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Stewart v. Shipley

Court of Appeals of North Carolina

March 5, 2019

TILLIE STEWART, Plaintiff,
v.
JAMES R. SHIPLEY, DPM, INSTRIDE MT. AIRY FOOT AND ANKLE SPECIALISTS, PLLC d/b/a MT. AIRY FOOT & ANKLE CENTER, and NORTHERN HOSPITAL DISTRICT OF SURRY COUNTY, Defendants.

          Heard in the Court of Appeals 29 January 2019.

          Appeal by plaintiff from order entered 19 December 2016 by Judge Eric C. Morgan in Surry County, No. 16 CVS 199 Superior Court.

          Pangia Law Group, by Amanda C. Dure and Joseph L. Anderson, for plaintiff-appellant.

          Nelson Mullins Riley & Scarborough, LLP, by G. Gray Wilson and Lorin J. Lapidus, for defendants-appellees.

          DAVIS, JUDGE.

         In this case, we consider the circumstances under which a defendant is estopped from asserting the defense of insufficiency of service of process. Plaintiff Tillie Stewart appeals from the trial court's dismissal of her complaint against defendants Dr. James R. Shipley and Instride Mt. Airy Foot and Ankle Specialists, PLLC (collectively the "Shipley Defendants"). In her appeal, she argues that principles of estoppel serve to bar the Shipley Defendants from asserting that they were not properly served with process in this lawsuit. After a thorough review of the record and applicable law, we affirm.

         Factual and Procedural Background

         On 19 November 2012, Stewart began treatment for plantar fasciitis pain in her left foot with Dr. Shipley at Mt. Airy Foot and Ankle Center in Mount Airy, North Carolina. After three months of treatment, Dr. Shipley recommended that Stewart undergo surgery on her left foot to alleviate her pain. The operation took place on 19 February 2013 at Northern Hospital of Surry County ("Northern"). Although Stewart had consented to surgery only on her left foot, Dr. Shipley first operated on her right foot and then repeated the procedure on her left foot. As a result, Stewart subsequently experienced significant pain in both feet.

         Stewart filed a complaint in Surry County Superior Court on 18 February 2016 alleging claims of medical malpractice and battery against Dr. Shipley, Instride Mt. Airy Foot and Ankle Specialists, PLLC ("Instride"), and Northern. Summonses for all of the defendants were issued that same day.

         On 29 February 2016, counsel for Stewart sent an email to Courtney Witt, a claims specialist for the Shipley Defendants' insurer, containing the complaint and summonses as attachments. In the email, Stewart's counsel inquired whether the Shipley Defendants would "accept service or if [Witt could] forward this to [the Shipley Defendants'] attorney." Witt responded that same day, stating that Stewart would "have to serve the insured" as the insurance company would "not be accepting service."

         The Shipley Defendants filed a motion for an extension of time in which to respond to Stewart's complaint on 9 March 2016, which stated that the complaint had been "allegedly served on or about February 19, 2016." On 10 March 2016, a private process server delivered a summons and complaint to the registered agent for Instride. Instride subsequently filed an amended motion for extension of time on 31 March 2016, which the trial court granted that same day. In this motion, Instride stated that Stewart's complaint was "allegedly served on or about March 10 2016." A private process server delivered a summons and complaint to Dr. Shipley on 7 April 2016.

         On 10 May 2016, the Shipley Defendants filed an answer asserting a number of defenses, including lack of personal jurisdiction and insufficiency of service of process pursuant to Rules 12(b)(2) and (5) of the North Carolina Rules of Civil Procedure. The Shipley Defendants also submitted affidavits from Kevin McDonald, the president of Instride, and Dr. Shipley. In their respective affidavits, McDonald and Dr. Shipley each stated that they had been handed a copy of the complaint with no accompanying summons by persons who did not identify their status or position.

         On 25 August 2016, the Shipley Defendants filed a motion to dismiss the claims against them for failure to state a claim upon which relief may be granted under Rule 12(b)(6), lack of personal jurisdiction based on Rule 12(b)(2), and insufficiency of service of process pursuant to Rule 12(b)(5). A hearing on the Shipley Defendants' motion was held before the Honorable Eric C. Morgan on 14 November 2016. On 19 December 2016, the trial court issued an order granting the motion to dismiss based on improper service. The court determined that Stewart "did not attempt to have [the Shipley Defendants] served by the sheriff, and that the clerk of Surry County has not appointed plaintiff's process ...


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