Civil Practice – Service of Process – Former Address – Wife’s Signature

Even though, at the address on defendant’s active driver’s license, defendant’s wife signed for the Federal Express delivery of plaintiff’s complaint and summons, since affidavits from defendant and his wife indicated that defendant had moved to the Philippines two years earlier and that his wife was not designated as his agent for acceptance of service of process, defendant rebutted the presumption of service.

We affirm the trial court’s order dismissing the complaint for insufficient service of process.

After an October 2013 accident, plaintiff filed suit against defendant and attempted to serve him on Sept. 6, 2016, at the address on his driver’s license, 6228 Bienville Drive, Pensacola, Florida. Plaintiff filed an affidavit detailing efforts to obtain defendant’s address and the information linking defendant to 6228 Bienville Drive. The affidavit said that defendant’s name was on the deed for the property, that he had an active voter registration in the county, that he was engaged in the business of renting property in Florida and had used the Escambia County court to obtain a landlord judgment, and that he had sold property in Florida in 2017.

Under N.C. R. Civ. P. 4, service may be effected by delivering process to the address of the party to be served, where it is received either by the party to be served or by a person of reasonable age and discretion. Delivery of a summons and complaint to a person at the residence of the party to be served who is 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’s house or usual place of abode.” Rule 4(j2)(2).

The burden is then on defendant to rebut this presumption by clear and unequivocal evidence that consists of more than a single contradictory affidavit or the contradictory testimony of one witness.

Here, the affidavits of both defendant and his wife stated that (1) defendant was never served with the summons and complaint, (2) defendant never received the summons and complaint, and (3) defendant has not lived at the 6228 Bienville Drive address since he moved to the Philippines in March 2014.

The trial court found that the wife was not designated as the agent to receive service of process for defendant and that defendant had not been a resident of 6228 Bienville Drive for more than two years. The trial court properly determined that the presumption of valid service established by the FedEx delivery was rebutted by the affidavits of more than one person showing unequivocally that proper service was not made upon the person of the defendant.

The trial court’s findings were supported by competent evidence from the affidavits of defendant and his wife. Those findings, in turn, support the trial court’s legal conclusion that the presumption of service was rebutted and the only attempt at service before the expiration of the statute of limitations was ineffective.

Affirmed.

Midgette v. Concepcion (Lawyers Weekly No. 012-086-18, 12 pp.) (Richard Dietz, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Malik Dixon for plaintiff; Ron Medlin Jr., for defendant. N.C. App. Unpub.