{ "id": 4078677, "name": "DOUGHERTY EQUIPMENT COMPANY, INC., Plaintiff v. M.C. PRECAST CONCRETE, INC., Defendant", "name_abbreviation": "Dougherty Equipment Co. v. M.C. Precast Concrete, Inc.", "decision_date": "2011-06-07", "docket_number": "No. COA10-646", "first_page": "509", "last_page": "515", "citations": [ { "type": "official", "cite": "212 N.C. App. 509" } ], "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": "425 S.E.2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "432", "parenthetical": "noting the presumption in Rule 4(j2)(2) is rebuttable" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525646 ], "year": 1993, "pin_cites": [ { "page": "771", "parenthetical": "noting the presumption in Rule 4(j2)(2) is rebuttable" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0767-01" ] }, { "cite": "684 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "469" } ], "opinion_index": 0 }, { "cite": "212 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1975, "pin_cites": [ { "page": "660" }, { "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551587 ], "year": 1975, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0131-01" ] }, { "cite": "26 U.S.C. \u00a7 7502", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 3, "pin_cites": [ { "page": "(f)(2)" }, { "page": "(f)(2)" }, { "page": "(f)(2)" } ], "opinion_index": 0 }, { "cite": "323 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526356 ], "year": 1984, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0155-01" ] }, { "cite": "599 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "589", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 575", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8999281 ], "year": 2004, "pin_cites": [ { "page": "580", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0575-01" ] } ], "analysis": { "cardinality": 611, "char_count": 14787, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.12981335977502936 }, "sha256": "8b447b4121468a045fb6a3ab957a9224e7cfbba94fbaa2b107d6c6e1542275e9", "simhash": "1:13f9ea765c7a9630", "word_count": 2431 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and BEASLEY concur." ], "parties": [ "DOUGHERTY EQUIPMENT COMPANY, INC., Plaintiff v. M.C. PRECAST CONCRETE, INC., Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nPlaintiff appeals from the trial court\u2019s order granting defendant\u2019s motion for relief from judgment and motion to dismiss due to improper service. As the trial court failed to consider whether service of process was proper under N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j2)(2), we reverse and remand.\nI. Background\nOn 25 May 2009, plaintiff filed a complaint against defendant for breach of contract based upon defendant\u2019s failure to pay plaintiff for equipment, goods, and services sold and provided to defendant on an open account. Plaintiff sought payment of $46,573.17, plus interest of 1.5% per month. The summons was directed to Raymond Duchaine, defendant\u2019s registered agent, and was served by FedEx Priority Overnight mail on 27 May 2009. Plaintiff filed an affidavit of service on 3 June 2009. On 21 July 2009, plaintiff filed a \u201cMOTION FOR ENTRY OF DEFAULT\u201d as defendant had failed to file an answer or respond to plaintiff\u2019s complaint. On 22 July 2009, the trial court entered default against defendant. Also on 22 July 2009, plaintiff filed a \u201cMOTION FOR ENTRY OF DEFAULT JUDGMENT!.]\u201d On 24 July 2009, the trial court entered judgment by default against defendant.\nOn 19 October 2009, defendant filed a \u201cMOTION FOR RELIEF FROM JUDGMENT & MOTION TO DISMISS[,]\u201d alleging that defendant was not properly served because Mr. Duchaine did not receive the summons and complaint. After a hearing upon defendant\u2019s motion, on 30 December 2009, the trial court found:\n1. On May 26, 2009, Plaintiff Dougherty Equipment Company, Inc. (\u201cPlaintiff\u2019) initiated this action by filing a Complaint against Defendant M.C. Precast Concrete, Inc. (\u201cDefendant\u201d) seeking a recovery of a certain sum allegedly owed from Defendant to Plaintiff.\n2. Also on May 26, 2009, a Summons was issued in this action addressed to:\nc/o Raymond Duchaine, Registered Agent\n520 Pristine Water Drive\nApex, NC 27502\n3. Defendant is a corporation organized and existing under the laws of North Carolina, with its principal office and place of business located at 520 Pristine Water Drive, Apex, NC 27502. Defendant\u2019s president and registered agent is Raymond Duchaine, and the address of Defendant\u2019s registered office is 520 Pristine Water Drive, Apex, NC 27502, as listed with the North Carolina Secretary of State.