in the Court of Appeals 29 January 2019.
by plaintiff from order entered 19 December 2016 by Judge
Eric C. Morgan in Surry County, No. 16 CVS 199 Superior
Law Group, by Amanda C. Dure and Joseph L. Anderson, for
Mullins Riley & Scarborough, LLP, by G. Gray Wilson and
Lorin J. Lapidus, for defendants-appellees.
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.
and Procedural Background
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.
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
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."
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.
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.
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