was proper. Despite defendant\u2019s contention, it is equally likely the summons were examined by the court prior to its \u201cofficial action,\u201d but for some reason were not placed into the court file until later. Moreover, as noted hereinabove, the trial court had before it the Clerk\u2019s Certificate of Mailing of Service of Process and the attached return receipt indicating service at the time it reviewed this matter. In any event, defendant has made no showing to rebut the presumption of validity.\nFurther, a \u201csummons should not be found invalid simply because of technical mistakes . . . .\u201d Humphrey v. Sinnott, 84 N.C. App. 263, 267, 352 S.E.2d 443, 446 (1987). The summons were in all respects consistent with the North Carolina Rules of Civil Procedure and therefore contained no defect which would render process or service of process ineffective. The simple circumstance of the summons apparently being placed in the court file subsequent to entry of judgment by default is likewise insufficient to affect the validity of either the summons or the judgment itself.\nAffirmed.\nJudges JOHNSON and GREENE concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Gabriel Berry & Weston, by M. Douglas Berry, for plaintiff-appellee.", "Harris & lorio, by Douglas S. Harris, for defendant-appellant." ], "corrections": "", "head_matter": "CARL O. HOCKE, Plaintiff v. BENEDICT K. HANYANE, Defendant\nNo. 9318SC726\n(Filed 2 May 1995)\nProcess and Service \u00a7 74 (NCI4th)\u2014 summons addressed to defendant at mother\u2019s home in South Africa \u2014 sufficiency of service of process\nThe trial court did not err in entering default judgment against defendant under circumstances in which service of process was made to the address of defendant\u2019s mother in South Africa and hot to the address of defendant, since the return receipt indicated the complaint and summons were in fact received at the stated address by the individual whose signature appeared thereon; defendant made no attempt to rebut his presumed receipt of a copy of the complaint and summons; defendant\u2019s signature appeared on the return receipt; service was not declined or rejected on grounds that the individual to be served was not available at the designated premises; defendant was a transient and apparently attempted to avoid financial obligations in the United States by returning to South Africa; plaintiff testified that the signature was that of defendant; and defendant\u2019s attorney testified that he went over the complaint, received by him from plaintiff\u2019s attorney, \u201cpiece by piece\u201d prior to accomplishment of service.\nAm Jur 2d, Process \u00a7\u00a7 357 et seq.\nNecessity and sufficiency of service of process under due process clause of Federal Constitution\u2019s Fourteenth Amendment \u2014 Supreme Court cases. 100 L. Ed. 2d 1015.\nAppeal by defendant from judgment filed 22 February 1993 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 23 March 1994.\nGabriel Berry & Weston, by M. Douglas Berry, for plaintiff-appellee.\nHarris & lorio, by Douglas S. Harris, for defendant-appellant." }, "file_name": "0630-01", "first_page_order": 662, "last_page_order": 667 }