{ "id": 11797877, "name": "WILLIE T. GLOVER, Plaintiff v. ANNIE G. FARMER, RUTH FARMER, and CUYLER M. FARMER, Defendants", "name_abbreviation": "Glover v. Farmer", "decision_date": "1997-10-07", "docket_number": "No. COA96-1194", "first_page": "488", "last_page": "492", "citations": [ { "type": "official", "cite": "127 N.C. App. 488" } ], "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": "342 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "Rules of civil procedure should be construed liberally and practically" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523678 ], "year": 1986, "pin_cites": [ { "parenthetical": "Rules of civil procedure should be construed liberally and practically" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0330-01" ] }, { "cite": "430 F. Supp. 844", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3931237 ], "weight": 4, "year": 1977, "pin_cites": [ { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/f-supp/430/0844-01" ] }, { "cite": "241 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550601 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0558-01" ] }, { "cite": "331 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "76 N.C. App. 102", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526683 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/76/0102-01" ] }, { "cite": "58 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "359" } ], "opinion_index": 0 }, { "cite": "231 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631062 ], "year": 1950, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0556-01" ] }, { "cite": "202 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "143" } ], "opinion_index": 0 }, { "cite": "284 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563199 ], "year": 1974, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0555-01" ] }, { "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" ] } ], "analysis": { "cardinality": 511, "char_count": 9632, "ocr_confidence": 0.744, "pagerank": { "raw": 3.282740250007195e-07, "percentile": 0.8708527022231798 }, "sha256": "e61685bdce2744c31ab08f25e4f1214daf6c4f2eb8c242ceff64438660eaf013", "simhash": "1:bc86c0781e5654e7", "word_count": 1585 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge SMITH concur." ], "parties": [ "WILLIE T. GLOVER, Plaintiff v. ANNIE G. FARMER, RUTH FARMER, and CUYLER M. FARMER, Defendants" ], "opinions": [ { "text": "WALKER, Judge.\nPlaintiff filed a negligence action against defendants on 27 July 1994, seeking damages for injuries sustained as a result of an automobile accident which occurred on 14 December 1992. The summonses were returned indicating both defendants Annie G. Ruth Farmer and Cuyler M. Farmer (Note: Annie G. Farmer and Ruth Farmer are the same person) were served on 10 August 1994 \u201cby leaving a copy of the summons and complaint at the dwelling house or usual place of abode of the defendant named above with a person of suitable age and discretion then residing therein.\u201d The summonses further indicated the person with whom the copies were left was \u201cKimberly Zino, 2835 Tilghman Road, Wilson, N.C.\u201d Both summonses were served by Deputy Sheriff Louise Morton of the Wilson County Sheriff\u2019s Department.\nOn 10 October 1994, defendants filed an answer which, among other defenses, alleged insufficient service of process and lack of personal jurisdiction. However, no affidavits in support of this allegation were filed at that time. On 16 January 1996, the defendants filed a motion to dismiss along with the affidavits of defendant Annie Ruth Gardner Farmer and Kimberly Zino, daughter of the defendants.\nThese affidavits tended to show the following: both defendants lived at 2835 Tilghman Road, Wilson, North Carolina on 10 August 1994; defendants were away from home on said date; defendants\u2019 daughter, Kimberly Zino, was visiting with them for one week, but that she was a resident of South Carolina on 10 August 1994.\nIn response to the motion, plaintiff filed the affidavit of Deputy Sheriff Louise Morton. Deputy Morton stated that she went to 2835 Tilghman Road, Wilson, North Carolina on 10 August 1994 to serve the summonses and complaint on each of the defendants. As she approached the residence, she was met by Kimberly Zino who indicated to the deputy that she resided at 2835 Tilghman Road. Further, Deputy Morton stated that she would not have served the summonses on Ms. Zino had she been advised by Ms. Zino that she did not reside at the Tilghman Road residence.\nThe matter was heard on 19 February 1996 and the trial court granted defendants\u2019 motion to dismiss plaintiff\u2019s claim on the basis of insufficient service of process and lack of personal jurisdiction.\nThe issue on appeal is whether the trial court committed reversible error in dismissing plaintiff\u2019s claim for lack of personal jurisdiction over the defendants for insufficient service of process.\nIt is well established that a court may obtain personal jurisdiction over a defendant only by the issuance of summons and service of process by one of the statutorily specified methods. See Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982). Absent valid service of process, a court does not acquire personal jurisdiction over the defendant and the action must be dismissed. Sink v. Easter, 284 N.C. 555, 561, 202 S.E.2d 138, 143 (1974).\nN.C. Gen. Stat. \u00a7 1A-1, Rule 4 (j)(l)(a) (1996 Cum. Supp.) provides that a natural person my be served as follows:\nBy delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant\u2019s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein;. . . .\n(emphasis added.)\nDefendants argue that Ms. Zino was a resident of South Carolina and was only visiting her parents\u2019 home during the week of 10 August 1994. Therefore, Ms. Zino was not residing in the defendants\u2019 home and plaintiff\u2019s attempt at service of process by delivering the summonses and complaint to her was clearly insufficient to afford personal jurisdiction over defendants. Defendants further assert that it is irrelevant that Deputy Morton testified through her affidavit that she was informed by Ms. Zino that she was a resident of 2835 Tilghman Road.