\n4. On May 26, 2009, Plaintiff\u2019s counsel deposited via Federal Express (FedEx) Priority Overnight service a service letter and a copy of the Summons and Complaint issued in this action, addressed to:\nRaymond Duchaine\nReg Agent for M.C. Precast Concrete\n520 PRISTINE WATER DR\nAPEX, NC 27539.\n5. On May 27, 2009, at 11:35 a.m., Defendant\u2019s employee Chad West signed for and received the FedEx package containing a copy of the Summons and Complaint.\n6. Mr. West apparently works at the front desk of Defendant\u2019s office located at 520 Pristine Water Drive in Apex, North Carolina.\n7. Mr. Duchaine also works in Defendant\u2019s office located at 520 Pristine Water Drive in Apex, North Carolina.\n8. On June 2, 2009, Plaintiff\u2019s counsel filed a sworn Affidavit of Service stating that she had deposited a service letter and a copy of the Summons and Complaint via Federal Express overnight service addressed to Defendant\u2019s registered agent; that the letter, Summons and Complaint were delivered to the registered agent; and that the Federal Express Confirmation form evidencing delivery on May 27, 2009 was attached to the Affidavit as Exhibit A.\n9. Attachment A to the Affidavit of Service is an electronic delivery receipt provided by FedEx indicating that the package containing the Summons and Complaint and addressed to Mr. Duchaine was delivered to the \u201cReceptionist/Front Desk\u201d and was signed for by \u201cC. West.\u201d\n11. Defendant\u2019s attorney filed a Notice of Appearance on or about August 7,2009. On or about October 16,2009, Defendant filed its Motion for Relief from Judgment and Motion to Dismiss, seeking, inter alia, relief [from] the Default Judgment on the grounds of invalid service and excusable neglect, and dismissal for insufficiency of process.\nThe trial court determined that plaintiff failed to properly serve defendant pursuant to North Carolina Rule of Civil Procedure 4(j)(6)(d), and accordingly concluded that \u201cthe Default Judgment entered in this action is void[.]\u201d The trial court therefore granted defendant\u2019s motion for relief from judgment and motion to dismiss. Plaintiff appeals.\nII. Service\nPlaintiff contends that the trial court erred in granting defendant\u2019s motion for relief from judgment because it erroneously concluded that defendant was not properly served. Plaintiff first notes that the trial court erred in failing to recognize the presumption that it had made proper service pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j2)(2). Defendant argues that pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 4Q)(6)(d), plaintiff was required to deliver the summons and complaint directly \u201cto the addressee[,]\u201d Mr. Duchaine, and because plaintiff failed to comply with the plain language of Rule 4(j)(6)(d), no further analysis is necessary.\n\u201cThe standard of review for a trial court\u2019s ruling on a Rule 60(b) [, \u201c[r]elief from judgment or order[,]\u201d] motion is abuse of discretion. Abuse of discretion exists when the challenged actions are manifestly unsupported by reason.\u201d Barnes v. Wells, 165 N.C. App. 575, 580, 599 S.E.2d 585, 589 (2004) (citation and quotation marks omitted). \u201cOn motion and upon such terms as are just, the court may relieve a party ... from a final... order... [when t]he judgment is void[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(4). \u201cIf ... an order is rendered without an essential element such as . . . proper service of process, it is void.\u201d County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 157, 323 S.E.2d 458, 461 (1984).\nRegarding service of process, Rule 4(j)(6)(d) provides that a domestic corporation may be served\n[b]y depositing with a designated delivery service authorized pursuant to 26 U.S.C. \u00a7 7502(f)(2) a copy of the summons and complaint, addressed to the officer, director, or agent to be served as specified in paragraphs a. and b., delivering to the addressee, and obtaining a delivery receipt.