{ "id": 11916536, "name": "WILLIAM CHARLES RYALS, Plaintiff-Appellant v. HALL-LANE MOVING AND STORAGE COMPANY, INC., RAYMOND JENSEN, HOLLY LEE WILLIAMS and FRANK MAHONEY, Defendants-Appellees", "name_abbreviation": "Ryals v. Hall-Lane Moving & Storage Co.", "decision_date": "1996-04-16", "docket_number": "No. COA95-546", "first_page": "242", "last_page": "248", "citations": [ { "type": "official", "cite": "122 N.C. App. 242" } ], "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": "243 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 81", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561055 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0081-01" ] }, { "cite": "250 F.2d 860", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 699538 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/f2d/250/0860-01" ] }, { "cite": "438 F.2d 423", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2206424 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/438/0423-01" ] }, { "cite": "237 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "298", "parenthetical": "holding that defendant had not waived the defense of insufficiency of service of process by taking plaintiff's deposition, after answer raised the jurisdictional defect" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 157", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547614 ], "year": 1977, "pin_cites": [ { "page": "159", "parenthetical": "holding that defendant had not waived the defense of insufficiency of service of process by taking plaintiff's deposition, after answer raised the jurisdictional defect" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0157-01" ] }, { "cite": "370 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 98", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524539 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0098-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.7", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 1-75.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1983, "opinion_index": 0 }, { "cite": "299 S.E.2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522364 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0545-01" ] }, { "cite": "291 S.E.2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 N.C. App. 305", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524016 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0305-01" ] }, { "cite": "254 S.E.2d 658", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "660" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548873 ], "year": 1979, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0273-01" ] }, { "cite": "316 S.E.2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "252-53" } ], "opinion_index": 0 }, { "cite": "311 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679227 ], "year": 1984, "pin_cites": [ { "page": "110-11" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0101-01" ] }, { "cite": "333 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "314 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694301 ], "year": 1985, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0284-01" ] }, { "cite": "447 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "815", "parenthetical": "quoting Harris v. Walden, 314 N.C. 284, 289, 333 S.E.2d 254, 257 (1985)" }, { "page": "815" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 263", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523406 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "269", "parenthetical": "quoting Harris v. Walden, 314 N.C. 284, 289, 333 S.E.2d 254, 257 (1985)" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0263-01" ] }, { "cite": "235 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561424 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0067-01" ] }, { "cite": "302 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705412, 4707654, 4705971, 4705464, 4708059 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0387-05", "/nc/308/0387-01", "/nc/308/0387-02", "/nc/308/0387-03", "/nc/308/0387-04" ] }, { "cite": "300 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 699", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523608 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0699-01" ] }, { "cite": "285 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567152, 8567041, 8567075, 8567112 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0597-04", "/nc/285/0597-01", "/nc/285/0597-02", "/nc/285/0597-03" ] }, { "cite": "202 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563199 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0555-01" ] } ], "analysis": { "cardinality": 706, "char_count": 13827, "ocr_confidence": 0.763, "pagerank": { "raw": 2.7497502150103273e-07, "percentile": 0.8326313619056555 }, "sha256": "09641f1d5e4479fb730c2602a9c5c4c5439298a44dd5c9efaf0b9f44ba366cca", "simhash": "1:97eb7020416f5836", "word_count": 2217 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, JOHN C. and McGEE concur." ], "parties": [ "WILLIAM CHARLES RYALS, Plaintiff-Appellant v. HALL-LANE MOVING AND STORAGE COMPANY, INC., RAYMOND JENSEN, HOLLY LEE WILLIAMS and FRANK MAHONEY, Defendants-Appellees" ], "opinions": [ { "text": "JOHNSON, Judge.