FRANKIE DELANO WASHINGTON and FRANKIE DELANO WASHINGTON, JR., Plaintiffs,
TRACEY CLINE, ANTHONY SMITH, WILLIAM BELL, JOHN PETER, ANDRE T. CALDWELL, MOSES IRVING, ANTHONY MARSH, EDWARD SARVIS, BEVERLY COUNCIL, STEVEN CHALMERS, PATRICK BAKER, THE CITY OF DURHAM, NC, and THE STATE OF NORTH CAROLINA, Defendants
Originally Heard in the Court of Appeals August 28, 2013.
Petition for Rehearing allowed 6 January 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Durham County. No. 11-CVS-5051.
Ekstrand & Ekstrand LLP, by Robert C. Ekstrand, for plaintiffs-appellants.
Wilson & Ratledge, PLLC, by Reginald B. Gillespie, Jr., and Office of the City Attorney, by Kimberly M. Rehberg, for defendant-appellant Patrick Baker and defendants-appellees the City of Durham, North Carolina, Edward Sarvis, Beverly Council, and Steven Chalmers.
Kennon Craver, PLLC, by Joel M. Craig and Henry W. Sappenfield, for defendants-appellees Anthony Smith, William " Doug" Bell, John Peter, Moses Irving, and Anthony Marsh.
HUNTER, Robert C., Judge. Judges GEER and McCULLOUGH concur.
Appeals by plaintiffs and defendant Patrick Baker
from orders entered 6 November 2012 by Judge W. Osmond Smith, III in Durham
County Superior Court.
HUNTER, Robert C., Judge.
Frankie Washington (" Washington" ) and Frankie Washington, Jr. (" Washington, Jr." ) (collectively " plaintiffs" ) and defendant Patrick Baker (" Baker" ) appeal from interlocutory orders entered by Judge W. Osmond Smith, III on 6 November 2012 in Durham County Superior Court. Plaintiffs appeal from orders granting nine of twelve defendants' motion to dismiss for insufficient service of process and denying plaintiffs' motion to amend the summons against defendant City of Durham (" the City" ). Baker appeals from orders denying his motion to dismiss for insufficient service of process and denying his motion to dismiss the action for failure of the summonses to contain the " title of the cause" as is required by North Carolina Rule of Civil Procedure 4(b).
On appeal, plaintiffs assert that: (1) the trial court erred by granting defendants-appellees' motion to dismiss for insufficient service of process because plaintiffs properly served those defendants via designated delivery service and defendants are estopped from asserting such defense, and (2) the trial court erred by denying plaintiffs' motion to amend the summons for the City because such amendment would not prejudice the City. Baker argues that: (1) the trial court erred by denying his motion to dismiss for insufficient service of process because plaintiffs failed to meet the statutory requirements for designated delivery service, and (2) the trial court erred by failing to dismiss the action because the summonses did not contain the " title of the cause" as is required by statute.
On 5 November 2013, this Court filed an opinion affirming the trial court's orders granting the City's motion to dismiss for insufficient service of process, denying Baker's motion to dismiss for insufficient service of process, denying plaintiffs' motion to amend the summons, and denying Baker's motion to dismiss for failure of the summonses to contain the " title of the cause." However, we reversed the trial court's order granting all other defendants-appellees' motion to dismiss for insufficient service of process. Upon reexamination, we maintain this disposition, but we modify the originally filed opinion. This opinion supersedes the previous opinion filed 5 November 2013.
Plaintiffs' claims against defendants arise out of the arrest, prosecution, conviction, and ultimate release of Washington that took place over a six-year period between 30 May 2002 and 22 September 2008. After a four-year, nine-month delay between arrest and trial, Washington was convicted of first-degree burglary, two counts of second-degree kidnapping, robbery with a dangerous weapon, attempted robbery with a dangerous weapon, assault and battery, and attempted first-degree sex offense. This Court vacated his convictions due to delays attributed to the State in violation of Washington's right to a speedy trial under the Sixth Amendment of the United States Constitution and Article I, Section 18 of the North Carolina Constitution. See State v. Washington, 192 N.C.App. 277, 665 S.E.2d 799 (2008). On 21 September 2011, Washington and Washington, Jr. filed a complaint and obtained civil summonses against defendants for, inter alia, violations of federal and state constitutional provisions, malicious prosecution, negligence, negligent and intentional infliction of emotional distress, conspiracy, and supervisory liability.
Plaintiffs attempted to serve process on defendants using FedEx, a designated delivery service. All defendants except Council were served between 23 and 27 September 2011; Council was served on 25 October 2011.
The packages containing summonses and copies of the complaint sent to the City and Baker contained the following directory paragraphs, respectively:
City of Durham
c/o Patrick Baker
101 City Hall Plaza
Durham NC 27701
Patrick Baker City Manager
City of Durham
101 City Hall Plaza
Durham NC 27701
At the time of service, Baker was the City Attorney, not the City Manager. Both packages were received by April Lally (" Lally" ), a receptionist and administrative assistant in the City Attorney's Office; Lally signed for the packages and later handed them to Baker. Baker later filed an affidavit with the trial court in which he admitted to receiving the summons and complaint against him.
Plaintiffs attempted to serve Chalmers at his home, but left the package containing the summons and complaint with Chalmers' visiting twelve-year-old grandson who was playing in the front yard. Chalmers' grandson went inside and gave Chalmers the package; Chalmers later filed an affidavit with the trial court admitting that he received the summons and complaint against him.
Plaintiff attempted to serve Council by delivering the package via FedEx to her home, but no one was there at the time of delivery. The driver left the package on the door step to the side door; Council later filed an affidavit with the trial court admitting that she received the summons and complaint against her later that evening when she returned home.
Plaintiff attempted to serve Bell, Irving, Marsh, Peter, Sarvis, and Smith by having a FedEx driver deliver their summonses and copies of the complaint to the City Police Department's loading dock. Bell and Irving were former employees of the City's Police Department at the time of delivery; Marsh, Peter, Sarvis, and Smith were then-current employees. The driver left the package with Brenda T. Burrell (" Burrell" ), an employee for the City's Police Department who is responsible for " receiving materials and supplies delivered to the Police Department for use in its operations." Each of these defendants filed an affidavit with the trial court admitting that he received the summons and complaint against him.
Plaintiffs filed with the trial court affidavits of service and receipts generated by the designated delivery service for each defendant. They also re-filed the defendants' affidavits in which they admitted to receiving the summonses and copies of the complaint against them as evidence of effective service of process.
On 11 January 2012, Cline and the State of North Carolina filed motions to dismiss for insufficient service of process, among other claims not relevant to this appeal. On 23 March 2012, all remaining defendants also filed a motion to dismiss for insufficient service of process. That same day plaintiffs filed a motion to amend the summons issued to the City to replace Baker with the then-current City Manager. On 6 November 2012 Judge Smith entered orders: (1) denying plaintiffs' motion to amend the summons; (2) denying motions to dismiss for insufficient service of process as to Baker, Cline, and the State of North Carolina ; and (3) granting motions to dismiss for insufficient ...