\nOn the other hand, plaintiff contends there is no evidence contradicting Deputy Morton\u2019s affidavit and that there was no practical manner in which Deputy Morton could have ascertained that Ms. Zino did not reside at the defendants\u2019 address other than inquiring of her, which the deputy did. Further, plaintiff contends that defendants should be estopped from asserting their objection to insufficiency of process and lack of personal jurisdiction as this case had proceeded with depositions, a mediation conference, and was scheduled for trial in the Wake County Superior Court on 25 September 1995. However, the trial was continued.\nOur Supreme Court, with Justice Ervin writing for the Court, in trying to determine where the defendant resided, stated:\nIt was well said by the late Justice Oliver Wendell Holmes that \u2018a word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used.\u2019 This aphorism finds abundant exemplification in the word \u2018residence,\u2019 which has many shades of meaning, ranging all the way from mere temporary presence to the most temporary abode. \u2018Residence\u2019 is sometimes synonymous with \u2018domicile.\u2019 But when these words are accurately and precisely used, they are not convertible terms. \u2018Residence\u2019 simply indicates a person\u2019s actual place of abode, whether permanent or temporary; \u2018domicile\u2019 denotes a person\u2019s permanent dwelling-place, to which, when absent, he has the intention of returning. Hence, a person may have his residence in one place, and his domicile in another, (citations omitted.)\nSheffield, et al. v. Walker, et al., 231 N.C. 556, 559, 58 S.E.2d 356, 359 (1950). See also, Davis v. Maryland Casualty Company, 76 N.C. App. 102, 331 S.E.2d 744 (1985); Burke v. Harrington, 35 N.C. App. 558, 241 S.E.2d 715 (1978). Thus, whether a person is a resident of a particular place is not determined by any given formula, but rather depends significantly on the facts and circumstances surrounding the particular issue.\nHere, Ms. Zino received copies of the summonses and complaint from Deputy Morton after she responded that she resided at 2835 Tilghman Road, her parents\u2019 address. Ms. Zino was in fact staying with her parents during this time.\nIn the case of M. Lowenstein & Sons, Inc. v. Austin, 430 F. Supp. 844 (S.D.N.Y. 1977), a United States Marshall served the summons and complaint on the defendant\u2019s 21-year-old daughter at the undisputed residence of the defendant in Myrtle Beach, South Carolina. Id. at 845. Defendant argued that service was insufficient because his daughter was at his residence visiting from school in Memphis, Tennessee, and thus, she was not a person \u201cthen residing\u201d at his residence. Id. The court rejected the defendant\u2019s reasoning and held that \u201cRule 4(d)(1) is broad enough to include a student returning home from college to stay at least overnight at her parents\u2019 residence\u201d and that personal jurisdiction was obtained over the defendant. Id.\nThe facts of our case are similar to those found in Lowenstein. Further, Rule 4(d)(1) of the Federal Rules of Civil Procedure (in pertinent part) contains the same language as does our Rule 4(j)(l)(a) at issue in the instant case. Thus, we conclude the requirement of Rule 4(j)(l)(a) that the summons and complaint be served on \u201csome person of suitable age and discretion then residing therein ...\u201d is broad enough to include an adult daughter staying with her parents during her visit that week. Therefore, the trial court erred in concluding that Ms. Zino did not reside in defendants\u2019 home within the meaning of N.C. Gen. Stat. \u00a7 1A-1, Rule 4 (j)(l)(a). See Bowers v. Billings, 80 N.C. App. 330, 342 S.E.2d 58 (1986) (Rules of civil procedure should be construed liberally and practically).\nFurther, Ms. Zino\u2019s response to Deputy Morton\u2019s inquiry that she resided at defendants\u2019 home is also an indication that Ms. Zino considered herself to be residing at her parents\u2019 home at this time.\nWe hold that service of process on each of the defendants complied with the requirements of Rule 4 (j)(l)(a) and the trial court erred in concluding otherwise. The order dismissing plaintiffs claim against both defendants is\nReversed.\nChief Judge ARNOLD and Judge SMITH concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Amos E. Link, Jr. for plaintiff-appellant.", "Bailey & Dixon, L.L.P., by Kenyann G. Brown, for defendant-appellees." ], "corrections": "", "head_matter": "WILLIE T. GLOVER, Plaintiff v. ANNIE G. FARMER, RUTH FARMER, and CUYLER M. FARMER, Defendants\nNo. COA96-1194\n(Filed 7 October 1997)\nProcess and Service \u00a7 107 (NCI4th)\u2014 service of process on visiting adult daughter \u2014 sufficient\nThe trial court erred in a negligence action arising from an automobile accident by concluding that service of process on defendants was insufficient where the deputy sheriff served defendants by giving the summons and complaint to their adult daughter, who was staying with them during a week-long visit. Whether a person is a resident of a particular place is not determined by any given formula, but rather depends significantly on the facts and circumstances surrounding the particular issue. The requirement of N.C.G.S. \u00a7 1A-1, Rule 4(j)(l)(a) that a summons and complaint be served on \u201csome person of suitable age and discretion then residing therein . . .\u2019\u2019is broad enough to include an adult daughter staying with her parents during her visit that week. Furthermore, upon inquiry by the deputy sheriff, defendants\u2019 daughter stated that she resided at her parents\u2019 home, thus indicating that she considered herself to be residing at her parents\u2019 home at that time.\nAppeal by plaintiff from orders entered 12 March and 2 April 1996 by Judge E. Lynn Johnson in Wake County Superior Court. Heard in the Court of Appeals 18 August 1997.\nAmos E. Link, Jr. for plaintiff-appellant.\nBailey & Dixon, L.L.P., by Kenyann G. Brown, for defendant-appellees." }, "file_name": "0488-01", "first_page_order": 524, "last_page_order": 528 }