\nOn 20 April 1991, at approximately 2:45 p.m., plaintiff William Charles Ryals was a passenger in a 1990 Dodge vehicle, which was being operated by his daughter, Jo Ann Ryals Moore. Ms. Moore was traveling in an easterly direction on Interstate 40 near Mebane, North Carolina, when her vehicle was struck by a vehicle driven by defendant Holly Lee Williams. The vehicle was owned by defendant Frank Mahoney.\nAs a result of this collision, plaintiff suffered severe and painful injuries. Plaintiff was transported to the University of North Carolina-Chapel Hill (UNC) Hospitals, where he received extensive treatment. Plaintiff has also received other medical attention as a result of these injuries.\nOn 14 March 1994, plaintiff instituted this civil action, requesting monetary damages from defendants Hall-Lane Moving and Storage Company, Inc., Raymond Jensen, Holly Lee Williams, and Frank Mahoney. Summons was returned by the Sheriff of Union County, indicating that both defendants Williams and- Mahoney had been properly served. However, on 20 April 1994, defendants Williams and Mahoney filed a document denominated \u201cMotions and Answer of Defendants, Williams and Mahoney,\u201d which denied any negligence on their behalf and asserted several defenses, including insufficiency of process, insufficiency of service of process, and lack of personal jurisdiction. No affidavits were filed in support of defendants Williams and Mahoney\u2019s Motions and Answer until 9 January 1995.\nSubsequently, defendants Williams and Mahoney undertook extensive discovery in regards to plaintiff, and defendants Hall-Lane Moving and Storage Company, Inc. and Raymond Jensen. Thereafter, this matter came on for hearing before Judge William A. Creech during the 20 January 1995 civil session of Wake County District Court. On 6 February 1995, an Order was entered, dismissing plaintiff\u2019s action against defendants Williams and Mahoney for lack of personal jurisdiction and insufficient service of process.\nPlaintiff gave Notice of Appeal to this Court on 14 February 1995 and, thereafter, properly perfected said appeal. Plaintiff raised seven Assignments of Error on appeal. However, plaintiff abandoned Assignments of Error 3 and 4 and their corresponding arguments in his brief. Thereafter, plaintiff\u2019s Motion to Withdraw Assignment of Error 6, and abandon Question Presented VI and the corresponding Argument VI was allowed by this Court. Thus, those Assignments of Error and their corresponding arguments will not be addressed herein.\nPlaintiff assigns as error the trial court\u2019s admission of the affidavits of Millicent Francis Lane, Kara Lane and Holly Lee Williams over his objections. First, plaintiff takes issue with the fact that these affiants were not in court and, therefore, not subject to cross-examination. We find plaintiff\u2019s argument, in this regard, to be unpersuasive.\nA party may assert the defenses of insufficiency of process and insufficiency of service of process in its responsive pleading or by motion. N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b) (1990). These defenses, \u201cwhether made in a pleading or by motion, . . . [are to] be heard and determined before trial on application of any party, unless the judge orders- that the hearing and determination thereof be deferred until the trial.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 12(d). And if it is determined that there was no valid service of process, the court acquires no jurisdiction over defendant. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138, reh\u2019g denied, 285 N.C. 597 (1974).\nAffidavits, and not oral testimony, are the preferred mode of testimony in pretrial motion and defense hearings. See Lowder v. All Star Mills. Inc., 60 N.C. App. 699, 300 S.E.2d 241, disc. review denied, 308 N.C. 387, 302 S.E.2d 250 (1983). Moreover, our Supreme Court has continued to allow the use of affidavits to prove non-service. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977).\nIn the instant case, the trial court scheduled a preliminary hearing to address defendants Williams and Mahoney\u2019s Rule 12(b) defenses which were contained in their Answer. Defendants Williams and Mahoney submitted three affidavits in support of their defenses\u2014 each of which showed that defendant Williams had never lived at 1701 Lake Lee Drive in Monroe; and that defendant Mahoney had lived at that address for approximately two years, until vacating the residence on or before 17 December 1993 and moving to 305 Bay Street in Monroe.