North Carolina Lawyers Weekly
Looking to duck a process server? Moving into a building manned by a concierge might be a good idea.
North Carolina’s law on service of process is rather murky when it comes to concierges and other building staff, such as doormen, signing for certified mail. The statute only states that service can be completed by “delivering to the addressee.”
That language proved to be troublesome for Mecklenburg County District Court Judge Christy T. Mann when she was asked in Hamilton v. Johnson to decide whether a defendant living in a controlled-access building in Texas had been properly served.
Someone at the building had initialed for the delivery of a summons and complaint for child custody and support. And while the plaintiff had asserted that the signee, who used the initials “KKPONI,” was a concierge, the person’s affiliation with the building and defendant was never clear to the court.
Considering whether the defendant had been served, Mann admitted that she struggled with the vague statutory language, saying that was “the only hitch in the get-along” and that she had gotten “hung up on” the requirement of delivering to the addressee.
While Mann concluded that the defendant had, in fact, been properly served and ordered him to pay child support during a hearing which he did not attend, she was reversed by a unanimous Court of Appeals.
In the court’s ruling, Judge Rick Elmore wrote that “it is unclear how KKPONI was employed in the building – if an employee at all. Thus, we cannot conclude that service on ‘KKPONI,’ an alleged concierge, satisfies [the law’s] requirement of ‘delivering to the addressee.’ ”
The court also reversed Mann’s ruling that North Carolina had jurisdiction over the Houston-based defendant. She’d cited testimony that the defendant’s child lives in the Tar Heel state, he visited the child on at least three occasions and had a local business account with a bank in Charlotte.
But the Court of Appeals determined that those connections were too flimsy to justify personal jurisdiction over the defendant. The plaintiff’s attorney, Yolanda M. Troutman in Charlotte, did not return messages seeking comment.
Christopher T. Hood, a Charlotte lawyer who represents the defendant, said he could not find any other case law that directly addressed whether a concierge could essentially act as a resident in signing for service of process.
“In my research, I found that you have a presumption of service provided in the rules of civil procedure for default judgments,” he said, “but you don’t have any sort of analogous provision giving rise to that same sort of presumption if someone signs for [a summons or complaint] on behalf of an intended recipient.”
While this case involved an out-of-state defendant, buildings with concierges and doormen are becoming more common in North Carolina, which has complicated the process of serving litigants, said family law attorney Lee S. Rosen of The Rosen Law Firm in Raleigh.
“As we’ve become more urban this has become a bigger and bigger problem,” he said. “I think the Court of Appeals probably made the right decision. Now, the legislature needs to begin allowing the law to evolve with the nature of residential construction.”
Rosen added that he often finds himself spending more time trying to serve residents, including those in gated communities, which sometimes will refuse to let sheriffs inside to deliver papers, than working on other more important aspects of a case.
“Service shouldn’t be such a time-consuming process, but it is. Now you’re spending all this time getting documents delivered to people,” he said. “We need the legislature to change the statute and give us some guidance.”
The 15-page decision is Hamilton v. Johnson (Lawyers Weekly No. 13-07-0768). The full text of the ruling can be found at nclawyersweekly.com.
OPINION BRIEF
Case name: Hamilton v. Johnson
Court: N.C. Court of Appeals
Judge: Rick Elmore with John C. Martin and Robert N. Hunter Jr. concurring
Attorney for plaintiff: Yolanda M. Troutman (Charlotte)
Attorneys for defendant: Christopher T. Hood and Gena G. Morris (Charlotte)
Issue: Was the service of process upon the defendant proper when an individual presumed to be a concierge and identified only by his or her initials signed for the delivery of the summons and complaint at defendant’s building?
Holding: No, because the court cannot conclude whether the defendant gave the concierge authority to accept service of process on his behalf.
Importance: The ruling addresses what appears to be an issue of first impression.