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 4(j)(6)(d) (2009). Furthermore,\n[b]efore judgment by default may be had on service by registered or certified mail, signature confirmation, or by a designated delivery service authorized pursuant to 26 U.S.C. \u00a7 7502(f)(2) with delivery receipt, the serving party shall file an affidavit with the court showing proof of such service in accordance with the requirements of G.S. l-75.10(a)(4), 1-75.10(a)(5), or l-75.10(a)(6), as appropriate. This affidavit together with the return receipt, copy of the proof of delivery provided by the United States Postal Service, or delivery receipt, signed by the person who received the mail or delivery if not the addressee 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 process or 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) (2009) (emphasis added).\nDefendant argues that the summons can be served only on the named \u201caddressee\u201d because Rule 4(j)(6)(d) provides that service should be \u201cdeliver[ed] to the addressee.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j)(6)(d). Thus, defendant contends that service was not proper as the summons and complaint was not delivered to Mr. Duchaine, as the \u201caddressee[,]\u201d but was instead delivered to Mr. West. However, defendant\u2019s argument fails to consider Rule 4(j2)(2). Rule 4(j)(6)(d) must be construed in the context of the other provisions of Rule 4. See Duggins v. North Carolina State Bd. of Exam\u2019rs, 25 N.C. App. 131, 135, 212 S.E.2d 657, 660 (1975). \u201cOur courts have consistently held that statutes dealing with the same subject matter must be construed in pari materia, and harmonized, if possible, to give effect to each[,]\u201d Id. (citation, quotation marks, and brackets omitted).\nEach subsection of Rule 4 addresses a particular aspect of service of process: (a) issuance of a summons; (b) contents of a summons; (c) return of a summons; (d) extension of a summons; (e) discontinuance of a summons; (f) date of multiple summonses; (g) docketing a summons by the clerk; (h) when proper officer is not available for executing summons; (hi) when summons returns unexecuted; (i) amendment of a summons; (j) process of service to exercise personal jurisdiction upon various types of persons and legal entities, including subsection (6) as to corporations; (jl) service by publication; (j2) proof of service, including provisions as to: (1) personal service, (2) registered or certified mail, signature confirmation, or designated delivery service, and (3) publication; Q3) foreign service; (j4) when process or default judgment cannot be attacked; (j5) personal jurisdiction by acceptance of service; Q6) service not allowed by electronic mailing; and (k) process of service to exercise jurisdiction in rem or quasi in rem. See N.C. Gen. Stat. \u00a7 1A-1, Rule 4. Considered as a whole, Rule 4 includes comprehensive provisions for service of process, and the provisions of Rule 4(J2)(2) clearly apply to service made under any of the applicable provisions of Rule 4. See id. Accordingly, in considering whether service was proper under Rule 4(j)(6)(d), the trial court was required to consider the presumption described in Rule 4(j2)(2). See id.\nThe applicability of the Rule 4(j2)(2) presumption, see N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j2)(2), is demonstrated by the uncontested findings of fact as to the service of the summons and complaint, In re M.M., \u2014 N.C. App. \u2014, \u2014, 684 S.E.2d 463, 469 (2009):\n8. On June 2, 2009, Plaintiff\u2019s counsel filed a sworn Affidavit of Service stating that she had deposited a service letter and a copy of the Summons and Complaint via Federal Express overnight service addressed to Defendant\u2019s registered agent; that the letter, Summons and Complaint were delivered to the registered agent; and that the Federal Express Confirmation form evidencing delivery on May 27, 2009 was attached to the Affidavit as Exhibit A.\n9. Attachment A to the Affidavit of Service is an electronic delivery receipt provided by FedEx indicating that the package containing the Summons and Complaint and addressed to Mr. Duchaine was delivered to the \u201cReceptionist/Front Desk\u201d and was signed for by \u201cC. West.\u201d\nBased upon these findings of fact, a presumption that defendant was properly served arises under Rule 4Q2)(2). The \u201cdelivery receipt\u201d was \u201csigned by the person who received the mail or delivery[,]\u201d Mr. West; he was \u201cnot the addressee\u201d but the delivery receipt \u201craises 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.]