\nPlaintiffs reference to authority which supports his argument against the use of the three affidavits is readily distinguishable from the instant case\u2014 notably, they all refer to the propriety of the use of affidavits at trial. In line with North Carolina case law, we find that there was no requirement that the three affiants be present in court to offer testimony. See Lowder, 60 N.C. App. 699, 300 S.E.2d 241.\nAs to plaintiffs contention that the three affidavits submitted by defendants Williams and Mahoney were untimely, and therefore, inadmissible, again, we cannot agree. Plaintiff is correct in noting that Rul\u00e9 6 of the North Carolina Rules of Civil Procedure provides that, \u201c[w]hen a motion is supported by affidavit, the affidavit shall be served with the motion.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 6(d). However, plaintiffs efforts to liken the Rule 12(b) defenses contained in defendants Williams and Mahoney\u2019s Answer to a motion are unpersuasive.\nSections (a) and (b) of Rule 7 of our Rules of Civil Procedure clearly delineate the difference between pleadings \u2014 an answer in this case, and motions. See N.C. Gen. Stat. \u00a7 1A-1, Rule 7(a), (b) (1990). It follows, therefore, that a 12(b) defense contained in an answer is not the same as a 12(b) defense raised in a motion. As such, affidavits filed in support of a 12(b) defense contained in an answer is not governed by the time constraints found in Rule 6(d). Affidavits .submitted by defendants Williams and Mahoney eleven days before the hearing on their Rule 12(b) defenses were, therefore, timely presented.\nPlaintiff also argues that the trial court erred in the findings of facts contained in its 6 February 1995 Order. Incorporating his previous arguments, plaintiff specifically contends that there was not adequate evidence to support the trial court\u2019s finding of fact that defendants Williams and Mahoney had not been properly served with his Complaint. As with plaintiffs above-mentioned arguments, we also find that this argument is without merit.\nWhen a party challenges the trial court\u2019s findings of fact, this Court\u2019s sole task upon review is to determine whether those findings are supported by competent evidence. Nationsbank of North Carolina v. Baines, 116 N.C. App. 263, 269, 447 S.E.2d 812, 815 (1994) (quoting Harris v. Walden, 314 N.C. 284, 289, 333 S.E.2d 254, 257 (1985)). Further, \u201cour appellate courts are bound by the trial courts\u2019 findings of fact where there is some evidence to support those findings, even though the evidence might sustain findings to the contrary.\u201d In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). Our Court stated in General Specialties Company, Inc. v. Nello L. Teer Company that the trial court \u201chas the duty to pass upon the credibility of the witnesses who testify. [The trial judge] decides what weight shall be given to the testimony and the reasonable inferences to be drawn therefrom. The appellate court cannot substitute itself for the trial court in this task.\u201d 41 N.C. App. 273, 275, 254 S.E.2d 658, 660 (1979), quoted in Nationsbank, 116 N.C. App. at 269, 447 S.E.2d at 815.\nIn the instant case, the trial court made numerous findings of fact in support of its conclusions of law: (1) that 1701 Lake Lee Drive, Monroe, North Carolina was neither defendant Williams\u2019 nor defendant Mahoney\u2019s dwelling house or usual place of abode; (2) that the only purported service of process on defendants Williams and Mahoney was when Corporal Francel left a copy of the Summons and Complaint with a minor at the 1701 Lake Lee Drive address on 22 March 1994; and (3) that, on 22 March 1994, defendants Mahoney and Williams resided at 305 Bay Street, Monroe, North Carolina.\nAlthough there may have been contrary evidence presented at the hearing on defendants\u2019 12(b) defenses which tended to show that the serving officer had reason to believe that valid service had been affected upon defendants Williams and Mahoney, we find abundant, competent evidence to support the trial court\u2019s findings of fact to the contrary. Consequently, these findings of fact will not be disturbed by this Court on appeal. Plaintiff\u2019s urgings to the converse must, therefore, fail.\nPlaintiff\u2019s final argument on appeal is that the trial court erred in the signing and entry of the 6 February 1995 Order, dismissing his Complaint against defendant Williams and Mahoney. Plaintiff\u2019s argument is based on a number of divergent lines of reasoning, but seems to be based on a theory of equitable estoppel. Essentially, plaintiff contends that defendants Williams and Mahoney should be estopped from contesting jurisdiction and service of process, because they filed and served an Answer and engaged in discovery. We cannot agree.\nIt is well-settled that process must be issued and served in the manner prescribed by statute, and failure to do so makes the service invalid, even though a defendant had actual notice of the lawsuit. Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982); Park v. Sleepy Creek Turkeys, 60 N.C. App. 545, 299 S.E.2d 670 (1983). Generally, without valid service, the court cannot exercise jurisdiction over a person. Sink, 284 N.C. 555, 202 S.E.2d 138; see N.C. Gen. Stat. \u00a7 1-75.6 (1983). However, a person may submit himself to the jurisdiction of the court, if he makes a general appearance, even if the court has not already obtained jurisdiction over defendant by serving him with process. N.C. Gen. Stat. \u00a7 1-75.7(1) (1983); M. G. Newell Co. v. Wyrick, 91 N.C. App. 98, 370 S.E.2d 431 (1988). A defendant, however, cannot submit himself to the jurisdiction of the court or waive the defense of lack of personal jurisdiction by filing an answer which contains the defense of lack of personal jurisdiction, see N.C. Gen. Stat. \u00a7 1A-1, Rule 12(h)(1) (requiring jurisdictional defenses to be raised in pre-answer motions or answers), and/or engaging in discovery, see Wiles v. Construction Co., 34 N.C. App. 157, 159, 237 S.E.2d 297, 298 (1977) (holding that defendant had not waived the defense of insufficiency of service of process by taking plaintiff\u2019s deposition, after answer raised the jurisdictional defect) (citing Neifeld v. Steinberg, 438 F.2d 423 (3rd Cir. 1971); Kerr v. Compagnie de Ultramar, 250 F.2d 860 (2nd Cir. 1958)), rev\u2019d on other grounds, 295 N.C. 81, 243 S.E.2d 756 (1978). When a defendant promptly alleges a jurisdictional defense as his initial step in an action, he fulfills his obligation to inform the court and his opponent of possible jurisdictional defects. In this instance, there is no deception upon the court or defendant\u2019s opponent, and therefore, there can be no prejudice to his opponent, for defendant has alerted the opponent and given him the opportunity to cure any jurisdictional defect from the outset.\nDefendants Williams and Mahoney, in the case sub judice, filed a timely Answer in which they promptly alerted plaintiff to the jurisdictional problems therein. In addition, defendants engaged in discovery. Plaintiff had ample opportunity to cure any jurisdictional defects and was not unfairly prejudiced by defendants\u2019 actions. Law nor equity permits such actions alone to be considered a general appearance within the provisos of section 1-75.7(1) of the General Statutes, thereby giving the court jurisdiction over defendants Williams and Mahoney without serving a summons upon them in the instant action. Thus, plaintiff\u2019s argument of waiver or equitable estop-pel must fail.\nIn light of the foregoing, the trial court\u2019s decision is affirmed.\nAffirmed.\nJudges MARTIN, JOHN C. and McGEE concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "E. Gregory Stott for plaintiff-appellant.", "Smith & Holmes, P.C., by Robert R Holmes, for defendants-appellees Williams and Mahoney." ], "corrections": "", "head_matter": "WILLIAM CHARLES RYALS, Plaintiff-Appellant v. HALL-LANE MOVING AND STORAGE COMPANY, INC., RAYMOND JENSEN, HOLLY LEE WILLIAMS and FRANK MAHONEY, Defendants-Appellees\nNo. COA95-546\n(Filed 16 April 1996)\n1. Process and Service \u00a7 195 (NCI4th)\u2014 motion to dismiss for insufficiency of process \u2014 three affidavits \u2014 presence of affi-ants not required \u2014 timeliness of affidavits\nThe trial court did not err in admitting three affidavits offered by defendants to support their Rule 12(b) defenses made in their answer as to insufficiency of process and service of process, since there was no requirement that the three affiants be present in court to offer testimony; the affidavits submitted eleven days before the hearing on their Rule 12(b) defenses were timely presented; and there was abundant, competent evidence to support the trial court\u2019s findings that defendants had not been properly served with the complaint.\nAm Jur 2d, Process \u00a7\u00a7 330 et seq.\n2. Appearance \u00a7 1 (NCI4th)\u2014 filing answer \u2014 engaging in discovery \u2014 no general appearance\nDefendants were not estopped from contesting jurisdiction and service of process because they filed and served an answer containing the defense of lack of personal jurisdiction and engaged in discovery since such actions alone are not considered a general appearance within the meaning of N.C.G.S. \u00a7 1-75.7(1) which would give the court jurisdiction over defendants without serving a summons upon them.\nAm Jur 2d, Appearance \u00a7\u00a7 1 et seq.\nAppeal by plaintiff from Order entered 6 February 1995 by Judge William A. Creech in Wake County Superior Court. Heard in the Court of Appeals 22 February 1996.\nE. Gregory Stott for plaintiff-appellant.\nSmith & Holmes, P.C., by Robert R Holmes, for defendants-appellees Williams and Mahoney." }, "file_name": "0242-01", "first_page_order": 278, "last_page_order": 284 }