\u201d See N.C. Gen. Stat. \u00a7 1A-1, Rule 4Q2)(2). This presumption of service is rebuttable. See id; see generally Taylor v. Brinkman, 108 N.C. App. 767, 771, 425 S.E.2d 429, 432 (1993) (noting the presumption in Rule 4(j2)(2) is rebuttable). But here the trial court concluded that \u201c[wjhether Mr. West was authorized to receive and sign for mail or FedEx packages on behalf of Mr. Duchaine and/or Defendant ... is irrelevant to this Court\u2019s inquiry under Rule 4(j)(6)(d)[.]\u201d This conclusion is in direct contravention with Rule 4(j2)(2) which when applied to these facts raises the presumption that Mr. West was \u201can agent of the addressee authorized by appointment or by law[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j2)(2).\nWhile defendant contends that Mr. West was neither actually nor impliedly authorized to receive service on behalf of defendant, these are disputed facts which the trial court should have considered rather than dismissing such facts as \u201cirrelevant!.]\u201d Plaintiff attempted to present evidence regarding Mr. West\u2019s authority, as plaintiff subpoenaed Mr. West to testify at the hearing, but Mr. West did not appear and defendant filed a motion to quash plaintiff\u2019s subpoena. Plaintiff also requested \u201ccontinuance of the hearing for the purpose of questioning Mr. West, through discovery or otherwise\u201d regarding his authority \u201cto receive and sign for mail or FedEx packages\u201d for Mr. Duchaine or defendant, but the trial court denied plaintiff\u2019s request for continuance because it determined that Mr. West\u2019s authority was \u201cirrelevant!.]\u201d In order to rebut the Rule 4(j2)(2) presumption, defendant would have to demonstrate that Mr. West was not \u201can agent of the addressee authorized by appointment or by law to be served or to accept service of process!.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 4Q2)(2). On remand, the trial court must consider the presumption of proper service raised by Rule 4(j2)(2), and this consideration would properly include evidence regarding Mr. West\u2019s authority, or lack thereof, to receive mail or FedEx packages on behalf of Mr. Duchaine or defendant. Because the trial court determined that evidence regarding Mr. West\u2019s authority was irrelevant, a new hearing will be necessary on defendant\u2019s motions for relief from judgment and to dismiss.\nIII. Conclusion\nAs the trial court abused its discretion by failing to consider the presumption of proper service pursuant to Rule 4(J2)(2), we reverse and remand for further proceedings consistent with this opinion. As we are reversing and remanding the order, we need not consider plaintiff\u2019s other arguments.\nREVERSED AND REMANDED.\nJudges BRYANT and BEASLEY concur.\n. There is no dispute that FedEx Priority Overnight mail is a \u201cdesignated delivery service authorized pursuant to 26 U.S.C. \u00a7 7502(f)(2) [.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 4(j)(6)(d).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Tuggle Duggins & Meschan, P.A., by Emma C. Merritt Baggett and J. Nathan Duggins III, for plaintiff-appellant.", "Vann & Sheridan LLP, by Cody R. Loughridge and James R. Vann, for defendant-appellee." ], "corrections": "", "head_matter": "DOUGHERTY EQUIPMENT COMPANY, INC., Plaintiff v. M.C. PRECAST CONCRETE, INC., Defendant\nNo. COA10-646\n(Filed 7 June 2011)\nProcess and Service\u2014 package left at front desk \u2014 rebuttable presumption of service\nThe trial court abused its discretion by granting defendant\u2019s motion for relief from a default judgment without considering the presumption of proper service provided by N.C.G.S. \u00a7 1A-1, Rule 4(j2)(2). Federal Express delivered a package containing the summons and complaint to the \u201cfront desk\u201d of the registered agent, and the delivery form was signed by someone other than the addressee.\nAppeal by plaintiff from order entered on or about 30 December 2009 by Judge Angela Foster in District Court, Guilford County. Heard in the Court of Appeals 16 November 2010.\nTuggle Duggins & Meschan, P.A., by Emma C. Merritt Baggett and J. Nathan Duggins III, for plaintiff-appellant.\nVann & Sheridan LLP, by Cody R. Loughridge and James R. Vann, for defendant-appellee." }, "file_name": "0509-01", "first_page_order": 519, "last_page_order": 525 }